Posts tagged: montana stream access

Supreme Court To Decide Issues of Commercial Navigability, Public Access For Missouri River (And The Rest Of Us)

December 5, 2011, by 13 comments

The Supreme Court of the United States (SCOTUS) will hear a case on Wednesday that could have huge implications for river and stream access across the United States.

The question is whether the Montana State Supreme Court ruled correctly when they said the Missouri River’s “Great Falls” were owned by the state instead of PPL Montana — an electrical utility with hydropower installations at Great Falls.

While the case revolves around a few obscure points — one of them being whether the Missouri was commercially navigable during the time of the Lewis and Clark expedition — the outcome could have a huge impact on recreational access, as this quote from the Great Falls Tribune story suggests:

“The fundamental thing here is PPL wants to take land owned by Montana for its own good,” said Bruce Farling, executive director for Montana Trout Unlimited, which filed a brief supporting Montana in the case. “The state of Montana is saying, ‘No, that’s our land, you’ve got to pay rent for occupying it.’”

With state ownership of major riverbeds, the public has more influence over conservation and fishery protection in instances such as the installation of pipelines and bridges, Farling said.

Montana already has the toughest stream-access law in the country, giving recreationists access to any natural stream irrespective of who owns the banks, he said. But the PPL case could affect recreation in states where stream access laws aren’t as strong, and are based on navigability, he said.

To get a sense for the extreme level of water law geekery involved, you should probably read the article, though I’ll try to keep an eye on this one for you.

UPDATE: ChiWulff posted a good summary of this issue here.

See you in court, Tom Chandler

Assault on Montana Stream Access Ends As HB 309 Tabled in Committee (yay!)

March 22, 2011, by 7 comments

The latest assault on Montana’s enlightened stream access laws appears to have gone the way of the Dodo bird, and for once, extinction looks pretty good (from the Ravalli Republic):

The Montana Legislature’s House Bill 309 reopened a simmering dispute over a slough running through the Bitterroot Valley property of 1980′s rocker Huey Lewis and others. The courts ruled several years ago that the slough be open to fishermen under the state’s stream access law.

Ranchers and others had sought to make clear that irrigation ditches are not open to anglers. But anglers argued the legislative proposal would have closed to access more than just ditches.

The measure had cleared the House, only to face a large crowd of opponents in the Senate. It was tabled late Tuesday in an 8-3 vote in the Senate agriculture committee.

I’m sure someone will launch a new attack on stream access, but for now, we get to fish.

See you on the river (legally), Tom Chandler.

The Post Anti-HB 309 Rally News (or, Montana Anglers Step Up For Stream Access Rights)

March 9, 2011, by 2 comments

Yesterday, a crowd of (mostly) anglers jammed the Montana Senate Hearing on HB 309 = the anti-stream access “Ditch Bill” currently under consideration in the Montana legislature.

The byproduct of the Montana Supreme Court’s decision designating Mitchell Slough as a public waterway – a decision bitterly opposed by landowners who would rather the riff-raff recreate somewhere else – HB 309 defines irrigation ditches so broadly that many of Montana’s most popular fisheries (including big rivers) would qualify.

Bad move. Here’s are the links:

Wayne at WillFishForWork.com offers his usual insightful commentary.

ChiWulff puts together an and impressive array of news links

Headhunters blog offers information from the frontlines of the rally itself

The Missoulian newspaper offers an interesting angle on high school students who skipped school to stand up for what they believe in.

The Billings Gazzette offered a headline of “Big crowd opposes bill that addresses access to ditches” and a generally good article, which included:

Sen. Jim Shockley, R-Victor, criticized the bill, saying: “Real ranchers don’t have a problem with the law as it is.”

He said property rights are important, but so are public property rights because the public owns the water.

“This would be economic development for lawyers,” he said. “The only persons who would benefit from this is a few landowners in the Bitterroot and lawyers.”

The crowd cheered his remarks, but was admonished by committee Chairman Don Steinbeisser, R-Sidney, to refrain from applauding.

Sen. Kendall Van Dyk, D-Billings, said that if you take away the Mitchell Slough issue, there is no real problem over stream access in Montana.

“Access is not for sale in Montana,” he said. “We have created the best legal structure for stream access across the West and probably in the country.”

It seems clear that proponents of HB 309 weren’t ready for the opposition, which was apparently the biggest group to appear at any Montana legislative hearing this session.

Good on everyone who made the trip; let’s hope this sucker dies in committee.

Oops, we missed [this one from Fly Fishing in Yellowstone] (http://flyfishyellowstone.blogspot.com/2011/03/lighting-fires.html)

Latest Attempt to Erode Montana Stream Access Encountering Opposition, Rally…

March 7, 2011, by 8 comments

Tomorrow, people will begin converging on the Montana Capitol Building in Helena to put the boots to those supporting HB 309 – the latest anti-stream access legislation making it’s way through the Montana legislature.

The Montana fly fishing blogs have done an admirable job keeping the rest of the world informed about what’s really happening: Chiwulff states their case here, and WillFishForWork offers up an excellent summary of the whole mess in this information-laden post (excerpt follows, but you’ll want to read the whole thing):

Tuesday March 8th is the big day in Helena. Senate hearings start up and on the agenda is Montana Stream Access HB 309, the “ditch” bill. Stream access supporters will be gathering to tar and feather the representatives supporting the bill voice opposition to this bill. The Rally will start at 2 PM, in the Old Supreme Court Chambers in the Capital Building in Helena.

The dust has settled a bit over the last week or so since the bill made it through the house and onto the senate floor. Askaboutflyfishing.com was good enough to donate some of it’s air time on Wednesday evenings show to put a quick spotlight on HB 309 and posting a link off their site to find out more about putting this bill down.

