The battle over the Bitterroot Valley’s Mitchell Slough, and its implications for the state’s Stream Access law, is heading into the next arena.
On July 12, Montana Fish, Wildlife & Parks and the Bitterroot River Protection Association announced they were appealing District Judge Ted Mizner’s May ruling that the 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.”
Bob Lane, lead attorney for FWP, says that’s the point at the heart of the state’s appeal.
“I think [Mizner’s rationale] makes the appeal a lot more straightforward,” Lane says. “He acknowledged that it was historically a side channel, but he essentially said if you modify it enough it’s no longer natural. We believe he’s just wrong on the law, and that’s what we’re going to appeal on in part.”
Russ McElyea, a Bozeman attorney for the Montana Farm Bureau, says farmers, ranchers and landowners are investing a lot of money to improve their land. He says as real estate prices go up, landowners are more inclined to spend money on improving wildlife habitat.
“They’re spending money on things like taking a ditch and turning it into a trout fishery that didn’t previously exist as a trout fishery,” he says. “They want to protect their investment. They’re not making the investment for public benefit, they’re making it for their benefit.”
Ray Karr of BPRA says Mizner’s decision turns one of Montana’s bedrock conservation laws on its head.
“It converts the Natural Streambed and Land Preservation Act of 1975 into a prescription for privatizing our streams and rivers and in the same fell swoop it guts Montana’s stream access law,” he says.