Hey guys, I saw this over on the Drake's message board and thought some of you folks would be interested in it:
Tug of War Is On in Montana Over Public Access to Waterway
By JIM ROBBINS
Published: July 26, 2006, The New York Times
VICTOR, Mont. — Mitchell Slough is a slice of Montana heaven, a meandering 13-mile-long waterway that purls gently past houses and ranches, with the black backs of large, darting trout visible beneath the crystal-clear surface.
There are some two dozen landowners along the waterway, including the rock musician Huey Lewis and a Las Vegas contractor who built a dazzling home with a glass floor over a branch of the slough.
Now lawyers for Mr. Lewis and the other landowners are before the Montana Supreme Court arguing that the waterway is no more than a man-made ditch. The case turns on a state law that mandates public access to natural waterways through public land, something Mr. Lewis and the others insist should not apply to Mitchell Slough.
For the property owners, the story of the slough would not be titled “A River Runs Through It,” but “An Irrigation Ditch Runs Through It.”
“Definitely it is a ditch, because it’s diverted water for irrigation,” Mr. Lewis said by phone from New York, where he was on tour. “If you watch the water levels go up and down, you know it’s a ditch.”
A state district judge agreed in May that while Mitchell Slough was once part of the nearby Bitterroot River, it had been transformed by the hand of man, by changes including numerous head gates that control flows, and so was exempt from the Montana stream access law.
But an organization called the Bitterroot River Protective Association and the State of Montana appealed the decision to the Montana Supreme Court on July 12, arguing that the waterway belonged to everyone despite the no-trespassing signs and the wire fences crossing it. Lawyers for the state expect a decision within a year.
“There’s fabulous wealth on this 13 miles of stream, and they want to call it an irrigation ditch,” said Michael Howell, a founder of the association and the publisher of The Bitterroot Star, a weekly newspaper.
As an increasing number of wealthy people move to Montana, the debate over public access to waterways has intensified. Some newcomers do not know or care that Montana has a law that guarantees public access and have fenced off rivers or chased people away from them.
On the Ruby River in the southwestern part of the state, James C. Kennedy, the chairman of Cox Enterprises in Atlanta, fenced the public out of the river. Last year, 200 angry fishermen held a “fish-in” and took a flotilla of boats through the billionaire’s property in protest.
Some residents did the same on Mitchell Slough several years ago, informing the local authorities that they were going to ignore no-trespassing signs, climb the fences and walk along the right of way allowed under the access law. As a game warden watched, the protest went ahead. No arrests were made.
Gov. Brian Schweitzer, an irrigator and an expert on water use, has visited the slough and has sided with those demanding public access.
“This decision had to be appealed because it affects streams, creeks and sloughs all over Montana,” Mr. Schweitzer, a Democrat, said. “It’s a natural body of water, and by my reading of the stream access law it should be open to the public to fish and recreate.”
He said 15 cubic feet per second of water entered the slough through irrigation gates and 300 cubic feet per second exited, proof that it was fed by springs and groundwater and more natural than not.
The long-running controversy began in 1991, when two brothers, Randy and Robert Rose, who some view as the Rosa Parks of the fly-fishing set, defied the landowners’ restrictions and went fishing on the slough. They were arrested for trespassing but were found not guilty by a jury in the court of Justice of the Peace Ed Sperry. Now retired, Mr. Sperry has joined the Bitterroot association, as have several other community leaders, including Jim Shockley, a Republican state senator.
“My family has been here for a hundred years, and no one except these rich out-of-state landowners thought of it as anything but a part of the Bitterroot,” Mr. Shockley said of the slough.
Mr. Lewis said the Bitterroot group had “done a masterful job of casting this as a class-warfare issue,” a characterization he disputed.
“ ‘Rich out-of-staters’ is an expletive, and they try to make it a battle against them and rich out-of-staters,” he said. “There are 25 people, and 20 are not rich and not out of state.”
Mr. Lewis said he loved his home here — “more cheese, fewer rats” than in California, he said — and was now a year-round resident.
