Montana Stream Access Dispute

[BigHornRam]

Ranchers tell their side of Mitchell Slough dispute to Schweitzer
By MICHAEL MOORE of the Missoulian



TUCKER CROSSING - Yes, Huey Lewis the rock 'n' roller was there, standing along the banks of the Bitterroot River.

Yes, Gov. Brian Schweitzer was there, with his four-footed diplomat, Jag the border collie.

And yes, the topic was Mitchell Slough, which is either a ditch or a fork of the river, depending on who you're talking to.



So all the ingredients of a media circus were in place. The rich rocker/rancher who allegedly wants to lock up the river, the dynamic governor/rancher and a body of water that people have been arguing about for decades.

And then a funny thing happened.

Lewis made a few cursory remarks, then asked his neighbors to talk with the governor for a while about the role that Mitchell Slough plays in their lives.

"I'm really just one of about 30 landowners who live down here," said Lewis, who then stepped aside and was all but invisible for the next 60 minutes. "They don't get their voices heard, and I think it's great you've come to listen to them."

That left the governor and the ranch families plenty of time to talk about the slough, which most of the ranchers referred to as "the ditch."

The Mitchell Slough, which begins at a 60-foot-long headgate near Tucker Crossing north of Corvallis, is currently the subject of a lawsuit that should ultimately determine whether it's a public waterway and thus open to public use. The slough provides irrigation water to a host of ranchers who farm in the mid-Bitterroot.

The Bitterroot River Protection Association, which formed in response to the debate over access to the slough, filed the suit, which is expected to be heard by District Judge Ted Mizner in July. The association claims the slough is a historic channel of the river and, as such, should be open to the public.

The suit and the argument over the slough has drawn national media attention, much of which has characterized the debate as a confrontation between rich landowners like Lewis, Charles Schwab and Ken Siebel and Montana sportsmen. And that is part of the story.

But left out of the discussion, for the most part, have been ranchers whose roots wind back generations in the Bitterroot. They are, for the most part, uniformly against the notion of turning the slough into a public fishing stream.

"We're all just broke farmers," said Hans McPherson. "These people, they've taken care of this piece of water and turned it into the good thing that it is today. The people who are suing have never spent one dime to restore the habitat along this ditch."

The ranchers had plenty of questions for their fellow rancher, the governor.

Who will pay for damages to private property caused by recreationists? they asked.

Our deeds say our property lines run to the middle of the ditch, and we pay taxes on that property, asked Ed Hebner. If the public gets access, do we lose that part of our properties?

If Mitchell Slough is a public stream, will other irrigation ditches around the state be viewed similarly?

The governor steered clear of questions that required a legal interpretation, but he expressed sympathy for ranchers who've found recreationists roaming around their land.

"Believe me, I'm a ranch owner myself," he said.

The governor also made the point that he won't have much say in the ultimate disposition of the slough; that will be a matter for the courts.

"This is a case where we just needed to see what's going on here," Schweitzer said.

Schweitzer came at the invitation of Lewis, who chatted with the governor about the slough in early May, but got off the phone when he learned reporters were listening in on the call. He then invited Schweitzer to visit the slough.

"I personally want to say, I think it's pretty cool that you came," Lewis told Schweitzer.

The ranchers told the governor that they've spent hard-earned money to turn the Mitchell from a mossy slackwater into the vibrant stream that it is today. If the state allows fishermen to access the slough, is the state going to start paying the bill to keep the slough working as the ecosystem it is today? they asked.

Of course, there were no final answers Wednesday. Those answers will come later, after the trial. The ranchers seemed pleased the governor had come up the valley, and pleased that the media was willing to include them in the discussion.

"We've been distressed that this has been turned into such an Us vs. Them mentality," said Judy Hebner. "So I think it's good we've all had a chance to talk a little bit.

Schweitzer left the river to spend some time with those who are suing for access to the stream, and he expected to hear about a piece of water significantly different than the one the ranchers described.

 

[Bambistew]

The ranchers told the governor that they've spent hard-earned money to turn the Mitchell from a mossy slackwater into the vibrant stream that it is today.

Do you think they had all the neccessary paper work in order when they "turned the slack water" into a vibrant stream?

This will be an interesting battle... Just because their "property" boundry goes to the middle of the stream doesn't mean squat... What about people that own property on both sides of a river... their property boundary doesn't stop at the waters edge and then start again on the other bank...

Thats part of living in MT and the property laws if they don't like it there are many roads out of the state!

 

[JoseCuervo]

More ranchers denying access to fishing and hunting..... Bummer.

 

[BigHornRam]

This all boils down to whether the land in question is a stream or an irrigation ditch. I believe the courts will dertermine it is a stream. But there are some other important issues to discuse here as well.

