Flathead Water Compact Likely To Survive Wednesday's Ruling

Jul 21, 2016

The controversial Flathead Water Compact with the Confederated Salish and Kootenai Tribes remains largely intact following a judge’s ruling Wednesday that part of the water rights agreement is unconstitutional.

What exactly that ruling means for the many parties with an interest in the compact is still unclear. Prior to the judge’s ruling, it had been introduced in Congress for federal approval.

Robert McDonald with the Confederated Salish and Kootenai Tribes says that still appears to be the case.

"At first glance, the Confederated Salish and Kootenai Tribes are content with yesterday’s decision. But we need to take an in-depth look at the laws to determine if any further action is warranted."

Irrigators with the Flathead Joint Board of Control challenged the legality of the compact after Montana lawmakers passed it last year by a simple majority. The irrigators contend it needed at least a two-thirds supermajority to become law.

The provision that District Court Judge James Manley struck down would have granted legal immunity to a yet-to-be created water compact board, comprised of state and tribal appointees.

But Manley says the partial unconstitutional ruling does not void the entire compact.

John Barns with Montana’s Attorney General's office said he doesn’t expect this ruling to impact the compact moving forward.

"Now the state had argued that it was not unconstitutional, but that even if it was found to be unconstitutional, the language in the compact means that it is severable. Meaning it can fall away and the remainder of the compact stands. Whereas the plaintiffs felt that if that portion of the compact was found to be unconstitutional then the whole thing comes down with it."

Democratic U.S. Senator Jon Tester introduced the legislation to Congress in May, with a price tag of over $2 billion. At that price, federal official stay they can’t support the bill. A lower price will have to be negotiated  between the tribes, the U.S. Interior Department and local state interest.

Here’s Tester’s Press Secretary Dave Kuntz.

"Jon is pleased this decision upholds the structure and intent of the CSKT Water Compact. The Tribes, landowners, and local officials have worked for over a decade to strike a deal that upholds treaty obligations, protects existing water rights, and saves money, and this ruling doesn’t change that."

Neither the state, Tribes, or Flathead irrigators have announced plans to appeal the this week's ruling.

The most likely protest would come from the irrigators. If so, the case will head to the state supreme court.