Muddy waters

The infamous Mitchell Slough recently ran dry, prompting some to wonder—again—if the Bitterroot Conservation District works to protect the landowners or the land.

This is the siphon. It’s two high-density polyethylene pipes, 36 inches in diameter, 100 feet long and buried about 15 feet under the Mitchell Slough. It’s simple enough, but yet, because of a landmark Montana Supreme Court decision, its existence required the approval of six government agencies and all of its owner’s patience.

This is the Humble Drain. It drains north to south, funneling field run-off through the siphon, underneath Mitchell Slough, through the Double Fork Ranch, where manager Lane Hutchings uses it, like generations of farmers before him, to irrigate his crops.

This is Lane Hutchings. Hutchings, a Jackson Hole, Wyo., native, has the firm handshake, the shadow of a handlebar mustache, the quiet demeanor and the contempt for bureaucracy of a man who’s spent the better part of his 35 years wrestling steers and planting fields, which he has. Hutchings drives a flatbed pickup truck. A picture of his wife and young son sits wedged into the dashboard. When he pauses along a bumpy road on the Double Fork Ranch, two Australian terriers hop on the bed. Hutchings likes the Bitterroot Valley, he says. As for Jackson Hole, well, let’s just say it’s changed a lot since he lived there. He doesn’t have any desire to return. Hutchings parks his rig at the end of the bumpy road and climbs down.

“And this,” he says, “is the infamous Mitchell Slough.”

He motions to a quiet stream—some still say it’s a ditch. Either way, the body of water is probably 10 feet wide and a couple of feet deep where Hutchings stands. It flows out of the Bitterroot River, through the Tucker head gate south of the ranch, winds through several patches of private property—including property owned by musician Huey Lewis, investor Charles Schwab and businessman Ken Siebel—and then reconnects with the Bitterroot 16 miles to the north. Hutchings swings past a fence and scrambles up a small hill, which stands in front of the siphon.

Decades ago, a different siphon performed exactly the same function as the new siphon Hutchings just installed. But years of wastewater filled the single pipe with mud and, eventually, in the late ’90s, when the pipe no longer performed, somebody diverted the Humble Drain into the Mitchell Slough upstream. Downstream, past the siphon, that same somebody diverted the Humble water back out of the Mitchell and down, onto the fields of alfalfa and wheat that sweep across the Double Fork.

Hutchings has managed the ranch—owned by Anthony Marnell II, a casino architect—for three years. He took the job somewhat reluctantly, but now he’s glad he’s here. It’s just too bad that this drain he replaced caused him so much aggravation. It required multiple visits to state agencies, the hiring of an engineering firm and $50,000–$60,000 of the Double Fork’s money just to get it back to the way it was.

In the past, before the Mitchell Slough became a poster child for Montana water rights, Hutchings says such an installation would have required a backhoe and two days labor. But now, it lies below a body of water that, despite its simple stature, winds through some of the most complex aspects of Montana water law. Controversy surrounding that law kindled in 1991 with the arrests of two brothers who went fishing. It came to a head last year in a landmark Montana Supreme Court decision. And so now this simple siphon, directing the Humble Drain, is anything but simple or humble.

Under Montana’s property law, Hutchings has the right to shoo anybody off the Double Fork’s property. But despite the Double Fork’s ownership of the land, as well as—according to Hutchings—100 percent of the water rights, the ranch does not own the actual body of water. Under Montana’s Stream Access Law, the public may access any perennially flowing stream below the high
water mark, including the Mitchell Slough.

Since the Double Fork owns the water rights to the Mitchell Slough, Hutchings says he can dry up the slough if he sees fit—which he did, for 48 hours, with approval. To install the drain he had to first get the Department of Natural Resources and Conservation (DNRC), Ravalli County Floodplain Administration, Army Corps of Engineers, Montana Department of Fish, Wildlife and Parks (FWP), state Department of Environmental Quality and Bitterroot Conservation District to approve his project. Hutchings says the conservation district was the easiest to work with, helping him work past stalemates with other state conservation agencies. Those other agencies? FWP didn’t agree with his method of replacing the siphon, but was overruled by the conservation district. Hutchings employs his most colorful vocabulary to describe the DNRC and the floodplain administration, both of which delayed the project repeatedly.

