By Michael Howell
A lawsuit was filed in District Court last week by former County Attorney George Corn asking the judge to lift the emergency river closure that was imposed by Montana Department of Fish, Wildlife and Parks (FWP) effective April 11, closing the river to any recreation between the Woodside fishing access site to the Tucker West fishing access site.
FWP adopted the emergency rule due to the danger created by the Supply Ditch Diversion Dam which spans the Bitterroot River approximately three miles downstream form the Woodside fishing access site. The dam is a low-head structure that creates dangerous currents that can “keep” a boat or a swimmer trapped in a circulating current just below the dam. Signs have been in place for several years warning floaters about the danger and signaling portage routes around the dam. But floaters have still occasionally had accidents trapping them beneath the dam and there was a fatality in 2013. The current closure follows two more recent accidents at the site and high water flows make portaging very difficult.
Corn argues in his lawsuit that the situation does not really meet the definition of an emergency, and imposition of the rule without public involvement in the decision violates the state’s laws guaranteeing public participation in the government decision making process.
“The rivers of Montana are not theme park rides,” Corn wrote in a letter to the FWP Commission. “The above closure was not justified. Nor was there an emergency, which was the rationale used by FWP to act without notice to the public and provide an opportunity to be heard. Montanans have the right to use their rivers for recreation. We also have Constitutional and statutory rights of participation in government actions. Agencies are required to provide for notice and the opportunity to be heard on matters of significant public interest. Here, FWP has known about this situation for at least two years. The death that occurred last year did not prompt the agency to declare an emergency. Nothing has changed from then till now that justified declaring an emergency last week.”
He questions the use of an emergency declaration because nothing has really changed on the river for years and it has always been dangerous. He notes that “the river’s physical characteristics of high spring runoff, constantly shifting channels, logjams, sweepers, irrigation diversions, snags and sand bars have historically presented challenging conditions for boaters.” He objects to the idea of a government agency deciding what level of risk is acceptable for individuals who have a constitutionally guaranteed right to recreate on the rivers, however dangerous or risky.
Corn notes that the hazard has been there for years, that there are many more like it along the river, and that hundreds and hundreds of boaters have managed to boat it successfully. He argues that closing such a significant recreational resource as the river due to the unfortunate accidents of a few people would set an unacceptable precedent, especially if it is closed without any public input. He notes that the closure was not put into effect until months after any accident, further undermining the notion that it is an emergency and supports his notion that there was time to involve the public in the decision.
Corn also notes that the rule being used to invoke the ban on boating is a rule for state parks and could not legally be used to regulate a public river.
In an e-mail issued by Bitterroot Trout Unlimited last Sunday, it was noted that “the temporary closure has created a good deal of controversy, and there are arguments both for and against the closure. Some have even filed a petition trying to lift the closure. However, it is likely that all can agree that the dam can be a dangerous structure.
“An effort is underway to design a safe boating passage similar to the ones at the Rennaker and Corvallis Canal diversions. MFWP, DNRC and the Bitterroot Conservation District are working together, and BRTU is supporting these efforts.
“It is also unclear what impact the exceptionally high water and flows will have on that diversion structure, since it was not designed to sustain the entire river. Stay tuned for further developments, but in the interim, use extreme caution when floating anywhere on the Bitterroot and be sure to wear your personal flotation device. The vast majority of boating fatalities have a common factor – failure to wear a life jacket.”