©2017 Montana Land and Water Alliance


   Catherine Vandemoer, Ph.D., Chair

The MLWA expresses its dismay at the tortured political opinion delivered by the Montana Supreme Court in the case FJBC v. Montana.  Ultimately, we believe the Court failed to address the core issue: the constitutionality of the legislature’s 2015 vote on SB 262, the CSKT Compact under Article II Section 18 of the Montana Constitution. The MT Supreme Court avoided ruling on the constitutional issue presented in the case by ruling the MT constitution doesn’t apply to the CSKT compact, a bill passed in the state legislature.

Stunningly, the court ruled contrary to and despite the lower court’s proceedings and decision, which found that the compact had clearly granted the state immunity from costs, damages, and attorney’s fees for takings and damages that occurred during the administration of the compact under this new administrative law.

Further, the lower court had described the compact’s new water administrative system, to which the  state’s immunity was linked,  as a never-been-tried quasi-sovereign administrative system that would ultimately have jurisdiction over 28,000 Montana citizens. The lower court noted that in this new water administration system, no government entity involved—the state, CSKT, or federal government—would take responsibility for actions that could damage water rights, infrastructure, and property while implementing the compact. Indeed, in the lower court proceedings the state and tribes disagreed as to whether the new water administration entity or members could be sued in state court.

The nature of this new administrative system and board, and its immunity from costs, damages and attorneys fees, is at the heart of determining who is responsible for damages to the water users when implementing this compact. And it is why the immunity provision is relevant.  Obtusely, the court said in a footnote on page 9 of the decision that

“We need not consider whether the Board [new management system] itself is a state, tribal or federal entity because the only immunity provided is to “members” of the Board”

Not only is this statement legally and factually incorrect, the Court clearly referred to state public employees already having immunity to then claim the legislature’s vote was constitutional.  The court flatly ignored the issue.

The Court’s opinion and closed-door deliberations in a matter of acute public importance demonstrates that the Court had already made up its mind about the case and then tailored its “findings” to the desired outcome. The Court could not tolerate a public discussion of the embarrassing unconstitutional provisions of and contradictions in the existing compact and come to its desired conclusion at the same time.

In ruling the way it did, the Court defeated the purpose and protections of Article II Section 18 of the Montana Constitution.  The Court decision essentially agreed with Attorney General Fox that this constitutional provision “has been drained of all significance”.  What other portions of the state constitution will the state “drain of all significance” to achieve its policy objectives?

Let us be clear: this is not a victory for the still fatally-flawed CSKT compact or for Montana. Nor is the compact now “constitutional”.  And litigation on the compact is not over but can now earnestly begin, especially on the known constitutional violations underlying the provisions of the compact itself.