Huey Lewis, the leader of the rock ’n’ roll group Huey Lewis and the News, got some news of his own last weekend from a bunch of life-long Bitterroot residents who aren’t happy about having their fishing access put off-limits by Lewis’ fences and “No Trespassing” signs. Wearing “Don’t fence me out” badges, the old-timers defied threats of legal action to wade and fish in Mitchell Slough, which they say is part of the Bitterroot River and hence open to the public under Montana’s Stream Access law. Lewis, who contends that the slough is actually an irrigation ditch, and therefore not open to the public, has waded into some very deep and sacred waters.
The Missoulian’s front-page photo showed 77-year-old Ray Karr, described as “a World War II hero and avid angler,” wading under the fence with staff in hand. His compadres in the Bitterroot River Protection Association’s “fish-in” were state Representative Jim Shockley, former Ravalli County Justice of the Peace Ed Sperry, and lifelong Bitterroot resident Randy Rose, who has already been arrested and acquitted for fishing the slough more than a decade ago.
None of these guys are spring chickens, and their combined residencies dwarf the 15 years that Lewis has owned the property through which the stream flows. According to a statement written and released by Lewis, when he bought the property he was “told that the Mitchell was private irrigation water from a head gate.” Lewis also says the waterway was formerly filled with car bodies, junk and silt prior to his privately-funded stream restoration efforts.
Mr. Lewis should be commended for his efforts to clean up and return the meanders to the stream, which, according to the chief legal counsel for the Department of Fish, Wildlife & Parks, had been intentionally channelized by former owners. But here’s more news for Huey—he’s not the only one dumping money into repairing past damages to the streams and rivers with which the Big Sky state is so abundantly blessed.
Through the state’s River Restoration and Future Fisheries Improvement Acts, Montana has pumped millions of public dollars into restoring streams damaged by mining, logging and poor ranching practices. Those and other programs, combined with hard-won water leasing laws, are also being used to preserve in-stream flows by drilling new stock wells for ranchers instead of diverting precious river water down miles of leaky ditches. Through the restoration of tiny feeder streams, where our wild fish go to spawn, Montana’s rivers continue to support healthy populations of naturally reproducing fish, unlike most of the streams in this nation, which are planted with hatchery fish on a regular “put and take” basis.
When the former secretary of the interior visited Montana a couple years back, he stood on the banks of the Blackfoot River and unabashedly praised Montana’s river restoration programs, calling them “models for the nation” because they worked with, not against, local landowners and ranchers.
Those laws were written and passed by legislators of both parties, from very conservative to very liberal, who knew the value Montanans place on maintaining and restoring their much-loved rivers—legislators much like Rep. Jim Shockley of Victor, who took part in the “fish-in” last weekend. That Shockley walks with a cane all the time, but made the effort to wade into the slough in defense of the principle of public access to public waterways, puts his commitment into perspective.
Huey Lewis might also be surprised by the news that some of the water flowing through what he claims is his “private irrigation” ditch may well have been leased with public money from Painted Rocks Reservoir for the express purpose of keeping the Bitterroot River flowing during drought. Those public funds, it should be noted, come directly from the pockets of Montana’s anglers through license fees and excise taxes on every spool of leader, every roll of line, every rod, reel, and pair of waders they purchase.
That Huey Lewis values his privacy is not news. Most Montanans value their privacy—in fact, it is a Montana trait that we generally embrace the “live and let live” principle in our daily lives. Nor is it news that wealthy, non-resident landowners increasingly think they can simply buy Montana riverside property, slap up a fence, and then claim private access to those waterways. The same thing is happening on the Ruby River, the Madison River, and virtually every other ribbon of flowing, healthy water in the country.
But here’s some news for those who think they can do this in Montana: Read the Constitution. Under Montana’s Constitution, the waters of the state belong to the public. So does the land under the water. There is no such thing as “private irrigation water,” as Mr. Lewis claims. The same Constitution also acknowledges the state’s authority to grant the use of this publicly-owned resource for “beneficial purposes.” But it is not a permanent allocation—water rights and permits can be changed in location, amount, or even lost completely due to abandonment or waste.
One thing seems certain—the issue of whether Mitchell Slough is a public waterway or a “private irrigation ditch” will be decided in court. The redoubtable Rep. Shockley, who is also acting as the attorney for the Bitterroot River Protection Association, says a 1902 U.S. Geological Survey map clearly labels the slough as the “East Branch of the Bitterroot River.” Despite significant man-caused alterations to this once-natural channel, water studies contracted by the Department of Fish, Wildlife, & Parks show that the slough actually gains water prior to dumping back into the Bitterroot—which is not a normal characteristic of irrigation ditches.
Rep. Shockley is blunt in his assessment of the situation: “Some people think they can come in here with enough money and enough lawyers and change geography.” Given the commitment of this group—and anglers statewide—in their fight to maintain dwindling public access to public waters, the “news” for Huey is he’s likely gonna lose.
When not lobbying the Montana Legislature, George Ochenski is rattling the cage of the political establishment as a political analyst for the Missoula Independent.