Weighted down by literally box loads of evidence, all of which must be sifted through by legal experts, the lawsuit over the status of Mitchell Slough is moving at a glacial pace towards a review by the Montana Supreme Court. In January, 2006, District Court Judge Ted Mizner ruled that Mitchell Slough, a 13-mile-long waterway stretching from Corvallis to Stevensville, was not subject to the 310 Permitting process under the Natural Streambed and Land Preservation Act of 1975 because it was "no longer natural" after years of manipulation by irrigators and landowners. As part of the same case, Mizner also ruled that the waterway was no longer open to fishing access under the state's Stream Access Law because that law only applies to a "natural waterbody", whereas Mitchell Slough, he found, is a "non-natural waterbody," and thus not open to public access under the law.

The long and complex case began when the Bitterroot River Protection Association filed suit in November, 2003, protesting the decision by the Bitterroot Conservation District to remove Mitchell Slough from its jurisdiction under the 310 Law. Several landowners along the slough then joined the suit as intervenors and argued that the slough should not be included under the state's Stream Access Law either. The Montana Farm Bureau also joined as an intervenor in the case on the side of the landowners. The Ravalli County Commissioners became involved as third party defendants as they were considering a request from BRPA to establish a Portage Route into Mitchell Slough under a provision of the Stream Access Law. The Montana Department of Fish, Wildlife and Parks joined in the suit on the side of BRPA as involuntary plaintiffs and were allowed by Mizner to argue only on the stream access issues involved in the case.

Lawyers for BRPA, Jack Tuholske and Sarah McMillan, in the summary of their appeal, state that under the Stream Access Law a "natural water body" is defined as any water body that is "capable of recreational use and flows in a natural channel." They claim that the evidence in the case clearly establishes that Mitchell Slough has been a source of public recreation for at least six decades and that it flows in a natural channel. They point out that the slough has flowed with water consistently in both summer and winter, has always sustained a vibrant fishery, and has been recognized as a natural feature since the first GLO map in 1872, and recognized by the landowner's experts as a naturally formed "fluvial feature."

Such a naturally formed feature, they argue, "cannot become 'artificial' just because it has been altered, or carries groundwater influenced by irrigation. Most Montana streams are similarly altered. The court's distinction between so-called 'natural' and 'unnatural' water is unprecedented and would require what the court itself labeled a 'highly speculative' inquiry into what might have happened if humans had not started manipulating flow and morphology of Montana water bodies 150 years ago."

They criticize Mizner for making no findings regarding recreational use, arguing that such a determination is germane to interpreting the Stream Access Law.

"'Capable of Recreational Use' is the touchstone inquiry for stream access," states the brief. The fact that the slough has always contained a vibrant fishery and people have lawfully fished in it since the valley was settled should have been a significant finding, they argue, but was instead ignored.

They point out that Mizner agreed in his order that "man's manipulations cannot change a natural channel into a manmade ditch," but then Mizner goes on to say that so much channel work has been done that the channel is so changed that "it can no longer be considered a natural channel."

They claim that Mizner has illegitimately created a third kind of water body besides the two universally recognized ones, designating them as either "natural" or "manmade."

"There is no category of 'no longer natural' streams," they argue. "So long as naturally formed channels have consistent flow, those channels and their water remain in the Public Trust. If water in those channels is capable of recreation, use for public recreation must be maintained."

BRPA attorneys also argued that because constitutional rights may be lost if Mitchell Slough is privatized, the landowners should have been required to establish by "clear and convincing" proof that Mitchell Slough is not a natural water body capable of recreational use.

"The burden rests with those eliminating constitutionally protected resources, not with the public trying to protect their rights," states the brief.

BRPA attorneys also ask the Court to reverse Mizner's adoption of the landowner's findings of fact because they are contradictory and not supported by substantial evidence.

Two Amicus Curiae briefs were also submitted in the case, arguing in favor of reversing Mizner's ruling. One, aimed at the 310 Law and the Bitterroot Conservation District Decision, was submitted by Matt Clifford, attorney for Montana Council of Trout Unlimited (MTU). The other, addressing the stream access issues, was submitted by attorney Beth Brennan, representing over a dozen sportsmen's groups from throughout the state, including Montana Wildlife Federation, Ravalli County Fish & Wildlife Association, Hellgate Hunters and Anglers, Big Sky Upland Bird Association, Helena Hunters and Anglers, Anaconda Sportsmen, Red Lodge Rod and Gun Club, Billings Rod and Gun Club, Dawson Rod and Gun Club, Gallatin Wildlife Association, Russell Country Sportsmen, Skyline Sportsmen Association, and Montana River Action Network.

