The Mitchell Slough

Landmark Stream Access Case Headed to the Montana Supreme Court

By Greg Lemon, 7-12-06

What many thought would be inevitable has now come to fruition – the Mitchell Slough case is headed to the Montana Supreme Court.

In a Wednesday press release, Montana Fish, Wildlife and Parks and the Bitterroot River Protection Association announced plans to appeal the decision handed down by District Court Judge Ted Mizner in May that the Mitchell Slough was a ditch and not subject to public access.

While the Mitchell Slough is a comparatively obscure waterway, the case has become an emotional and politically charged test case of the reach of Montana's Stream Access Law, which is coveted by sportsmen as one of the strongest such laws in the country but is seen by some landowners as an infringement of property rights.

“The issue is way bigger than the Mitchell Slough and the Bitterroot,” Montana Governor Brian Schweitzer said Wednesday in explaining why he authorized the appeal. “The problem is that this opened a can of worms across Montana and we need to get this resolved.”

The FWP appeal will be limited to the public access portion of the Mitchell Slough case. But the BRPA, which also sued over the 2003 decision by the Bitterroot Conservation District that the Mitchell was ditch, will file an appeal to Mizner’s ruling that the conservation district made the right decision.

The appeal will extend years of debate over the waterway, which has been deemed a ditch twice – once by Mizner and once by the Bitterroot Conservation District.

Missoula attorney Jack Tuholske, who is representing the BRPA in the case, is pleased with the state’s decision to appeal.

At the heart of the appeal is Tuholske, FWP and BRPA’s belief that Mizner and the Conservation District read the facts wrong. They believe the Mitchell Slough was natural stream and now landowners are now claiming it is a ditch and preventing public access. This raises a profound legal question for the Supreme Court, Tuholske said:

“At what point can (a stream) be converted into a private ditch? And that’s a legal question that I don’t’ think has directly been addressed in Montana before,” he said.

Bob Lane, attorney for FWP, has been involved with Mitchell Slough litigation and controversy for 15 years. Lane and FWP had to wait for Gov. Brian Schweitzer’s blessing before going ahead with an appeal. Now, for all intents and purposes, the Montana Supreme Court is the final step for the case.

For Schweitzer, allowing the Supreme Court to make the decision is important because of the statewide implications of the case.

But Ken Siebel has owned land on the Mitchell Slough for 27 years and believes the slough is an animal of it’s own.

“The unique facts here wouldn’t set any precedent across the state,” he said.

If someone wants to put a headgate on a natural stream and then claim it is a ditch, their case wouldn’t have a chance of standing up to the years of scrutiny the Mitchell has, said musician Huey Lewis, who owns land on the Mitchell.

Still, Supreme Court precedence, from a statewide perspective, is important, Schweitzer said.

“This was not a clear cut case, ditch or slough,” he said. “(It) needs to have more clarity.”

But Mitchell Slough landowner Tom Hyde, an attorney from San Francisco, disagrees. The case is already clear.

Virtually every fact presented in the district court trial support the claim that the Mitchell Slough is a ditch, Hyde said. The water is diverted twice before it hits the headgate and then pushed up hill to provide maximum irrigation coverage for farmers; the Mitchell Slough channel transects, rather than follows, historic Bitterroot River channels out of the active flood plain; the slough is fed throughout the year by irrigation return water and serves as a drain for flood irrigators in that portion of the Bitterroot Valley.

Yet despite this overwhelming evidence, it’s back to court once again, he said.

“I think it’s a sad day for Montana and fisherman when dollars that should and could be spent on habitat are being spent on lawyers,” Hyde said.

Lewis agrees.

Local landowners should be working with FWP and conservation groups to protect and improve habitat in the Bitterroot Valley, not battling to protect their private property rights.

“But we have to hit the mattresses and prove it is a ditch for the third time,” Lewis said.

The decision by Schweitzer to allow the FWP to appeal was a surprise for Lewis, who says the governor told him that he wouldn’t appeal Mizner’s decision.

Schweitzer in fact spoke with both sides of the case. Schweitzer didn't say Wednesday whether or not he promised Lewis there would be no appeal, but he did say he would still have liked the sportsmen and landowners to resolve the case on their own.

"My preference would be no more lawyerin,'" Schweitzer said.

Still, the governor said, “I’ve met with sportsmen and I’ve met with landowners. We need to have clear delineations about what the right of citizens and private landowners are.”

The state had 60 days to decide whether or not to appeal and took nearly the entire time. Part of the reason was to allow some communication between the two opposing sides, Schweitzer said.

“I’ve encouraged sportsmen and the landowners to build a dialogue between themselves and I wanted to give that time.”

And though he knows the controversy has been very emotional in the Bitterroot Valley, he’s optimistic that people will be able to come together despite the continuing litigation.

“I’ve met with some of these landowners and they’re very good people,” Schweitzer said. “They’re not trying to restrict access. They’re good neighbors.”

But protecting stream access is important for Montanans, he said.

“I will protect the right of sportsmen because that’s what makes Montana different – the ability to have access to hunting and fishing,” Schweitzer said. “We had to make a move to protect the fisheries and the access in the rest of the state.”

Overturning the Mizner’s decision would be an expansion of the Montana Stream Access Law, which allows the public to access only natural and perennial streams, said Russ McElyea, Montana Farm Bureau attorney for the Mitchell Slough case.

If man-made water bodies, like ditches or ponds, are placed under the auspices of the stream access law, then any rancher with fish in his ditch or ducks on his pond could be forced to allow the public access, he said.

However, Schweitzer is adamant that the state isn’t trying to expand the Stream Access Law.

“I’m not an advocate of opening up irrigation ditches and canals across the state to fishing,” he said.

But Siebel is convinced Schweitzer and FWP are continuing to pursue an agenda of gaining sportsmen’s access to private property and it constitutes a taking of private property rights.

“They don’t seem to respect the 135 years of agriculture and irrigation that’s been done along the Mitchell,” Siebel said. “They seem to continue to drive a wedge between landowners and sportsmen with their continued pursuit in expanding the Stream Access Law and their attempted land grab.”

The Supreme Court appeal will not be a new trial. Rather, the high court will look at the facts presented in the district court case. The justices will then decide whether or not Mizner was right in his decision or if he arrived at it properly. They high court may or may not hear oral arguments and a final decision could take as long as two years.

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