Ruling may not affect water compact

By SAM WILSON

Daily Inter Lake

The Confederated Salish and Kootenai Tribes on Thursday joined Montana officials in endorsing a state judge’s decision Monday to uphold all but a portion of the tribal water compact, while the group of irrigators behind the lawsuit weighs the possibility of an appeal.

Jerry Laskody, a member of Flathead Joint Board of Control, has been a vocal critic of the controversial water rights agreement that became state law during the last legislative session.

In an interview Thursday, he expressed dissatisfaction with Lake County District Judge Jim Manley’s decision, which ruled partially in favor of the plaintiffs while allowing the rest of the controversial water rights agreement to remain in effect. Laskody indicated the rest of the law should have been thrown out.

“I find it a little bit odd from the standpoint of, the vote was unconstitutional, but somehow everything that happened after that was OK,” Laskody said. “How they could sever that from the compact and allow everything else in the compact to stand, I find a little bit strange.”

Bruce Frederickson, an attorney representing the joint board in the lawsuit, said he was still reviewing the decision and did not rule out the possibility of an appeal.

Monday’s decision came more than a year after the irrigation board filed suit against the state, alleging that the water rights agreement among the tribes, state and federal government was unconstitutional, having been passed by less than the two-thirds majority they alleged was required.

Manley sided in part with the irrigators, finding that one of the two provisions they were challenging had indeed created a new sovereign immunity for the state, which should have required passage by a super-majority of legislators in both houses.

However, the state judge sided with arguments filed by the state and the tribes that referred to language in the compact that severed any provisions found unconstitutional, voiding the immunity language while allowing the rest of the compact to stand.

Tribal spokesman Rob McDonald issued a statement indicating the tribes are unlikely to pursue a legal challenge to Manley’s partial ruling against the compact.

“Obviously, we will need to take an in-depth look at the order and applicable law to determine whether any further action is warranted, but we do not anticipate any at this time,” McDonald wrote in an emailed statement. “Nothing in this ruling appears to impede the Compact, its ratification by the Tribes and the United States, or its ultimate implementation.”

The bill ratifying the water compact at the state level was signed into law last April, after a trajectory through the Legislature marked by intense debate and procedural wrangling. It still awaits ratification by the federal government and the tribes.

A spokesman for Attorney General Tim Fox said in a Thursday email that the state is still reviewing Manley’s decision, but hailed it as a legal victory for the state.

“The ruling is a significant victory because Judge Manley largely agreed with Montana that the Legislature’s passage of the compact was constitutional,” Fox spokesman John Barnes said. “While he ruled that a very minor portion was passed in an unconstitutional manner, he agreed with Montana that said portion can fall away without impacting the overall compact.”

Before it passed the Legislature, the water compact’s supporters successfully blocked numerous attempts to amend the bill, arguing that any change after the three-party settlement had been negotiated would require the state, tribes and federal government to return to the bargaining table.

In his email, Barnes stated that although a portion of the compact has been struck from the statute, the change is unlikely to impact the ongoing ratification process.

“Legislative amendments would have forced the compact back to the negotiation process because the parties would have had to agree to those amendments,” he wrote. “To my knowledge, none of the three parties will object to the stricken immunity provision being removed from the compact, so practically speaking, Judge Manley’s ruling as it stands now has no impact on the compact. Again, his decision could be modified by the Montana Supreme Court if appealed.”

If Manley’s decision is appealed, it would next head to the Montana Supreme Court.

Reporter Sam Wilson can be reached at 758-4407 or by email at swilson@dailyinterlake.com.