MTU attorney Matthew Clifford states that MTU "believes the District court rulings on counts I and II raises serious concerns for future application of 310 Law to streams throughout the state." Clifford argues that Mizner's ruling in the 310 Law aspects of the case ignore the legislative history of the law and its original intent.

"The District Court's ruling is based on wholly unrealistic definitions of 'natural' and 'diverted' water that threaten to place most waters of the state outside the protection of the 310 Law," wrote Clifford. He argues that the court should adopt the long-established approach of Montana water law, which recognizes that return flows are 'natural' water once they return to a natural channel.

In the sportsmen's groups brief, Brennan states, "Their concern is not just that the Mitchell might be closed to recreation, but that many streams, creeks, and rivers across Montana may follow suit as well."

Brennan states that the main legal question is whether manmade alterations which improve a streambed result in a "non-natural waterbody" under the Montana Stream Access Law.

"This case raises the fundamental question of whether and when surface waters in this state can be considered 'private', and therefore closed to public recreation," wrote Brennan.

Mizner's ruling, Brennan argues, "invites riparian landowners to invest sufficient time, money and effort into streams and creeks running through their property not just to improve irrigation flows and fisheries, but to convert public water into their own private resource. This outcome is unimaginable under the Montana Constitution, contrary to the governing statute, and must be reversed."

Brennan argues that Mitchell Slough must be either a natural water body or a ditch and that Mizner erred by creating the new category of a "non-natural non-ditch." She faults Mizner's finding that the water in Mitchell Slough is "not natural water," stating that such a term is not found in the Constitution or in the statute or any case law dealing with stream access. The definition of 'diverted' water, which is exempted from recreational access by the law, she points out, clearly states that it is water diverted "through a manmade water conveyance system." She argues that this definition cannot be applied to the water in Mitchell Slough because it is not a "manmade conveyance system." Mitchell Slough may be "man-influenced, man-managed, and man-changed," argues Brennan, but it is not "manmade." She too argues that the landowners should have shouldered the burden of proof in this case and not the public.

The Bitterroot Conservation District, landowners, Montana Farm Bureau, and all other parties have 60 days to respond to the plaintiff's opening briefs.

Hamilton Council adopts new disciplinary procedures

By Michael Howell

At its last regularly scheduled meeting on November 27, the Hamilton City Council adopted new, updated disciplinary procedures governing how the council will address improper conduct, discipline and due process amongst its own membership. After bouncing back and forth from committee to council, back to committee, back to council again, the updated procedures were still in contention at the meeting. The Council split three to three on a motion to adopt the new procedures and Mayor Jessica Randazzo exercised her tie-breaking power and cast the deciding vote in favor of adoption. The change in the discipline procedures has been a long time coming. It was primarily precipitated by events last year when Councilor Bob Scott was expelled from the council for "improper conduct" but was subsequently reinstated as a result of the settlement of a lawsuit he filed against the City alleging the violation of his right to due process.

The issue has been hashed and rehashed for months and the version presented for adoption at the council meeting had been reviewed and approved by City Attorney Ken Bell.

Councilor Nancy Jo Hendrickson, chair of the Legislative Committee that drafted the updates, called the latest version of procedures "very well worked." She told the Council that the new procedures could be amended by a two-thirds vote of the membership and that all the examples of improper conduct and choices of discipline would also have to be approved by a two-thirds majority.

"So it does protect the minority," said Hendrickson. "I'm very supportive of it."

Councilor Mike LaSalle said that the council had already had input at the last meeting from Hendrickson and Harbaugh.

"I feel that we should move forward," he said.

Nonetheless, at least three councilors spoke up in disagreement with the new procedures, one of them being Bob Scott, the aforementioned expelled and re-instated councilor. He argued that the new procedures did not make the major change required, from his point of view, which was to remove the part in Section 1 that allows the majority to decide what "improper conduct" is in any given situation.

"We really need a better definition, otherwise we would face the situation of a two-thirds majority on the council being able to dictate and punish any one in the one-third minority. I have to vote against this one more time," said Scott.

Councilor Robert Sutherland called the new procedures overall "too subjective." He stated that they could be simplified just by going to Parliamentary Procedure and Roberts Rules of Order.

