Missoula News

Montana Waterways

Judge Sides With Landowners in Landmark Stream Access Case

By Greg Lemon, 5-10-06

After nearly 20 years of controversy involving trespassing fisherman, protesting politicians, a newspaper publisher, two governors, a famous musician, governmental agencies, a couple of fourth-generation ranchers and an investment mogul, a judge has ruled that the Mitchell Slough in Montana's Bitterroot Valley is not a natural stream and therefore is not open to public access.

The case has been closely watched across the West as a crucial test of the reach of Montana's stream access law, which is among the strongest in the country. The Montana statute, long a bete noire of property-rights advocates but resilient through numerous court challenges, provides that any river or stream in the state is open to public access up to the high-water mark. While landowners are not required to provide right of way across their property, fisherman, floaters and others can freely use the waterways as long as they stay within the banks.

In the Mitchell Slough case, many emphatically believe the 12-mile waterway is a natural channel, manipulated for more than 150 years by irrigators and now owned by wealthy landowners - including rocker Huey Lewis and investment mogul Charles Schwab - who believe it's always been a private fishery. They and others believe it is simply a big ditch, used to convey water to farmland and carry run-off from those fields back to the river. This side maintains the slough has been private and public access was only granted with permission, though many trespassed.

Wednesday's decision by District Judge Ted Mizner, which came after nine months of deliberation, supports the landowners' claim that the Mitchell is simply a ditch. Had it gone the other way, numerous waterways in the state which are, in effect, some combination of natural stream and man-made ditch and but have long been treated as private property, could have been subject to stream access requirements.

The decision is likely to be appealed to the Montana Supreme Court. Still, landowners along the slough were pleased with the decision.

“We’ve been trying to get a decision on this for years,” said Huey Lewis. “I hope it’s over, why do we need to spend more taxpayer money to appeal this?”

For Lewis, the controversy has taken the emphasis away from the real issue: protecting the natural resources along the Bitterroot River.

“I just hope people can get back to saving the resource,” he said. “Lets move on and heal the wounds in the conservation community”

Ken Siebel, another landowner along the ditch feels the same.

“The facts and science won out in this particular case,” said Siebel, whose cousin, software mogul Tom Siebel, has been in the news lately in Montana as the funder of a dramatic anti-meth campaign. “I just can’t understand why (Montana Fish, Wildlife and Parks) and others have continued to push this and spend public money.”

The Mitchell Slough begins at the Tucker headgate, just north of Tucker Crossing East, an unimproved fishing access site off the Eastside Highway north of Corvallis. It flows through bottomland, wetland, and ranchland before dumping back into the Bitterroot, just south of Stevensville.

At the beginning, all the water is diverted by a rock dam from the east channel of the Bitterroot River. But along the way more water is diverted off the slough and run-off water is picked up by the slough. Some also maintain that the slough picks up natural spring water. Others say this spring water is simply sub-irrigation water that slowly trickles back to the slough.

Some of the ranches the slough flows through are large spreads, owned by fourth-generation Bitterrooters, whose ancestors settled the Bitterroot in the 1860s, when the east side of the valley was just sagebrush and rattlesnakes. Some of the land is owned by the rich and famous. And some of the land is smaller parcels owned by folks who have moved to the Bitterroot Valley to spend their retirement years in peace and quiet.

(For a complete background of the Mitchell Slough trial, check out a three-part series covering the natural history, controversy and legal history of the slough, which ran in the Ravalli Republic newspaper last July.)

Much of the slough has been altered and restored by landowners. This restoration has turned the slough into a vibrant fishery. But fishery or not, the slough isn’t a natural waterway, Mizner said in his decision.

“Nearly all of the credible scientific evidence supports the conclusion that the Mitchell Slough is no longer a natural water body,” Mizner wrote. “The excavations along the bed and banks of the Mitchell along with the ditches, spills, lifts and channel relocations have all been necessary to continue to divert water into and through the Mitchell’s present channel.”

The access portion of the Mitchell Slough case involved The Bitterroot River Protection Association, a sportsmen’s group based in Stevensville, and Montana FWP. Both have said they will consider appealing Mizner’s decision to the Montana Supreme Court, but neither side had seen the opinion by Wednesday afternoon.

“I think both sides have said all along that whichever way it went it would probably be appealed,” said Ira Holt, chairman of the BRPA.

The decision to appeal will be based on the likelihood of success and whether or not the small group can financially support the effort, he said.

The other portion of the case dealt with whether or not the slough was protected by the Montana Streambed Preservation Act, or the 310 Law. This is the law that protects natural and perennial waterways.

In 2003, the Bitterroot Conservation District ruled the Mitchell wasn’t a natural or perennial stream under the 310 Law. The BRPA appealed that decision and in January, Mizner ruled in favor of the conservation district.

For Eddy Olwell, president of the Bitterroot Chapter of Trout Unlimited, much bigger and more pressing issues face Ravalli County than whether or not people can fish the Mitchell Slough.

In fact, Trout Unlimited has never pressed the access issue, he said. Instead, they have always wanted the Mitchell to be protected by the 310 law. The fact remains that not all of the land along the Mitchell is protected by conservation easements, Olwell said. This could pose a significant problem as the valley grows.

“However, the landowners have done a great deal of habitat restoration over the years, which has benefited fish, wildlife and open space,” he said.

“Ravalli County is currently experiencing unprecedented growth which is showing no sign of letting up,” Olwell said. “As this trend continues these large, privately held properties are more critical to the future health of our natural resources.”

Unfortunately, the long and heated controversy surrounding the Mitchell Slough has caused a rift in the conservation and sportsmen community in the Bitterroot Valley, he said.

“I personally would like to see an effort to mend the divide that has grown in the community over this argument and work with these landowners at protecting our natural resources,” Olwell said.

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