Irrigators to appeal compact ruling

by SAM WILSON 

the Daily Inter Lake

Following last month’s decision by a Lake County district judge that upheld most of the state-ratified water compact with the Confederated Salish and Kootenai Tribes, the group of irrigators challenging the water-rights agreement has decided to appeal to the Montana Supreme Court.

Bruce Fredrickson, an attorney representing the Flathead Joint Board of Control in its case against the state of Montana, confirmed Monday that the irrigators will appeal Lake County District Court Judge Jim Manley’s ruling.

Manley’s July 18 order found that the 2015 bill to ratify the compact contained language requiring a two-thirds vote by the Montana Legislature to pass, but he also ruled that a “severability clause” in the compact allowed that language to be voided while the rest of the law remains intact.

One of the most controversial bills taken up during last year’s legislative session, the water compact is an agreement among the state, tribes and federal government to quantify the tribes’ treaty-based water rights, both on and off the Flathead Indian Reservation.

The state’s ratification of the agreement passed both houses by a simple majority last year, despite the protests of some Republican legislators who believed that language in the bill required a two-thirds vote in both houses under the Montana Constitution.

In his decision, Manley stated that the provision creating a Unitary Management Board to enforce the compact did indeed grant a new immunity to the state, thereby requiring super-majorities in both houses under the state Constitution. However, he also ruled that language elsewhere in the compact allowed the rest of the compact to stand as state law while the immunity provision was voided as unconstitutional.

The Montana Attorney General’s Office (representing the defendants in the case) and the Confederated Salish and Kootenai Tribes indicated they were satisfied with Manley’s decision and did not intend to appeal.

Fredrickson declined to comment in detail on the case — no appeal has yet been filed — but did confirm that the appeal would ask the state Supreme Court to apply the two-thirds requirement to the entire compact, rather than only the provision voided by Manley’s decision.

In a March 18 brief submitted to District Court, Fredrickson argued that the severability clause does not apply to the compact as a whole. If the court were to find that part of the compact required a two-thirds vote, he argued, that standard would have to be applied to the law in its entirety.

Manley’s final judgment in the case was filed Friday, after which the parties have 60 days to file a notice to appeal the decision.

Full implementation of the water compact cannot take place until it is ratified by the all three parties to the agreement. Earlier this year, the compact was introduced in the U.S. Senate, where it awaits ratification at the federal level. The tribes must also ratify the compact before it becomes effective.