Montana Stream Access Dispute

[BuzzH]

BHR,

Your ignorance of river habitats is really shining through today. Do you know what "braided" channels are? Just curious as it would be IMPOSSIBLE to keep non-natives out of mitchell slough as its a channel of the Bitterroot river. During high flows, theres braids of the Bitterroot that are constantly changing and flowing into the slough.

When non-natives are eliminated from certain waters, you typically dont waste money attempting such actions where its a guarantee you will be unsuccessful.

But, while we're in your world of make believe, and for the sake of argument, if it were possible to keep non-natives out, yes, I would be all for poisoning Mitchell Slough and having native fish like bull trout, west slope cutties, etc.

Yeah, Ted did have something to do with proposal, when he was approached by the FWP he agreed to pay for most of it if the MTFWP wanted to pursue it.

The reason that the project hasnt went forward is indeed because of some local whiney-assed sportsmen, a couple whiney landowners, and the MTFWP that puts the needs of political interests in front of the whats best for widlife. Would you expect anything less from a FWP Commission made up of outfitters, cattle interests, and whiney landowners?

Earth to Paul....

 

[BigHornRam]

Buzz,

There was an interesting letter to the editor in this mornings paper reguarding the Mitchell Slough topic. When it gets posted I'll copy it over here so you can comment on it. Don't know who the author was and if he has any personal stake in this issue. I have never been to the slough, so I don't know if his discriptions are acurate or not. He had concerns about disterbances of nesting birds and fish redds by fisherman accessing the slough by wading (the only way to access the area and stay within the high water marks and thus not tresspass on private property). I don't know if this area could be accessed by float tube or not? Maybe you do?

Now there is many PUBLIC lands that have restrictions to PUBLIC access year round and during certain critical time periods. Elk calving areas, concentrated grizzly feeding areas, ect. Read this letter when I post it and let me know if Mitchell Slough might qualify for limited public access and if unlimited public access may indeed degrade the resource. BTW the letter does mention Dale Burk who is one of the driving forces behind gaining access to the slough. I know of Dale through the local sportsmans group and think that he is well spoken, knowledgeable and driven. He is also strongly opinionated on many issues and not afraid to make his opinions known (much the same as you). But some times in his zeal to promote his agenda, he over looks or ignores important side issues. JMO however.

 

[BuzzH]

BHR,

I would concede to you that there may very well be some wildlife issues with unlimited access at certain times. I would likely not object to seasonal closures to Mitchell slough for things like protecting nesting waterfowl and redds. That makes sense, but, if those types of "rules" are put in place they had better apply to everyone, including the landowners. I would also like to see conclusive proof that damage is, in fact, occurring.

The one case I'm real familiar with, where a definate abuse of the landowners privelege to petition to disallow the stream access law was fought, (unsuccessfully), by a landowner on the Ruby River directly downstream of Warm Springs Creek. The landowner said that fishermen were leaving large volumes of trash and harming the fish population on the Ruby that flowed through his land. The MTFWP did a fish count on his land and determined that the first couple miles below warm springs creek had THE HIGHEST fish density on the entire length of the Ruby River...3-4 thousand fish per mile and also contained a majority of the fluvial grayling in the Ruby. As to the trash, the FWP found nothing of consequence except on HIS land...he had some old cars that were used as rip-rap. As you can imagine his request to keep sportsmen out was promptly denied, and rightfully so. I found great pleasure in fishing that stretch of river...both because of the high fish density, and to excercise my right to legally access Montana Streams. I fished it nearly every day for 3 months... It was no big deal to catch 50-60 fish in a short evening of fishing there.

I honestly dont think there is that many problems associated with nesting waterfowl and redds in Mitchell slough. But, if harm can be identified and then proven by an independent study...hell yeah, I'm all for protecting wildlife at crucial times. But, let me again make it clear that if the restrictions are put in place, they should apply to EVERYONE.

I'll read the article when you find it.

 

[BigHornRam]

Buzz,

Here's the letter as promised. Flame away!


Letters for Sunday, May 22, 2005

Mitchell Slough

Howell is for access, not conservation
In the May 13 Missoulian, you ran an article reporting an award given by the Five Valleys Land Trust to Michael Howell. In that article you quote Dale Burk and call him a "crusading newspaperman." Newspapermen, crusading and otherwise, ought to get their facts straight.

According to the paper, Burk says, "The decision several years ago of the local conservation district to grant a wealthy California landowner permission to convert a public waterway … into private ownership … (by determining that the Mitchell is not a stream.)" The request for a determination of status of the Mitchell was made by a native Montanan, not a Californian. The Montanan (his wealth is none of my business) was not a Mitchell landowner, but the long-time head of an irrigation ditch company which takes its water from the Mitchell. The Mitchell has never been a public waterway, but always surrounded by private land where fishermen asked permission to fish. The Mitchell is not a natural stream but has water today only because the ditch companies, at their own expense and with no money from any conservation group, force water into the east channel of the Bitterroot and into the Mitchell.

There is an irony that this award for conservation was given to a man who stands not for conservation but for public access. Public access will kill the Mitchell. The only way for the public to access the Mitchell is to walk in the water, scaring nesting waterfowl and spooking fish. Walking up the streambed will ruin the fishing for the day, and walking through the spawning redds will ruin the fishing for a lifetime. Howell and Burk must believe we should destroy the Mitchell in order to conserve it.

S. A. Levenstein, Stevensville

 

[BigHornRam]

No comments from Buzz????????????????????????

 

[BuzzH]

BHR, not much to talk about really.

Its obvious the guy who wrote the letter doesnt know anything about water law. If he did, he'd realize that the courts, as well as the MTFWP have proven that mitchell slough is navigable water, under the Federal and State law.

