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Supreme Court explains water compact decision

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Posted: Saturday, April 20, 2013 11:05 am

Unanimous ruling claims issues incorrectly addressed


The Montana Supreme Court on April 3 unanimously vacated a ruling by a Lake County judge that had found the Confederated Salish and Kootenai Tribe’s water compact to be unconstitutional. On April 9, the high court explained its ruling.

As part of the water compact negotiated over the past two decades by the U.S., Montana and CSKT, a document was drafted to settle water rights held by irrigators on the Flathead Indian Reservation. That document was negotiated by the U.S., CSKT and three irrigation districts on the reservation.

Concerned that the proposed settlement did not provide them with sufficient water to irrigate their land, the irrigators sued the three irrigation districts and the Flathead Joint Board of Control, a new entity created by the water compact.

The plaintiffs claimed that agreement needed to comply with two state statutes from 1931 — one that required a vote by the irrigators in a district before a contract could be made with the U.S., and another that required a contract between the district and the U.S. be submitted to a court for judicial examination and approval.

On Feb. 15, Lake County District Court Judge C.B. McNeil ruled in favor of the irrigators by ordering the irrigation districts to comply with the two state statutes before executing the new water use agreement.

McNeil also found the question of whether the two statutes applied to the water use agreement to be “moot” because the agreement violated the constitutional property rights of the irrigators. The irrigation districts would exceed their authority by taking the individual irrigators’ water rights without compensation, he ruled.

The Montana Supreme Court, however, found several errors in McNeil’s ruling. First, they said, McNeil ruled on the actual water use agreement rather than the applicability of the two state statutes. Furthermore, “none of the parties presented any briefing or made arguments to the District Court regarding the issue of the Irrigation District’s authority to agree to the terms within the Water Use Agreement,” the high court ruled.

After studying the “plain language” of the two statutes in question, the high court found that they applied only to contracts between irrigation districts and the U.S. when they involved a loan of money. To broadly include all contracts between irrigation districts and the U.S., as the plaintiffs intended, would render the statutes “meaningless and redundant,” the high court ruled.

As to the constitutional argument, the high court noted that before McNeil could argue that the individual irrigators’ water rights were being taken without compensation, he would need to determine if they in fact held those water rights. That determination was not made, and the plaintiffs never presented that argument, the high court ruled.

Jerry Laskody, a spokesman for the Western Montana Water Users Association, representing the plaintiffs, said his group could return to district court with an argument that the individual irrigators did hold valid water rights.

In his own case, for example, he said he bought land near St. Ignatius once owned by a tribal member. The water rights came with the land and date back to the 1855 Hellgate Treaty, which established the water rights included in the CSKT water compact.

He also noted the bad timing of the Montana Supreme Court’s ruling, coming while the Montana Legislature was considering bills to ratify the CSKT water compact.

“A lot of legislators were saying, ‘Why are we voting on something that is unconstitutional?’” Laskody said.

Instead of ratifying the CSKT water compact, the Legislature voted to extend its adjudication for another two years while an interim study is conducted. The tribes, meanwhile, have threatened to take the matter to court.

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