The controversial Mitchell Slough debate dried up in the wake of the Montana Supreme Court's unanimous 2008 ruling that the slough, a fork of the Bitterroot River, was in fact a public side-channel, not a private ditch. But a bill moving through the Montana Legislature seeks to effectively reverse the court's decision, and thereby remove thousands of miles of waterways from the public domain.
House Bill 309, sponsored by Rep. Jeffery Welborn, R-Dillon, would clarify the prohibition on recreational access to ditches. Opponents of the bill, including Montana Trout Unlimited, argue there isn't a problem with people recreating on irrigation ditches, and claim the bill amounts to an attack on Montana's Stream Access Law.
"The unfortunate reality," says Montana Trout Unlimited Conservation Director Mark Aagenes, "is that in order for [the bill's proponents] to fully make sure Mitchell Slough would be overturned, they needed to write the bill so broadly that it just makes it really difficult to see where the Stream Access Law would apply anymore."
The bill would limit public access by privatizing waterways where the return flows from irrigation make up the majority of the flow, and by privatizing side-channels of braided rivers and streams where control structures are constructed at the head of a braid.
"All of this in the guise of clarifying the present, clear statutory definition of private ditches that are off-limits to public recreation," wrote Bob Lane, chief legal counsel for Montana Fish, Wildlife and Parks, in his statement prepared for the Jan. 27 hearing.
Lane went on to describe the bill as senseless, pointing out that even the Bitterroot River—which, at least during irrigation season, fills with three times more returning diverted water as the primary flow of the river—would be defined as a ditch.
"In fact almost all rivers and streams in Montana, except those in wilderness areas and the headwaters of streams on Forest Service land, could no longer be used by the public," Lane said. "HB 309 not only doesn't work, it just doesn't make any sense."
Still, on Feb. 3, the Republican-dominated House Agriculture Committee passed HB 309 by a vote of 13 to eight, sending it to the House floor, where it was expected to be debated by the end of this week.