In addition to Mr. Lewis, prominent property owners along the slough include Anthony Marnell II, of Marnell Corrao Associates, a casino construction company that built the Mirage, the Excalibur and other Las Vegas casinos; Charles R. Schwab, of the discount stock brokerage; and Kenneth F. Siebel, managing director of Private Wealth Partners.
There are also less glitzy owners opposed to public access, including Ed and Judy Hebner, a retired couple who moved here 18 years ago.
“It would be a tremendous loss of privacy and we’d have people in that every day,” Mr. Hebner said, pointing to a section of the slough just outside his living room window.
Mr. Hebner and Mr. Lewis said they often allowed people to fish on the slough, but they wanted to continue to have some say in who used it. Mr. Lewis and other landowners have spent money to improve the fish habitat, digging out deep holes and stabilizing banks. Fishermen tromping through the area could cause damage, they said.
But Governor Schweitzer said the state was deeply committed to defending the river access law.
“If you want to buy a big ranch and you want to have a river and you want privacy,” he said, “don’t buy in Montana. The rivers belong to the people of Montana.”
Correction: August 8, 2006:
An article on July 26 about a legal dispute over public access to a waterway in western Montana referred imprecisely to the state law on which the case turns. Although the law allows public access to natural waterways, it specifies that the access be through public land.
I am glad to see the locals finally taking some action against these rich out-of-state landowners. I've wanted to fish Montana, but what I've heard about the difficulty of figuring out water access has kept me fishing national parks in Wyoming instead.
One report I read back when this was a fresh issue is that Huey, Dewey and Louie the III of both old and fresh money wanted to build homes with glass floors right over the 'ditch' so they could see fishies swim around as they plotted their next attack on the little people.
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Seriously though, I think what galls me the most about the whole issue is the faux environmentalism going on. The rich folks use the potential habitat damage by anglers and sportsmen as reason for shutting down access, but have no problem erecting multimillion dollar McMansions within the riparian zone, dredging out holes and dewatering the slough, preventing boats from floating the area (as well as limiting fish spawning habitat).
The courts decided in the favor of the public to use the slough this past spring and the cry baby landowners have taken it one step further with an even more underhanded approach to keeping sportsmen out of the slough. Here is the link to the latest in the Mitchell Slough Saga. http://billingsgazette.com/news/stat...cc4c002e0.html
Basically Mr. Lewis and his neighbors took a law about hunting baited fields for wildlife to their own interpretation and placed feeders in the slough to make the area illegal to duck hunt. Some may think it was a clever idea but I find it extremely underhanded and I hope the state hands them their ass for it in return. I hope the feeders bring in millions of geese so that the landowners can't walk in their yards without stepping in the **** they brought on themselves. Huey is the reason people have such disdain for the state of California, which is a actually a very great state with plenty of decent hard working folks who wouldn't tread on others the way the elite have done.
Haven't we reached a cut-off on trophy homes yet? So true, nice people in MT. CA. and other spots. It just takes a couple (or twenty) to spoil it for everyone else.
Had a "new local" toss his dog a stick, into the pool (where Walter was working), and I had been for forty quiet mins. He suggested I go fish somewhere else, as this was a good place to walk dogs!! I reeled in, and walked away. It was better than breaking my rod and going to jail. Jail cuts into one's fishing time.
There's an new macmansion in one of my favorite spots and of course they posted the property as soon as the seawall went in.
I still fish there as often as possible
If you've ever seen the cover of Lou Tabory's Inshore Fly Fishing you'd know why (sshhhh, it's a secret)
The law here is very clear and has been since colonial times
The shore line is open for the purpose of "fishing, fowling, and the collection of seaweed" to the mean high water mark.
We'll have the last laugh though as very soon after the house was built, (right up to the water's edge) the barrier beach directly in front opened up.
The town refused to put up the 10 million to fix the 'hole' and now it's too late.
One good hurricane and they're gone.
The house is on the point just left of center in this picture