Councilor DeAnn Harbaugh asked that the matter be sent back to committee one more time.

Instead, a vote was taken. Councilors Hendrickson, LaSalle and Steele voted in favor of adopting the new discipline procedures. Councilors Scott, Sutherland, and Harbaugh voted against. Mayor Randazzo broke the tie in favor of the adopting the procedures without further comment.

In other business, the Council approved the extension of a contract with Professional Consulting, Inc. (PCI) to do the design work required to let bids in order to get final cost estimates for projected improvements along Kurtz Lane. The project would be paid for by an SID involving four adjacent property owners, including the Hamilton High School District.

Tom Hanson of PCI told the council that Kurtz Lane was actually a private street, but that starting in the year 2000 the City extended sewer and water along the street and paved a 24-foot-wide section of it, "with the understanding and intention that the rest of the street would be completed with curbs, gutters and sidewalks through an SID process with the adjacent landowners." He said that the project included two travel lanes with bike lanes on both sides and, ultimately, sidewalks adjacent to that. The agreement has been that the 70- to 75-foot private road easement would now be turned over to the city as a city street and these improvements completed. He mentioned some "traffic calming devices" as part of the plan, saying that the concern all along has been that it not become a raceway. Pedestrian crossings are also planned.

Hanson said that he was asking for an extension of his contract in order to draw up the designs required to solicit bids for the project. He said it was the best way to get a realistic estimate of final costs. He hoped to get the bids out by mid to late February, and open bids in March. Then the council could pass an Intent to Enact the SID and contract work could be started in June, in order to get the work done before the school year begins.

Councilor LaSalle pointed out that the street currently goes from a 12-foot to an 11-foot actual width in one place and wondered if the right-of-way was big enough for what he called a "de facto" collector road.

Hanson said that the basic design of the road was done in the year 2000, before the new road standards were adopted. He said the intention was, with traffic slowing devices, not to have a raceway, and thus not a collector road. He called Kurtz Lane a "little bit of an orphan child from the city standards."

The Council unanimously agreed to extend the contract with PCI to do the design work.

The Council also voted unanimously to adopt a salary range for the position of City Clerk of an hourly wage of $13.46 to $17.79 per hour. They also agreed unanimously to set the pay of Rose Allen, current City Clerk, at $16.68 per hour. Both the Mayor and Councilor Scott praised Allen's performance.

The Council also passed unanimously a Resolution of Intent to Annex the property at 110 Mill Street, the current home of the new Lakeland Feed establishment. After discussing the "sticking point" of access to the six residences on Victor Street, LaSalle insisted that the language in the agreement stating that no action would be taken to disturb Victor Street or deny or make more difficult ingress and egress to those homes was sufficient to meet the concern of property owners along the street. A public hearing on the annexation and zoning proposal is scheduled for January 2, 2007.

The Council also unanimously approved Ordinance 281 updating Title 13. The most significant change is the designation of ownership of sewer and water lines. Under the new ordinance, the city owns from the main to the curb stop, the owner of the house owns from the curb to the house.

Mayor Randazzo warned city councilors that someone working for WGM on the Flat Iron Ranch subdivision proposal might be contacting individual councilors. Randazzo suggested that councilors be mindful of what they say because they will be considering the subdivision proposal and such communication with the developer might be considered "ex parte" communication in relation to that process and would have to be reported to the Council.

The city has hired Craig Shepherd as the new Finance Officer and Linda Nielson as the new Council Assistant. The search is still on for a Public Works Director. The local, state and national search is set to close December 8.

Stevi's got water problems

By Michael Howell

It's official. The Town of Stevensville has got water problems. In fact, according to a recent decision authored by Town Attorney Art Graham, "The water situation in the Town of Stevensville is at a crisis stage."

Graham made the statement as part of the written decision, adopted at the November 27 Stevensville Town Council meeting, denying the request for annexation, zoning and subdivision of the land now occupied by the Appleblossom Trailer Court, off of Park Street. The denial of the annexation request was based upon "the fact that the town does not have water to service the property. Furthermore, the town cannot now formulate a plan for the provision of water to the property."

The request to zone the land R-2 was denied for similar reasons. Graham reasons that zoning matters require consideration of more than just the type of buildings to be placed upon city land. The town must also consider the needs of the community under the growth policy.