The method in which these organizations worked with and against each other on Hutchings’ siphon calls into question some of the most basic premises regarding conservation agencies, specifically the Bitterroot Conservation District. The federal government established conservation districts in the 1930s to help protect the land. But as development has swept across the west, the districts have come to protect the landowners as well. The ambiguous guidance allows each district an enormous amount of leeway when weighing the needs of the landowner against the best interests of the land, and sometimes the results are contentious.

With Mitchell Slough, locals believed the controversy ended with last year’s landmark Montana Supreme Court decision. But with the Bitterroot Conservation District still in charge, debate over how to handle the slough continues today.

“Things changed”
In 1937, President Franklin Roosevelt asked every state to adopt legislation enabling local conservation districts in the hopes of avoiding another Dust Bowl. Two years later, Montana obliged.

Today, 58 conservation districts exist in the state. Each is made up of local volunteers, elected by the rural residents within their district. They’re charged with helping citizens “conserve their soil, water and other natural resources,” according to the Montana Association of Conservation Districts.

In 1941, voters approved a conservation district for the Bitterroot Valley. The district then adopted a set of rules, with one setting up decades of debate. The first clause of Rule 2 charges the district with protecting and preserving the natural rivers and streams in Ravalli County “to be available in their natural or existing state and to prohibit unauthorized projects.”

The second clause complicates things: “Further, it is the policy of this district to recognize the needs of irrigation and agricultural use of the rivers and streams of the state of Montana and to protect the use of water for any useful or beneficial purpose as guaranteed by the constitution of the State of Montana.”

So the district must preserve rivers and streams in their natural state, protect those who use those bodies of water and recognize the needs of those who own the land around the water.

The district’s guidance was further muddied with the creation of the Natural Streambed and Land Preservation Act of 1975, otherwise known as the 310 law. If a landowner wants to build anything on or near a perennial stream, he or she must get a permit from the local conservation district. This involves an inspection from the districts’ supervisors, as well as personnel from the Montana Department of Fish, Wildlife and Parks to ensure the natural integrity of the stream.

Supervisor Steve Vogt joined the Bitterroot Conservation District 35 years ago, way before last year’s Supreme Court decision, before Huey Lewis ever purchased land in the area, even before the 310 law.

Vogt believes in the service of conservation districts. When he’s asked why he got involved, he gives a history lesson of the Dust Bowl, the Roosevelt administration and how local conservation districts were integral in getting people to adopt new, more sustainable farming practices. When an opening emerged on the district board, Vogt became a supervisor at the behest of friends and family. He’s seen a lot change over his years of service.

“I guess you would say, it’s taken a different turn than what it started out as,” he says. “In the western part of the state here, we’re dealing more with the housing developments and stuff like that, still trying to help protect the land resources. We are more involved…not from an agricultural standpoint, but from development and homeowners and stuff like that.

“Most of our work is right now carried out with the 310 law,” he continues. “Things changed over the years. It isn’t illegal to do something, but it’s illegal to do something without a permit. When the 310 passed, I was still very new and green. I’ve learned a lot about water and what it can do and what it can’t do and what it’s done in the past. I’ve changed my attitude a lot. I came to the board with the idea that if it was on your property, you can take care of it, you can do what you want to. But you can’t do that. You have to address the problem and make it right for everybody.”

In 1975, the Bitterroot Conservation District began issuing 310 permits for the Mitchell Slough. The district continued this practice until 1991 when Randy and Robert Rose decided to go fishing.

“Go fishing”
At the Frontier Café near Stevensville, Ed Sperry sits at a booth next to his wife, Betty. To come here today, he had to make sure that Betty, who’s been sick, felt well enough to travel.

“You up to sitting at a restaurant today and talking to a gentleman?” he asked her before they came. “You’re pain’s under control, isn’t it?” In a nod to his past as a Justice of the Peace, he follows that last statement by saying, “Leading question.”

Nevertheless, Betty agrees to the trip. So after Sperry fixes a salad for his wife and teases the waitress a bit, he pulls off his cap and begins talking.

“They grew up in the valley,” he says of the Rose brothers. “I never had anything to do with them before, and all of a sudden they’re in front of me in the court for trespassing, and they said they went fishing in the Mitchell Slough.”

The public has access to any perennially flowing stream in the state, including the Mitchell Slough. The land around it, however, is private. To reach the slough, the Rose brothers had crossed private property, drawing the ire of the landowners.

