Federation News

Courts Set Waterway Access Precedents:
Mitchell Slough and Ruby River

Within seven-weeks of each other two Montana courts of law have upheld
public opportunities to use and access Montana waterways; both set
noteworthy precedent. The debates relating to public access to the Ruby
River in Madison County and the Mitchell Slough of the Bitterroot River
have been ongoing since the early 1990s.
The rulings addressing public use, access and a determination that the
Mitchell Slough of the Bitterroot River is a public waterway was released
November 18 by the Montana Supreme Court. A legal challenge heard in a
District Court over public access at county bridges and their
right-of-ways on the Ruby River was released October 3.

The rulings uphold three significant provisions in Montana:
1) 1972 Montana Constitution “which expressly addressed the state’s
ownership of all waters,” Article IX, Section 3 (3) states:“All surface
waters, underground, flood, and atmospheric waters within the boundaries
of the state are the property of the state for the use of its people…”

2) Montana Stream Access Law, 23-2-302 MCA: “all water capable of
recreational use can be so used by the public (between the ordinary high
water marks) without regard to the ownership of the land underlying the
waters.”

3) 2000 Montana Attorney General Opinion regarding public access
to waterways crossed by a county bridge: “…the public may gain access to
streams and rivers by using the bridge, its right-of-way, and its
abutments.”

Mitchell Slough
The most recent ruling has come from the Montana Supreme Court responding
to an appeal filed by the Bitterroot River Protective Association, Inc.,
Montana Fish, Wildlife and Parks and Sportsmen’s Groups to a 2006 district
court decision that prevented the public from accessing and using Mitchell
Slough near Stevensville. That district court decision was in response to
a lawsuit filed in 2005 by the Association that held the Mitchell Slough
was a branch of the Bitterroot River, and not simply a private irrigation
ditch, and therefore, it was subject to the provisions of the state Stream
Access Law. The lower court disagreed with sportsmen and ruled that the
Slough was not a natural stream under the Natural Streambed and Land
Preservation Act of 1975, referred to as the “310 Law” and that it was not
subject to public access.

Overturning the lower court ruling, all seven justices and Helena District
Judge Dorothy McCarter sitting in place of Justice W. William Leaphart,
unanimously ruled that the Slough is a natural, perennial flowing waterway
“subject to stream access and public recreation as provided by the Stream
Access Law”.

The dispute has been on going between many local sportsmen and sportswomen
that became fed up with efforts to block public access to the Slough by
Siebel Systems software magnet, Ken Siebel, rock-‘n-roll star Huey Lewis,
San Francisco discount stock broker tycoon Charles Schwab and Anthony
Marnell II, owner of one of the largest construction companies in Las
Vegas that has built the Mirage, Excalibur, Ceasar’s Palace, Treasure
Island and many other large gambling - hotel establishments.
Perhaps the best response to the Slough debate can be attributed to
legislator, angler, and local resident Jim Shockley as he stated back in
2004, “As a lawmaker, an attorney, a sportsman and Montana resident these
attempted manipulations nauseate me.” He said, “The laws and regulations
protecting our water resources apply to everyone - no matter how much
money you have or how well connected someone might be politically. The
statutory directives Montanans have established to protect the public
interest and our invaluable water cannot be ignored. We don’t want to have
to file law suits, it’s sad that we do and it’s really against our good
neighbor sentiments, but we feel that we must to protect the river and
public access.” ~~
Retired Ravalli County Justice of the Peace, Ed Sperry, takes it one step
further, “The privatization of a river or stream is a mistake - no man
should own a stream, Mitchell Slough is a stream – and it is not for sale.”

Ruby River
In early October another controversial legal debate was answered, in part,
by District Judge Loren Tucker who ruled that county road right-of-ways
are 60 feet wide easements running parallel to a roadway “unless otherwise
ordered by the board of county commissioners” and they are available for
legal public activities including access to a stream or river.

The ruling was a result of a lawsuit filed by the MWF affiliate Private
Lands and Waters Access Association against Madison County in 2004 that
focused on activities at three county bridges. The judge made the
split-ruling relevant to only two of the three bridges in question because
one of the bridges was not an established road by petition or deed, it was
established by what is known as prescription and further fact finding is
necessary to determine how it was created, the right-of-way width, and its
use.

Nevertheless, the ruling is precedent setting and reaffirms a 2000 Montana
Attorney General opinion that the public is entitled to access streams and
rivers by using a county bridge and the associated right-of-way. The judge
basically ruled against opponents including the Montana Stockgrowers
Association and media mogul, James Cox Kennedy that had argued county
right-of-ways and therefore public use narrowed or hour-glassed to the
actual bridge or roadway. Judge Tucker said their argument was
unsupported by authority or logic and that the public was not trespassing
when it walked down a right-of-way, a public easement and crossed a fence
attached to a bridge to access a stream or river; the easement runs
parallel to the roadway and bridge to the high water mark of the waterway.
Or as the Attorney General Opinion suggested, a road and bridge crossing a
stream or river is the intersection of two public thoroughfares or
rights-of-way.

The ruling went further by saying that while county commissions may allow
or approve the construction of fences in the right-of-way and landowners
may attach to bridges with approval, that the public still has the legal
right to access the waterway in the right-of-way easement.

What Now?

The question for Montanans, river recreation enthusiasts and landowners
with county roads crossing streams and rivers remains: What now, what
next? Will costly legal battles continue? Or can landowners, farmers,
ranchers, and river recreationists come to some resolve?

The courts have provided clarity. The Montana Stream Access Law has held
up to legal scrutiny and challenges through the years. The Attorney
General Opinion has now been affirmed, at least concerning the issue of
public access in dedicated county right-of-ways. Can Montana come to terms
with fences in right-of-ways to control livestock while also allowing
public passage? Will legislative measures at the 2009 session cause
greater rift between landowners and waterway enthusiasts or between
parties or will legislators recognize the value a collaborative approach?

Sportsmen, sportswomen and river recreationists do not want to battle with
farmers and ranchers or county governments over the related issues and are
truly looking for opportunities to resolve the issues just as was
attempted in 2005 with HB560 and in 2007 with SB78. There is no intent of
diminishing or taking property rights. In 2009, a group of landowners,
ranchers, farmers, and recreationists that have been working since 2007
will present a new bridge access and fencing allowance bill seeking
legislative support. How will your legislator vote?