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Ditch access denied

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In a controversial decision that’s garnered national media attention, District Judge Ted Mizner ruled last week that the Bitterroot’s Mitchell Slough is not a natural body of water, and thus not open to the public.

In his decision, Mizner stated that 130 years ago Mitchell Slough might have been considered a natural body of water under the Montana Stream Access Law, but today “…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.”

The decision puts an end to public fishing on the slough, barring a successful appeal by plaintiffs in the case: the Bitterroot River Protection Association and the Montana Department of Fish, Wildlife & Parks (FWP).

Bob Lane, chief attorney for FWP, says the decision could have far-reaching implications for any side channel of a river that is used for irrigation.

“If a landowner made efforts to change the course of channel or stream because it’s convenient for irrigation purposes, that landowner may have other claims that it’s no longer a natural waterway,” says Lane.

But Russ McElyea, a Bozeman attorney for the Montana Farm Bureau, says Mizner’s decision doesn’t weaken the law that allows public access to all natural bodies of water in the state.

“That law was never made to apply to a man-made ditch,” McElyea says.

McElyea says his impression is that the majority of landowners and agricultural operations around the state acknowledge the stream access law and respect it.

“I don’t think this case constitutes the beginning of a grassroots effort to get rid of the stream access law.”

Still, Lane says the decision ultimately allows landowners to “alter their way” out of a streambed’s natural condition.

“When is there enough alteration to convert something that’s natural into something that’s not natural?” he wonders.

The plaintiffs have 60 days to appeal Mizner’s decision.

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