By Michael Howell
After hearing from Montana Department of Fish, Wildlife and Parks fisheries biologist Chris Clancy last week, the County Commissioners took Clancy’s recommendations concerning the Mitchell Slough Portage Route Request and decided to take over the efforts at contacting affected landowners. They also agreed to select a commissioner to serve as liaison with FWP as they work through the process of establishing what could be over a dozen portage routes on the slough from Victor to Stevensville.
Clancy gave the commissioners a thumbnail history of the situation, starting with the Montana Supreme Court ruling in November 2008 which established that Mitchell Slough was open to public access. It was a matter that landowners along the slough contested in what was an eight-year-long legal battle that started in 2000. Following the court ruling, three portage routes were established into the slough with signage provided by FWP.
In November of 2012, Andy Roubik filed a request with the County Commissioners to establish portage routes at all the obstacles on Mitchell Slough from Victor Crossing north to Stevensville. In March of 2012, the Commissioners toured a portion of the river channel from Victor Crossing to Bell Crossing and since that time FWP has been trying to contact and work with the landowners involved.
Clancy told the commissioners that he had done what he could to help move the process forward and that the efforts have run the gamut from those who have cooperated and already worked out solutions, to those who have expressed some resistance, to those who he has been unable to contact. He said that in some way, probably due to their position in the lawsuit, FWP may be getting in the way now with some landowners who are not happy with them for their role in the court battle. He did say that no one had been rude, but he recommended that the County Commissioners may have better success at working out things directly with the remaining landowners. FWP would still be willing to work on remediation designs and pay for the installations, despite the fact that the law requires the landowner to cover the expenses.
In terms of details to date he said that, in all, ten to eleven fences and other obstructions were observed on the portion of the slough from Victor to Bell and of that total only six were determined to need modification. He said agreements were already worked out with two of those landowners and routes had been established. He said of the remaining four, one was a maybe and three needed some sort of structural changes. He said the old, semi-collapsed barbed wire fence between the Lewis and Wark properties had been replaced and braced and a plastic sleeve placed on the wire to aid fishermen in lifting the wire to go under. He said that a swinging gate that was self-closing was installed on Evelyn Locke’s property.
Commissioner J.R. Iman said he was glad to see that there were two successful examples now to show other landowners.
“I’d like to thank FWP for taking the initiative to help people comply with the law,” said Iman. He said it gave them some good examples to show that “it can be done and done reasonably.”
Clancy said that there were even other options and that FWP had a set of options for landowners to consider.
“It has to work for the landowner,” said Clancy. “Secondly, it has to work for the sportsmen as well.”
Commission Administrator Glenda Wiles noted that, despite the fact that FWP had made a findings and then implemented the changes on two sites, no official findings or decision had been made by the Commission.
Andy Roubik, who made the Portage Route Request, said that he’d like to see the landowners comply with the law as every other landowner in the state has to.
“I don’t know why these people think they are different,” said Roubik. “They have to comply with state law and it’s your job to make sure they comply,” he told the commissioners. He noted that the signs placed at the original portage route sites needed to be changed because the language required people to stay in the slough and go under fences when the law specifically allows you to get out of the water to get through fences that are not passable in the stream. He also wants assurances that the Ravalli County Sheriff’s Office won’t be ticketing people who are in strict compliance with the law when they are portaging around obstacles. A fisherman was ticketed this spring, although the ticket was dismissed when it went before a judge.
“It’s the landowners that should be ticketed,” said Roubik. He called it a win/win situation that saves the landowners time and trouble with fence repairs and makes things easier for the fishermen.
“Imagine a 70-year-old fisherman trying to get under a wire that is three inches under water and topped with an electric fence,” said Roubik. He said his whole point is that it is a public access issue and that if someone put a barbed wire across a sidewalk the government would not fail to act.
“I’d like to see you guys do something to forego any legal recourse,” said Roubik. “Let’s get on with it and get this done.”
Shelley Irwin urged the commissioners to act. She said that she had grown up here using the river, but that in recent times selfish landowners had made it difficult.
“Everyone seems so selfish,” said Irwin. “They don’t want to share the beauty of their land. We’re not stealing anything. We’re not casing the joint to come back and steal. We are not killing deer or other animals. The fishermen want to fish and I want to enjoy the beauty.”
Nina Edens said that she and her husband had recently gotten permits to work on a stream that crosses their property.
“We were not given the impression that we were the number one priority,” said Edens. “Nor did taxpayers pay for the work, we paid for it ourselves. I’m happy that the County is extending these courtesies to the wealthy landowners along the slough. It would be nice if they extended it to everyone else as well.”
