Wednesday, November 19, 2008

Montana S. Ct. Resolves Mitchell Slough Dispute

The Montana Supreme Court resolved a long-running water rights dispute, which focused on whether the Mitchell Slough was a natural watercourse:

In a case with statewide implications, the Montana Supreme Court ruled Monday that Mitchell Slough is open to recreation under the state's stream access law.

The court said the 16-mile-long slough roughly follows the historical course of a waterway mapped 130 years ago, and therefore is subject to public access and required permitting, as are other natural waterways.

The 54-page decision overturned two earlier rulings by state district courts that found the slough was not a “natural, perennial-flowing stream. . . .

Since nearly every river and stream in Montana has been affected in some manner by man, the high court concluded: “The District Court's dictionary-based definition, which essentially requires a pristine river unaffected by humans in order to be deemed natural, results in an absurdity: For many Montana waters, the SAL would prohibit the very access it was enacted to provide.”

The Supreme Court also overturned the lower court's conclusion that the water captured by the slough in return flows from irrigation was “artificial” and “not natural,” saying that many Montana streams carry discharged irrigation flows.

The court also disputed landowners' claims the slough was a “man-made water conveyance system” that exists only because of man's manipulations.

“The claim that man has made the Mitchell Slough is a bold one, indeed,” the court's decision reads.

The court did offer a caveat on the issue of public access.

The slough runs through private property and the public only has the right to recreate under the terms of the state streamside access law, which allows access on the water and up to the ordinary high-water mark on the slough's bank, the court said.

Ben Barros

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Thank you for posting this case. As the lead attorney in a case that was subject to much misinformation, I would be happy to discuss it further with anyone interested. It was not a case of trampling on private property rights as the landowners (rock star Huey Lewis and Charles Schwab among them) often portrayed it but rather a case of transplanted Californians trying to privatize what had been a Montana public water body for 70 years. In Montana water is a public trust resource, irrespective of stream bed ownership. The Court upheld that principle, and did not create new rights in private property for public use.

Jack Tuholske

Posted by: Jack Tuholske | Nov 21, 2008 4:45:52 AM

While it's obvious that Mr. Tuholske is taking this opportunity to gloat over his victory I take issue with his summary of what this case was about.

First of all there are 30 landowners on the Mitchell and he's selectively bringing up the 2 names that will paint this issue as a class war. It's indicative of this case that the lead attorney is attempting to justify the attack on private property rights with a PR spin.

I live on the Mitchell, and sadly I'm not or famous, but I have now paid for three acres of land that has been taken from me by the state. Regardless of what the Mitchell may have been 70 years ago, it took a great deal of effort on the part of the landowners to create and maintain it as a viable fishery today. The natural path of the river has migrated to the other side of the valley and a large majority of the water flowing in the Mitchell is due to manmade irrigation channels connecting the slough to the river. Channels that have to dug continually over the course of the year (at landowner expense) to keep the water running.

If you are looking for misinformation in this case look no further than the local newspaper editor/owner/reporter who also happens to be the founding member of the group filing the claim. Rather than refraining from covering the story in which he was a central figure, he ran lead stories about the Mitchell dispute on a regular basis under the guise of independent journalism.

The real lesson in this case is that lawyers and journalists willing to abandon professional ethics were able to create enough public sentiment to inject politics into the legal process.

Posted by: Greg Trangmoe | Dec 10, 2008 10:36:29 AM

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