State Commissioner of Higher Education Sheila Stearns and Board of Regents trustee Clayton Christian were in Hamilton last Friday morning, October 12, as part of a state wide tour to over 40 communities to gather advice about action and funding recommendations for 2009. The Montana Board of Regents will decide on those recommendations early in 2008 and present them to the governor and the legislature.

"The Montana University System forums are opportunities for the Regents to do a reality check with Montanans about the board's priorities for affordability, economic development, efficiency and quality," Stearns said in a press release. "To ask the public for its opinions on these subjects next fall during the election cycle is almost too late in the process. The time for public response and advice is now," said Stearns.

What Stearns got an earful about at the Hamilton meeting was the prospect, approved by Ravalli County voters in the last election, of establishing a Bitterroot Valley Community College (BVCC). Elected Trustees of BVCC are Doug Bower, D.V.M., Greg Seltzer, D.D.S., Patricia Furniss, John W. Robinson, AnnaVee Brandborg, Jack Eggensperger, and Deborah Rogala.

Tension exists between current efforts by the University of Montana to extend higher education services to the county via a Higher Education Center in Hamilton and College of Technology (COT)extension, and the local efforts to form the Bitterroot Valley Community College.

BVCC Trustee terms will begin upon official recognition of the Bitterroot Valley Community College District, now dependent on approval of the Montana State Legislature. A vote of the state legislature is most likely to occur during the 2009 regularly scheduled legislative session.

Stearns, who will be the chief author of the recommendation to the legislature, acknowledged on Friday that establishment of a local community college was obviously the hot topic in Ravalli County. She noted that accepting public advice on the topic was appropriate, but also noted that the decision about a recommendation would not be made until the summer or fall. She promised to return to the Bitterroot Valley in the spring and solicit more advice concerning the establishment of a local community college, and spend up to three days touring communities in the valley.

Hamilton City Councilor Bob Scott was the first to speak and said that he was in favor of the voter approved community college and hoped that the Commissioner of Higher Education would heed the voice of the voters in her recommendation.

Ravalli County Representative for District 87, Republican Ron Stoker, asked "Who's going to pay the bill?" He asked Stearns to explain the 6 mill levy that goes to support the university's Higher Education Center in Hamilton and compare it to the funding for a local community college. He also asked for an explanation of the different types of boards involved in a community college versus a university sponsored Higher Education Center.

It was explained that the 6 mill levy for the university system goes into the state's general fund and is then allocated to the university system. There are currently five COTs in the state located in Helena, Great Falls, Billings, Missoula, and Butte. This year, he said, $17 million of the total $200 million university budget was delivered to the university's five COTs via the 6 mill levy.

There are currently 3 community colleges in the state in Miles City, Glasgow and the Flathead Valley. These colleges are allowed to seek a local levy for their operation. Their operations are paid for, on the average, by a local levy covering 25 percent, tuition from students covering about 25 percent, and state funding of about 50 percent. It costs the Flathead Community college about $7,500 per full-time equivalent (FTE) student to operate. It costs the Miles Community College about $11,000 per FTE. One difference between a COT and a community college, he said was in the way infrastructure such as buildings were paid for. In a CC the building is paid for by a local bond levy. In the county in which a COT is established a local levy of 1.5 mills supports the building infrastructure. The COT mill levy, however, goes into the general fund and may be spent on other COT facilities instead of the local one.

Stearns clarified that a local community college Board of Trustees was responsible to the Board of Regents on a number of matters. The Board of Regents, she said, controlled operating budgets, student fees, qualifications of personnel, and academic programs. The local community college Board of Trustees does the hiring and firing and sets its own capital improvement projects.

BVCC Trustee Patricia Furniss said that from her research it was determined that COTs work best in urban environments, while the community colleges work best in rural areas.

A prominent supporter of the BVCC, Victoria Clark, said that even though voters approved the establishment of the VCC, public approval would again be required for any building project. She said that the law requiring the community colleges to support their infrastructure could be changed. She said that community college provides the whole range of courses including non-credit services, while the COTs do not.