If the land owners did not improve the property, would the public even be interested in using it? No, so what incentive do the land owners have to improve this habitat if this is the result in doing so? At what point will the throngs of sportsmen who would have unrestricted use of this improved habitat actually start to degrade it. Tough questions.

 

[BuzzH]

The law on stream access is pretty simple and if landowners cant understand the law, tough luck. Like Bambistew said, theres lots of roads heading to other states that deny the public access to public right-of-ways, ordinary high-water marks, etc.

The public should not be denied access to Mitchell Slough and its not a tough issue at all.

Landowners should all want to improve their land as they clearly benefit more than anyone when they do.

I dont think sportsmen will "degrade" the habitat on the ordinary high-water mark of stream (or in this case Mitchell slough).

Time for the whiney landowners to shut up.

 

[Calif. Hunter]

In most of the west, access via "navigable waters" was reserved by the Feds when the land was transferred from the public domain. Tons of laws and case law support that. You would be surprised what constituted navigable waters. The question will probably turn on the status of the waterway at the time ownership became private - was it man-made or was it a natural navigable waterway?

Improvement is immaterial, I believe.

 

[BuzzH]

Calif. Hunter, actually navigable waters was reserved NATION wide by the feds. Any state that organizes and takes the issue of navigable waters to court will win. Thats exactly how Montana, Idaho, etc. have won the stream access laws. Wyoming has been trying to raise money and get a court case over this issue as well.

I dont believe that the status of the waterway at time of ownership becoming private is of any consequence in the issue of Mitchell slough. The evidence is pretty over-whelming that Mitchell slough at one time (and still is) just a channel off the Bitterroot River. If you or anyone else were to look at it, you'd have no doubts that its just an active river channel (and thusly, the stream access law applies). The only route the landowners have now is to appeal to the state that their land is being trashed by fishermen. But, thats pretty much impossible to win, as recreationists are limited to the ordinary high-water mark. Typically walking on river rock, sand, or the river-bed etc. does absolutely no harm. I've heard of a couple landowners filing appeals, but never have heard of any winning their cases.

I also agree that improvements are immaterial, as access is limited strictly to the high-water marks and river beds.

 

[Ithaca 37]

Buzz, Thanks for the information. The way I always understood "navigable waters" was that the term applied to just about any waterway you could float a canoe down. Interesting , also, that any waterway floating a canoe with a mountain man trapper and his furs in it going to market was/is an interstate commerce route if it crosses a state boundary.

 

[BuzzH]

Ithaca, heres a bit about navigable waters:

1. Which rivers are owned by the public?

The U.S. Supreme Court has held that the bed and banks under all rivers, lakes, and streams that are navigable, for title purposes, are owned by the states, held in trust for the public. Title in this context means ownership. This public-trust ownership extends up to the ordinary high water line, (or ordinary high water mark,) encompassing what is commonly referred to as the submerged and submersible land, as opposed to the upland. This type of navigability is called title navigability.

2. How did the public come to own these rivers and lands?

The Supreme Court has held that navigable rivers, lakes, and streams have been public since ancient times in all civilized societies, and that in colonial America they were held for the public by the King of England. When the original thirteen states took sovereignty of their land from the British after the American Revolution, those states became owners of the land underlying navigable waters. States that subsequently entered the Union have the same ownership rights as the original thirteen states under the Equal Footing Doctrine, and became owners of the land underlying navigable waters as of the date of statehood.

 

[BigHornRam]

Buzz,

The whinny land owners could poison the stream and then transplant an endangered fish in the slough, like another whinny land owner proposed doing.

 

[BuzzH]

BHR,

As usual you're blowing it out your ass...

No landowner can act on their own and poison streams without the consent of the MTFWP.

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

Sorry you had to take another spanking on an issue you dont have a clue about. You can pick up copies of Montanas Stream Access law at any MTFWP office. Take my advice and pick one up so you understand the issues before you make an ass of yourself again.

 

[Tom]

Pretty neat, its the Equal Footing Doctrine that gives the states ownership of the rivers and streams. Is that quote from the Montanas Stream Access law pamphlet?

Maybe the landowners will put in a fishing lodge and come out better? Is that what you mean Buzz, the landowners benefit, they have to make some money somehow, or else they loose out.

How are landowners encouraged to manage the land and streams better there? That was a good question brought up, above. There are landowner tags in Montana, right? What is there for doing well with a stream, stopping erosion, etc., what incentives are there for landowners who do well, and what disincentives for those who do bad?