“They’d been fishing in the Mitchell Slough all their lives,” Sperry continues, “and they’d be damned if they weren’t going to fish in it, and they got arrested for it. They demanded a trial by jury, which was their right. And needless to say, we had a trial by jury. They weren’t wealthy people and as the discussion went on about a court-appointed attorney, they decided they’d represent themselves. And quite frankly, the county attorney at the time was gleeful. You know, [not having an attorney is] usually a sheep to the slaughter.”

He pauses for dramatic effect: “Well, they won.”

The outcome of the case, Sperry says, depended on whether the prosecutor was able to talk Sperry into granting a motion in limine, which would limit any discussion of the brothers’ right to access the slough.

“Well, I refused the motion and said the jury was going to decide what went on,” he says. “That’s what the hell they have a trial for. And the jury listened to the arguments and Huey Lewis’ manager of the farm there told a sad story about how the fish might die and all that. The brothers said they’d fished there all their lives. And the jury was out for about a half hour and when they came back, in essence they said: Go fishing.”

Lewis didn’t appeal the decision. However, according to Michael Howell, head of the Bitterroot River Protection Association (BRPA) and publisher of the Bitterroot Star, the proplems continued. Four years after the trial in Sperry’s court, in 1995, a man named Brian Monta asked the Bitterroot Conservation District to grant him a portage route into the slough.

“Those were some really rowdy meetings,” Howell says. “Huey Lewis was there and some other landowners were there. And of course all the fishermen were there and it was tense. There were loud voices. There were accusations. Threats. People from each side claiming their lives were being threatened.”

Monta, who couldn’t be located for this story, eventually pulled his request and the district never made a decision. However, Howell says, harassment along the slough continued.

“I call it harassment because that’s what it was,” he says. “If a fisherman went on, within minutes, somebody would show up on a four-wheeler and start throwing rocks at them, telling them: ‘Get off the property!’”

In 1999, Jack Pfau, a Stevensville resident hoping to work on the shores of the Mitchell Slough, sent a letter to the Bitterroot Conservation District asking for clarification on the status of the Mitchell. If it was a ditch, Pfau could do whatever he wanted. If it was a natural, perennial flowing stream, he had to get a 310 permit. So, Pfau asked, which was it, a ditch or a stream?

Despite the fact that the district had issued 310 permits since 1975, the district shied away from responsibility: “This determination is the responsibility of the State Department of Natural Resources and Conservation, the State Fish Wildlife and Parks, and the State Department of Environmental Quality.”

Then, in what almost seemed like an afterthought, the district determined the status of the Mitchell Slough: “However, until these Departments take on this responsibility, the District will not require any 310 permits. This is based on the fact that the head water begins with a head gate and being that it is diverted water.”

Howell says he stumbled upon the precedent-setting correspondence a few weeks after it occurred.

“I raised heck,” he says now. “I wrote letters saying, you can’t do this. You can’t decide without even a meeting. That’s what initiated the process that took years to get through.”

In January 2000, Howell wrote to the conservation district asking them to clarify the status of the Mitchell Slough within 10 days. The district punted. Later that month, the district informed Howell that the district’s attorneys were considering his questions and thought they deserved “a thoughtful response.” They told Howell that a reply wouldn’t be ready for at least a month.

So Howell waited. In June, he received a letter from the conservation district’s attorney, Myra L. Shults: “To date, no state agency, the Ravalli County Attorney, any private attorney, nor the Bitterroot Conservation District has made a determination that Mitchell Slough/Ditch is a natural perennial-flowing river or stream,” she wrote. “Any past 310 permits which have been sought on that body of water were issued without an analysis of its character.”

Finally, on Jan 16, 2001, a year after Howell’s initial request, the conservation district scheduled a hearing to determine whether the Mitchell Slough was a ditch or a stream.

Howell called a meeting in his office and started BRPA. The group hired a noted environmental lawyer, Jack Tuholske, to represent them and asked the Ravalli County District Court to issue a writ of prohibition barring the Bitterroot Conservation District from determining the status of the Mitchell Slough. They were denied.

BRPA filed the same motion with the Montana Supreme Court. On April 4, 2002, the court ruled the district could issue 310 permits, but could not declare anything a ditch. The issue was kicked back to the Bitterroot Conservation District.

