Stream access wins decisively in Montana

by Rob Breeding

The long slog is over. The Montana Supreme Court has finally settled a dispute over who controls access to a side channel of the Bitterroot River known as the Mitchell Slough.

The verdict: The public does; Mitchell Slough is a natural waterway, and that means access is guaranteed for the people of Montana.

You may think that means I'm rigging up the fly rod and making plans to go wet a line in the backyard of rock singer Huey Lewis. Then I can thumb my nose at him and all the other wealthy landowners who have tried to bar people like me from the slough since the early 1990s.

I'm not. I doubt that I'll ever fish the stream. This battle was never just about Mitchell Slough. Many in the state's angling community were slow to realize it, but the dispute occurred simply because landowners directly assaulted a law that allows public recreational access between a stream's high water marks. It doesn't matter who owns the land, or even who wants access to it. If a lower court ruling banning access to the slough had stood, access to every river and stream in Montana would have been threatened.

That was clear to the Rose brothers, a couple of local boys who went fishing at Mitchell Slough back in 1991, with Bitterroot Star publisher Michael Howell in tow. And it was clear to the members of the Bitterroot River Protection Association, the kind of motley crew of rabble-rousers only the Bitterroot could produce. It was also clear to Democratic Gov. Brian Schweitzer. Shortly after taking office in 2004, Schweitzer reversed his predecessor's decision and instructed the Department of Fish, Wildlife and Parks to defend the public's right to fish the slough.

Most importantly, it was clear to the Montana Supreme Court, in a unanimous decision Nov. 17 written by Associate Justice Jim Rice, a former Republican legislator and House majority whip, who was appointed by Republican Gov. Judy Martz. Rice wrote that prohibiting public access to the slough was nothing less than an "absurdity."

The absurdity was that the lower court ruling created a road map for using the Stream Access Law to ban stream access anywhere. At that ruling's core was the idea that Mitchell Slough -- which begins at the Tucker head gate north of Corvallis and flows 16 miles before rejoining the Bitterroot near Stevensville -- had been so altered by man that it was an irrigation ditch and no longer a "natural, perennial flowing stream."

So folks with deep-enough pockets could do what the slough landowners did: Muck around in the stream a bit creating "improvements," hire consultants to convince the local conservation board that the waterway was no longer natural (which would also mean that you'd no longer need permits for streambed alterations), declare the waterway a ditch, hang big "No Trespassing" signs -- and then demand that local constables enforce them.

Landowners argued that Mitchell Slough was unique, and said it wouldn't set a precedent elsewhere. But was it paranoid to suggest that the rationale used to close the slough might also be used to close, say, the main stem of the Bitterroot? After all, there is a major dam high up in the Bitterroot Range on the West Fork, there are numerous diversion dams in the valley floor, and virtually every Bitterroot tributary is redirected for irrigation purposes.

Consider this exchange from the lower court testimony of state fisheries biologist Chris Clancy:

Question: Are there any main stem rivers -- I'm talking the Yellowstone, the Missouri, the Beaverhead, Gallatin -- any main stem rivers that have not been altered by humans?

Clancy: None that I'm aware of.

I talked to Michael Howell recently. The local newsman had just returned from the slough, where, in a re-enactment of the event that started it all more than 15 years ago, he'd watched as Randy Rose climbed past "No Trespassing" signs and fished Mitchell Slough. Howell's voice was weary. He's been on the phone constantly since the decision was announced.

"It took so long to get to get some resolution to it," said Howell, who became a charter member of the Bitterroot River Protection Association. "Most states don't have this kind of law. Montana is special that way. That's what's so great about this (ruling). It keeps it special."

Next time I launch my drift boat on the Bitterroot or on any other river in Montana, I won't forget the battle that was waged and won at Mitchell Slough. It was a fight to preserve what makes Montana special.

That's something worthy of a little paranoia.

Rob Breeding is a contributor to Writers on the Range, a service of High Country News (hcn.org). He teaches journalism at Flathead Valley Community College in Kalispell, Montana.

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