The battle for Mitchell Slough

When is a river not a river?


Word’s out: Montana is the place to be. And the place to be seen if you’re moneyed or famous.

Especially if you fish (or just say you do). Hell, that even impresses the barmaids in Rio, and it gives you a rustic edge over the boys on the golf course.

If you’ve got enough money, anything’s for sale: vast river-front ranches, political favor, even Montana’s most precious compound—water.

While the above may seem like hyperbole, that’s what members of the Bitterroot River Protection Association (BRPA) say is happening to a section of the river between Tucker Crossing, just north of Corvallis, and south of Stevensville.

The group claims that the part-time residents of three neighboring ranch retreats on the eastern-most branch of the Bitterroot have effectively privatized a vital piece of the public domain—a part of the river known as the Mitchell.

The neighboring retreats, owned by investment tycoon Charles Schwab, Siebel Systems software magnate Ken Siebel and erstwhile rock star Huey Lewis, are built right on the Mitchell, and the three landowners have taken the public position that the Mitchell is their private property.

Longtime locals disagree. Multi-generational Bitterroot residents who helped to etch an infrastructure from the wilderness for a burgeoning society find now that society has arrived, it doesn’t play by their neighborly rules. Instead of communal fishing privileges, wire fences adorned with no trespassing signs sway lazily in the gentle current of the Mitchell.

Debate on the issue is passionate and complex, typical of land use battles in the new West, where the urban dollar wrestles with the rural code of conduct.

Beneath the Mitchell’s placid surface lies the answer to a precedent-setting question: Is the Mitchell, traditionally a public resource, a private ditch or a branch of the Bitterroot? And more importantly, for some, who gets to fish it?
Searching for headwaters The steel headgate and spoilbanks of dredged dirt marking the beginning of the Mitchell north of Tucker Crossing are unassuming. The landscape is pretty and peaceful. It looks too calm for a place where worlds collide and controversy stirs.

And yet Tucker Headgate lies at the crux of the argument over the nature of the Mitchell. Landowners say the diversion allows water to run into the Mitchell from the Bitterroot; without it, they claim, the Mitchell would cease to flow. Therefore, goes their reasoning, the Mitchell is a private ditch and the public is not allowed.

Channeled off the river at the headgate, a section of trench runs east for a quarter-mile, marking the work of an industrious agrarian. Downstream of the trench, the Mitchell loses its spoilbanks and runs downhill between natural shores. It meanders through cottonwoods and wetlands for 10 miles, eventually dumping back into the river near Stevensville.

Old school Bitterrooters and USGS scientists maintain that the Mitchell collects its own water from springs and ground sources along its entirety, pumping back into the Bitterroot with greater volume than when it left Tucker Headgate, making it an organic part of the river system.

“All you gotta do is look at it,” says Jim Shockley, Republican representative for Victor and Stevensville. “It’s the only ditch around that has more water coming out than going into it. So what if it has a headgate. Have you noticed the dams on the Columbia River? It doesn’t mean that it’s not a river. It doesn’t change the nature of the body of water. The Army Corps of Engineers modified a section of the river for agricultural use.”

John Bloomquist, lawyer for the three landowners, disagrees. “The Mitchell is predominantly diverted water,” Bloomquist says. “It doesn’t have the characteristics of a natural body of water. It’s a ditch that owners have taken many steps to turn into good fisheries. The science and the facts don’t seem to matter to the people who want to access it.”

Bloomquist speculates that the Mitchell might not even flow without the diverted water.

“If you didn’t have that diverted water, you would have a series of unconnected wetlands,” Bloomquist says. “The Bitterroot River has been all over that valley. The Mitchell channel is abandoned. They used portions of an old, abandoned channel for ditches so they didn’t have to dig the whole thing. People need to take a look at what the Mitchell is, not what people want it to be.”

But Fish, Wildlife & Parks’ expertise runs counter to Bloomquist’s conclusions.

“There’s a lot of water in the Mitchell that’s not diverted,” says FW&P biologist Chris Clancy. Clancy hired USGS scientists to monitor the water in February.

