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State Still Implementing CSKT Compact as Judge Denies Motion to Dismiss

Catherine Vandemoer, Ph.D.

As reported in earlier WAG articles, two provisions of the CSKT Compact are being implemented by the state of Montana despite on-going litigation on the constitutional validity of the legislature’s 2015 vote on the Compact (SB262). These two provisions are (1) the formation of a compact implementation technical team (CITT) inside a federal irrigation project to begin the transfer of irrigation water to instream flow as early as the 2016 irrigation season, and (2) implementing a “split” in the 1905 Milltown Dam water right between the Clark Fork and Blackfoot Rivers.

The legal case challenging the compact vote is the Flathead Joint Board of Control versus the State of Montana (FJBC v. State) and it is in Montana’s 20th Judicial District Court in Lake County.   On December 2, the Court dismissed the State’s motion to dismiss the case. The case will continue well into 2016, making the CSKT Compact ineligible for consideration in the lame duck session of Congress and ripe for further litigation.

In my opinion, that the state continues to implement provisions of the Compact even while it is in litigation shows a lack of respect for the concerns of the public and the rule of law. Unfortunately it is “par for the course” for the state’s Compact Commission which in the last three years ignored the concerns of Montanans when it had the opportunity to address them.

But more importantly, even if the compact was valid now and implementable, why is the state not completing the required environmental or economic studies of its actions? How can the state proceed inside a federal irrigation project when Congress has not approved the Compact and when the federal government itself is required to undertake environmental and economic studies when it changes the water use inside a federal irrigation project? In the case of off-reservation “water rights” such as the Milltown Dam right, why has the state not completed the “change in purpose and place of use” procedure required by Montana Code?

Does the state believe that the CSKT Compact is a “complete law”, replacing Montana law even off reservation? The implementation of the Milltown Dam water right certainly indicates so. Were the state’s representations to citizens that its laws would apply off reservation, that environmental studies would be done, and that no one in the federal irrigation project would have water rights taken meaningless?