Judge rules Public Law 280 suit can go forward

The fate of Public Law 280 – the law enforcement agreement between the Confederated Salish and Kootenai Tribes, Lake County and the State of Montana that gives the county jurisdiction over felonies committed on the Flathead Reservation – remains in limbo.

As of press time Tuesday, Gov. Gianforte had not yet signed House Bill 479, which was passed by the Legislature last Tuesday, in the waning hours of the 2023 session.

Meanwhile, District Court Judge Amy Eddy weighed in Thursday on a lawsuit between Lake County and the State, dismissing two counts of the county’s case, but allowing it to seek a declaratory judgement.

At one juncture in the hearing, Judge Eddy said it was “just my poor dumb luck at 4:30 yesterday afternoon to see that it passed,” referring to House Bill 479, which has implications for the case before her.

Meanwhile, the county is closing in on May 26, the date it established in January to officially announce its declaration to withdraw from PL 280. After that, the governor would have six months to issue a proclamation, officially ending the county’s involvement in felony jurisdiction over tribal members.

However, if signed by the governor and agreed to by the county and Tribes, HB 479 would prohibit the county from withdrawing from the agreement for the next two years. At the same time, it creates a task force to evaluate “the current efficacy of Public Law 280 jurisdiction on the Flathead Indian Reservation, associated costs and the funding mechanisms for those costs.”

The advisory group would include representatives of the governor, the Tribes, the county commission, and the attorney general. They would be charged with issuing a report with recommendations to the governor and Legislature by July 1, 2024.

The bill also appropriates $2.5 million per year to the Department of Justice to offset law enforcement costs incurred by Lake County during the biennium, while noting “the state does not believe it has an obligation to fund law enforcement services in Lake County” – an argument that’s at the heart of the lawsuit currently before Judge Eddy.

There are, in short, enough moving pieces in this complex case to cause consternation in any courtroom.

In her 19-page judgement, issued just a day after hearing oral arguments, Judge Eddy sided with the state on two counts, and dismissed the county’s claims of an unfunded mandate and unjust enrichment, noting that both were subject to a statute of limitations. Her ruling limits the county’s ability to recover historic costs associated with administering Public Law 280.

However, she took the county’s side in allowing it to pursue a Declaratory Judgement, agreeing that the county has the standing to do so, in part because the Legislature created an unfunded mandate in 2021. That was the year it passed a law that “obligates and binds” the state to assume PL 280 jurisdiction on the reservation and to reimburse Lake County for carrying out those duties.

The Legislature appropriated $1, an amount the judge declared “patently absurd under the state’s own fiscal note, which predicted a $37.5 million annual cost” if the Department of Justice assumed those responsibilities.

The legislative remedy in 2021 is almost the opposite of the 2023 version, as it appears in HB 479. Two years ago, the Legislature declared that the state is obliged to reimburse the county for costs incurred under PL 280, but only allocated $1; this time around, the state claims no fiscal responsibility for the law enforcement agreement, but allocates $5 million over the biennium to help cover those costs.

The state had also argued that the need for a Declaratory Judgement would be moot once the county withdrew from Public Law 280, since it would no longer be incurring additional costs.

Judge Eddy wrote that since the governor has six months to issue a proclamation beyond May 26, “Clearly, Lake County’s claims are not moot.”

In the claim still standing, Lake County seeks “a declaration that the state is responsible for reimbursing Lake County for all costs incurred going forward in fulfillment of the State’s PL 280 obligations.”

The judge set a scheduling conference for 8:30 a.m. July 19 at the Flathead County Courthouse.