As to his other issues with Dale Burk, opinions vary, and he's entitled to his. I'm more a champion of access than the guy in the article.

Also, like I said before, if his claims that fishermen are going to "ruin" mitchell slough are true, there are avenues to take to prove those claims. I believe the guy is desperate and looking for an excuse to keep the public out. I could be wrong, there may be some issues that need to be addressed.

But clearly, the law is on the side of access in this case.

 

[BigHornRam]

Met with my insurance agent this morning (a native Bitterrooter with no personal stake in the issue) and quized him about the Mitchell Slough controversy. He gave me some "no spin" history and information about it. His comments were much in line with Buzz's comments, so I'll let this topic rest for awhile.

 

[ELKCHSR]

You're starting to make as much sense as elkcheese.

LMAO Buzz.... Just for new peoples information, issues Buzz is talking of, when confronted with being able to see his silly lies in person with his own lying eyes, he ignores, declines the invitations, or comes up with silly lame excuses of why he doesn't want to see the truth in person...

The reasons for not wanting a stream access law are pretty obvious if you're a landowner who is profiteering from the river access.

While this is true Buzz, it is by no means the only reason, nor the most likely seeing as how many people own river frontage in the West and how many are actually "Profiteering" from their ownership.

What I have been told by most is that they have problems with garbage, opened gates, vehicle tracks across planted fields, cut fences and any other amounts of rude behavior from people accessing private land utilizing public waters.

 

[BuzzH]

Elkcheese,

Please refrain from posting on topics you dont understand...like this one for example.

You cant cross private property to reach public right-of-ways. Access can only be gained at public access points...its all in the stream access law.

Pick up a copy of the stream access law and have a third grader read it to you...as its pretty obvious you're lacking in reading skills.

 

[ELKCHSR]

LOL!!! I cross them all the time...

You cant cross private property to reach public right-of-ways.

(Disclaimer: I always ask first though )

 

[Ithaca 37]

DENVER - Jarett Duty relishes the evergreens, the rush of white water, and the protruding rocks on the Elk River in northwest Colorado, where his rafting company floats clients for a brief but exhilarating time each summer.

But these days the co-owner of Bucking Rainbow Outfitters has to navigate more than frothy haystacks when he runs the river: He has to deal with politics, too.

A number of landowners just outside Steamboat Springs don't like the intrusion of streaming rafters interrupting their tranquil life along the banks of the Elk.

They are considering legal action that would pursue anyone who floats through their private land as being in violation of "civil trespassing" laws.

It is setting up a classic Western confrontation: Who owns the river, anyway?

For generations, Coloradoans and other Westerners have fought over water rights. Agriculturalists have wanted their piece of rivers to water crops. Municipalities want their share for residents' faucets. In between is a welter of interest groups - from environmentalists to the ever-present lawyers with their briefs.

Now, as an increasing number of people buy second homes with river frontage, a new water battle is gathering momentum in Colorado and other states: aesthetics versus adventure. The homeowners want their privacy, while outfitters want the opportunity to take tourists and thrill seekers through a class III set of rapids.

"Is it going to take someone getting shot and killed to clarify the law?" says Mr. Duty. "You still have a lot of hard-core old-school people who are saying, 'This land is mine.' "

In theory, the issue probably should have been clarified a long time ago. Colorado was among the first states to pioneer white-water rafting. After World War II, many veterans took the rubber boats they had used to storm the beaches of Europe for runs on local rivers, according to Jason Roberston of American Whitewater, who works out of Maryland for the national group.

Yet most observers agree that Colorado is among the last to reconcile its murky water laws. And the fight over privacy versus recreation is particularly intense here: the state has some of the country's most sought-after white water and the influx of people buying waterfront property is growing as well.

In Routt County, home to the Elk River, no one has come to blows yet, Duty says. But he tells stories of guns pointed and shots fired over the heads of boaters in other parts of the state.

"Bottom line, I think rafters have some good arguments to make, but the law in this state is unclear," says Fritz Holleman, a lawyer in Boulder who has represented the American Whitewater organization that promotes recreational use.

Most do agree on one point of law: Boaters are subject to "criminal trespass" while riding a river through private property if they touch the river bed or bank - which are considered the landowner's.

The rub is what - if any - rights rafters, kayakers, and others have to ride the water itself. James Horner, a lawyer in Steamboat Springs who represents a group of landowners, refers to the oft-cited 1979 Colorado Supreme Court case of People vs. Emmert. "If you simply float across a person's property, you're essentially creating a civil trespass," he says.

Civil trespass arguably comes, for example, when a river rafter breaks landowners' "quiet enjoyment" of their property, Mr. Horner explains. But enforcement is problematic. The landowners would have to pursue the untested matter in court, and Horner says a jury would then have to weigh the loss of access to a river against the loss of "quiet enjoyment."

David Moss, a member of the Seedhouse Road Coalition, a landowner group along the Elk, says he doesn't have a problem with lone kayakers. But "I have a real problem with the commercial guy creating civil trespass and making money off it," he notes. Mr. Moss doesn't think the Seedhouse coalition will file any lawsuits as a group, but individual landowners may pursue their own legal action.

For now, Bucking Rainbow Outfitters has won a permit request for a new put-in on the Elk River. And the recreational community in general has a defense ready in case all this does end up in court. River Runners believe they have legal footing in a 1983 opinion by the Colorado attorney general indicating that property owners may not control the water that runs over their land.

They also point to federal law, which says that rivers declared "navigable" must allow public access. One problem: Lawyers say no rivers in Colorado have yet been defined as navigable. But Duty believes that designation already exists in practice on the Elk. "If you can float down it," he says, "you can float."

http://news.yahoo.com/s/csm/20050606/ts_csm/araft_1