Board of control challenges compact

Hertha Lund

Flathead Joint Board of Control Ignores Members, Challenges Compact

In an unprecedented political maneuver, 8 of the 12 members of the Flathead Joint Board of Control (FJBC) filed suit against the Montana Legislature, the Governor and Attorney General of Montana, despite the opposition of many other FJBC members and irrigators.

“It is a travesty that the FJBC seems to be overrun by a vocal minority who do not seem to care if they throw me, agriculture within the Flathead Indian Reservation, and all of Montana’s agriculture under the bus for their uninformed legal theories,” Guenzler said. “The irrigators who support the Compact are not interested in paying attorneys for the next several decades to profit from some people’s bullheadedness. We are interested in keeping our family ranches or farms viable so we can pass them on to the next generation.”

In their filing the members of the FJBC that oppose the Compact argue that language in the negotiated agreement is a violation of a State Constitution. While the FJBC asserts that the Compact grants a waiver of sovereign immunity, it in fact does the opposite. Instead of granting immunity, which is what is prohibited, the Compact actually waives sovereign immunity for some purposes.

The State of Montana, the federal government, and the Tribes are all sovereign. In other words, these entities cannot be sued in court unless they waive their immunity. For example: The state cannot be sued in federal court or Tribal court under the Eleventh Amendment and related court decisions. The federal government cannot be sued in state court. And, the Tribe cannot be sued in state or federal court.

So, exactly the opposite of what the FJBC is alleging in its court filing, the Compact actually ensure that the state, the federal government, and the Tribes can be sued in an appropriate court for the limited purposes detailed in the Compact.

In addition to abusing our legal system for political gain, the FJBC has incorrectly filed suit when they do not have the grounds to do so.

According to a brief filed by the Attorney General, the FJBC’s claims fail because they are not ripe, they have failed to allege damages suitable for their requested relief, and the FJBC does not own property, which means that it lacks standing to bring the claims that it alleges against the Legislature, the Governor, and the Attorney General.

“Plaintiffs, have presented a purely political, non-justiciable question that, if seriously entertained by this Court, would wreak havoc in the legislative process,” the Attorney General said in his brief. “It takes little imagination to predict the mischief that plaintiffs’ attorney could create by inventing last minute claims that a bill is unconstitutional, and then suing for a TRO on that basis before the bill is even implemented or applied.”

The Attorney General’s brief further explained that the FJBC cited “no authority supporting their novel argument that they can simply enjoin the Government from signing a law simply because some opponents of the law believe it to be unconstitutional.”

Courts have repeatedly held that the manner in which the Legislature passes a law is a non-justiciable issue.

Commonsense Citizens for the CSKT Compact (CCCC) is a private, non-partisan organization comprised of farmers, ranchers, and business people on the Flathead Indian Reservation, and their supporters. CCCC’s goal is to present factual information about the Compact and to support its passage during the 2015 Legislature.