A district court judge ruled Tuesday that the public has no legal access to Mitchell Slough.
The long-awaited ruling, handed down by Powell County District Judge Ted Mizner, concluded that “the Mitchell Slough is no longer a natural water body? and therefore not open to recreational use by the public under Montana’s Stream Access Law.
The case pitted the Bitterroot River Protection Association and Montana Fish, Wildlife and Parks – both of which believe the Mitchell is a natural water body and therefore subject to public access – against the Bitterroot Conservation District and a number of landowners along the slough – all of whom believe the waterway is diverted water running through private property.
The trial took place in Hamilton in July 2005 and featured a week’s worth of testimony on both sides. Afterward, Mizner reviewed volumes of documentary and testimonial evidence, along with legal briefs, proposed findings and conclusions.
The judge hinted at this week’s ruling in January when he affirmed a 2003 Bitterroot Conservation District ruling that said the slough isn’t a natural or perennial stream for permitting purposes.
Filed Wednesday, Mizner’s 10-page opinion concluded “by a clear preponderance of the evidence, under the unique facts of this case, that the Mitchell Slough 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,? the opinion reads. “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.
The ruling also cited “clear and convincing evidence that if man had not manipulated the waters of the Bitterroot River with the Tucker Headgate and other diversions and also excavated the channel of the Mitchell Slough, the Mitchell would no longer flow and it would most likely be a series of ancient, paleo channels connected by man.?
Mizner’s opinion also commented on testimony at the trial of the Mitchell’s “vibrant fishery.?
“Clearly there is a healthy, breeding fish population in the Mitchell …,? the judge stated. “However, … prior to the (artificial) stream renovation work done by the [landowners] the fish populations were not doing nearly as well as they are today.?
Ken Siebel, who purchased property along the Mitchell in the mid-1970s, was predictably pleased with the ruling, saying it affirmed what he and his neighbors had been saying all along.
“It’s about privacy and the resource,? he said. “The resource has been the beneficiary. The landowners have improved the resource and improved the fishery, and I think they should be applauded.?
But while Siebel is happy about the decision that he said protects his private property rights, he doesn’t believe the fight is over.
“I think the science and facts are clear,? he said, “but I suspect we haven’t seen the last of the BRPA and FWP on this issue.?
Ira Holt, chairman of the BRPA, said he had not yet seen read the judge’s opinion, but he was disappointed with the ruling.
“I feel extremely disappointed,? he said. “I can’t say what we’ll do, not having seen the decision or talked to our attorney.?
Holt plans to meet soon with BRPA’s attorney to see if there are reasons to appeal. Regardless, he said, the issue of public access on the slough is far from over.
“Even if BRPA would fold up tomorrow licking our wounds, I don’t think this will be the end of it,? he said. “I’m 75, an at the rate it’s going, I don’t think it’ll be over in my lifetime.?
Bob Lane, chief legal counsel for FWP, also had not seen the decision Wednesday. But he guessed the plaintiffs in the case probably would appeal.
“We all thought we would appeal if the ruling went against us, but I really can’t say now,? Lane said. “I need to first read the ruling and then brief my client. I would assume our department head would meet with the governor on this, so I’m sure it will be some time before we decide on how to go forward.?
For Siebel, the irony of the Mitchell controversy is that it arose from good, sound conservation work.
“The sad thing is if we hadn’t have fixed up the Mitchell, this whole thing would have never happened,? he said. “When we bought our property in the mid-70s, you couldn’t fish it. It was only when we improved the resource that access even became an issue.?
My thoughts on this are…wouldn’t it be nice if we were all well off and could buy some property with a chunk of the river on it and then say, this is mine, you can’t use it. I cleaned it up and that’s that. Maybe Huey and George could get together and privatize everything.