"Absent a knowledge of water service ability and the ability to continue service to presently zoned lands, the town cannot determine the appropriate zoning for this land," wrote Graham. The request for subdivision approval was denied on the technical grounds that the land has not been and cannot currently be annexed and so is not within the town's jurisdiction.

In support of the decision, Graham notes that until the town can determine the status of Well #1 and the needs to enhance the present infrastructure, there can be no extension of water to new demands outside those lands now annexed and approved upon subdivision review. He goes on to note that the town is already committed to provide water to Phase III the of Creekside Meadows development upon receipt of a modified subdivision preliminary plat review and approval. He states that the town is also committed to provide water to the Middle Burnt Fork PUD upon fulfillment of the conditions by the owner, as well as other demands.

"Therefore, there is no ability to extend services at this time. The town cannot pass and approve a plan for provision of new services at this time," wrote Graham.

The decision goes on to state that once it is determined that the town can provide water to additional properties, the owner shall not be required to pay another application fee if he decides to re-apply.

The decision to deny the requests was adopted unanimously by the Town Council.

The Stevensville Town Council has also adopted a revised Curfew Ordinance and a new Burn Ordinance and has approved on first reading an ordinance eliminating fire department training burns in town and a change to the Stevensville Code concerning bonfires.

Stevensville's amended Curfew Ordinance was passed on second reading at the November 13 Council meeting and becomes effective after thirty days on December 13. It prohibits anyone under the age of 18 from loitering in any public place within the town after midnight on Saturday and Sunday, and after 10 p.m. Sunday through Friday. The curfew ends daily at 6 a.m.

Minors caught in violation of the curfew can be fined up to $40 on the first offense and up to $100 for a second offense for which they may also have to attend a hearing in District Youth Court. Parents can also be fined up to $500 for "either knowingly or by inefficient control or supervision" for allowing such an infraction by a minor under their control.

Several exceptions are allowed including when the minor is accompanied by an adult, or is directly engaged in performing a specific lawful errand for a parent or guardian with written permission, when traveling to or from employment within 15 minutes of the start or end of a shift, when attending authorized religious or school activities, meetings or events with written permission, or when attending other authorized events previously approved by the Town Council.

The Council unanimously adopted a new Burn Ordinance at its November 27 meeting on second reading. Citing a need to monitor the extent and materials burned in open burn, the town adopted revised burning restrictions. The new regulations require a permit be issued by the Town Council after having received a written request. The applicant must also provide proof of liability insurance protecting third parties.

Fires necessary for the public welfare, such as ones for the purpose of eliminating a fire hazard which cannot be abated by other means, and for removing environmentally hazardous materials in a safe manner, may be allowed following approval by the Town Council.

Town officials may burn non-toxic, non-hazardous debris, materials, tree limbs, organic materials and other debris at the Town of Stevensville burn site.

Residents of the town are allowed to set and maintain small fires for the sole purpose of individual burning of garden and yard debris during the periods from March 1 to April 30 and from October 1 to October 31. The fires may not be set after 2 p.m. and must be extinguished and not allowed to smolder after 5 p.m. The term yard debris does not include structural materials and building materials, or scraps therefrom.

The Council passed unanimously on first reading a new ordinance prohibiting fire department training burns within the city limits. Second reading is scheduled for the next Council meeting. The Council also passed on first reading a change to the Stevensville Code further defining authorized burns. Under the proposed section on bonfires, the new regulation prohibits any person or governmental unit from building a bonfire or other fire which burns an existing structure or materials. Authorized open fires are limited to garden materials, leaves, twigs, small tree branches, and other similar yard debris which accumulates during one calendar year. The burning of materials from an existing structure or materials from a dismantled structure is prohibited.

This restriction does not prohibit barbecue pits which are contained and enclosed yard/patio fire pits which are used for cooking and relaxation. It is provided, however, that no person shall burn debris or structural materials in such pits.

The Town Council also adopted an updated Street Master Plan prepared by Professional Consultants, Inc. The new master plan shows all current and proposed streets, roads and highways within the town growth area. It also shows the functional classification of major thoroughfares as well as the approved geometric design of the streets.

In other business the council engaged in lengthy discussion concerning a pending grant from the Department of Transportation (DOT) for $5,750 to pay police officers for working overtime to enforce seatbelt and drunk driving laws. Council members maintained that the approval given at the last council meeting was simply to make the application, and should not have been considered approval for implementing the program.

