BigHornRam
Well-known member
Buzz got this one wrong. Fuggin Judges anyway!
District judge rules slough just a ditch
By MICHAEL MOORE of the Missoulian
The days of public fishing in Mitchell Slough are over.
District Judge Ted Mizner, in a long-awaited, closely watched decision, has ruled that the slough, which draws most of its flow from the Bitterroot River, is “no longer a natural water body.”
“Perhaps as early as 130 years ago, the Mitchell Slough may well have been considered a natural water body under the Stream Access Law,” wrote Mizner, who sits in Deer Lodge. “However, it cannot be seriously disputed that through natural processes the Bitterroot River has migrated to the west and its bed is substantially lower than the bed of the Mitchell Slough. It is not man's manipulations that have caused these changes in the Bitterroot River nor the subsequent change in the character of the Mitchell Slough.”
The case pitted the Bitterroot River Protection Association, a sportsmen's group, and the Montana Department of Fish, Wildlife and Parks against Bitterroot Valley landowners, The Bitterroot Conservation District and the Montana Farm Bureau.
Russ McElyea, attorney for the Farm Bureau, said Mizner's decision is a triumph for private property owners.
“It means they are going to have use of their property without the public walking through the middle of their land,” said McElyea, who works in Bozeman.
From the Farm Bureau's perspective, the decision also negates the possibility of the “creation of some previously unrecognized right to access manmade waterways,” McElyea said.
Attorneys for the state and the sportsmen's group were predictably disappointed by the decision.
“In general, it's a sad day when a water body that has been fished for over 50 years by local people has now been privatized, essentially by a few wealthy, out-of-state landowners,” said Jack Tuholske, who represents the protection association.
Bob Lane, chief attorney for FWP, said the judge understood the facts of the case extremely well, yet drew the wrong legal conclusion from those facts.
“He has the facts right and the law wrong,” Lane said.
Both Lane and Tuholske said they would consider an appeal, once they fully digested the decision and discussed the case with their clients. McElyea fully expects an appeal.
“I think everybody has long recognized that this is just the opening chapter,” he said. “I mean, I hope it doesn't get appealed, but that's not what I expect.”
The opening chapter has been a long one.
The case has been in the system nearly three years, ever since the conservation district determined that the slough, which begins at the Tucker head gate and wanders from about Victor to Stevensville on the river's east side, wasn't a natural stream for purposes of landowners needing permits to work in the slough.
The case was viewed by some as Montana sportsmen against rich landowners, but many of the landowners along the Mitchell are longtime Bitterrooters who found themselves living alongside wealthy neighbors, folks like musician Huey Lewis and businessman Ken Siebel.
The protection association challenged the conservation district's ruling - Mizner ruled in the district's favor in January - but offered a broader challenge under the Montana stream access law. That law provides public access for recreational use to “natural” water bodies within their high water marks.
However, the law also prohibits access to waters “diverted away from a natural water body for beneficial use” without permission.
The trial, which took place last July, produced copious testimony about the slough's origins, and there was at least some agreement that the slough was once a natural branch of the Bitterroot. Mizner, however, said that it's only through extensive work done on the slough by landowners that it now flows as it does.
“As a result, the channel itself is so changed that it can no longer be considered a natural channel even though some portions of the channel are still in identifiable historic locations,” Mizner wrote.
The state and the Bitterroot River Protection Association had argued that “man's manipulations cannot change a natural channel into a manmade ditch and the court agrees,” Mizner wrote. “However, it is clear in this case that it is only as a result of man's manipulations that the Mitchell maintains any appearance at all of a natural channel.”
Tuholske was troubled by the notion that private work on a natural waterway might lead to public water becoming private.
“I would point out that every river in this state has been manipulated in some way,” he said. “The same things that have been done to the Mitchell - riprapping, channelizing - it's all been done in our rivers. I think it would be very unfortunate if you could privatize a natural body of water simply by doing a lot of work to it.”
