A Lake County District Court judge has delivered a major blow to a pending water rights compact for the Confederated Salish-Kootenai Tribes, ruling that one of the compact’s three major parts is fundamentally and constitutionally flawed.
Judge C.B. McNeil ruled in favor of a group of irrigators who challenged a pending water use agreement with the tribes that had been negotiated by their own representative, the Flathead Joint Board of Control, also the main defendant in the litigation.
McNeil declared that the Joint Board of Control has “no ownership interest in any water rights” and therefore has no authority to enter a contract that requires irrigators to transfer or assign their water rights to the tribes to become part of the Flathead Indian Irrigation Project water-use agreement.
Transferring water rights to the tribes without compensation is a “precondition” to becoming members of the Irrigation Project to receive a water allotment from the tribes.
The ruling states that the allotment of 1.4 acre-feet of water annually “may be substantially less than the individual irrigator’s water right assigned to the tribes” and the allotment is a maximum with no minimum allotment defined in the agreement.
McNeil’s ruling basically frames the pending water agreement as an unconstitutional taking of property, and it prevents the Joint Board of Control from entering into that agreement or any other agreement with similar provisions.
The ruling came out one day after a Feb. 14 hearing in Polson that lasted 45-minutes.
“To me, it is a very clear affirmation of our property rights and our water rights being a part of our property rights. He makes it very clear in his ruling,” said Jerry Laskody, a spokesman for the plaintiff group, the Western Montana Water Users Association.
“To me, it basically says is you have to go back to the drawing board and come up with something entirely different,” Laskody said.
Laskody said the ruling was somewhat surprising in its bluntness.
In its initial complaint, the association cited provisions in state law that would require the water use agreement, a contract with government, to first go through judicial review and then be approved by irrigators through a vote.
But the vote won’t be necessary, Laskody said, because McNeil’s ruling found “these constitutional elements to it that make it null and void.”
Jon Metropoulos, a Helena attorney who represents the Joint Board of Control, said no decisions on how to proceed have been made but an appeal is being considered.
The ruling has significant implications for the overall tribal water rights compact, which is scheduled for a Feb. 26 vote by the Montana Reserved Water Rights Compact Commission in Helena. The vote is to determine whether to refer the compact to the Legislature for approval, and the vote will proceed with an apparent strategy to account for McNeil’s ruling.
“The commission’s proposal to the Legislature, if approved at the Feb. 26 meeting, will suggest that legislative approval be contingent on approval of a FIIP Water Use Agreement,” a press release from the commission stated Tuesday.
A spokesman for the commission could not be reached for comment about how the compact can be forwarded to the Legislature when it has been pitched as an agreement with three components that were negotiated by representatives of the tribes, the state and the federal government on the Water Rights Compact Commission.
None of those entities were part of the litigation over the water use agreement for irrigators, a compact component that was negotiated separately by the Joint Board of Control.
The other components deal with quantifying off-reservation tribal rights and providing for protections of existing water uses off the reservation, and establishing a Unitary Administration and Management Ordinance for administering water rights on the reservation.
“I don’t see how they can do that,” Laskody said of the legislative referral. “All the parts are interrelated. A three-legged stool is connected. It’s not three independent legs. Each part references the other parts.”
The Western Montana Water Users Association will make legislators aware of their concerns about the litigation and the compact.
“We’ve got a lobbyist in Helena that we’ve been working with,” Laskody said. “We felt we had to do that ... We wanted to make sure that if they rushed something over to the Legislature before the court acted, we would cover both bases.”
The compact commission’s authority to negotiate a compact ends this summer, so ratification by the Legislature this year has been considered necessary by supporters of the compact.
But there may be an alternative to keep negotiations going: Sen. Verdell Jackson, R-Kalispell, has introduced a bill that would extend negotiations through July 1, 2015.
If the compact gets legislative approval, it must also be approved by Congress, the Confederated Salish-Kootenai Tribal Council and the Montana Water Court, a process that can take years.
Reporter Jim Mann may be reached at 758-4407 or by email at firstname.lastname@example.org.