Stearns said that she was still researching the credit and non-credit issues. She said that at the Great Falls COT that non-credit courses had not been offered because the local high schools had it covered.

Frankie Laible asked if the current plan was to do an extension of the UM COT or an actual COT for Ravalli county. She also wondered if the extension of a COT and establishment of a community college were compatible due to the fact that they serve different needs.

Stearns said that in Great Falls there was a COT and Higher Education Center extension. She said that the UM could do both. She said that UM already had preliminary designs drawn up for a COT building to be erected near Hamilton. She said that it would be a branch built out of their own budget.

"But they sort of stepped back and went quiet because they did not want to appear to be competing with a ballot issue in appearance," said Stearns. She said that the problem in the Bitterroot seems to be the question about why they did not step forward with such plans a long time ago. "Why it didn't, I can't say," said Stearns. She did say that all kinds of partnerships and options are possible.

Jim Cote, co-founder of the Greater Ravalli Foundation that has donated from $250,000 to $300,000 annually toward Ravalli County education, applauded the university's efforts to develop its Higher Education Center and COT in the Bitterroot. He said that there has been a lot of rhetoric about pros and cons but that factual information was needed about the costs of facilities and personnel.

"I wish there was some way we could absolutely blend together all the concepts and everyone walk out of this room with the initiative that should be set forth and that is to have a higher standard of education in Ravalli County," said Cote.

Senator Laible said that there was an effort under way to present a budget based upon historical expenditures of other community colleges and based on what the expectations are going to be to the state and the local taxpayers. He said that we need to know the impact to local taxpayers.

John Davenport expressed suspicion at the university's recent efforts to establish a Higher Education Center and COT in the valley after decades of neglect. He believes that it was an effort initiated in opposition to the local movement to establish a community college.

Dixie Stark, director of the Adult Literacy Program for 16 years, said that she would like to collaborate with the local COT. She said that cooperation between local community colleges and COT extensions in Wyoming was common.

Patricia Furniss said that there was a lot of frustration going back to the beginning of efforts to get higher education in the Bitterroot back in the 1970's. She said that it did appear that the UM was working in opposition to the community college. She said that, in relation to the local 1.5 mill levy's supporting the COTs, that once it went into the general fund there was no guarantee that the money would go to the local COT.

"Is there anything more frustrating than paying taxes for a service that doesn't come to your area?" asked Furniss.

Lyle Pylon said that money was well spent on local community colleges. He said that it helped cut down on the expenses of controlling criminal activity of young people. It made more sense to send them to school.

Ron Osborne, a high school counselor for 30 years in New Jersey, said that he witnessed the development of a community college in his county and that it was a complete success. It provided higher education possibilities at affordable prices.

Acting Director of the Hamilton Higher Education Center Frank Laurence said that the center is currently providing 5 courses to a total of 41 students. But next semester, he said, 12 courses would be offered. He said that the center was not an extension of the UM's COT and although its courses this fall meet COT requirements, they also meet general course requirements in other departments of the university. He said that next semester there would even be masters level courses offered in Hamilton. He said that he would welcome the formation of a citizens advisory board to advise him on the recommendations he makes to the university.

Deb Essen said that Ravalli county citizens want to control their own destiny. She said that the university has been flyfishing in the Bitterroot for decades, but when the citizens rose to bite the fly was pulled away. She said that the community college proposal should not be made into a political football like it was in the last county elections.

Frankie Laible agreed that it was not a political issue, but she said that the people need to know the costs so they can make intelligent decisions about how to meet the costs.

"Why can't we combine these things in this valley?" questioned Laible.

Representative Bob Lake said that everyone was in agreement that the valley needed better higher education services. But he noted that 35 to 36 percent of high school graduates entering the higher education system required remedial instruction in reading and math. He said that we, as taxpayers, should not be spending money in the university system to bring students up to the standards that they should have met already in high school.