Town Attorney Art Graham claimed that the town needed more information before it could actually sign off on the grant.

"I need to see what has been submitted," said Graham. "I would also like to see the money come to the General Fund so (Town Clerk) Nancy can get paid for some of the things she needs to do." Graham also expressed concerns about consultant Marti Birkeneder, who handled the grant application, also handling the administration of the grant.

"We've got someone working for the town that we didn't authorize," said Graham.

Town Clerk Nancy Lowell called the whole matter a problem of "miscommunication" but added that she would like to see a separate fund set up completely outside the Police Department for administration of the grant.

It was agreed that Graham would meet with Lowell, Birkeneder and Police Chief James Marble and work out the details of how to proceed.

Police Chief James Marble also asked the Council to consider applying for a COPS grant to hire a third police officer to help patrol the streets and respond to the burgeoning number of complaints his office is facing. That request was denied but Marble was advised that he could advertise for another records clerk, the funds for which were already budgeted.

More complaints filed over political practices

By Michael Howell

Bitterrooters for Planning Action Committee has filed two more complaints with the Commissioner of Political Practices over activities in relation to the Interim Zoning Initiative that was passed by voters in the last election. The initiative, sponsored by Bitterrooters for Planning, would temporarily limit subdivisions to one residence per two acres for a year and require the Commissioners, in the meantime, to produce a countywide comprehensive zoning plan.

The BFP Action Committee's initial complaints were filed against the Residents for Responsible Land Use (RRLU) and the Bitterroot Building Association (BBA). They allege that RRLU violated the naming and labeling provisions of the state's election laws that require political action committees to use a name or phrase that "clearly identifies the economic or other special interest, if identifiable, of a majority of its contributors." BFP argued that the BBA was the main contributor, donating about $37,000 in three separate installments to RRLU. They claim that BBA should have been identified in the name of the committee. BFP also alleges that the BBA illegally distributed political campaign material in its newsletters and web site. They also claimed that the BBA, which is registered as an "incidental committee," is authorized to donate to political action committees but may not distribute campaign material itself. A third charge alleges that BBA did not properly identify the contributors of the money.

New charges filed against the RRLU allege that the group funded an illegal election poll conducted by "Advantage Research." BFP Action Committee President Marilyn Owns Medicine, alleges that RRLU funded the illegal election poll that she believes was designed to defeat the initiative and calls for investigation by the Commissioner of Political Practices.

BFP has also filed a another separate complaint alleging that the Bitterroot Valley Board of Realtors violated campaign finance laws by acting as an unregistered political action committee when it donated funds to the BBA to fight the initiative.

Owns Medicine claims that at the time the contributions were made, the Bitterroot Valley Board of Realtors was not registered with the office of the Commissioner of Political Practices as a political committee, making the contributions illegal.

This brings to five the total number of complaints filed by the BFP over questionable political practices in the last election.

Area closure announced for fuel reduction project

By Michael Howell

The Forest Service announced on Monday the closure of Forest Service Road #5753, also known as the Mink Creek Road "and surrounding areas" to provide for public safety during the hazardous fuels reduction work on the Spring Mink Stewardship Project, part of the controversial Middle East Fork Hazardous Fuels Reduction Project EIS.

That project was challenged in court by the WildWest Institute and an initial temporary restraining order was granted which held up work on the project. But the judge in that case, Missoula District Judge Donald Molloy, refused to renew that restraining order once it expired and work on the project is proceeding. Mathew Koehler, of the WildWest Institute, has expressed concern that the closure of public access to the area has seriously curtailed any efforts by the public to monitor the project activity.

Tree falling and helicopter yarding will begin soon and continue for 30 to 60 days this winter, according to the USFS. The closed area is the segment of Forest Service Road #5753 and National Forest lands in Sections 3, 4, 5, 7, 8, 9, and 18 in Township 1 North, Range 18 West; Sections 12 and 13 in Township 1 North, Range 19 West; and Sections 32 and 33 in Township 2 North, Range 18 West.

The public is cautioned to drive slowly in the surrounding area and expect to meet logging trucks on the East Fork Highway. More information is available at the Sula Ranger District at 821-3201.

Koehler said that he was planning to visit the site of the Spring Mink Stewardship Project to document what kind of activity was taking place there when he was informed about the closure. Koehler said that the closure appears to effect about 7,000 acres of Forest land and threatens to preclude any type of monitoring of the project by the public.

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