Ditch companies and private water users have historically used water from the slough for irrigation, stockwater and fish and wildlife purposes. They also routinely took actions above Tucker Headgate to ensure an even supply of water into the East Fork of the Bitterroot River.

The amount of water diverted at the Tucker Headgate exceeds 40,000 acre-feet - enough water to cover 40,000 acres with one foot of water. The large amount of water diverted at the head gate was not all dedicated to appropriated water rights, said the court’s decision.

The slough has been reconstructed and, in some cases, rerouted to the extent that it no longer follows the path it would have without the intervention.

Still, the court found that at least a portion of Mitchell Slough remained in the same location that mapmakers found it in 1872 when they named it the “Right Fork of the St. Mary’s of the Bitterroot River.”

The original court case began with a lawsuit filed by the Bitterroot River Protection Association, which challenged a 2003 decision by the Bitterroot Conservation District that the slough wasn’t a natural stream for permitting purposes.

The association also asked the court to rule that Mitchell Slough was subject to public access under the state’s stream access law.

The district court ruled against the association in two different decisions in 2006 saying the slough was no longer a natural stream because of years of manipulation by man and therefore not subject to the state’s permitting process or stream access law.

Montana Fish, Wildlife and Parks, Ravalli County, sportsmen’s groups, stockgrowers and others intervened in the case.

The Bitterroot River Protective Association and Montana Fish, Wildlife and Parks argued that Mitchell Slough was subject to public recreational use because it was naturally formed, flows perennially, contains a fishery and had been used by fishermen and hunters for decades.

Landowners argued the slough’s existence was a demonstration of the “genius of man” which prevented the Bitterroot River from migrating west and abandoning the slough through a series of diversions, weir and excavations. They claimed the slough was merely a canal.

For the District Court, the critical question was whether the slough was “natural.”

The District Court used a dictionary based definition of “natural” to conclude that while it may have been a natural water body in the past, it no longer was because of man’s manipulation.

Since nearly every river and stream in Montana has been impacted in some manner by man, the Montana Supreme Court disagreed in that conclusion, saying “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 landowner’s 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.

Except for the canal between the head gate and the slough, the court said there’s no evidence to conclude the Mitchell Slough’s 16-mile channel “was either originally dug or created by humans. It was naturally formed and significant portions of the channel remain in its historic location.”

“While the Mitchell has been improved primarily by irrigators, it is much more than an irrigation ditch,” the court said. “If the Mitchell was simply an irrigation ditch, there would likely be little or no water flowing in it outside the irrigation season.”

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 the ordinary high-water mark on the slough’s bank, the court said.

Log on to RavalliRepublic.com to comment on this and other stories.

Editor Perry Backus can be reached at 363-3300 or editor@ravallirepublic.com.

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TJ wrote on Nov 19, 2008 11:46 AM:

" Adam-I first started hunting Mitchell slough in 1973 at Tucker crossing.Even at that time someone tried to stop me. I went to Sheriff Dye and He talked with the then Co Att. who wrote a letter stating about high water mark's and access, of course I never ran into that person again, but continued to hunt that area for many years. I did enjoy watching someone with a D-8 Cat pushing gravel around to divert water into the channel that supplied the slough. It would take an act of Congress to get that D-8 Cat into the River now. "

TJ wrote on Nov 19, 2008 11:36 AM:

" TB-That is refreshing! I thought common sense died, they had a funeral, nobody came! "

TB wrote on Nov 18, 2008 10:27 PM:

" Foot the bill for what! the bottom line is it's a natural part of the river and should be open to sportsman who wish to use it,not closed off by a few people who think they can get away with anything just because they have money. If you want to try and claim more property than you have a right to then go back where you came from the state will be better without you. Finally a court with some common sense, now that's refreshing. "

boberto wrote on Nov 18, 2008 8:09 PM:

" Since the slough is in the flood plain, doesn't that make it below the high water mark? "

adam wrote on Nov 18, 2008 8:06 PM:

" Brent...i can think of at least 5 places where any idiot can access the slough not to mention all of the houses along it in Stevi that have been shut off from it for years. If I had to guess i would say that you are probably a ranch hand that has been brain washed by Schwab or Huey or Matheson or someone else into thinking that the Mitchell is an irrigation ditch. Ask any old timer in the bitterroot and they will tell you it has been there forever. Read the testimony from the 2003 trial is you want. Realistically, this is not a great fishery although it does hold loads of fish. The point of this judgement is that we, as montanans will not be pushed around by big money jerks from out of town who want to alter the laws that make our state great. That is why this ruling is a victory for real montanans. "

TJ wrote on Nov 18, 2008 7:50 PM:

" Thanks LS I stand corrected! I'm still glad for the decision. It will help in future disputes that are SURE to come. "

LR wrote on Nov 18, 2008 2:24 PM:

" Brent...an important point in this decision is that no one is above the law regarding the 310 permitting process. Everyone must abide by the same set of regulations when undertaking activities within the ordinary high water mark of MONTANA's waterways. "

LS wrote on Nov 18, 2008 2:20 PM:

" In response to TJ's comments, the Ravalli Republic was quoting the MT Supreme Court opinion (DA06-0520). I believe they Justices were referring to an east fork off the mainstem of the braided Bitterroot River system, as opposed to the East Fork River. "

Brent Tomko wrote on Nov 18, 2008 11:38 AM:

" Yeah, congratulations Montanans. Now you get to foot the bill for the management of this 'stream' that nobobdy can really access anyway. We all know how well good intentions work out when they are turned over the Government. The high water mark is about a foot above the stream bed since it's controlled by a headgate which means you'll have to wade right through the holes and redds to fish. If the Mitchell gets any pressure at all there won't be any fish left to fight over, including those from the B-root river that use the Mitchell to spawn. "

TJ wrote on Nov 18, 2008 10:58 AM:

" Does anyone check on what a reporter puts into this paper? The reporter stated 'The Tucker Headgate directs water from the East Fork of the Bitterroot River into the slough'. I don't think So! The East Fork branch of the River is located about 30 or so miles South of that slough. Regardless of the misplaced Rivers location, I am glad for the ruling by the higher coourt. "

Doug Nation wrote on Nov 18, 2008 8:02 AM:

" Congratulations to the people of Montana! This Supreme Court ruling reaffirms the right of Montana citizens to protect their natural waterways via the 310 law. Unfortunately, the focus on the issue has been on what I see as the less important public access aspect rather than on the significantly more important Streambed and Land Preservation Act (310 law) aspect. That unfortunate misplaced focus is evidenced by today's story. "

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