Water is definitely for fighting in Montana
by Rob BreedingOne 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.
A 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.
Today’s public 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.
The 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 River.
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.
“It’s a 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.”
Montana Gov. 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 recreate.”
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. © High Country News