HELENA – Montana’s attorney general and governor Wednesday said a lawsuit attempting to block the signing of the bill ratifying the Flathead tribal water rights compact is without merit, and should be dismissed.
A spokesman for Gov. Steve Bullock also said the suit filed Monday by the Flathead Joint Board of Control, which represents irrigators on the Flathead Indian Reservation, is “directly contrary to the interests of project irrigators.”
“(The governor) fully expects the compact to be promptly delivered to him for signing,” said Dave Parker.
Senate Bill 262 has been passed by the Legislature and is en route to the governor’s desk, for his signature. It ratifies a negotiated compact that defines the water rights of the Confederate Salish and Kootenai Tribes in western Montana.
Parker said the compact will bring “serious benefits to the irrigators of the Flathead Indian Irrigation Project,” including a $30 million fund to improve the project’s pumping system.
The Flathead Joint Board of Control, which opposes the compact, sued the state, the Legislature, Attorney General Tim Fox and Bullock on Monday, saying the compact didn’t get a constitutionally required two-thirds vote in the House or Senate.
The suit asked District Judge James Manley of Polson to block Bullock from signing the bill, and saying irrigators will be “irreparably harmed” if the compact is implemented.
State Solicitor Dale Schowengerdt, representing the attorney general, said in court documents Wednesday that the lawsuit’s requests are “patently frivolous” and should be dismissed.
“Plaintiffs’ claim that the (water rights) compact will be implemented immediately and that they will suffer immediate irreparable harm as a result is simply wrong, and they surely know it,” Schowengerdt wrote.
Other supporters of the compact also called the lawsuit a misguided, last-ditch effort to halt the bill that ratifies the compact.
“This is a desperation thing,” said John Youngberg, executive vice president of the Montana Farm Bureau. “They’ve lost in the Legislature and they’re going to try anything they can.”
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The compact, before it takes effect, also must be approved by Congress and the tribes.
The Flathead Joint Board of Control says the compact will give the tribes too much authority over water use on the Flathead Indian Reservation.
The board, which is controlled by compact opponents, represents irrigators served by the Flathead Indian Irrigation Project. Some irrigators on the reservation support it.
The board’s lawsuit says SB262 grants the state immunity from suit, in connection with the compact, and that the state Constitution says immunity can’t be granted without the approval of a two-thirds majority in each house.
The state Senate approved SB262 on a 31-19 vote in February and the House approved the measure last week 53-47. Both votes fall short of a two-thirds majority.
Sen. Chas Vincent, R-Libby, the sponsor of SB262, said the compact doesn’t grant any improper immunity, but predicted the lawsuit would be dismissed on other grounds “before the court even addresses what they consider to be the merits of their case.”
Schowengerdt said there is no need to block signing or implementation of SB262, because it won’t cause any immediate harm to the irrigators.
Congress and the tribes must also approve the water compact, and that action “will likely take years,” he wrote.
Once the compact is enacted, anyone objecting to its provisions or effects will still “get his or her day in court,” Schowengerdt said, and that’s when their claims should be decided, rather than now.
“Plaintiffs cite no authority supporting their novel argument that they can simply enjoin the governor from signing a law simply because some opponents of the law believe it to be unconstitutional,” he wrote.