Compact challenge still alive in Polson court

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Lake County District Judge James Manley has scheduled a June 17 court conference between the Flathead Joint Board of Control and the state on the constitutionality of the tribal water compact’s passage by the Legislature.

Shortly after the compact passed the Legislature, the board filed suit alleging that language in the bill constituted a waiver of immunity by the state.

Under the Montana Constitution, any legislation that grants the state legal immunity from suit requires a two-thirds vote by both the House and the Senate to become law. In its lawsuit, the board pointed to language in the compact creating a governing body — the unitary management board — to enforce the provisions of the compact. 

In the compact, the state and tribes agree to waive immunity “except that such waivers of sovereign immunity by the tribes or the state shall not extend to any action for money damages, costs or attorney’s fees.”

The board says that clause creates an immunity to monetary damages the state didn’t already have, which should have triggered the two-thirds vote requirement. 

Attorney General Tim Fox’s response to the lawsuit didn’t address the constitutionality issues, focusing instead on whether the plaintiffs’ arguments are sufficient to place an injunction on the law. 

But Melissa Hornbein, an attorney for the state compact commission, said in April that the compact does the opposite of what is being claimed by the board, and the waiver of immunity was to allow for recourse to a decision by the water management board.

“It’s not an express provision of immunity,” Hornbein said. “It’s simply saying that any other immunity which exists in the state for monetary damages will continue to exist.”

The board also had requested a restraining order to prevent Gov. Steve Bullock from acting on the legislation, which Manley found moot since the governor signed the bill into law on April 29.

Last week, Manley issued a separate order denying a request by the state attorney general to change venues to the state district court in Helena, writing that “the people primarily affected by the outcome of this case are located in Lake County or Sanders County.”

The tribes also are being challenged on their involvement in pursuing the water compact. On May 18 they responded to a lobbying complaint filed with the state Commissioner of Political Practices by Jayson Peters, the chairman of the Flathead County Republican Central Committee.

Peters alleges the tribes and other parties engaged in illegal lobbying practices in support of the compact, including failure to report money spent on lobbying. The tribes maintain that they were operating within the confines of state and federal reporting requirements.

The day the tribes responded, Commissioner Jonathan Motl told the Daily Inter Lake that his office will decide on whether to investigate the issue no earlier than August.

Reporter Samuel Wilson can be reached at 758-4407 or by email at

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