“We measured in February because that’s when there is a solid base flow,” USGS scientist Ron Shields reports. “We supplied a factual record of how the flow increases. It proves that it’s a spring flow and that there’s a base flow from groundwater.” As far as the channel goes, Clancy says most of it is natural.

“There is an argument about when the Mitchell stops being a ditch,” Clancy says. But there is no doubt in his mind that before the Mitchell runs its course, it becomes a spring creek.
Judgement calls

What was once understood as a state constitutional right to most Montanans—the right to use and access the state’s water—has now become a dizzying policy charade, and at the core of the argument is what to call the Mitchell.

Old timers simply call it the river. General Land Office maps from 1872 refer to it as the Right Fork of the St. Mary’s Fork. Current county plat maps name it the East Branch of the Bitterroot. (Ken Siebel’s conservation easement calls it the East Branch, too.) More recently, it’s been dubbed Mitchell Slough. Huey Lewis called it Mitchell Ditch in a letter this summer, and his lawyer cautiously calls it the Mitchell.

While controversy over the Mitchell has been unfolding for years, the most recent development was a ruling by the Bitterroot Conservation District (BCD), the state agency in charge of deciding if the Mitchell is a stream or not.

After years of study, the BCD handed down its 4–1 decision on Oct. 17, 2003: The Mitchell is not a stream.

Dismayed by the decision, the BRPA and Montana Fish, Wildlife & Parks moved to appeal the decision. Both parties felt strongly that the Mitchell is a stream.

In appealing, the BRPA filed a petition and complaint in state district court. Fish, Wildlife & Parks had planned to join the appeal, but was prevented at the last minute by Director Jeff Hagener. Access advocates claim Hagener was asked to head off the appeal by Gov. Martz, but Hagener claims the decision was mutual between him and Martz.

Jack Tuholske, BRPA’s lawyer, says the BCD’s review was tainted. “The process they used was patently unfair. The result was not a product of an objective look.

“This is an important case,” Tuholske stresses during a phone interview. “Both for Mitchell Slough and for the precedent it will involve. My clients believe Montana has a long tradition of recognizing the constitutional right that water is owned by all members of the state for the public good. For the BCD to abdicate that is a sad day for Montana.”

Tuholske cites similar instances of landowners trying to capture traditionally public water for private use elsewhere in Montana. That’s why the Mitchell case has such tremendous potential to set precedent.

“These are wealthy out-of-state people who acquire large holdings,” Tuholske says. “This isn’t something that fifth- and sixth-generation Montanans do. It’s the Johnny-Come-Lately types who buy a place and see an opportunity to acquire what was formerly public water. It’s important to have the courts rule on this now.”
Water flows toward money

“Money.” That’s all that Rep. Shockley has to say when asked why the BCD bent in favor of the landowners on the Mitchell. “They had good experts who said what they were paid to.”

Shockley also alludes to the political attention that follows the scent of money.

“It’s strange that people from Helena came and looked at the ditch,” Shockley says. “If you and I have a problem, (Department of Natural Resources Director Bud) Clinch and (Jeff) Hagener aren’t going to come look at it. They took the time on government money to drive 150 miles and look at a ditch in question?”

In an Aug. 18, 2003 letter to Gov. Judy Martz, Ken Siebel thanked the governor for “setting up our meeting” with Clinch and Hagener.

Siebel goes on to say that the landowners along the Mitchell have spent over a million dollars combined on streambed restoration. They’ve cleaned up rip-rap cars along the banks, hauled out silt, replaced it with gravel and added logs and meanders in places. All moves aimed at improving the fishery, but only for the landowners.

“If the ditch is opened to the public, there will be no winners,” Siebel’s letter continues. “We would prefer to have the Mitchell revert to its former condition than sacrifice the security of our homes.”

Siebel also says in his letter that “FWP (i.e., its attorney Bob Lane) appears to be at the heart of the problem.” He closes with, “We hope that you will use your considerable influence to cause FWP to conduct itself in a manner that is consistent with the Conservation District’s current position on the Mitchell.”

