One constant in the fierce debate over the public’s access to Mitchell Slough in Montana's Bitterroot Valley has been the complaint that generous landowners are being vilified despite their considerable efforts to restore the waterway.
It's instructive that one of the arguments
used by supporters of the landowners is this "heroic restoration"
tack. It's instructive because it's a red herring.
decade or so ago, landowners -- most notably rocker Huey Lewis and
businessmen Charles Schwab and Ken Siebel -- decided they wanted
the public out after restoring much of Mitchell Slough, and in
grand Bitterroot tradition, a fight over water ensued. When it
comes to matters of stream access, however, noble intentions don't
exempt landowners from the law, and Montana’s law regulating
stream access applies to watersheds whether they’re pristine
or degraded, restored or run down.
spat obscures a larger question, and this is the more important
one. Is Mitchell Slough a ditch, or is it part of the Bitterroot
River? The answer matters because if it’s a ditch, the
state’s Stream Access Law does not apply. If it’s part
of the river, the public is entitled to access the waterway up to
the high-water mark.
Apparently, that high-water mark
runs within a few feet of Siebel’s backdoor.
evidence that Mitchell Slough is part of the river is considerable.
Surveys conducted in 1872 show the slough as part of the river. In
fact, much of what we now call Mitchell Slough may have been the
main stem of the Bitterroot River, according to those surveys.
The three irrigation canals that draw water from the
slough all designate their point of diversion as the river. The
Bitterroot Conservation District has a file full of 310 permits
issued on the slough when landowners set about restoring the
waterway two decades ago. Why are 310 permits important? You need
one to work in or modify a natural waterway. You don’t need a
310 permit to fix your ditch.
Siebel himself acknowledged
the slough was part of the Bitterroot River in water rights
applications he filed in the 1980s, designating his point of
diversion as a spring creek that was a tributary of the Bitterroot
Despite the considerable evidence to the contrary,
landowners along the slough now have a District Court ruling in
their favor. Its decision essentially creates a new class of water
under the Stream Access Law: If waters that were formerly rivers
and streams have been modified, the Stream Access Law no longer
applies. The Montana Supreme Court will hear oral arguments for an
appeal sometime later this year. I'm guessing the court will toss
out the previous decision. To do otherwise would reverse its
decades-long history of supporting stream access rights.
Meanwhile, the District Court’s decision creates a road map
for wealthy landowners to put previously accessible streams
off-limits to the general public.
devastating decision,” said Michael Howell, a founding member
of the Bitterroot River Protective Association, which is fighting
to preserve access to the Slough. “It pretty much stands the
law (on stream access) on its head.”
Brian Schweitzer agrees. “This decision had to be appealed
because it affects streams, creeks and sloughs all over
Montana,” Schweitzer told the New York Times in July.
“It’s a natural body of water, and by my reading of the
stream access law, it should be open to the public to fish and
Appeals filed with the Supreme Court
describe the potential impact if the ruling stands: Any
side-channel or any branch of a stream or river that has had some
sort of a flow-control structure, and that has been changed by
construction so that it looks different or is in a different
location than it would be without human intervention, could be
claimed and controlled for private ownership. This might affect an
entire stream or river if it has been altered or controlled enough.
The Stream Access Law is about as close to a sacred text
as one will find in these parts. If the Mitchell Slough landowners
think Montanans will take lightly the efforts to eviscerate the
law, maybe they need to step out from behind their "No Trespassing"
signs and gated playgrounds and get a better sense of public
opinion. What they'd find is that a lot of Montanans are fighting
mad about what they're trying to pull at Mitchell Slough.
Rob Breeding is a contributor to Writers on the Range, a
service of High Country News in Paonia, Colorado (hcn.org). He
writes in Kalispell, Montana.