Ren Cleveland said that he has owned property along the Bitterroot River for over 70 years but has come to hate the name “sportsman.”
“I’ve never put out so many fires or picked up so much garbage on my property,” said Cleveland. He called the public easement a “taking of personal property.”
John Grove, a member of the Bitterroot River Protection Association who lives along the river, said that he had not had any problem with recreationists. He said the Stream Access Law was good for the state’s economy and encouraged the commissioners to move along in the process.
Andy Carlson, a fishing outfitter for 34 years, said that he supported the Stream Access Law and helped get it put in place.
“I do believe it’s a travesty the way the legal things have come down on Mitchell Ditch/Slough.” He mentioned a photo he had submitted that shows a section of Mitchell Slough flowing around a small island.
“The point is, how on earth could this be navigable?” he said. “Is this some sort of back-door attempt to establish navigability in a so-called ancient streambed of the Bitterroot River?”
He said there are thousands of abandoned river channels across Montana that have been utilized for agricultural purposes for eons. He said this fact could be grounds for overturning the Supreme Court ruling in the future.
John Cook, an outfitter and landowner along the slough, said that he did not agree with the Supreme Court ruling, either.
“But we’ve got to live with it,” he said, “so let’s deal with it like neighbors.” He said fishermen should be banned from walking in the slough because it destroys the fish spawning grounds.
One fishing guide said that he had fished in the valley all his life and was probably one of the first guys around to actually float the river. He said he and a friend modified a rowboat with short oars and floated the East Fork and the West Fork. He said he floated Mitchell Slough from one end to the other in the 1970’s. He said at one time you could ask permission and hunt and fish anywhere in the river bottom. He said people bought up the river property and want to keep it themselves.
“But the (Stream Access) law was passed,” he said. “We fought the legal battle and now it’s there. It’s time you do your job. Let’s get it done. Finally we have a pass. They said we can use it, but we can’t actually. It’s not navigable with what’s out there. I’m talking about all the fences. It’s impossible. We’ve procrastinated for years. It’s past time now, way past it.”
Brad Lyons echoed, “Let’s get it done.”
Former County Attorney George Corn said that all the concerns expressed by the landowners and the FWP could be addressed and he urged the commissioners to do so. He said they needed to act to avoid legal action.
“It needs to be done now. It’s drug on for five years since the decision,” Corn said.
Steve Fisher, an aquatic biologist who worked for clients along Mitchell Slough, said that, although some people comply with the law, for “the great majority, there’s got to be a carrot here somewhere.” He said we have to work to resolve this situation until the law changes.
Carlson spoke for a second time, stating that he had done an aquatic insect study on Ken Siebel’s property along Mitchell Slough in the late 1970’s and that there were only mud, sand and silt invertebrates. He said there was no fishery, that Siebel created the fishery.
Michael Howell, Secretary for the Bitterroot River Protection Association, disputed Carlson’s claims. He said a fish inventory conducted by FWP in the early 1980’s showed a vibrant fishery. He said no evidence that Mitchell Slough was a ditch was ever submitted in the trial and that no judge found the claim credible. He said the landowners’ second approach was to claim that it was no longer natural because it was worked on so much and used by irrigators. He said the Supreme Court recognized the absurdity of this claim. He said it would mean that you could get a 310 Permit to do work in a stream and after the work is done use the 310 Permit to prove that it is no longer a stream and does not need protection. He said the commission should not be extending infinite patience to someone who knows what the situation is and is in complete defiance.
Commissioner Greg Chilcott wondered if the Commission had the authority to force compliance. Deputy County Attorney Howard Recht said it was a difficult thing to answer since the issue has not been litigated.
“But the steps asked for by FWP are clearly steps you could take under the law,” he told the commissioners.
Chilcott advocated sending certified letters of notification to the landowners involved to establish that the county was reaching out to the landowners.
Commission Chairman Jeff Burrows noted that the process allowed for the landowners to petition for redress if they are dissatisfied with the outcome.
The Commissioners agreed to accept Clancy’s recommendation and move forward with the process.
Clancy also suggested that an additional sign be added at the existing portage routes to clarify that fishermen could leave the water, within the parameters of the Stream Access Law, to portage around fences that they are not able to manage crossing in the stream. He said the signs were initially designed to meet the conditions at those three existing sites but did not adequately address other downstream sites. He said that final wording for a sign would be worked out and new signs installed when the process of granting the portage routes was complete.