County Commission Chairman Jim Rokosch said that he supported collaboration and urged the regents to take that focus to heart.

"When people partner together and communicate honestly," said Rokosch, "we can find ways to get things done even with limited resources. Let's get away from the either/or approach, we don't have to go there." He said that a community college, as the voters recognized, is an integral part of the community's needs. He said that there was no reason that it couldn't work compatibly with a COT and Higher Education Center. "Let's think creatively of how we can cooperate," he said.

Senator Laible said that it was obvious that everyone was in support of an institution of higher education and in enhancing those educational possibilities. He said that we were here now to decide what to do about it. He said the community has stepped up to the plate and said we want to spend more tax dollars to pay for a community college.

He cautioned, however, that the community college was in its infancy and that it was evolving. He said that it would be years, perhaps even 10 years, before the community college got a building.

"But what will happen then?" he asked. "Will the voters vote the building levy down?"

He said that we were in need of a new paradigm for funding higher education. He said the most important thing to emerge from the meeting was the recognition that "we are going to need the university. Yes, we are going to have a community college. But we will need help from the university." He emphasized that it was not a political issue but an issue of providing the best educational opportunities possible to our children.

Hamilton City Council candidates forum

By Michael Howell

Who are the candidates?

WARD 1

JOE PETRUSAITIS - is 56 years old and has lived in Hamilton 29 years. He attended 4 years at college studying criminal justice and history, has been driver and salesman for Bitterroot Laundry for 28 years. He has been on the zoning board, city council and is former mayor of Hamilton.

ROBERT SUTHERLAND - is 69 years of age and has lived in Hamilton for 7 years. He has a Bachelor of Science degree in Forestry. He currently serves on the Hamilton City Council.

WARD 2

BOB SCOTT - is 64 years of age and was raised in Hamilton from 1944 to present, except for the years at college and 12 years in engineering jobs. He currently serves on the Hamilton city council.

AL MITCHELL - is 53 years of age and has lived in Hamilton for 46 years. He spent 4 years in the military and worked 3 years as business manager at KSEN Radio in Shelby. He has a Bachelor of Science degree in Business Administration from the University of Montana and is the president/owner of the Paper Clip Office Supply in downtown Hamilton. He is currently chairman of the Hamilton School Board of Trustees, past president of the Bitterroot Chamber of Commerce, and has been president of the Hamilton Business Organization.

WARD 3

DEANNE HARBAUGH - is 60 years of age. She was born in Hamilton and lived most of her life here, but she also lived in Seattle, Los Angeles, Hawaii, Malaysia and Japan. Harbaugh received a Bachelor of Science degree in English/Art/Education in 1988 with a year at Master's level. She is currently president of the Hamilton City Council. She helped start the first Bitterroot Animal Shelter, and has been a volunteer for SAFE, Hospice, a Daly Mansion tour guide, and a Red Cross instructor.

BOB FROST - is retired, (no age given), has lived in the county for 10 years and in Hamilton for 4 years. He attended the New York University School of Banking, Commerce and Finance, has served on the Hospice Board, Bitterroot Water Forum, Bitterrooters for Planning, RSVP, Ravalli County Museum, Hamilton Local Government Study Commission and worked hard on the county Growth Policy.

JENNY WEST - is 34 years of age and has lived in Hamilton 33 years. She has a Bachelors Degree in Business Marketing from Montana State University, is a self-employed fly fishing guide and bookkeeper, has been on the Hamilton Parks Board for 3 years, and is vice president of Bitterroot Trout Unlimited.

The following questions were submitted to the candidates in advance of the forum by the Bitterroot Star.

What are the top three things that you would like to see accomplished if you are elected to the City Council?

WARD 1

At the top of Petrusaitis' list of things to accomplish if elected is achieving a balanced budget. He believes that having a proper allocation of funds is foundational to a healthy government.

"Dipping into the reserve funds to balance the budget, or for hiring new employees is not responsible," said Petrusaitis. He said that the city's infrastructure is operating on borrowed time and we need to stop the endless talking and fruitless debate.