The state and the river protection group have 60 days to file a notice of appeal.
District judge rules slough just a ditch
By MICHAEL MOORE of the Missoulian
The days of public fishing in Mitchell Slough are over.
District Judge Ted Mizner, in a long-awaited, closely watched decision, has ruled that the slough, which draws most of its flow from the Bitterroot River, is “no longer a natural water body.”
“Perhaps as early as 130 years ago, the Mitchell Slough may well have been considered a natural water body under the Stream Access Law,” wrote Mizner, who sits in Deer Lodge. “However, it cannot be seriously disputed that through natural processes the Bitterroot River has migrated to the west and its bed is substantially lower than the bed of the Mitchell Slough. It is not man's manipulations that have caused these changes in the Bitterroot River nor the subsequent change in the character of the Mitchell Slough.”
The case pitted the Bitterroot River Protection Association, a sportsmen's group, and the Montana Department of Fish, Wildlife and Parks against Bitterroot Valley landowners, The Bitterroot Conservation District and the Montana Farm Bureau.
Russ McElyea, attorney for the Farm Bureau, said Mizner's decision is a triumph for private property owners.
“It means they are going to have use of their property without the public walking through the middle of their land,” said McElyea, who works in Bozeman.
From the Farm Bureau's perspective, the decision also negates the possibility of the “creation of some previously unrecognized right to access manmade waterways,” McElyea said.
Attorneys for the state and the sportsmen's group were predictably disappointed by the decision.
“In general, it's a sad day when a water body that has been fished for over 50 years by local people has now been privatized, essentially by a few wealthy, out-of-state landowners,” said Jack Tuholske, who represents the protection association.
Bob Lane, chief attorney for FWP, said the judge understood the facts of the case extremely well, yet drew the wrong legal conclusion from those facts.
“He has the facts right and the law wrong,” Lane said.
Both Lane and Tuholske said they would consider an appeal, once they fully digested the decision and discussed the case with their clients. McElyea fully expects an appeal.
“I think everybody has long recognized that this is just the opening chapter,” he said. “I mean, I hope it doesn't get appealed, but that's not what I expect.”
The opening chapter has been a long one.
The case has been in the system nearly three years, ever since the conservation district determined that the slough, which begins at the Tucker head gate and wanders from about Victor to Stevensville on the river's east side, wasn't a natural stream for purposes of landowners needing permits to work in the slough.
The case was viewed by some as Montana sportsmen against rich landowners, but many of the landowners along the Mitchell are longtime Bitterrooters who found themselves living alongside wealthy neighbors, folks like musician Huey Lewis and businessman Ken Siebel.
The protection association challenged the conservation district's ruling - Mizner ruled in the district's favor in January - but offered a broader challenge under the Montana stream access law. That law provides public access for recreational use to “natural” water bodies within their high water marks.
However, the law also prohibits access to waters “diverted away from a natural water body for beneficial use” without permission.
The trial, which took place last July, produced copious testimony about the slough's origins, and there was at least some agreement that the slough was once a natural branch of the Bitterroot. Mizner, however, said that it's only through extensive work done on the slough by landowners that it now flows as it does.
“As a result, the channel itself is so changed that it can no longer be considered a natural channel even though some portions of the channel are still in identifiable historic locations,” Mizner wrote.
The state and the Bitterroot River Protection Association had argued that “man's manipulations cannot change a natural channel into a manmade ditch and the court agrees,” Mizner wrote. “However, it is clear in this case that it is only as a result of man's manipulations that the Mitchell maintains any appearance at all of a natural channel.”
Tuholske was troubled by the notion that private work on a natural waterway might lead to public water becoming private.
“I would point out that every river in this state has been manipulated in some way,” he said. “The same things that have been done to the Mitchell - riprapping, channelizing - it's all been done in our rivers. I think it would be very unfortunate if you could privatize a natural body of water simply by doing a lot of work to it.”
The state and the river protection group have 60 days to file a notice of appeal.
