Flathead Joint Board of Control v. State, 389 Mont. 270

Background

Montana, the Confederated Salish and Kootenai Tribes (CSK), and the United States negotiated the Confederated Salish and Kootenai Water Compact, codified at § 85-20-1901, MCA; the Legislature approved it in 2015 and also enacted administrative provisions at § 85-20-1902, MCA.
The Compact and administrative statute create a unitary system to administer reservation water rights and establish a Water Management Board and related officers to implement the Compact.
Article IV.I.8 of the Compact waives tribal and state immunity from suit (except monetary damages, costs, and attorneys’ fees) to allow Board dispute resolution and judicial enforcement; it recognizes federal immunity and that U.S. participation is governed by federal law.
Section 1-2-111 of the administrative statute states that Board members, the Engineer, designees, Water Commissioners, and staff are immune from suits for damages arising from lawful official duties.
The Flathead Joint Board of Control sued, arguing those provisions granted new sovereign immunities such that Article II, Section 18 of the Montana Constitution required a two-thirds legislative vote; the District Court held the Compact waiver was permissible but struck Section 1-2-111 as unconstitutional and severable.
The Montana Supreme Court reviewed justiciability and the constitutional question whether the provisions created new sovereign immunities triggering the supermajority requirement.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Article II, §18 required a 2/3 legislative vote because Compact Article IV.I.8 granted new sovereign immunity	Board: Article IV.I.8 effectively immunizes the State and eliminates money-damages remedies, so a 2/3 vote was required	State: Article IV.I.8 is a waiver of immunity (allowing certain suits), not a grant of immunity, so ordinary legislative vote suffices	Held: Provision is a waiver of immunity, not a grant; Article II, §18’s 2/3 requirement does not apply — provision valid
Whether §1-2-111 of the administrative statute created new sovereign immunity requiring a 2/3 vote	Board: §1-2-111 creates new immunity for the State (through its agents) and thus required a 2/3 vote	State: §1-2-111 grants immunities only to individuals (board members, staff), not to the State or units of local government, so Article II, §18 does not apply	Held: Supreme Court reversed District Court — §1-2-111 does not on its face grant immunity to the State or governmental entities; Article II, §18 does not apply; District Court erred in striking it
Justiciability: whether the court should entertain the challenge before tribal and congressional ratification	Board: Compact became Montana law by legislative enactment and implementation funds were appropriated; plaintiffs face imminent injury	State: Challenge is premature/advisory because Compact is not yet effective until tribal and congressional approval	Held: Case is justiciable — legislative approval, appropriation, and implementation steps create a live controversy
Standing: whether Board and irrigators have constitutional standing to bring the challenge	Board: Threatened economic injury from loss of money-damages remedies establishes injury, causation, and redressability	State: Claims hypothetical and seek advisory opinion	Held: (Concurring) Plaintiffs have standing — alleged imminent threatened economic injury and legal issues are fit for judicial resolution

Key Cases Cited

Molnar v. Fox, 370 Mont. 238, 301 P.3d 824 (2013) (statutes presumed constitutional; challenger bears heavy burden)
Silverstone v. Park County, 339 Mont. 299, 170 P.3d 950 (2007) (Article II, §18 context and distinction between sovereign immunity and other immunities)
Byorth v. Dist. Ct., 175 Mont. 63, 572 P.2d 201 (1977) (Article II, §18 does not prohibit legislative waivers of sovereign immunity)
Montana v. Peretti, 661 F.2d 756 (9th Cir. 1981) (state may waive sovereign immunity in state courts without waiving Eleventh Amendment immunity)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (federal standing elements: injury in fact, causation, redressability)
Reichert v. State, 365 Mont. 92, 278 P.3d 455 (2012) (justiciability and prudential standing considerations)