Secondly, Petrusaitis believes that the city needs to implement the guidelines set in its Area 3 Study. He believes that by working with the County the City can save on expenses and personnel to achieve common goals.

Lastly, he aims to restore faith and respect and proper dynamics to a "dysfunctional council." He wants to help the council work together for the common good of the citizens. By law, he said, the council should be non-partisan in its decision making and not beholden to any special interests.

At the top of Sutherlands goals if re-elected is his aim to continue to make city government more transparent. He said that the previous administration of former mayor Joe Petrusaitis worked to stifle public comment and participation. He said that the current city council now recognizes the fundamental constitutional rights of citizens to participate in their government and he will work hard to help facilitate that.

Secondly, he said, he would work to make sure that any money spent by the city has to do with taking care of the needs of the citizens.

Thirdly, he will work to make sure that the Mayor is required to follow the law.

WARD 2

Scott's first goal, if re-elected, would be to establish a citizen lead planning process. He thinks that the biggest challenge facing our community is the pressures created by rapid growth.

"We have already been growing a lot," said Scott, "and there is continued demand for expansion. What has been missing over the years is the involvement of the citizens."

He said that the process should be supported by city staff and facilitated by staff, but not run by them.

Scott's second major goal would be to have a major fund for the city to aquire additional park land.

Thirdly, he said, we need clarity and efficiency in public finance matters as the city works toward improvement of its sidewalks, streets and highway.

Mitchell believes that his top three goals if elected are all interrelated. He said that he was inspired to run for office by the current city council's decorum, (or lack of it) and the high turnover rate of city employees and city officials.

"I feel that I am qualified to help in that regard," said Mitchell. "I have worked on several committees in the last 16 years and I feel that I'll be able to lend a hand in straightening that matter out."

Secondly, Mitchell said, he would like to get the council to focus on current and future goals and not on the past as it has been doing.

His third goal, he said, would be to do the work needed to accomplish the aforementioned goals.

WARD 3

Harbaugh's number one goal if re-elected would be to continue planning efforts with the citizens. In the past weeks she has been interviewing citizens personally and on the telephone to determine their concerns. She said the council needs a facilitator to work through a series of meetings with the citizens to help identify the issues that the citizens believe need to be addressed in the planning process.

Her second priority would be to hire a city arborist.

"We've got tree problems that have occurred. We've removed trees. We've done sidewalk improvements that have done damage to 100 year old trees," said Harbaugh. She said that a professional arborist is sorely needed.

She said that her third goal would be to protect the city's air and water, which are also at risk.

Frost's top goal, if elected, would be the status of Claudia Driscoll Park. The property is currently owned by the National Guard. Frost said that he has been working with senior staff members of both Senator Baucus and Senator Testor to try and secure the land for the city.

"If that fails," said Frost, "then I suggest that the city try to get a 99 year lease on the property."

Frost said that his second goal would be to create a regular newspaper column or a frequent Valley Viewpoint to better inform the citizens about council decisions and activities.

Thirdly, he said, he would like to tighten down Hamilton's $9 million in expenditures and do a study of other cities in the state comparing the number of employees, the population size, general fund expenditures and public work expenditures of those cities versus the city of Hamilton.

West said that her top priority, if elected, would be to take care of the city's parks and the core of downtown Hamilton. She said that she used to run a business in downtown Hamilton and that her father did business in the city for 23 years.

"I support a vital downtown district," said West. She also supports upgrading of the city's streets, sidewalks, and sewer plant.

"I also support pedestrian and bicycle friendly streets around town," said West. She believes that safety concerns need to be addressed especially where pedestrians and bicyclists must cross Highway 93 on route to the High School and the swimming pool. She also strongly supports public safety in general, including the Hamilton city Police Department and the Hamilton volunteer Fire Department.

Secondly, West would like to help improve the city council‚s apparent demeanor by adding her positive attitude to the Council mix.

