Lawsuit or legislation: Lake County waiting on governor before making law enforcement decision

Judge rules PL 280 creates an ‘unfunded mandate’ and the state may be liable for reimbursement

By: - May 11, 2023 5:32 pm

Lights from a police cruiser (Photo by Edward Kimmel via Flickr | CC-BY-SA 2.0 via Wikimedia Commons).

A little bit of ink on paper is all that Lake County is waiting on in order to decide how to handle a years-long problem of law enforcement on reservation lands of the Confederated Salish and Kootenai tribes.

Since 2017, Lake County and the State of Montana have been at loggerheads about who would provide funding for law enforcement services on the expansive tribal lands in Lake County, in the northwest part of the state. The challenge stems from Public Law 280 an agreement that left the county to provide law enforcement services on behalf of the state. The law dates back more than a half century.

Just a little more than a week ago, the Montana Legislature authorized $2.5 million per year for Lake County for the next two years to support law enforcement while it hammers out a cooperative agreement about how to provide law enforcement on tribal lands moving forward.

At the same time, Lake County has also sued the state for forcing it to provide services without adequate funding. A Lake County judge said in her preliminary findings last week that the state could be liable for several years of funding services. Yet, in order for the county to receive the money that the Legislature just authorized, it would first have to drop its lawsuit, leaving the county to decide whether to accept the money or continue the lawsuit.

County officials say they’re waiting to see if the Gov. Greg Gianforte will use his pen to sign the legislation or veto the measure.

When PL 280 was enacted in Lake County in 1965, county officials and the state believed that the additional costs for providing law enforcement would be minimal. However, as the decades progressed, Lake County said it found itself paying more and more to police and provide law enforcement for the reservation without any compensation by the state. The lawsuit said the county pays $4 million a year to oversee federal crimes on the Flathead Reservation. The CSKT oversee misdemeanors.

The situation came to a head during the 2021 Legislature when the county said it would exercise its option to exit the partnership, leaving the state responsible for providing an entire law enforcement agency just for the CSKT reservation. Montana’s other tribal nations have varying law enforcement agreements, largely with the either the U.S. Department of Justice through the FBI, or through the Bureau of Indian Affairs.

In 2021, the Legislature included funding to reimburse Lake County for the law enforcement, but a last-minute amendment in the legislature left the allocation at $1, which the county saw as an insult. The county not only gave notice that it was withdrawing from the agreement, giving the state just six months to plan an alternative, but it also filed a lawsuit in Lake County, alleging that the state unjustly enriched itself, and that it was owed for providing services, which it says it did, while not providing for other services for Lake County residents.

During this year’s Legislature, Sen. Greg Hertz, R-Polson, carried legislation that would restore funding, and provide money to help the county. That bill ended up dying, but a bill sponsored by Rep. Joe Read, R-Ronan, with a $5 million appropriation during the session got through both legislative chambers, but as of Thursday, Gianforte still had yet to sign the measure. Lake County officials say the decision to pursue the lawsuit is largely based on whether the state coughs up funding for law enforcement.

In Lake County District Court, Judge Amy Eddy pointed out that Lake County voters have approved public safety levy increases of $15 million “the majority of which has been used to defray costs associated with PL 280 jurisdiction. These costs have included enforcement, investigation and prosecution of crimes, costs of care and operation and maintenance of detention facilities.”

The county says that more than half of its land is tax-exempt and it has no other way to defray the burdensome costs. State fiscal analysts peg the yearly cost of Lake County providing law enforcement on the CSKT lands to be approximately $4.3 million, and maybe more.

Lake County Commissioners gave the state notice it was withdrawing from the PL 280 agreement just as the Legislature was convening in January, and House Bill 479 was originally established to create a state law enforcement agency in Lake County at the cost of $75 million. However, the wording in the bill was amended to provide Lake County with $2.5 million per year, but with no guarantee of future funding.

“Lake County argues that the state’s assumption of PL 280 jurisdiction has required the direct expenditure of additional funds to provide services that are not within their scope of usual operations,” Eddy said in her May 4 ruling. “While the state is correct that providing law enforcement and prosecution services is generally within the scope of operation of every county, the exercise of this jurisdiction within the boundaries of an Indian reservation is not – a fact the state conceded at oral argument. Accordingly, the state was required to provide the specific benefit of felony criminal jurisdiction on the Flathead Reservation to a certain class of citizens that it would not ordinarily provide – thereby mandating legislative funding.”

However, the court also found that while the state had essentially created an unfunded mandate through PL 280, Lake County in the 1960s did not believe the costs would be as dramatic, and agreed to the set-up without asking for funding until 2017.

Eddy ruled that Lake County had not pursued funding in court until this current lawsuit, so even though the county had objected to providing law enforcement without funding in 2017, it had never filed a claim in court, and the state’s three-year statute of limitations made part of the case moot.

But Eddy found that 2021 Legislature did assume jurisdiction for PL 280, and that state law “obligates and binds” the Legislature to fund that initiative.

“(Montana law) prohibits the Legislature from enacting laws that create unfunded mandates,” Eddy wrote. “The Legislature then appropriated $1 – an amount patently absurd under the state’s own fiscal note predicting a $37.5 million annual cost for the Department of Justice to take over PL 280.”

Eddy’s ruling clears Lake County to pursue its claim against the Legislature for funding law enforcement on the reservation at least since 2021, but it also forces the county commissioners to make a decision: Whether to pursue litigation against the state, or drop the lawsuit and accept $5 million in hopes of a more permanent solution created by a task force that would ostensibly be set up to create a more permanent solution in the next two years.

As part of the language included in House Bill 479, the county would have to drop its current legal challenge in front of Eddy in order to accept the state funding. It also has until May 26 to decide whether to withdraw its original decision to exit from the PL 280 obligation.

Lake County Commissioners say they’re discussing whether to do so, largely based on whether Gianforte signs HB 459.

As of Thursday afternoon, the bill was still awaiting a decision by Gianforte.

Gianforte’s office did not respond to a request for comment when reached by the Daily Montanan on Thursday afternoon.

2023-5-4 PL 280 Order

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming.