Mitchell Slough open for recreation, justices say
By PERRY BACKUS of the Ravalli Republic, Nov 18, 2008 [here]
HAMILTON - In a case with statewide implications, the Montana Supreme Court ruled Monday that Mitchell Slough is open to recreation under the state’s stream access law.
The court said the 16-mile-long slough roughly follows the historical course of a waterway mapped 130 years ago, and therefore is subject to public access and required permitting, as are other natural waterways.
The 54-page decision overturned two earlier rulings by state district courts that found the slough was not a “natural, perennial-flowing stream.”
Mitchell Slough is located east of the Bitterroot River between Hamilton and Stevensville. The Tucker Headgate directs water from the East Fork of the Bitterroot River into the slough. The water travels across private property, including that of wealthy landowners such as 1980s rocker Huey Lewis, for about 10 miles before re-entering the river.
Ditch companies and private water users have historically used water from the slough for irrigation, stockwater, and fish and wildlife purposes. They also routinely took actions above Tucker Headgate to ensure an even supply of water into the East Fork of the Bitterroot River.
The amount of water diverted at the Tucker Headgate exceeds 40,000 acre feet - enough water to cover 40,000 acres to a depth of one foot. The large amount of water diverted at the headgate was not all dedicated to appropriated water rights, the court ruled.
The slough has been reconstructed and, in some cases, rerouted to the extent that it no longer follows the path it would have without the intervention.
Still, the court found that at least a portion of Mitchell Slough remained in the same location that mapmakers found it in 1872 when they named it the “Right Fork of the St. Mary’s of the Bitterroot River.”
The original court case began with a lawsuit filed by the Bitterroot River Protection Association, which challenged a 2003 decision by the Bitterroot Conservation District that the slough wasn’t a natural stream for permitting purposes.
The association also asked the court to rule that Mitchell Slough was subject to public access under the state’s stream access law.
Ravalli County District Court ruled against the association in two different decisions in 2006, saying the slough was no longer a natural stream because of years of manipulation by man - and therefore not subject to the state’s permitting process or stream access law.
Montana Fish, Wildlife and Parks, Ravalli County, sportsmen’s groups, stockgrowers and others intervened in the case.
The Bitterroot River Protective Association and FWP argued that Mitchell Slough was subject to public recreational use because it was naturally formed, flows perennially, contains a fishery and had been used by fishermen and hunters for decades.
Landowners argued the slough’s existence was a demonstration of the “genius of man” which prevented the Bitterroot River from migrating west and abandoning the slough through a series of diversions, weirs and excavations. They claimed the slough was merely a canal.
For the District Court, the critical question was whether the slough was “natural,” ultimately deciding it was not.
On Monday, the Supreme Court disagreed.
Since nearly every river and stream in Montana has been affected in some manner by man, the high court concluded: “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 SAL would prohibit the very access it was enacted to provide.”
The Supreme Court also overturned the lower court’s conclusion that the water captured by the slough in return flows from irrigation was “artificial” and “not natural,” saying that many Montana streams carry discharged irrigation flows.
The court also disputed landowners’ claims the slough was a “man-made water conveyance system” that exists only because of man’s manipulations.
“The claim that man has made the Mitchell Slough is a bold one, indeed,” the court’s decision reads.
The court did offer a caveat on the issue of public access.
The slough runs through private property and the public only has the right to recreate under the terms of the state streamside access law, which allows access on the water and up to the ordinary high-water mark on the slough’s bank, the court said.