Thirdly, west wants to preserve and enhance the city's parks.

Address the issue of city business and how the council has acted in the last few years. What changes would you see in the council in the next few years?

WARD 1

Sutherland said that the responsibility of a councilor is to make policy and have fiscal oversight. He said that his dealings with city employees has only been to get information. He said that some interference by councilors may have occurred before the new mayor got a handle on things, but that he is not one who could be accused of this.

Petrusaitis said that the council should not be managing personnel since it is not in their job description according to state law. He urged building a pleasant relationship with all the staff and said that doing so is not complemented by being overbearing and demanding. He said that forgiveness and humility were the traits of a strong leader. To improve matters he suggested reviewing the roles of local government mandated as by law, studying the employee handbook, treating others as more important than yourself, and acting like local governmentis a service and not a business.

WARD 2

Mitchell stated that there has been a lot of turnover at the city level that appears to be due to activities of the city council. He said that he did not want to run for office but was asked to by several city employees who were afraid for their jobs. He said that he was shocked at the conditions of people having to work under fear of retaliation by councilors. "It's just not right," he said.

Scott said that he has learned from serving on the council to have a thick skin. He said he did not see much truth in the vague allegations about fear amongst employees. He said that the Mayor supervises the employees and that his dealings with employees have always been cordial, although the council meetings have been contentious.

WARD 3

Frost said that there have been some heated discussions and disagreements among councilors in the last four years, but he believes that the publicity reported about it was a bit overblown. He said that he dislikes the 3 to 3 division in many of the council's votes which allowed the Mayor to make tie breaking legislative decisions 29 times in 15 meetings in her first year in office. He said it is the council's job to set policy, not the mayor's.

West said that it has been hard to watch the meetings and has caused a lot of stress in the community. She said that it was time to stop looking back so much and to look forward to important issues such as growth and planning. She hopes to provide a positive spin on things and put some good energy into the council.

Harbaugh said that there were three councilors who constantly work for what is best for the citizens. But there were two who are pro-growth and one who goes back and forth. Add to this a mayor who wants to run the show and who cripples the council at times because of this.

What is your philosophy concerning city growth and planning?

WARD 1

Petrusaitis said that our decisions will affect the future of our area. He said that we need to follow our Growth Policy and implement suggestions from our public studies. State law, he said, outlines much of the subdivision procedure we are to follow. Generally, he said, he favors smart growth around the immediate borders of the city connected to city water and sewer rather than private systems. He said that costs should be born by the developer. He therefore gives planning and development of Area 3 a high priority and cautions councilors or councilors to be against making premature decisions prior to public hearings.

Sutherland said that it has taken the council a long time to finally hire a planner. He said that the planners job was to collect empirical data about the city and its environment that data would then be used in the decision making process. He said that it was also the planners function to solicit public input to see what the citizens really want.

WARD 2

Scott said that land use issues comprise about 80 percent of the council's business. He said that we need to look closely at the issue of expansion. He said that the city is neglecting its core area and spending its resources on expansion, such as Flat Iron and Area 3. He said that instead of expansion the city should be looking at re-developing its core area and seriously look at limiting growth for mega developments that are knocking on the door.

Mitchell said that Montana is the Last Best Place‚ and that we live in the heart of the Last Best Place. He said that we need managed growth with reasonable impact fees. He said a good example would be Area 3, and that it was the most logical place for growth to occur. He said that he was not in favor of rampant growth, that he grew up here and has small town values. But we need reasonable growth, he said, otherwise we could end up with something like Malfunction Junction in Missoula.

WARD 3

West said that growth does scare some people as they wonder what is going to be happening to the valley. She said that she gets emotional when thinking about chopping up the landscape around Hamilton. She said that the city councilors need to be smart and use a lot of public input. She said we need to examine the city plan and think it through for 30 to 40, even 100 years and figure out things like how to preserve open space and provide for a diversity in housing needs. She stressed the need for city and county cooperation.

