Ochenski 

Happy ending: Mitchell Slough ruling affirms the Montana way

Last week’s unanimous decision by the Supreme Court protecting public access to the Mitchell Slough gives Montanans a special reason to be thankful this year. Once again our right to access the waters we own, as citizens of Montana, has been preserved against another challenge from powerful moneyed interests who have, time and again in recent years, tried to fence off waterways as their private property. Maybe this time, they’ll get the message and, if they want to live here, respect Montana’s stream access law.

The Supreme Court’s ruling may be the final chapter in the story that began almost a decade ago when the Bitterroot Conservation District, which had issued the 310 permits required for modification of natural water bodies for years, decided the Mitchell Slough was an irrigation ditch and didn’t require permits for modification by landowners. 

Following that decision, ’80s rocker Huey Lewis, joined by investment tycoons Charles Schwab and Ken Siebel, effectively stopped public use of the Mitchell Slough by fencing people out.  The wealthy out-of-staters claimed they had dumped a million dollars into restoring the waterway.  A letter Siebel wrote to then-Governor Judy Martz says, “If the ditch is opened to the public, there will be no winners.  We would prefer to have the Mitchell revert to its former condition than sacrifice the security of our homes.”  Ironically, Siebel’s own conservation easement lists the water body as “the East Branch of the Bitterroot,” the same title used on county plats.

Siebel tried to convince Governor Martz to order the Department of Fish, Wildlife and Parks (FWP) to duck any potential challenge to the Bitterroot Conservation District, which had determined the slough was an irrigation ditch, not a “natural, perennial stream” and thus, a branch of the Bitterroot River.  It worked, at least for a little while, until the Bitterroot River Protection Association took the issue to District Court.  As a longtime advocate for access to the slough, Republican state Senator Jim Shockley called it straight when he spoke with the Independent four years ago. “They were prevented by political pressure from going any further,” he said. “With a new governor, I hope that Fish and Wildlife might be back in.”

Shockley’s hope, as it turned out, came true and the agency rejoined the fray when Governor Brian Schweitzer took office.  But once again, the court decision did not favor the citizens and instead, came down on the side of what Shockley calls “the money.”

“Water flows toward money,” Shockley told the Indy. “The guy with the most money gets the water. If they get away with it here, who knows what’s next. It’s a precedent for the rest of the state. Just because they’ve worked on the slough doesn’t make it a ditch.”

Shockley’s words were prophetic.  Once the case reached the Montana Supreme Court, the true impact of the lower court’s decision was weighed and rejected unanimously.  Writing for the Court, Justice Jim Rice affirmed Shockley’s contention that working on a waterway doesn’t automatically make it a ditch. “Though the extent is disputed, the Mitchell remains in partially the same location as in 1872, when the Government Land Office (GLO) Survey Map designated the Mitchell as the ‘Right Fork of the St. Mary’s Fork of the Bitterroot River,’” Rice wrote.

 “There would be little disagreement with the proposition that virtually all of Montana’s waters have been altered or manipulated by man,” Rice continued. “The evidence in this case demonstrates that the primary source water for the Mitchell, the Bitterroot River, is no exception.” Using that logic, which is the heart of the case, the Supreme Court found the lower court’s definition of a natural stream “unworkably narrow.”

Indeed, that is exactly what the Bitterroot River Protection Association and the numerous sportsman’s groups that intervened in the case contended. Simply put, if all it took was manipulation of the bed and banks of a natural stream to suddenly turn it into a ditch instead of a river, few rivers in Montana would be classified as “natural streams.”  And that definition, widely applied by landowners who wanted to privatize public waters, would negate the entire purpose and intent of Montana’s stream access law and the Supreme Court decision which spawned it, Montana Coalition for Stream Access, Inc. v. Curran.  “Under the public trust doctrine and the 1972 Montana Constitution,” the Court found, “any surface waters that are capable of recreational use may be so used by the public without regard to streambed ownership or navigability for non-recreational purposes.”

Justice Rice reached the same conclusion and put it succinctly. “We thus conclude that the District Court’s dictionary-based definition, which essentially requires a pristine river unaffected by humans in order to be deemed ‘natural,’ results in an absurdity: For many Montana waters, the Stream Access Law would prohibit the very access it was enacted to provide,” he wrote.

This Mitchell Slough decision establishes a landmark in Montana law and certainly in the realm of public access to rivers and streams.  With the determination that Mitchell Slough is, indeed, a natural body of water, any pretension to deny access is flat-out illegal. For this, if for no other reason, all Montanans who treasure our natural heritage have great reason to be thankful.

But there is much more to celebrate.  For one thing, from top to bottom this issue showed that Montanans, no matter which political party they support, can and will rally to the defense of our longstanding traditions.  Likewise, regardless of our political persuasions, we who were not in this fight owe a great debt of gratitude to those who doggedly sought to preserve our rights—and in the end, won.

Helena’s George Ochenski rattles the cage of the political establishment as a political analyst for the Independent. Contact Ochenski at opinion@missoulanews.com.
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