Today the State of Montana is asking the U.S. District Court in Missoula for permission to intervene in a lawsuit filed by the Confederated Salish and Kootenai Tribes (CSKT).  

In February the CSKT filed suit in that court to prevent the Montana Water Court and the state’s Twentieth Judicial District Court from deciding several water rights claims on the Flathead Indian Reservation. The CSKT suit also sought a declaration that the water rights for the Flathead Indian Irrigation Project belong to the United States and not to local irrigation districts or irrigators.

In its proposed motion and supporting brief, the Attorney General’s Office will ask the court to dismiss the CSKT lawsuit, arguing that the Montana Water Court is the proper court to make a determination of the competing water claims and the ultimate ownership of the water rights associated with the Flathead Indian Irrigation Project. The brief will be filed if the federal court accepts the state’s motion to intervene.

Attorney General spokesman John Barnes said on Thursday, May 22, that the compact must be agreed upon by both sides.

"It has to be a compact that will pass the legislature, as well," Barnes said. "Our ultimate goal in intervening in this suit is to bring all sides into the proper venue, which we believe is the Montana Water Court, and not in a lawsuit. We also filed a friend of the court brief this week in water rights cases in both the Montana Water Court and the state's 20th judicial district court related to this. It was all part of the same effort."

Barnes said the attorney general's intent is to bring the parties together outside the courtroom.

"The attorney general is asking all the stakeholders to spend the coming months focused on constructive and civil dialogue that is informed by facts, and not inflamed by rhetoric, or expensive litigation."

The Attorney General’s filings describe the State’s view that under Montana law, the Water Court– not the state district courts – has exclusive jurisdiction to adjudicate water rights claims. The briefs also explain why it is critical for the state courts to avoid piecemeal rulings on water rights claims, which could jeopardize Montana courts’ jurisdiction over federal and tribal water rights.

Attorney General Spokesman John Barnes