The letter must have worked.

Shockley says that Fish and Wildlife’s withdrawal from the lawsuit has made it less scientifically credible, and added fiscal strain.

“Fish and Wildlife had to get out. They said that they made their own decision, but I don’t believe it,” Shockley says. “They were prevented by political pressure from going any further. With a new governor, I hope that Fish and Wildlife might be back in.”

Fish, Wildlife & Parks biologist Chris Clancy says that the decision was made above his head in Helena.

“I recommended that we challenge the decision,” Clancy says now. “The staff that I talked to supported the appeal, as well as attorney Bob Lane.”

Asked if he had heard that Gov. Martz had requested that the department back off, all Clancy would say was, “I’ve heard the hearsay.”

The Governor’s office responded to Independent inquiries with a canned quote:

“Based on arguments from all sides, Director Hagener and I jointly concluded an appeal should not be made by Fish, Wildlife & Parks,” Gov. Martz said. “We decided to respect the Conservation District’s decision, although we knew others might appeal. The Bitterroot River Protection Association has appealed. We are confident that the district court will fairly review the declaratory ruling.”

Shockley cites an old saying about water rights:

“Water flows toward money. The guy with the most money gets the water. If they get away with it here, who knows what’s next. It’s a precedent for the rest of the state. Just because they’ve worked on the slough doesn’t make it a ditch,” Shockley says.
How a stream becomes a ditch

For decades, the BCD had been required to issue 310 permits on the Mitchell. A 310 permit is required for any work done in a stream by the state Natural Streambed and Land Preservation Act of 1975.

But in 1999, the BCD quietly decided it would no longer be necessary to issue the permits on the Mitchell. After decades of managing the waterway as a stream, the district decided it wasn’t a stream after all.

Word leaked of the decision months later, igniting the ire of area locals and leading to the formation of the Bitterroot River Protection Association.

“I wrote the BCD a letter and told them I didn’t think it was legal to stop issuing 310 permits on Mitchell Slough at the request of a landowner without holding some sort of public meeting and asking for evidence,” BRPA Secretary, Stevensville resident and Bitterroot Star editor Michael Howell says. “The law as I understood it required someone proving that there were no riparian or aquatic values in it.”

Howell waited for a reply and received one three months later saying there would be a study. Another month passed and Howell received another letter saying the BCD would instead hold a public meeting to receive information on Jan. 16, 2001.

The meeting came and went, and BRPA—still unsatisfied—eventually sued, claiming that the BCD did not have the authority to decide whether or not the Mitchell was a perennially flowing stream.

“They can only determine what is within their jurisdiction, and that is natural-flowing perennial streams,” Howell says. “If they find something is not in their jurisdiction they have no authority to make any determination as to what that is. Their only determination is that it is not a perennially flowing stream,” and thus that the Mitchell is not in BCD’s jurisdiction.

The Montana Supreme Court’s decision, made on April 4, 2002, ruled that the BCD is in charge of issuing 310 permits, but that it does not have the authority to declare anything a ditch.

“So we lost, but we won,” Howell says.

What the Supreme Court essentially concluded was that the BCD could make decisions regarding the Natural Streambed and Land Preservation Act, but could make no fishing access determinations (a ruling of a ditch implies no access), which are covered under Stream Access Law—Fish, Wildlife & Parks’ turf.

In an attempt to force clarity on the issue, BRPA staged a fish-in on Aug. 3, 2003 to see if they would be arrested for fishing the legally uncharted waters.

World War II veteran and angler Ray Karr led the charge at Bell Crossing near Victor, busting beneath the Huey Lewis-erected fence restricting access to the channel. A squad of Fish, Wildlife & Parks officers was on hand to observe the occasion. FW&P agents were authorized to arrest trespassers. They only asked to see fishing licenses.

“We did that in order to demonstrate to the public that there was fishing access there,” Howell says. “The BCD’s process, which was ongoing at the time, was not going to resolve this issue. So to decide the issue, you just go fishing, and we did. We felt like that confirmed the long-standing view of Fish and Wildlife that there is fishing access on Mitchell Slough.”