“Nobody wanted to make a decision on this,” district chair Tom Ruffatto told the Indy at the time. “It’s not like we wanted this thing either. It’s one of those streams that nobody knows about. It’s such a political thing. We knew we would get sued either way we decided.”

After years of study, 1,528 pages of evidence and approximately 550 hours of review, the district made its final decision on October 17, 2003: Mitchell Slough was a ditch.

BRPA claimed the decision was purely political. Then-Gov. Judy Martz forced FWP, which had joined BRPA in the case, to withdraw. Just a few months earlier, Martz received a letter from Ken Siebel thanking her for setting up meetings with then-DNRC Director Bud Clinch and then-FWP Director Jeff Hagener to discuss the issue. In addition, Ruffatto said the district relied heavily on information provided by three consultants hired by the landowners.

“If Fish, Wildlife and Parks had gotten more involved and submitted more comments,” Ruffato told the Indy in 2003, “it could have gone the other way.”

Mounting legal bills also hampered BRPA. State Sen. Jim Shockley, R-Victor, stepped up to represent the group, but he considered himself inexperienced with environmental law.

“We had a really good case,” says Shockley. “But I knew we were going to lose. It was five ranchers sitting [as conservation district supervisors]. And we did.”

In a way, Shockley understood why the conservation district ruled against BRPA.

“They’re truly interested in preserving the resource, and they’re water users,” he says. “But in the Bitterroot, when these guys are trying to sell out to the likes of [Ken] Siebel, money talks and bullshit walks. They were heavily influenced by the wealthy landowners.”

Shockley did receive one parting gift after the 2003 defeat. A donor who Shockley refuses to identify kicked in $10,000, to settle the association’s legal bill. Tuholske took up the case again and appealed the ruling. Last year, the Montana Supreme Court finally settled the issue for good, overruling the Bitterroot Conservation District and determining once and for all that the Mitchell Slough is a natural, perennial flowing stream.

“A difficult one”
The effort by FWP to join BRPA in the original case represents one problem with conservation districts. According to Montana Code Annotated 76-15-317, state agencies must cooperate with conservation districts’ supervisors. That didn’t happen in the 2003 case and, as current events show, it remains an issue in the Bitterroot.

“The Bitterroot is such a difficult one,” says Jim Darling, FWP’s fisheries habitat bureau chief. “The projects are so unstable. So that’s one where a lot of discussion takes place.”

When an applicant requests a 310 permit, the conservation district sets up a review team. Usually, that team consists of somebody from FWP, somebody from the conservation district and the applicant. Generally, everybody agrees, says FWP’s Chris Clancy. When they don’t, the process turns muddy.

“Let’s say the Bitterroot Conservation District wants somebody to do something a certain way,” Clancy says. “The biologist might say, ‘Well, I disagree with that, but I can live with it.’ When the permit is issued, you just write, ‘Well, I disagree with this part of the project,’ and that’s where it ends.”

If somebody wants to play hardball, they can ask that an arbitration panel be set up through the district court. Once in a great while, Clancy says, the landowner will request such a hearing.

“The Fish, Wildlife and Parks guy and the conservation guy can say, ‘I don’t like it [either],’” Clancy adds. “But I’ve never heard of that happening. The most common thing is, you work out some sort of compromise.”

Darling says the conservation district gets the final say.

“Our role is just to make recommendations to the [conservation district] supervisors,” he says. “That’s taken back to the supervisors’ meeting and it’s discussed with the rest of the supervisors. The biologist is often there, and gives their input. Then, it’s ultimately up to the supervisors what they recommend...The supervisors’ role, in many cases, they see themselves as a representative of the landowner too, so they’re trying to act as an intermediary of sorts.”

When Hutchings applied for a 310 permit for the Double Fork Ranch’s siphon, disagreement arose between FWP and the conservation district. And although Clancy and Darling say problems are usually worked out on site, some disagreement persisted in this case.

To install the siphon, the Double Fork planned to divert the Mitchell Slough into Brushy Creek, essentially drying up the slough below the construction site, until groundwater would establish another flow. In a letter to the DNRC, Mack Long, a regional supervisor at FWP, disagreed with the approach.

“During construction of projects such as these, it is routine procedure to pass any stream flows in a stream around the construction site and back into the channel so the stream is not dewatered,” he wrote. “Mr. Clancy requested this at the field review. However, the 310 permit for this construction did not include this stipulation.”

