Note:  Our sincerest thanks to the Western Ag Reporter for kindly publishing this letter in their paper.

by Catherine Vandemoer, Ph.D.

The final oral arguments in the legal case challenging the constitutionality of the legislature’s vote on the CSKT Compact (SB 262) were held on March 18 in Polson before Montana’s 20th District Court.  While we await a decision, what comes to mind are the circumstances and events that brought about the 64th Legislature’s vote on SB 262 and this litigation.

Having been defeated in 2013, virtually the same CSKT Compact was submitted to the 2015 legislature. Factually, and despite the  alleged “deals” reached  between the Governor  and Attorney General announced in December 2014, the 2015 Compact was essentially the same as the 2013 Compact.   In fact,  when the Governor “reopened limited negotiations” in June of 2013, the CSKT at that time announced that “not one drop of water would change in any renegotiation”.  The then Compact Commission Chairman, Chris Tweeten, was asked by a budget committee in 2013 what would happen if negotiations were extended or continued on the CSKT Compact.  He replied, honestly, “nothing”. So how much Montana taxpayer money was spent not changing the Compact between 2013 and 2015?

Of course, compact proponents including legislators and the Montana executive tried mightily to convince Montanans that the Compact had really changed from 2013 and that everyone worked so hard on it and made “so many concessions”. We believe that the  compact negotiators and  proponents agreed to sing only one tune together, that the compact was just fine, and agreed among themselves to resist all changes to it, even in the legislative process where required normal discourse allows for modifications of any bill.  And that resistance to change or amendment is why Montana finds itself in court today in the District Court in Lake County.

Three Words

During the course of the House debate on SB 262, eleven amendments were offered by republicans that would have addressed the substantive issues raised by the public. One of those amendments involved the very clause that is the subject of the lawsuit against the state—the immunity clause.  In a nutshell, the clause of concern seemed to create a separate immunity for the State of Montana that exempted Montana from paying any costs, damages, or attorney’s fees resulting from its actions implementing the CSKT Compact.

Article II Section 18 of the Montana Constitution prescribes that generally, Montana has no immunity from suit, but if it wants to grant itself immunity, a 2/3 vote in each house of the legislature has to agree. Neither the Senate nor the House achieved that margin.  In the House, several key republicans chose to override the Speaker and Rules Committee’s findings that because of the immunity provision in the Compact, a 2/3 vote was needed.  Let us be crystal clear here:  several prominent republican legislators chose to deliberately ignore Montana’s constitution.

In a lengthy discussion on this clause on the House floor, a solution was proposed that would have removed “or the state” from the immunity clause, which would have solved the “immunity issue” for the state and thus permitted the House to pass the Compact by a simple majority.

But because of the “deal” made to not change one thing in the Compact, Representative Steve Fitzpatrick led the way to reject all eleven amendments on the House floor.

In quite a dramatic moment in the court hearing on March 18, the judge asked the plaintiff’s attorneys a question:

“Are you telling me that if those three words had been removed from the Compact, this lawsuit would not have been filed?”

The answer by the plaintiff’s attorneys was of course “yes, this suit would not have been filed”.

The 2015 Montana legislature had the noble intent of trying to settle the CSKT water rights claims through the CSKT Compact. But in having that intent, the legislature deliberately ignored the negative impacts to Montana citizens.  In addition to the legislative intent to settle the Tribes’ water claims, was the legislative intent also to exempt Montana from paying potentially billions of dollars in known damages to its own citizens in western Montana resulting from this compact?

If this compact survives its first legal challenge, there will be many more lawsuits to follow. Unfortunately our state has put its citizens in the position of having to fight the state to protect their own property interests. In my opinion, this travesty to Montana requires a change at the ballot box to root out those who would fail to protect the citizenry.

Catherine Vandemoer is the Chair of the Montana Land and Water Alliance and can be contacted through the website