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Judge rules on legislature’s vote regarding water compact

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LAKE COUNTY – District Judge James Manley ruled the Confederated Salish and Kootenai Tribes Montana Water Compact to be unconstitutional concerning a certain section regarding immunity.

The Flathead Joint Board of Control brought the lawsuit against the State of Montana.

“We value our constitution,” FJBC Chair Tim Orr said. “The state wrote it to protect the people.”

The majority of FJBC members assert that the Montana legislature passed the compact without a two-thirds vote required by the Montana Constitution for the state to receive immunity from lawsuits.

Manley outlined the events leading up to the legislative vote to pass SB 262 in his ruling. He said Republican House Speaker Austin Knudsen asserted that the vote required a two-thirds majority.

On April 15, 2015, the house committee upheld the speaker’s ruling. The house voted to overrule the speaker’s findings with a 53-48 vote. The house then voted 53-47 to pass the compact on April 16, 2015.

The compact continued through the levels of government. Montana Senator Jon Tester introduced the compact into the senate earlier this year.

Judge Manley ruled on Monday, July 18, that the compact does violate the Constitution concerning immunity from lawsuits. He noted that the compact needed a two-thirds vote in each house of legislation to pass.

He also stated that the unconstitutional immunity provisions could be removed without voiding the entire statute.

Manley said the ultimate determination of the water rights is in the jurisdiction of the Montana Water Court.

“This case is unlikely to resolve the larger controversy,” he said.

FJBC Chair Tim Orr said the unconstitutional ruling was a step in the right direction. The board currently plans to meet on Tuesday, Aug. 9, at 1 p.m. to discuss the compact and the ruling.

CSKT Communications Director Rob McDonald said the tribe is content with Judge Manley’s decision, although they plan to do an in-depth reading of the ruling to determine if any further action is required.

“We do not anticipate any at this time,” he said. “Nothing in this ruling appears to impede the compact, its ratification by the Tribes and the United States, or its ultimate implementation.”

Senator Tester is currently working to negotiate the bill, now called Senate Bill 3013, in Washington, D.C.

“I’m pleased this decision upholds the structure and intent of the CSKT Water Compact,” Tester said in a statement. “The Tribes, landowners, and local officials have worked for over a decade to strike a deal that upholds treaty obligations, protects existing water rights, and saves money, and this ruling doesn’t change that. The bipartisan coalition will continue to move forward to ratify this critical water compact.”

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