Montana Fish, Wildlife & Parks To Appeal May District Court Ruling On Mitchell Slough

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Montana Fish, Wildlife & Parks officials said today that the department will appeal a May ruling by District Judge Ted Mizner of Deer Lodge that found the Mitchell Slough is no longer a natural stream. The Mitchell Slough splits from the Bitterroot River at Corvallis and then rejoins it about 13 miles downstream near Stevensville.

"This appeal is not about water rights or private man-made irrigation ditches. It is about defining what is a naturally occurring stream channel," said Jeff Hagener, FWP director. "The issue here is whether a waterway retains its legal identity as a natural stream when manipulated by man."

Mizner’s District Court ruling came as a result of a lawsuit filed by the Bitterroot River Protective Association (BRPA) in October of 2005 that sought public resource protection for, and public access to, the slough that flows through private land south of Stevensville. The court concluded that the Mitchell Slough was no longer a natural water body because a headgate and other diversions had been put in place on the historic river channel.

FWP joined the BRPA in the suit and participated in a lengthy hearing to gather the facts of the case.

"We believe that the Mitchell Slough was, and remains, a natural side channel of the Bitterroot that continues to branch from and return to the main stem of the river," Hagener said. "The decision that it has become something other than a natural river channel because of human intervention must be reexamined.   This appeal will not affect the use of any water rights or challenge the private property status of man-made irrigation ditches."

Hagener said the decision, if it were to stand, would impact Montana stream and fisheries management and public stream access.

Montana’s stream-access law says that rivers and streams are open to the public where they flow through private land if used between the normal high-water marks and reached from public property.