Missoula News

Although I've been excoriated for expressing my opinion that this small waterway was not the place to fight the Stream Access Battle of the Somme, I know that once the first shots were fired, the battle had to be fought to the end, and that is what a remarkable cross section of Bitterrooters did here, month after month, year after year. And their success protects the access of all of us, across Montana, to the rivers and streams that are so much a part of life here.

Every Montana citizen owes the Bitterooters a debt of gratitude for their fight to hold this ground. If it had been lost, the Stream Access Law would have been diluted and thrown into question in countless places across the state. The groundwork for its destruction would have been laid, with the repulsive cascade of consequences-people cut off from their own rivers-that would have ensued.

So, heartfelt congratulations to the Ravalli County sportsmen, and a big thank you from somebody who has made his home here for twenty years, and is raising a family here, in large part because of the freedom to wander the rivers and streams.

Hal Herring

good news.
good article.
i hope that i will be able to get close enuf to the water to be able to wet a line and drown a worm or two from my wheelchair. stream access and access to the stream are not always the same thing. it will be interesting to see how the game plays in the future.
happy trails, arvin

The Supreme Court finding does not "open" Mitchell Slough to public use. It was never legally closed. The justices affirmed what was already the case -- the slough was a natural stream that supports recreation, which is the test for Montana's stream access law. And this is why Montanans have for years been legal when they've waded in the stream between its high water mark, and why trespass cases related to being in the slough never stuck. It's important to remember, as the court noted, that being open to stream access does not grant the public a right to walk above the normal high water mark. You still can only access the stream either with landowner permission, or at a public access site or right-of-way. Largely missed by the press in its coverage of this litigation is the fact that in their zeal to keep the public off of this stream, the landowners' lawyers also tried to reduce the scope of Montana's Streambed and Land Protection Act -- the so-called "310" law. This is the statute that requires landowners to obtain permission through a permitting process from conservation districts whenever they want to disturb the bed and banks of natural, perennial streams. You need a 310 permit --and your proposal can be denied or modified to protect the stream -- if you want to build a bridge, modify a channel, line the bank with rip-rap, or create similar disturbances in or along a natural, perennial stream. If the landowners had prevailed in their attempt to have Mitchell Slough declared not subject to the 310, law, a lot of similar waterbodies in the state could have lost the benefit of this protective conservation statute. Yes, the court's ruling is a plus for stream access advocates, but it is also a very large win for stream conservation.

Doug and Bruce,

Don't you think the press coverage reflects what the Mitchell Slough case signifies about the class conflict inherent in the access issue?

It is interesting to read the comments here and on the Ravalli Republic Web site. People in Montana have long seen this issue as a case where "rich" people try and shut out Joe Sixpack from his right to fish and hunt. It has been painted as a simple class conflict.

That is why, in my mind, this case was never about 310 law. (And really, when it comes down to it aren't the 310 law and access joined at the hip?) The more refined conservationist may have cared about the 310 issue, but the average person watching this case unfold cared only about the concept that someone named Schwab and Lewis were trying to shut Bitterrooters out of their stream. This was and is a highly uninformed and simplistic position to take, particularly in the Mitchell Slough case. The case was much more involved than that. There are many "old time bitterrooters" that live up and down the slough and nobody cared to hear what they had to say. Nobody cared to listen to Millie Kiefer or John Lewis or Ed Hebner, all people who live along the slough and who no one knows.

The average person screaming about access to the slough never cared to realize that this was never an easy case of right and wrong. It was always a complicated case concerning where the water came from, where it went and how it got there. I sat through five days of testimony in 2005 and read hundreds of pages of documents. The science behind the case was complex. However the sportsmen's dollars and private dollars spent on this case were driven by the simple issues of access. The complicated science involved in determining the outcome of this case was only a means to get to the final end of access. My frustration always with the controversy surrounding the Mitchell Slough is the fact that the battle for access trumped the protection of the resource, despite the 310 implications. But in some ways Montana law made it so. In the Mitchell Slough case it was always a winner take all fight – if the landowners won on the 310 law, they'd win the access battle and vice versa. In Montana we have a good conservation law – the 310 law – that is tied directly to access, whether Trout Unlimited likes it or not.

I believe there's a better way for sportsmen to spend their money. The stream access law is great and it's important not only for recreation but for conservation because, as Bruce has told me on a few occasions, people won't feel compelled to conserve it unless they can enjoy it. However, some of the most important stewards of our hunting and fishing resources are private landowners, whether they're ranchers or farmers or amenity owners. When it comes to waterfowl and fish habitat in Montana, much of it is located on private land and the only way to help conserve is to work with private landowners. My frustration is the private landowners who have done good conservation work don't get nearly the amount of press and attention from sportsmen as those they're fighting with over access.

In Montana, the Wealthy Out of Stater has become a dirty name and yet they are the people with financial resources to help the our natural resources. Sure we all know some rich dude who is a jerk, but that doesn't mean all Wealth Out of Staters are bad for Montana. That would be the same as saying all spin fisherman are slobs or all ATVers are thoughtless, mudbogging speed junkies.

I agree with what Hal said, once the fight started over the Mitchell Slough, it had to go all the way. One side had to lose big, which is unfortunate. The hard feelings this conflict has left between people in the Bitterroot is going take a long time to mend.

