© 2016 Concerned Citizens of Western Montana


Late yesterday, it came to our attention that there was a ruling in the Manley case.  Did this information come to us from the Flathead Joint Board?  Nope.  Instead it came through a newspaper article in the Daily Interlake.  It is notable that the article quoted a spokesperson for the AG’s office, and some excerpts from the Manley opinion, but it seems to have overlooked the plaintiffs, the Flathead Joint Board of Control, as though their comments mattered not to the story, to the newspaper staff, or the public.

What in the world is going on in Montana?

As of the writing of this post, we have not yet seen the decision, making it difficult to decipher what may or may not be accurate in the article.  We also know that the FJBC attorneys did not receive the ruling until late yesterday, so we also have not yet heard a statement from them concerning the decision.  For these reasons we are unable to provide you with any good analysis, however would like to share a few things we do know about this decision.

As the compact was written, the vote in the legislature was unconstitutional.  To that point, Judge Manley was quoted in the paper saying this:

This is not a close call,” Manley wrote. “The provision creates a new sovereign immunity for the state, and for its agents or employees. The conclusion is clear by resort to either facial interpretation or legislative history.

From this statement we know the following:

  • Technically when the vote is unconstitutional, the entire bill is void. However for some unknown reason, the article indicates that the judge seems to have attempted to show the state how to fix immunity language in the bill.  This leaves open the sickening possibility the courts could attempt to “legislate from the bench” to make those revisions.
  • In 2015, Tim Fox’s office seems to have misled legislators and Montana citizens when they came out with an opinion that no new immunity was granted in the compact. Regardless of their competence, intentions or motives, there is little doubt that it influenced the vote in the legislature by interpreting language in the compact in favor of a simple majority vote.
  • We’ve known for a long time that Legislative Services attorneys are biased as pro-compact.  Their failure to flag SB262 as requiring a 2/3 vote of legislators due to immunity language in the compact speaks volumes about the push to support the compact and to get it passed in the legislature.  What other illegal and unconstitutional aspects of the compact did they fail to flag for legislators?
  • Legislators who relied on the attorney general and legislative services opinions and voted for the compact failed to do their own due diligence.  Because of their oath of office, it is their responsibility to know what is constitutional or unconstitutional.  To rely on the opinion of others, gives deference to the biases and agendas that exist, rather than the constitution.
  • We know that the failure of attorneys for the state of Montana to recognize and acknowledge the immunity provisions allowed yet one more work around to and violation of the due process rights of the  citizens of Montana that vehemently opposed the compact. Instead of requiring a 2/3 vote, the goal simply was to pass the bill without amendments, using a simple majority vote in the legislature, hoping that the courts would deal with “problems in the bill” later.  It is impossible to understand why the legislature and the leadership of the state of Montana would allow that to happen.

With all of this, here are a few thoughts and questions to consider:

  • We are unclear at this time what “fixing” the bill means. Will it go back to the legislature for revisions or a 2/3 vote?  Will the courts “legislate from the bench” by illegally and unconstitutionally rewriting the bill to remove the offending language?
  • Did Judge Manley punt his decision up to what many see as a politically biased Montana Supreme court?
  • It also makes one question the timing of Tester’s bill S 3013 and the so called hearing that only proponents of the compact were notified about. One cannot help but wonder if the system so corrupt that Montana officials, the Tribe and the U.S.  possibly knew about the decision ahead of time?  Is this why Tester ignored the lawsuit and submitted his bill in the Senate?
  • How is it possible to unwind the problem by “fixing the bill” when the state clearly intended to grant immunity?

The simple truth is that the state’s aggressive support of SB262 decidedly placed its thumb on the scale in favor of  the US / CSKT on this water compact and threw Montana citizens under the bus.  In doing so, the state failed to protect the rights of its citizens under the Montana and U.S. Constitutions.

While citizens are led to believe there is protocol and a process to be followed,  the laws and the constitution have become little more than a façade that keeps us going through the motions of participating in a process that is so corrupt there is little if any chance of a fair and equitable outcome.

However, we must not forget that there are dozens of constitutional and legal issues with this compact.  This lawsuit only dealt with the legislative vote, not the compact itself.

We will update you with a copy of the decision as soon as it is made available.

UPDATE:  a PDF copy of the Manley decision can be found at this link.

UPDATE:  The Daily Interlake contacted us, taking offense to the implication that the decision was leaked to them.  They are right, there is no documented evidence that the decision was leaked.  We apologize for the confusion, and have removed that language from the post.  We continue to maintain that it is unfortunate that Montanans knew about the decision before the plaintiffs did, and that they were not contacted for comment in the article.