Our thanks to the Western Ag Reporter for placing this article on the front cover of this week’s paper.

Catherine Vandemoer, Ph.D.

With all the money spent, arm twisting, mistruths, threats, letters, and advertising campaign for the CSKT Compact, the least you would expect from the compact proponents is to make sure the bill actually passed. But did it?

A recently filed lawsuit from those who will be most impacted by the Compact asserts that the actual vote in both the Senate and House violated Article II, Section 18 of the Montana constitution, and asks the court to void the vote on SB 262.

The Immunity Issue

The lawsuit is narrowly-tailored and focused simply on whether the 64th Montana legislature followed the Montana Constitution regarding the compact vote, which requires that any bill which limits the State’s immunity from suit must be agreed to by a 2/3 vote of both Houses. It is not about the Compact itself.

Article II, Section 18 of the Montana Constitution prohibits the state from limiting its own immunity from suit, unless the legislature, by 2/3 vote of each house, agrees:

Section 18. State subject to suit. The state, counties, cities, towns and all other local governmental entities shall have no immunity from suit for injury to a person or property, except as may be specifically provided by law by a 2/3 vote of each house of the legislature.

The limit to the state’s immunity from suit occurs on pages 46 and 76 of the Compact bill SB 262. Those provisions provide a limited waiver of the State being subject to suit for the actions, decisions, or enforcement of the newly created Unitary Management Board, its employees and appointees. The first limit on the state’s waiver of immunity is found on page 46 of the Compact bill:

Waiver of Immunity. The Tribes and the State hereby waive their respective immunities from suit, including any defense the State shall have under the Eleventh Amendment of the Constitution of the United States…except that such waivers of sovereign immunities by the Tribe or state shall not extend any action for monetary damages, costs, or attorneys fees.

Let’s be clear about what this clause in the compact means. Using the vehicle of a federal reserved water rights settlement with an Indian tribe, the Compact Commission/ State of Montana knowingly and without due process of law transferred the bare legal title of irrigators’ water rights to the CSKT. The CSKT Compact goes further than all other compacts in Montana and allows a politically appointed, federal/tribally-controlled water board to implement that transfer and not be subject to suit for costs, damages or attorneys fees to those whose property it confiscates or inversely condemns in this Compact.

The CSKT compact bill has in its title, “…providing for an immediate effective date”, so the immunity issue is ripe for resolution and acutely relevant to the landowners within the Federal Irrigation Project and other irrigators on private lands within the reservation boundaries.

What Were the Vote Tallies from the Senate and House?

So the simple question is, did either the House or Senate achieve the 2/3 vote required by the Constitution in the “Waiver of Immunity” clause of the Compact? And the simple answer is, “no”, neither the Senate nor House achieved the 2/3 vote required for the state to limit its liability from suit. The Senate approved the compact by 31-19 in February.

After intense and heated discussion, the House vote for the compact was 53-47. Speaker Knudsen ruled that a 2/3 vote was required by the Montana house because of the Montana Constitution, the House Rules Committee upheld the Speakers ruling, but a simple majority of the House— led by the democrats and 11 republicans– voted to override the Speaker’s ruling, Wasn’t swearing an oath of office to uphold the Montana Constitution a condition of membership in the legislature?

Representative Jeff Essmann (R-Billings) attempted to remedy the compact flaw by simply removing the words “or the state” from the waiver of immunity clause. On the surface, this amendment may have seemed to “fix” the problem, but also may have inadvertently conveyed some validity to a simple majority passage in the context of troubling sudden rule change issues and concerns during the 2015 session.  This amendment would also have inadvertently made the state, e.g., taxpayers, liable for the property taking and transfer enabled in the Compact throughout western Montana. Incredibly, the Essmann amendment was rejected, along with eleven other amendments that would have protected Montana and Montanans on and off the Flathead Reservation.

The record itself reveals that under the test of the Montana Constitution, the CSKT Compact actually failed in the 64th legislative session. See House video archives for House Rules Committee meeting of April 14, and 4/ 15-16 Floor Sessions at this link.

The lawsuit was filed by members of the Flathead Joint Board of Control in Lake County before a state district judge, who has yet to rule on any aspect of the case as of this writing. The lawsuit simply asks the court to determine, based on the record in House floor sessions and committee meetings and language in the Compact, whether the vote on the compact bill is void because it did not meet the 2/3 requirement mandated by Montana’s constitution.

The defendants include the Montana 64th legislature, two local republican representatives, one of whom voted to override the Speaker’s ruling. Defendants also include the Attorney General, and Governor Bullock who signed the Compact on April 24 despite the pending lawsuit. However, the signature would be irrelevant if the vote that put any bill on his desk was unconstitutional. The Attorney General called the lawsuit “patently frivolous”, saying that Article II Section 18 of the Montana Constitution “has been drained of all meaning”.  Statesmen or vampires?

The AG has moved to change the venue to Helena, away from those that the Compact would most immediately impact and where the complaint was filed.

The next test of course is the judiciary.

Legislating in Montana?

The CSKT Compact violates all the rules involving the resolution of federal reserved water rights and sets dangerous practical precedent in Montana and across the west for the transfer of ownership of state water to the federal government. Instead of being “creative thinking outside the box”—the Compact actually breaks the box, and the rules!

What certainty is there in this compact, or any bill, that requires, but didn’t meet, a 2/3 vote of each House? The CSKT Compact is void.

Catherine Vandemoer is Chair, Montana Land and Water Alliance, Polson, MT,. and  can be reached through www.westernmtwaterrights.wordpress.com