©2017 Concerned Citizens of Western Montana

A year since the ruling by Judge Manley, the final documents have been submitted to the MT Supreme Court just this month in the FJBC v. Montana case.  All of the documents that were submitted to the MT Supreme Court can be found here for the case FJBC v. State (Supreme Court Docket DA16-0516).  Recall that the simple question presented to the Court–

  • whether the legislature’s vote was constitutional


  • whether the severability clause in the UMO could be used to remove the section of the Compact which gave the state immunity from monetary damages.

The FJBC final brief used the substantive observations of Judge Manley regarding the UMO to show that the underlying unconstitutionality of the UMO and Water Management Board (WMB) cannot be cured by simply removing the state’s immunity from monetary damages, costs, and attorney’s fees.

This Board is a legal creature never apparently seen before.

The Unitary Management Ordinance and its Board is an entity that was created anew in the CSKT Compact. The creation of a new law was unnecessary according to Article 5 Section 12 of Montana’s Constitution:

Local and special legislation.The legislature shall not pass a special or local act when a general act is, or can be made, applicable.

The Montana Water Use Act is ‘legislatively applicable across the state‘, and perfectly sufficient to manage the existing state law-based water rights within the Flathead Reservation, as it has been on every other reservation and with every other compact within Montana.  The Tribes have always elected to create their own Tribal Water Code to manage their water rights, and the state and Tribes cooperate on permitting processes if they affect the Tribes’ federal reserved water rights or state law-based water rights.

But the CSKT Compact assumes that the Tribes own all the water both on and off reservation, which the state went along with willingly.  As part of that unauthorized cession of Montanan’s property and civil rights, the Compact’s  UMO, or Law of Administration, removes state law from the equation, abandoning local state citizens from the protection of the laws and constitution of the state of Montana.

As a new and untested creature, the UMO is fraught with flaws, uncertainties, unknowns, and does not appear to be well thought-out. The UMO immediately ran afoul of existing law and the MT Constitution because the state granted itself immunity from monetary damages for injury to its citizens’ property rights .  Noted again by Judge Manley:

The Board is comprised of state and tribal appointees, and their appointee. The governments contend both that it is not a subdivision of the sovereign state or tribal government, but is clothed with all or more of the immunity which either entity has. Each government denies responsibility for the Board, while the two governments create and effectively control the Board by holding the power to appoint and remove its members. This Board is a legal creature never apparently seen before…Whereas now a party could bring an action in state court for damages, or Montana Water Court for determination of water rights, the new statute: 1) would eliminate monetary lawsuits against the state, and the Board and its members and staff, for tortious or other unlawful conduct…An obvious problem with that is that federal courts do not appear to even have subject matter jurisdiction to entertain such cases under current law

Remember on the issue that was presented to the Court–the constitutionality of the legislature’s vote–the FJBC won hands down.

The Tribal intervention in the case brought in the UMO and attempted to shift the case to focus on the compact.  The Tribes asserted that the UMO “severability clause”  could be used to jettison the immunity provision in Compact itself, and the rest of the compact could go on.

And that is what is on appeal to the MT Supreme Court, whether the severability clause in the UMO applies (a) to the whole compact, and (b) whether it can be used to change a provision that is integral to the compact as a whole.  The Montana legislature had an opportunity to fix this and it didn’t. Therefore the state really must want immunity from monetary damages, costs, and attorney’s fees.  From the Manley decision:

Interestingly, at oral argument, the Tribes and State had different answers to the question of whether the Board could be sued in state court for damages. The State contended it could; the Tribes contended it could not. This illustrates the amorphous nature of the board. If it is not a subdivision of the Tribes, or a tribal member, it is hard to understand why it could not be sued in state court, like any other non-governmental entity, for tortious conduct of its members, agents and employees. On the other hand, if, as the State contends, state courts have jurisdiction over the Board, it is hard to   understand why this jurisdiction would not extend to monetary lawsuits.

This is a fatal contradiction inside the Compact and UMO.  It cannot be implemented without damage to someone, and the Judge correctly pointed out that neither the tribal nor state governments take responsibility for any damage from the water rights change they are foisting on local citizens with this compact.

If the state wants this immunity to protect itself from lawsuits for monetary damages resulting from the compact implementation it can do so only under Article II, Section 19 of the Montana Constitution–get the two-thirds vote fair and square as legislative rule changes don’t apply to the Constitution. Especially when the citizens know.

And, if the clause granting Montana immunity from monetary damages is removed, then get ready for the multi-million-dollar lawsuits punishing Montana for property damage. But state officials don’t care, right?  They just let the taxpayers pick up the tab for their failure to protect Montana property rights.

To secure ourselves from defeat lies in our own hands, but the opportunity of defeating the enemy is provided by the enemy himself.

Sun Tzu, The Art of War