Harbaugh said that the council was already involved in the process of obtaining the tools and help needed to make a good plan. She said that it would involve meetings for citizens to identify the issues that are important to them. She said that these efforts should yield both protection for the environment and putting quality services in place for the citizens.

Frost Said that he has worked in planning and zoning for 19 years. He was critical of the current prospects for annexation. He said that the Flat Iron development with 600 plus homes on Golf Course Road cannot be annexed because it is not contiguous to the city boundary and is agricultural land that cannot be annexed by law. He said that Area 3, although contiguous to the city boundary, should not be annexed because such a large development, with over 800 homes, would completely overwhelm the city infrastructure and create a huge tax burden for the current citizens to provide those services. It would also reduce the air quality and is not good planning.

Further questions from the audience included questions about engineering and planning and the performance of the Public Works department and what programs the candidates might institute to promote a stronger and more cohesive community.

Candidates were also asked what book may have influenced them the most in their lives as a possible indication of their personality.

Harbaugh - The Grapes of Wrath

Frost - The Scout Handbook

West - The Seven Habits of Highly effective People

Mitchell - Beowulf

Scott - George Orwell's 1984‚ and The Rise and Fall of the Roman Empire

Petrusaitis - The Worm Ouroboros

Sutherland - news and literature concerning the function of government

The candidates were unified in their opposition to the news that Wal-Mart was applying to the Montana Department of Transportation for permission to locate a Super Center on Blood Lane south of Hamilton and possibly be annexed into the city. Mitchell called it sad and devastating news for small downtown businesses, like his own. Scott said that the city had some tools and design standards to apply as well as the ability to assess the negative impact of such developments. He said that the city has choices and does not have to annex. West said that the thought of Wal-Mart moving in crushed her and that she was not in favor of it. Harbaugh said that the city was prepared with new design standards and size caps. Frost said that the area was not contiguous to the city and could not be annexed. Pertusaitis said that he did not hate Wal-Mart, that he occasionally shopped there, but that it was a good chance to drive to Missoula. He recommended going slow with any request for annexation. Sutherland said that the Wal-Mart people were losing credibility as far as planning is concerned, having moved their site at least four times already.

State Supreme Court hears Mitchell Slough case

By Michael Howell

"Welcome to the Montana Supreme Court," said Chief Justice Karla Gray at the opening of oral arguments in the Mitchell Slough case. "On this occasion we are not at all surprised to see a relatively full courtroom." Many, but not all, of those gathered in the courtroom were from the Bitterroot Valley. The hearing has been a long time coming.

The case began back in 1999 when the Bitterroot Conservation District, at the request of a local landowner, decided to remove Mitchell Slough, a 16 mile long historical side channel of the Bitterroot River between Corvallis and Stevensville, from protection under the Natural Streambed and Land Preservation Act (310 Law). Under that law a permit is required to do any activity on the bed and banks of a "natural perennially flowing stream." The landowner claimed it was a ditch, which is exempted from the 310 Law. The Conservation district wrote the landowner a letter agreeing that it was not covered under the law.

That decision was questioned by a reporter for the Bitterroot Star since no public notice or hearing was held. Three months later the Conservation district announced that it was going to conduct a public hearing to determine the status of the water body. It is that public process and the subsequent determination that Mitchell slough was not a "natural perennial flowing stream" that precipitated the lawsuit.

The Bitterroot River Protection Association (BRPA), a local non-profit conservation group, sued the Conservation District over its determination to remove Mitchell Slough from protection under the 310 Law. Montana Department of Fish, Wildlife and Parks (FWP) has always considered Mitchell Slough a natural water body and accessible to fishing under the state's Stream Access Law. An FWP agent testified at a trial in Ravalli County Justice Court in 1990 that the slough was accessible for fishing under the law and two fishermen were acquitted of trespassing charges. The agency also participates in the Conservation District permitting activities. It was going to join BRPA in its suit against the District but was prevented by then Governor Judy Martz.