Another point and question: Is there a trend with sportsmen in Montana toward a belief that private land should be open for public access if it is home to public resources, like fish and game?

What happened to building relationships with landowners as a way of gaining access. Like when I was a kid and help buck bales for a rancher who owned a bunch of duck sloughs. I helped him and then got to hunt. We built a relationship based, in part, on my respect for his private property rights and on his respect for my desire to hunt. Is that sort of relationship being lost in the New West? Why does it seem that the access discussion has to have a good guy and a bad guy?

All the things you mention, Hal and Greg, apply with real Montana ranchers -- the kind that still exist up on the Hi-Line and in Eastern Montana. But they don't with the rich, out-of-state, hobby-ranch owners of southwest and western Montana. These neuvo "Montanans" don't even have livestock half the time, and you can't get to their door to knock because of the security gate at the main road. They think hunting is cruel and barbaric, and nobody's gonna set foot on THEIR land!

Everything you mention is poignant, but obsolete. The playing field is different now. Times have changed, and so must our methods. If the Stream Access Law is all we've got, then by God let's use it.

Greg,

Thanks for the thoughtful response. I realize as much as anybody the complexity of the Mitchell Slough case. It is filled with subtlety and nuance. I spent years observing the Bitterroot Conservation District deliberate over a number of 310 issues including the Mitchell. I can't say that I agreed with every one of the BCD decisions, but I can honestly say I felt their motivations were fare and their decisions defensible - except for their decision on the Mitchell Slough.

You ask "Don't you think the press coverage reflects what the Mitchell Slough case signifies about the class conflict inherent in the access issue?” I suppose that “class conflict” could be the focus of the issue, and maybe that is how the press wants to frame it. I just don’t think that is the most relevant lens to view this issue. The focus should be on the fair application of the 310 Law – no matter the wealth of the landowner. The law should apply equally to everyone.

Because the landowners went down the path that they did by asking the BCD to remove the 310 status of the Mitchell Slough to support their access case, and the BCD acquiescence to their request despite the apparently convincing evidence to the contrary, a "perfect storm" was created. A perfect storm from which there would be few, if any, real winners. A perfect storm attributable to the BCD being unwilling to do their job and protect the natural perennial streams in the Bitterroot - or at least this one.

Almost everything about this case is a pity. The only bright spot is the reaffirmation of the 310 Law and the knowledge that conservation organizations like Montana Trout Unlimited won’t have to expend energy in the future to defend similar waterways from the same flawed arguments used in the Mitchell Slough case.

All you guys who want to argue that the local landowners actually produced a vibrant fishery out of nothing, or out of a mucked up muddy slough, are buying into some absolutely false propaganda being circulated by the landowners. Read the Supreme Court ruling. It points out that the vibrant fishery was always there- as evidenced by testimony from lifelong fishermen on the slough and by Fish Wildlife & Parks electro-fishing counts done PRIOR to any habitat improvements by the landowners. Examine the 310 Permits that the landowners got to do their improvements (they got these permits before they decided to 'privatize' the stream) Considering the length (16 miles) of the river channel and the amount of prime fish habitat along the way, the improvements were quite modest and the court recognized this.

to Greg, - Sure this was a complicated case. But it was primarily complicated by a bunch of unscrupulous 'professionals' who were willing to provide bogus reports to justify the absurd claims of their clients. The hydrological reports, for instance, when reviewed by 4 independent hydroligists (2 private and 2 government employed and fully accredited hydrologists,) all unanimously agreed that they were "designed to decieve".
It is these kind of lies by the landowners and fabrication of bogus reports that made the issue so complicated.

As far as the point about private initiative to improve habitat goes, of course it should be encouraged. But we certainly can't give away the resource to private ownership just to 'encourage' their investment.

In some ways this particular stream access case was and is still simple. It was a brazen attempt by a few very wealthy landowners to privatize a public resource.

It was precipitated by the landowner's refusal to let people fish. It did not begin by rude fishermen barging in and demanding their rights. It originated when two young men who had fished it and trapped along its banks for years, always asking permission first (the mutual respect you refer to), were adamantly refused entry and told that they would never be allowed- that it was PRIVATE.

Only then did the Rose brothers do their research and decide to test the law. Why didn't the landowners challenge the law when the Rose's were acquitted in justice court? Instead they pursued the quiet removal of the stream from 310 Law.? It was only when that quiet effort (that is without public involvement) was disclosed by the press that the public process finally began. It was the travesty of that process ( as Doug points out) that inevitably lead to a court challenge.

From my point of view, in tyhis case, it was an out and oout calculated bid to privatize the resource that drove the whole thing from beginning to end.

Well said, Michael. It's a Montana trait to be generous and give people the benefit of the doubt. However, to grant that magnanimity to exploiting, self-serving pricks does not make you generous, but a fool.

So all of you believe that all of those landowners were being good stewards of their land and of the public's slough? Did any of you check to see whether that is true? Start looking at their conservation easements, and whether they are in compliance with those easements--which are publicly subsidized. Don't say that they're doing something good unless you know its true. You think these guys were being jerks only with regard to stream access? Wake up.