A bill working its way through the Montana Legislature has reopened the controversy over the state's stream access law and the Bitterroot Valley's Mitchell Slough.
House Bill 309, by Rep. Jeff Welborn, R-Dillon, seeks to clarify the state ban on recreational access to irrigation ditches across Montana.
Some Bitterroot sportsmen say the bill is an end run around the 2008 Montana Supreme Court decision that declared Mitchell Slough open to recreation under the state's stream access bill.
But local irrigators say private irrigation districts need the law clarified to reduce potential liability.
The bill passed the House 57-43 last week.
That vote split Ravalli County's House delegation down the middle.
Representatives Ron Ehli, R-Hamilton, and Edward Greef, R-Florence, voted in favor. Pat Connell, R-Corvallis, and Gary MacLaren, R-Victor, voted against the measure.
The Montana Supreme Court overturned two district court decisions in 2008 and declared Mitchell Slough open to recreation under the state's stream access law. The court ruled the 16-mile-long slough generally flows along a historic river channel that was mapped more than a century ago.
There are still many in the valley, though, who call it a ditch.
"It's a huge issue in Ravalli County," Ehli said. "Mitchell Slough divided people in the valley. ... There were clear winners in the Mitchell Slough ruling. There were clear losers too."
Ehli said he looked the bill's sponsor in the eye and asked if it was sponsored by wealthy landowners along Mitchell Slough.
"He told me this bill was for water use associations and small irrigators; nothing more," Ehli said. "That was his answer to me."
Ehli doesn't believe the legislation is an attack on the state's stream access law. Rather, he said, it's an attempt to clarify the potential impact on private ditches by the court's ruling.
Connell said he received different information from people supporting the legislation.
"I asked them if this bill would mean that we would have to re-litigate the Mitchell Slough issue," Connell said. "When they said ‘yeah, probably,' I said I can't vote for that. I will not be party to legislation that rips up sportsmen and landowners again. ... I don't want to see Mitchell Slough rip our social fabric up again."
Connell said he believes the bill could have been written better and the definitions sharpened a bit. There are issues that the Legislature needs to clarify as a result of the Supreme Court ruling, he said.
Bitter Root Irrigation District manager John Crowley said it's really a matter of liability and safety when you consider the issue from his standpoint.
As manager of the Bitterroot Valley's 72-mile-long Big Ditch, Crowley said there are many reasons why he doesn't want people attempting to recreate on that waterway.
"There are several siphons along the ditch," he said. "If someone should happen to fall into one, it would kill them."
The ditch also runs through private property to which the irrigation district has an easement. People walking along that easement are actually trespassing, Crowley said.
"Mitchell Slough is a totally different ball of wax," he said. "When the courts ruled on it, we didn't want them to set a precedent that would impact private ditches. ... We support HB309 because it helps clarify that ruling and protects private irrigation districts like ours."
Tony Jones, president of the Ravalli County Fish and Wildlife Association, said the legislation appears be an end run around the Mitchell Slough ruling and could impact thousands of miles of rivers and streams around the state.
Jones said the legislation's wording is confusing.
"It's supposedly written to clarify stream access," he said. "It doesn't clarify anything. Waterfowl hunters and anglers will pay the price. We believe it's a bad bill for sportsmen."
Welborn said his legislation is not about overturning the Mitchell Slough case or endangering the state's stream access law.
"I have never visited that piece of water nor have any ties to it whatsoever," Welborn said.
Welborn said he agreed to carry the bill after a group of farmers and ranchers from around the state came to him with their concerns about the potential for the court's ruling to be misconstrued.
"Let's keep the heart of the debate centered around what it's really about ... private property rights, water rights for beneficial use and honoring the tradition of the original stream access law," he said.
Reach reporter Perry Backus at 363-3300 or firstname.lastname@example.org.