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Update on CSKT Compact Vote Case

Catherine Vandemoer, Ph.D.

This essay provides a brief overview of the status of legal case of the Flathead Joint Board of Control (FJBC) versus the State of Montana, and some ideas of what this could mean for Montanans. The case is not challenging the CSKT Compact, it is instead challenging whether the legislature needed a 2/3 vote in each house to pass it because of a clause in the compact where the state of Montana wants immunity from “costs, damages, and attorneys fees” as it implements the compact.

What is the Case About?

Why does Montana want immunity from costs, damages, and attorneys fees? In my opinion, it’s simple: the compact effectuates a taking of irrigation property rights in water. For the irrigation project, the compact calls for the appointment of a “Compact Implementation Technical Team (CITT)”, which implements the “adaptive management” plan for the federal irrigation project. The adaptive management plan is the Compact’s plan to transfer nearly 80% of the agricultural water use to instream flow. It essentially turns the Flathead Irrigation project into a water farm, where the landscape is dominated by bank full rushing streams for fish, if there are any bull trout redds left.

This transfer will occur without any environmental or economic studies, without the benefit of due process in the Montana General Stream Adjudication, and without consultation with the irrigation districts or their duly elected representative organization, the FJBC. Thus the property and regulatory takings will most certainly result in litigation sooner or later, with millions of dollars in claims, and in my view, Montana doesn’t want to have to pay for it.

As a general rule, Montana has no immunity from suit. But if it wants it for its decision-making in the CITT, Article II Section 19 of the Montana constitution requires that 2/3 of both houses in the legislature must agree. The FJBC lawsuit is strictly about this clause in the compact and the actual vote in the legislature.

Many people point out that it is “boiler plate” language used in every other Tribal compact, but that ignores two basic facts. First the CSKT Compact rejects the customary model of all compacts in Montana with Tribes and the United States. No other compact has given state constitutionally-delegated authority to manage state water resources for the benefit of its citizens to the United States/CSKT. Second, all of the other compacts negotiated in Montana passed with more than a 2/3 vote. Because this constitutional issue was not flagged in the legislature before does not mean its fine to not raise it now when it really matters. That constitutional review is the responsibility of the legislature’s Legislative Services Division, the Attorney General, and the legislators sponsoring the bill.

State Implementing Compact Anyway

Despite the existence of the FJBC’s lawsuit, the state is implementing portions of the compact anyway. The state announced it will form the CITT with its members on October 24. On what grounds is the state implementing anything inside a federal irrigation project when Congress has not approved the Compact?

The state is also implementing a “split” of the 1904 Milltown Dam water right on the Clark Fork River. The Compact splits the water right between the Blackfoot (58%) and Clark Fork (42%) Rivers as permanent instream flows. Under the Compact, the water right will be co-owned by the United States/CSKT and the MT Fish, Wildlife, and Parks. The state began implementing that water right on April 24, the day the Governor signed the bill, but did it go through its own process for transferring the place of use for a water right?

The only authority cited by the state for implementing the Milltown Dam water right and the CITT is that the compact (SB262) had passed the Montana legislature as indicated by DNRC in a June 2015 Water Policy Interim Committee meeting. Why would the state go ahead and implement the compact when the question of whether the compact did pass the legislature is in litigation?

In my opinion, the outcome of this case will rule that SB262, the Compact, is void or valid nothing in between. If it’s void, all the claims go to the Montana Water Court where they can be addressed using proper federal reserved rights and McCarran Amendment sideboards.

If it’s valid, the Compact becomes state law and undergoes the numerous and complex legal and constitutional challenges that naturally await the state and the federal government.

The CSKT Compact is a long way from being a ‘done deal’.   The full exposure of the damaging and far-reaching consequences of this compact will finally be unfolded for all to see without the proponent spin.

 

Catherine Vandemoer is the Chair of the Montana Land and Water Alliance and can be reached through www.westernmtwaterrights.wordpress.com

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