Long also took exception with how the project impacted aquatic life.

An engineer working for the ranch wrote, “There should be no long or short term impacts to the fishery.” Long disagreed.

“We understand that there are a significant number of redds downstream of the construction site as far as Victor Crossing,” Long wrote. “There is potential for loss of some redds and other aquatic life that are not mobile enough to migrate downstream during construction. It would seem prudent to bypass water past the construction site. The amount of water that should remain in Mitchell Slough is the amount that would flow downstream upon project completion.”

Despite Long’s recommendations, the Bitterroot Conservation District granted the siphon permit with no stipulations.

The fact that conservation districts don’t always work perfectly is to be expected considering their makeup and guidance. The inconsistencies are a concern for conservationists across the West, but something most are resigned to dealing with.

“In Montana, we really believe in local government, and a conservation district is local government at its finest because it’s a local board, with local people, working on a local stream,” says the Clark Fork Coalition’s Brianna Randall, who works with conservation districts often.

She says problems usually arise when a district deals with rapid growth, creating a rift between newcomers and long-time residents, or when a district decision doesn’t jibe with the wishes of non-voting city residents.

“The Bitterroot is a prime example,” she says. “What county, what conservation district, what watershed in the state has more conflict? I can’t think of a single one.”

“You gotta try to be fair”
Tom Ruffatto still serves as chair of the Bitterroot Conservation District. And like all the current supervisors, he’s a volunteer. It’s calving season right now, so Ruffatto leaves his home at 4:30 a.m. and returns at 7 p.m. At some point, he manages to squeeze in his supervisor duties, but the time commitment costs him. He says he hasn’t had a day off in 10 years. But he’s not complaining. He enjoys the work.

“You try to figure out how to do these projects without hindering the ranchers and farmers, yet protecting the stream banks and the fisheries,” he says. “You’ll have the landowner and the conservation district and the fish and game guy and maybe there’s a consultant or two. And you’re all standing on the bank and kicking rocks and discussing it. You know, some of these places you go, the people have more money than God and others don’t have two nickels to rub together. So you gotta try to be fair and get these projects done the easiest way, yet protect the resources.”

Ruffatto defends the conservation district’s stance, and says its unscientific, everyman approach is necessary to strike a balance.

“We look at it a whole separate way,” he continues. “Most of us are all farmers and ranchers anyway. And you know, you’ll always have some guy from [a state agency] who’s got the book with all the rules in it and a lot of times, it puts a hardship on the guy who’s got the application in. Everything costs money and you want to try to help out as best you can, but you still have to do it right.”

In the case of the Double Fork’s new siphon, Ruffatto says things were done correctly.

“In their case, they had a consultant,” Ruffatto says, echoing something he said nearly six years ago. “None of us on the board are hydrologists or engineers, so a lot of times, you rely on the consultant. If you have an engineer, and he’s got a degree, who are we to tell him, ‘No, this isn’t good?’”

Hutchings says he completed the project quickly and the stream was dry for less than 48 hours.

“The media paints us as all these rich landowners,” Hutchings says. “But we’ve been stewards of the land.”

When Hutchings arrived here, he says, the Mitchell Slough was little more than a glorified mud puddle in the parts where it wound through the Double Fork Ranch. To see how it’s changed, Hutchings stands on the banks of the stream where it flows by the Double Fork’s front office and points to a stabilized bank, another section where he prevented erosion and, after a few minutes, he points out streaks of gray and red in the shallow water. These fish, Hutchings says, didn’t live here before he arrived.

Hutching’s house sits on the corner of the ranch, maybe a hundred yards south of the slough. In his front yard, he’s erected a swing set. Hutchings says he’s all for fishing and public access, but he understands why Huey Lewis strung his fence, why landowners advocate for privacy and why, perhaps, some waterways deserve to be private.

Duck hunters, as long as they stay off private property, may hunt on any public stream. Technically, a hunter could wade the stream as it winds in front of Hutchings’ house. And although the Double Fork owns the land and the water, a hunter, wading the shallow stream, could blast ducks a hundred yards away from the swing set, where Hutchings’ kids usually spend long fall afternoons. It makes Hutchings thankful that conservation districts sometimes side with private landowners. Sometimes, he says, that’s what’s best for those who use the land.

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