Subsequently several landowners along the slough joined the lawsuit as intervenors arguing that because it is a ditch it is not under the district's jurisdiction for the 310 Law nor for the state's Stream Access Law. Following that action BRPA appealed to have FWP included in the case as an "involuntary plaintiff" because they had jurisdiction over stream access issues. Newly elected Governor Brian Schwietzer allowed the agency to join the case. District Court Judge Ted Mizner allowed the agency to argue the stream access portion of the case but prohibited their participation in the argument over the 310 Law.

Missoula Attorney Sarah McMillan argued the case for BRPA before the Supreme Court last Wednesday, October 10. She told the justices that there was no conflict over Mitchell slough until 1995 when local landowners began restricting access. Before that, she said the public had fished the slough without permission of local landowners for over 60 years "in peaceful co-existence." she said the case was not about interference with any water rights, not about trespassing over private property, and not about access to a ditch.

"This case is essentially about what resources in the state are going to be protected from degradation and also who gets to use those resources.," said McMillan.

McMillan said that a few facts were undisputed. One, that Mitchell Slough flows year round with water that is neither appropriated nor diverted from the Bitterroot River. Two, That the public has recreated in Mitchell slough for the last 60 years without asking landowner permission. And three, that Mitchell slough was once a natural channel, although the district court found that it was "no longer natural" due to alterations that had been made. She noted that neither of those bodies found it to be a man-made ditch.

Her main argument was that the state's laws governing environmental protection and public access only distinguish between natural water bodies and man-made water conveyances. She said that Judge Mizner's decision invents a third category of once natural, but no longer so. She said that Mizner asked the BRPA to prove that there was water in Mitchell Slough not "influenced" by irrigation. She said the court even recognized that it was impossible to prove such a thing. She said all streams in Montana were influenced by irrigation, but the question should be whether it is a man-mad conveyance or not.

Asked by the Court what test should be appled to determine if a water body is natural, McMillan said it should be made on a factual basis concerning the amount of water absent any appropriated water diverted from the Bitterroot River.

In response to questions from the court McMillan said that many of the landowners had taken out 310 Permits in the past and also owned water rights that called it a side channel of the Bitterroot River.

Chief Attorney for FWP Bob Lane spoke to the fishing access portion of the case. He noted that government survey maps from the 1870s showed Mitchell Slough as a natural water body and that early ditch companies placed irrigation head gates in it miles downstream from its original branching point.

"Basically since man has had records of Mitchell Slough," said Lane, "it has been a side channel of the Bitterroot River."

Lane said that, accepting all the findings of fact that the District court made, there were two conclusions of law that were driving the case. One is that a natural side channel, at some time after some manipulation and some alteration, will change into a "non-natural" water course. The other is that any water that is "influenced by irrigation" does not count as natural water flow.

In response to questioning from the court, Lane said that the notion that the river was moving west and abandoning the east channel was irrelevant to the issue. He said that irrigators have gone into the river and diverted water from the west branch into the east branch and then diverted water from the east branch into Mitchell Slough, "but no one is arguing that the east branch of the river is not accessible to fishing. The same should hold true for Mitchell Slough."

He also noted that there was a substantial flow of water in Mitchell Slough during the non-irrigation system.

He said that the Stream Access Law relies on a "bright line" distinction between natural water bodies that are accessible to fishing and man-made conveyances, or ditches, which are not. He said that Mitchell Slough was not a ditch, it was an altered side channel of the Bitterroot River. He said that incremental changes have been made over the years, "but there is no magic point at which it becomes non-natural water course. It is not a constructed ditch."

He said that there is no reason for the public to access a ditch. But in cases like Mitchell Slough, an altered side channel, there is access.

"If this becomes a non-natural, non-ditch, and then, as a non-natural, non-ditch, the public can't access it, that simply means that if you alter the side channel on your land enough, you have now privatized a public resource and that's the central issue of this case," said Lane.

Lane noted case law that ruled the irrigation water that caused a usually dry gully to flow perennially was open to public access. He said that in this case, Mitchell Slough has never been a gully but has always been a side channel of the river and it should not be privatized.

