©2015 Montana Land and Water Alliance
This is the first of a five-part series describing the Constitutional consequences of the Montana legislature allegedly¹ ratifying the CSKT Compact. The Attorney General improperly but successfully dodged the violation of Article IX of the Montana Constitution so directly pointed out to him in November of 2014.
Since the Montana constitution operates like an integrated guide to good government in Montana, violation of one portion of the constitution seems to violate others. In that sense there are built-in ‘checks and balances’ in the constitution itself to prevent any one branch of government from running away with property rights in Montana.
The five major areas of the Montana Constitution violated by the Compact, particularly the creation of the Unitary Management Ordinance and the Unitary Management Board, include:
Article V (the Legislature), Section (12) —passing a special or local act when a general act can be made applicable;
Article VII (the Judiciary), Sections (4) and (2)–removing the process of state district court as a remedy for citizens within the Flathead Reservation
Article VII (the Judiciary) Section (2)4–removing the process of the state Supreme Court as a venue for remedy for citizens within the Flathead Reservation
Article IX (Environment and Natural Resources) Section (3)4–removing the state from administering and owning the water resources of the state
Article III (General Government) Section 1–prohibits one branch of government from exercising the power of another
The following is a reprint of a portion of a memorandum prepared by MLWA attorney Richard Simms to the members of the Montana House prior to the April 11 hearing, and included as materials delivered to the House Judiciary Committee at the hearing by the MLWA.
Ratification of the Compact Would Violate Art. V (The Legislature), § 12 of the Montana Constitution.
Article V (The Legislature), § 12 of the Montana Constitution mandates that “[t]he legislature shall not pass a special or local act when a general act is, or can be made, applicable.” A local law “is one which operates over a particular locality instead of over the whole territory of the state.” Black’s Law Dictionary. A special law is “[o]ne relating to particular persons or things; one made for individual cases or for particular places or districts; one operating upon a selected class rather than upon the public generally.” The Montana Water Use Act is legislatively applicable over the entire territory of the state. Ratification of the Compact would make Unitary Administration and Management Ordinance a law of the State of Montana, thus being a legislative enactment of local law vitiating the applicability of the Montana Water Use Act within the Flathead Indian Reservation.
Article 1-1-101(4) of the Unitary Administration and Management Ordinance states:
Upon the effective Date of the Compact, this Ordinance shall govern all water rights, whether derived from tribal, state or federal law, and shall control all aspects of water use, including all permitting of new uses, changes of existing uses, enforcement of water right calls and all aspects of enforcement within the exterior boundaries of the Flathead Indian reservation. Any provision of Title 85, MCA, that is inconsistent with this Law of Administration is not applicable within the Reservation
While the existing Montana Water Use Act comports with Article V, § 12 of the Montana Constitution, ratification of the Compact by the legislature would enact the Unitary Administration and Management Ordinance as a law of the State of Montana limiting its application to the Flathead Indian Reservation.
Rejection of significant portions of Title 85 raises important concerns regarding the ability of irrigation districts–organized under Title 85–to manage their operations, and the exemption of the Tribes from key portions of state statute raise significant concern about exemptions from environmental regulations.
The Unitary Management Ordinance is a local law that also violates the equal protection provisions of the U.S. and Montana constitutions. Even the Montana Supreme Court might have a problem with that.
This could be count one of a possible recall election for those republicans (and democrats) who voted for the CSKT Compact in direct violation of their oath of office to uphold the Montana Constitution.
¹ The CSKT compact did not receive the 2/3 vote and the issue is in litigation. A scheduling conference will be held on June 17.