Clancy confirmed that in the eyes of Fish, Wildlife & Parks, Bell Crossing is open to fishing access.

“If there was anything illegal going on we would do something about it,” Clancy says.
The arm of influence

“Nobody wanted to make a decision on this,” admits BCD chair Tom Ruffato. “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.”

In making their decision, Ruffato and the board relied heavily on information received from three consultants hired by the landowners.

“We’re just lay people, and here are three consultants saying it’s not a stream. We went with the technical information we had,” says Ruffato, a volunteer boardmember and rancher.

Ruffato is careful to include the words “with what we had” each time he mentions the decision, to stress that the question doesn’t have a black and white, yes-or-no answer.

“By the information we had, we decided it wasn’t covered under the 310 law,” Ruffato says. “If Fish, Wildlife & Parks had gotten more involved and submitted more comments, it could have gone the other way.”

Fish, Wildlife & Parks staff did investigate the Mitchell, though, and submitted a tremendous amount of information indicating that anyway you shake it, the Mitchell is a stream.

“From our standpoint it’s a legitimate stream and a legitimate place to fish. I wish the district would have come to that conclusion,” FW&P biologist Clancy says. “We hired the USGS and collected quite a bit of information that was pertinent, even though we were not allowed access on the larger parcels of land on Mitchell Slough. We presented the fact that it was a stream to the district. They relied a lot on consultant information. We analyzed much of the data by the consultants and didn’t agree with it.”

Ruffato, who used to fish the ditch himself, knows the decision may be overturned.

“In this next lawsuit [the pending appeal of the BCD’s ruling], if they come back with some information that goes against the consultants it could go the other way,” Ruffato says. “I mean this thing split the community for awhile. Here’s these nice old gentlemen who are neighbors. One says it’s a stream, the other says it’s a ditch. Nobody really knows.”
Topping the banks

One Bitterroot resident who has felt the split’s repercussions is Jerry Metully, Ken Siebel’s neighbor to the north. Metully has filed numerous lawsuits against Siebel regarding interactions the two have had over the Mitchell.

The grudge started when Metully complained in May of 2003 about a mosquito nuisance created by a backbay that Siebel dug on the Mitchell after the BCD stopped issuing 310 permits.

“The ranch manager said ‘These are for ducks. What, you don’t like ducks?’” Metully remembers.

Later, Metully says, the manager told him, “You’re in this controversy up to your neck. Be a good neighbor or we’ll build a 20-foot fence and block your view.”

“I didn’t even know what was going on,” Metully says, referring to the Mitchell controversy. “I learned more about it later. I was starting to get involved. Once I was involved he tried to scare me away.”

One of the ways Siebel allegedly tried to dissuade Metully from speaking against the landowners was by resurveying his property line preparatory to construction of a fence that would have effectively cut off Metully’s access to the Mitchell. Siebel’s consultant, Clint Brown of Water Consulting Inc., suggested that the fence would solve the mosquito nuisance.

District Judge James Haynes later required Siebel to abate the nuisance, and called the proposed barrier, which was never built, a “spite fence.”

Still pending is another lawsuit filed by Metully, claiming he was never given required notice of the resurvey of his land. According to Metully, workers for Applebury Survey in the Bitterroot showed up on his property unannounced and began banging spikes into his front yard.

Upon news of Metully’s lawsuit, Siebel filed a counterclaim asserting that he owned the land in question, and Metully’s driveway, too.

“The law says that you have to go to court to solve these matters,” Metully says. “You can’t take the law into your own hands. If he rightfully owns that sliver of land, it doesn’t matter because I’m in possession. Until it’s decided in court he has to leave me alone.”

Metully is waiting for the district court ruling on the BCD’s classification of the Mitchell before deciding if he’ll sue the Conservation District as well over the mosquito nuisance.

“If it is a stream and they altered it without a permit, then I can draw the Conservation District into a suit,” Metully says. “If this thing is a stream, it should have been protected by law.”

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