Broadwater County Attorney Cory Swanson

Broadwater County Attorney Cory Swanson, who helped Attorney General Tim Fox’s office negotiate the Flathead tribal water rights compact, tells the House Judiciary Committee Saturday how water rights would be enforced on the Flathead Indian Reservation both with and without the compact. Hundreds of people showed up to testify before the panel on the bill to ratify the compact.

HELENA – A board of irrigators on the Flathead Indian Reservation has sued the Montana Legislature and top state officials, asking a district judge to block Gov. Steve Bullock from signing the bill ratifying the Flathead water rights compact.

The Flathead Joint Board of Control and several of its members filed suit in state District Court in Polson on Monday, just six days after the Montana House voted 53-47 to approve the water compact bill and forward it to Bullock for his signature.

However, Bullock has yet to officially receive the bill or sign it.

The suit says the water compact with the Confederated Salish and Kootenai Tribes gives the state immunity from suit, and therefore requires approval from at least two-thirds of the House and Senate.

Senate Bill 262, which ratifies the compact for the state, did not get a two-thirds approval in either the House or Senate, and therefore is unconstitutional, the lawsuit said.

“The court should properly interpret and apply (the state constitution) and declare that a two-thirds vote of each legislative house was required to legally pass SB262 into law and further declare that SB262 did not pass by the required two-thirds vote, thereby rendering it dead,” the lawsuit said.

The suit asked District Judge Jim Manley to issue a restraining order blocking the governor from signing the bill and setting a hearing at which the state and the Legislature must appear and attempt to explain why they haven’t violated the constitution.

It also asked Manley to permanently block any implementation of the tribal water compact, because the immunity from suit wasn’t approved by two-thirds of each house of the Legislature.

Both the governor’s office and the attorney general’s office said Tuesday evening that they had only just received the lawsuit and were reviewing it.

The suit names Attorney General Tim Fox as a defendant, as well as the Legislature, the state and Bullock.

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The lawsuit is the latest twist in the politically charged issue of the water compact, one of most contentious fights at the 2015 Legislature.

The compact quantifies and settles the water rights of the Confederated Salish and Kootenai Tribes, which have been negotiating those rights with the state for more than a decade.

Among other things, the compact gives the tribes rights to the water flowing into the Flathead Indian Irrigation Project, which serves nearly 130,000 acres.

The Flathead Joint Board of Control represents irrigators served by the project, although not all of the irrigators are opposed to the compact. The board is controlled by water compact opponents.

Critics of the compact say it gives too much authority to the tribes over water use on the Flathead Indian Reservation.

The compact must be ratified by the Legislature, the tribes and Congress. The state Senate approved SB262 in February on a 31-19 vote and the House approved it last Thursday, 53-47 – neither one a two-thirds majority.

During debate in the House last week, opponents of the compact pointed to language they said gave the state immunity from lawsuit, stemming from creation of a new board that governs water use on the reservation.

Such immunity can’t be granted without approval by two-thirds of each house of the Legislature, they argued.

House Speaker Austin Knudsen, R-Culbertson, ruled that the two-thirds vote is needed. Yet the attorney general’s office said it has determined that the two-thirds vote was not needed, and a majority of the House overruled Knudsen, allowing a simple majority to approve the bill.

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