The Montana Supreme Court Wednesday ruled the long-debated Confederated Salish and Kootenai Tribes water compact was constitutionally sound.
Negotiated over decades, the water compact’s focus is to define the federally reserved water rights of the CSKT. In 2015, the Montana Legislature approved the compact, but that decision was legally challenged by the board that oversees irrigation on the Flathead Reservation.
In its lawsuit, the Flathead Joint Board of Control said the Legislature’s decision to approve the compact was flawed because it granted new immunity from lawsuits and other damages to the state without the two-thirds vote that’s required by the state constitution.
While a district court agreed in 2016 with the board that the Legislature’s decision to grant a new immunity was unconstitutional without the two-thirds vote, it said that wasn’t enough to require that the entire compact be scrapped.
The Board of Control appealed the district court’s decision to the Montana Supreme Court.
In a ruling released Wednesday, the Montana Supreme Court found that the Legislature had not created any new immunity for the state or any other governmental entity and therefore the two-thirds vote did not apply.
In an opinion written by Chief Justice Mike McGrath, the court reversed the district court’s decision that suggested even a portion of the compact was unconstitutional.
Under the terms of the compact, the CSKT, state and federal government agreed the water rights of the CSKT would be settled though agreement rather than litigation. The compact seeks to “secure to all residents of the Reservation, the quiet enjoyment of the use of waters of the Reservation” and provide a “unitary administration system” for appropriation of water and water rights.
The compact won’t go into effect until approved by the U.S. Congress and the Tribal Council.
CSKT spokesman Rob McDonald said the tribes were “completely satisfied” with the Montana Supreme Court decision.
“This court ruling is a testament to the hard work of the parties in negotiating a fair and robust framework for water use on the Flathead Reservation and the State of Montana,” McDonald said. “We were very pleased that the court agreed with the majority of the Montana Legislature, the governor, the attorney general and CSKT leadership that the bipartisan water compact was indeed consistent with Montana’s Constitution.
“Not only did the court uphold the compact, it specifically recognized the expensive, protracted and uncertain litigation the compact avoids,” McDonald said. “Undoubtedly, the court recognized the significant concessions made by the tribes to achieve settlement. We look forward to working with Montana leaders, farmers, ranchers and other water users to obtain swift ratification by Congress.”
A grassroots organization of farmers, ranchers and business people called Farmer and Ranchers of Montana that includes members in the Flathead basin also offered support for the decision.
“The decision of the Montana Supreme Court to uphold the constitutionality of the compact speaks to the thorough and thoughtful construction of this critical agreement,” said the group’s spokesperson, Shelby DeMars. “After more than a decade of negotiations, the resulting settlement will protect existing water rights, prevent years of costly litigation and invest in critical infrastructure in our state.”
Demars said the decision respected the intent of the Legislature and ensured that Montanans, both on and off the reservation, will benefit from the compact’s provisions.
Flathead Board of Control officials said they could not comment on the decision until the board has an opportunity to discuss the issue. The board meets Tuesday at its office in St. Ignatius. The court decision will be on the agenda.