Don McIntyre, representing the Bitterroot Conservation District, said that the district reviewed 1528 pieces of evidence over 550 hours. He told the court that the river had migrated westward and that it was only due to man's intervention that water flowed in it now.

Justice Nelson interrupted and asked about he status or return irrigation flows. He said that all surface, underground and atmospheric waters belong to the state. He said that the Constitution doesn't distinguish any waters that it all counts and belongs to the state.

"What authority does the District Court have to remove some of the water that goes into Mitchell Slough and say it doesn't count?" asked Nelson.

McIntyre said that it was not a question of whether it is a natural channel, but is it a natural perennial flowing stream. So the waters that we are talking about have to be waters that man has not put into it.

Asked by the Court where the river would be if there was no irrigation taken out above Mitchell Slough, where about 1,000 cfs is diverted, McIntyre said that the district found that with no irrigation diversions the slough would just be a series of wetlands.

McIntyre defended the Conservation District's decision calling it a "reasonable process, by reasonable men coming to a reasonable conclusion."

Attorney John Warren, representing Anthony Marnell of the Double Fork Ranch, argued the stream access part of the case. He argued that Mitchell Slough was indeed a ditch. He argued that it served as an irrigation ditch and a drainage ditch carrying return flows back to the river. He pointed to the evidence of berms that keep the water in the Mitchell from flowing back to the river and dams and lifts to raise the water in elevation above the valley bottom. He said that a geomorphologist had found that several areas of the Mitchell had been excavated.

Asked by Justice Warner if the District Court ruling acknowledged that Mitchell Slough was originally a natural waterway, Warren said that the District Judge found the evidence inconclusive.

Warner responded that he thought the District Court had found that Mitchell Slough was a natural water way probably 130 years ago.

"I don't think it was pertinent to the findings of the court," said Warren.

"How much does man have to manipulate a water course to make it non-natural," a Justice asked.

"That depends on the water course," said Warren. "If it is used to elevate the water above the water course and if the slope is less than the valley bottom, you will gain elevation of the ditch with respect to the river and that's the secret of irrigation."

Without man's intervention the water would flow straight back to the river, he said.

Attorney Ron Waterman said, "The basics of water flow is this: water flows downhill. If you look at the evidence the Mitchell flows uphill. It happens because of man's ingenuity." It also cuts across grain, he said.

The other part, said Waterman, is the catch ditch.

"There are some historic relics, but it is people working in the 1870's with the best means available and what they ended up with, if you will, is a ditch."

He also contested the idea that the Mitchell on the early GLO map is in the same place as the modern Mitchell.

Rebutting for BRPA Attorney Jack Tuholske said that the natural movement of the river was irrelevant. He said that the Stream Access Law was predicated upon what exists today not on speculation on what would be the case if we stopped all the irrigation going on everywhere.

"The reality is there is water now flowing in Mitchell Slough that is not used in irrigation, does not come in through a head gate, and its full of fish and has been fished by the public for 60 to 70 years." It was only in 1995, he said, that the Mitchell Ditch Company was formed by a local landowner.

"But it doesn't own any water rights. It doesn't own any ditches. It doesn't own anything. It is simply a vehicle for the privatization of this water body," said Tuholske.

He noted that the Bitterroot River, at some times in late summer, flows with mostly diverted water released from Painted Rocks Reservoir, but we still fish and recreate in it.

"Simply because water has been diverted we cannot take it out of the public trust," said Tuholske. He said that if we go down that road many side channels across the state would be privatized.

He stated that there was no evidence that recreational use of Mitchell Slough has interfered with water rights or irrigation use. He said that BRPA was not interested in access to ditches that come off of Mitchell Slough.

"We would not be here if Mitchell Slough was a ditch," he said.

He called the state's trout waters the "pride of our state and the envy of the nation" and said that the recreational use of our waters and their irrigation use are not in conflict.

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