District Court Judge Robert Deschamps III all but closed the book on the long and contentious legal battle over Mitchell Slough in early December when he ruled that roughly $350,000 in attorney fees was the responsibility of 16 landowners, and let the Bitterroot Conservation District (BCD) off the hook. But like almost every step of the seven-year debate to determine whether Mitchell Slough is a naturally flowing perennial stream or a manmade ditch, the decision generated controversy.
According to court filings, Deschamps exempted BCD from paying attorney fees based on the fact that it "did not abandon its regulatory duty over the resource at issue." But those with intimate knowledge of the history of the Mitchell Slough debate question the judge's latest conclusion. Michael Howell of the Bitterroot River Protection Association (BRPA), the plaintiff who won the slough case, says documents from the late 1990s indicate otherwise.
"I would have to say, yea, there's evidence that prior to initiating this public process...they gave up jurisdiction over Mitchell Slough," Howell says.
Specifically, Howell cites an October 1999 letter from the BCD to landowner Jack Pfau waiving the necessity for construction permits on the slough, effectively deeming the waterway a manmade ditch. But the letter predates the district's official public process to re-designate the slough by several months.
Howell says the evidence clearly wasn't enough to force the BCD to pay a part of the BRPA's attorney fees. And while he's happy at having won the case, Howell doesn't necessarily agree with freeing the conservation district from responsibility.
"We argued that they should have to pay these attorney fees regardless of whether there was any fault," Howell says.
John Lewis, one of the landowners listed in the case, says he hasn't followed recent developments, mostly because he's exhausted with the issue.
"There's a bunch of other shit going on all the time," Lewis says. "You just have to move on."
Details over how the landowners will pay the attorney fees will be ironed out in court hearings over the next two months.