 

[dgibson]

I'm curious about what constitutes "ordinary high water mark," and just what that designation entails. Along the Ohio River there are LOTS of river camps, various factories, etc. that sit in the flood plain. The local horse track gets surrounded by flood waters just about every year; they have a levy to keep it off the track. That would seem to be within the "ordinary high water mark" and therefore public property, but yet if I get caught trespassing without permission I'm still getting a ticket. Does the Federal designation go so far as to define what rights they withold for the public?

I also know that, at least in KY, a person can fish these "public streams" through private property, so long as they stay in the boat. If they set foot on the bank they've trespassed. But what if the bank is currently lower than the "high water mark?"

I guess what I'm trying to say is that there's probably a lot of room in whatever legislation or rulings exist for these landowners to wiggle.

 

[BigHornRam]

Buzz,

I understand that FWP would be in on the project, just like the one on Cherry Creek. Be honest Buzz, what was Ted's true motives for that project? Just because Ted gave you a job for a couple years doesn't mean he should get a free pass from your critisism. Be consistant. If this issue here was as cut and dry as you say it is, then why is Schweitzer riding the fence?

 

[Calif. Hunter]

Thanks for the clarification, Buzz. My experience is that of a title guy, and I have only worked in the areas obtained via the Louisiana Purchase and the Treaty of Guadalupe Hidalgo - I "thought" the reservation of navigable waters was nationwide, but was only certain about the West. Unlike a lot of posters, I will usually only post what I believe I know about... And the concept of a mountain man paddling a canoe is right on, as is the idea of a guy walking and pulling a raft of furs or crops down a stream.

We deal more with the "mean high tide line" here on the coast. There are government maps that show the mean high tide line or ordinary high water marks, based upon averaging the water line over a period of years.

 

[MattK]

BHR- The governor is not riding the fence. He is doing exactly what he should, make the courts give a ruling. The courts will find quickly that it is a part of the river system.

 

[Bandit]

you guys are making some interesting points. Here in Illinois, there is a part of the Kankakee River that is public land. But from what I was told, it used to be private land for the surrounding farmers. So it makes me think, did they haave to go through the same process.

 

[BuzzH]

dgibson,

The navigable water laws also apply to man-made canals, leveys, etc.

As to what constitutes "ordinary high water" mark is basically assumed to be the level of the river at BANK FULL or where the water is during average yearly peak flows. The flood plains are not part of the ordinary high water marks.

What you're dealing with in your area is tyhe state over-riding Federal law because its never been challenged. If it were, you'd be able to access that river and its ordinary high water mark without the threat of a ticket. The problem is, most states fail to challenge the law, and typically, the various state Natural Resource Committees are made up of whiney assed landowners who absolutely dont want a stream access law. The reasons for not wanting a stream access law are pretty obvious if you're a landowner who is profiteering from the river access. We had a stream access bill written and submitted by the Wyoming Wildlife Federation and it was promptly killed by a State Senator from Ft. Laramie who heads up the Natural Resource Committee. He claimed that a stream access law would devalue his property which he owns along the Little Laramie River. So, like any good politician, he didnt allow the bill to be heard. I wrote the Governor and all the committee members a scathing letter reminding them that a majority of Wyoming constituants want a stream access law, and that their job is to represent the people who elected them. I also pointed out that the reason the jerkass from Ft. Laramie crying about decreased property value must not have looked at river frontage property in Montana lately. IF you can find a place to buy on a river in Montana its likely you'll pay a premium for it, despite Montanas stream access law.

The states just need to challenge the navigable water laws and they win EVERY time. The problem is, its time consuming and expensive.

BHR, Teds motives for poisoning Cherry Creek were for one reason...to eliminate non-native rainbows and brook trout and reintroduce native West Slope cutthroat, which, by the way, are a threatened species in Montana. The MTFWP came up with the proposal and approached Turner on the idea as he's pretty good about cooperating with them on endangered or threatened species...unlike a vast majority of MT landowners. I think enhancing or further protecting NATIVE fish is more important than protecting non-natives.

 

[dgibson]

That makes sense, Buzz, thanks. You're right about at least some of the local landowners; there's a few that have pay docks or whatever and they certainly try their best to keep access to a minimum. There's also those who buy a lot along the stream and don't want anyone to "disturb their privacy." I think they'd support river traffic detours if they could.

 

[BigHornRam]

Buzz,

Are you sure Ted didn't have anything to do with the Cherry Creek proposal? I thought the creek had a waterfall that acted as a natural fish barrier? If so how could the above stream be native west slope cutt habitat? And if this project was such a good one why did it not go forward? Did the "whiney" sportsmen pitch a fit and had it shut down?

So if the FWP and Mitchell Slough land owners got together and decide to eliminate the non native fish such as rainbows and browns, and replaced them with threatened native West Slope Cutts and Bull trout, you would favor this Buzz? Do you think the "whiney" local sportsmen would favor this?