Montana Supreme Court upholds CSKT Compact

by Dr. Ed Berry

They lost – as I said they would – when the Montana Supreme Court heard their case.

Montana’s right-wing “tea party” Republicans fought the Water Compact every step of the way. They claimed it was “unconstitutional.” They claimed it would give Montana’s water to the Indians. They claimed it was unfair.

In Montana’s legislature, they came within one vote of stopping the Water Compact. Had they succeeded, they would have done irreparable economic and social harm to Montana. They would have forced Montanans to pay for a generation of the most costly legal bills in Montana’s history.

Fortunately, mainstream Republicans and Democrats wisely backed the Compact.

I wrote in my book, “Montana’s Last Indian Water Compact,” that Compact opponents had no case. I said their “unconstitutional” claim would not pass the Montana Supreme Court. Read my book to understand why the opponents were wrong logically, politically, and legally.

I am as “conservative” as they are, but I don’t go over their right-wing radical cliff.

The Montana Supreme Court has ruled the Compact is constitutional.

Now, it is time for Montana’s US Senator Steve Daines and Congressman Greg Gianforte to do what is best for Montana and support Montana’s Last Indian Water Compact.

Here is a copy of today’s article in the Daily Inter Lake.

Montana high court upholds compact


Daily Inter Lake

A complex, controversial water compact between the state and the Confederated Salish and Kootenai Tribes has been upheld by the Montana Supreme Court.

The Flathead Joint Board of Control, a St. Ignatius-based irrigation board, sued the state over its agreement with the tribes – in particular, that the way certain waivers of legal immunity had been approved violated Montana’s Constitution.

The Lake County District Court had previously sided with the Board, but on Wednesday, the Montana Supreme Court reversed that decision.

Tribal attorney John Carter praised the ruling as a win for this long-developing pact.

“It upheld the efforts of the state, the tribes, and the United States to negotiate a really complicated body of law rather than litigate it for the next untold number of years.”

The compact – a negotiated agreement between Montana, the federal government, and the tribes quantifying and formalizing the latter’s water use – has drawn no shortage of controversy.

As the Daily Inter Lake reported last year, the state’s hearings on ratification received fierce criticism, largely out of concern for how non-tribal irrigators would be impacted.

And after state Senate Bill 262, ratifying the agreement, passed in April 2015, the Flathead Joint Board of Control filed suit.

Their case focused on two sections of the water compact. In one, the tribes and state waived their immunities from suit, except in actions that sought financial damages or legal costs. The other section stated that members of the state-tribal board overseeing the compact would be immune from suits related to their work.

In the plaintiffs’ view, this violated the Montana Constitution, which states that state and local government entities

“shall have no immunity from suit for injury to a person or property, except as may be specifically provided by law by a vote of each house of the Legislature.”

While Lake County District Court accepted that argument, Chief Justice Mike McGrath did not.

“The new immunities provided there apply only to designated individuals – ‘Members of the Board, the Engineer, and designee, and Water Commissioners…and any Staff,’” he wrote in his opinion.

“The provision on its face does not provide any new immunity to the State of Montana or to any other governmental entity,” he ruled, reversing the District Court’s decision.

The Joint Board of Control’s attorneys could not be reached for comment. Carter said the decision “speaks for itself pretty clearly.”

However, the compact remains a long way from full force.

“The compact still has to be approved by Congress, the tribes and the water court before it can be fully implemented,” Carter explained.

To that end, he thinks the recent Supreme Court decision could be helpful. U.S. Sen. Jon Tester, D-Mont., has introduced a bill to ratify the compact at the federal level.

But U.S. Sen. Steve Daines, R-Mont., and Rep. Greg Gianforte, R-Mont., haven’t yet taken a stance on the bill.

“I think that a Supreme Court opinion would give them some peace in their concerns,” Carter said.

2 thoughts on “Montana Supreme Court upholds CSKT Compact”

  1. I read your [book], and agree with the ideas. Water Law, in the western USA, is so complex that only California has been able to overawe its neighbours, to grab a huge share of the Colorado's flow.


    Here, in Alberta, Treaty #7's wording does (imho) see the river bottoms as belonging to the Blackfoot, within the boundaries of their Reserve. Now, I am just a retired Seismic Surveyor, who has had the fun of leading a disbeliever thru the parts of the Treaty which speak to building of bridges, and of other in river structures, such as things for navigation.

  2. Your investigation and analysis of the CSKT compact has been invaluable to many of us. Hope everyone is taking advantage of your book, "Montana's Last Indian Water Compact".

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