On the opposite side of the ditch issue we hear from Rep. Debby Barrett (R) from Dillon on Montana TU’s opposition to HB 309, Barrett refers to the TU as Dr. Suess’ Lorax, “I am the Lorax, I speak for the trees” and (Trout Unlimited) “professes to speak for sound water policy and senior water right holders in Montana, but the honest truth is that Trout Unlimited represents a very narrow and radical view on Montana’s water that helps no one but Trout Unlimited make a name for itself”. Hmm, narrow and radical view. Sounds like pot calling the kettle black. If Montana TU is a narrow minded bunch of radicals, what does that make the Montana Farm Bureau, the Senate Ag committee, Huey L. and Charles S.? The voices of open democracy?

If you’re not up-to-date on this issue, HB 309 is an attempt by a handful of legislators to redefine “irrigation ditch” so a couple wealthy landowners won’t have to abide by a recent Montana State Supreme Court decision granting public access to Mitchell Slough.

The misinformation flowing from HB 309 proponents has been intense; they invariably neglect to mention that irrigation ditches are already clearly defined under Montana law, and that HB 309 has serious potential for misapplication – some have noted that some Montana’s biggest (and best) fly fishing destinations could be reclassified as “ditches” under the law.

As noted above, a couple of attacks have been launched against Montana Trout Unlimited and those who would are fighting to kill HB 309 – attacks which invariably ignore the real issues in favor of a constant stream of strawmen.

Let’s hope this hummer doesn’t have the votes to get out of the Montana Senate, and that a sizable crowd shows up tomorrow and drops the hammer on this whole charade.

See you in the ditches, Tom Chandler.

“Welcome to Montana: The Nutjob Legislator State”

February 21, 2011, by 13 comments

Montana has occupied the attention of a sizable chunk of the online fly fishing community as of late – the by-product of an anti-stream-access bill, and news of a potential gold mine on Montana’s famed Rock Creek.

The worst news?

That’s not the worst news.

First, let’s dispense with the stupidity we already know about.

WillFishForWork was among the first to publish news of the Rock Creek gold mine issue (read more here at the Missoulian newspaper), and several Montana blogs have also done good work following the stream access issue, even engaging in actual reportage (especially the resurrected Chi Wulff).

They’ve done a good job mobilizing fly fishing’s blogosphere, and while kudos are in order, further vigilance is required.

Because we’re not done yet.

The Overlooked Bad News: Cyanide Leach Mining Rises From Dead

One Montana Senate bill (SB 306) is attempting to do what Montana’s voters have already said shouldn’t be done: revive highly toxic cyanide leach mining in the state.

Montana’s voters overwhelmingly said “no” to cyanide leach mining in a pair of referendums, and yet – like the zombies who never die, but rise from the grave to eat the brains of the living – a bill comes along to create loophole you could drive an Abrams tank through.

The bill would encourage the creation of more open-pit mines in the state, and allow the ore to be shipped to one of a handful of mines for “processing.”

In other words, it’s more bad news for Montana’s streams and rivers, which – based on the figures I’ve seen recently – mean far more to the economy than extractive industries.

I’ll try to stay current on this one, though anyone with more connections in Montana might want to prod the thing with a pointed stick to see what’s happening.

That said, we’ve gotta ask: What’s with this tidal wave of bad news from Montana? Sadly, the answer is…

Stupid Is As Stupid Does

All of the above is the result of the recent elections, which were decided supposedly on the campaign promises of more jobs for the state.

As near as anyone can tell, the legislation introduced is having the opposite effect, and a lot of it is frankly of the Black Helicopter variety.

Sure, every state has its share of nutjobs, but the western states seem uniquely equipped to vote them into the office, leading to a tidal wave of moronic (and non-job-related) legislation like these currently infesting the Montana legislature (from the Montana Cowgirl blog):

This is not a joke. These are real bills, and they are currently taking priority in the Montana legislature. Enjoy.

Welcome to the land of nutters, the Montana Legislature.

  • Legalize hunting with hand-thrown spear (Senate Bill 112)
  • Create fully-armed militia in every town (House Bill 278)
  • Create an 11 person panel with authority to nullify all federal laws (House Bill 382)
  • Eliminate educational requirements for persons seeking job of State Superintendent of Schools (HB 154)
  • Withdraw the United States of America from the United Nations (Senate Joint Resolution 2)
  • Omit Barak Obama’s name from the 2012 ballot because his father was born outside of America (House Bill 205)
  • Give sheriffs authority over the federal government in terror investigations (Senate Bill 114)
  • Require the federal government to prove in court that the National Parks were lawfully acquired. (House Bill 506)
  • UPDATE: 18. Declare that global warming is good. (House Bill 549)

I’d love to shake my head sadly and – striking a faintly superior note – suggest it’s too bad Montana has fallen into the grip of those who believe they were once abducted by aliens, but we’re facing pretty much the same level of inane behavior right here in Siskiyou County, whose Board of Supervisors would vote to secede from the union if we wouldn’t lose the bags of federal money that flow into our county each year.

In Montana’s case, I’m tempted to suggest that its heavily pestered trout have attained a higher level of intelligence than many of its legislators, who seem far less choosy about what they’ll bite off.

See you at the loony bin, Tom Chandler.

Montana Supreme Court Refuses to Rehear Mitchell Slough Case, Good Guys Win

January 7, 2009, by 14 comments

The long-running Mitchell Slough case – where wealthy Montana landowners tried to bar public access to a Montana waterway and challenge Montana’s enlightened Stream Access Law – looks to be over.

And it appears the good guys won.

The Montana State Supreme Court refused to rehear the case, leaving in place a decision that should put wide, wide smiles on the faces of fly fishermen:

The Montana Supreme Court will not rehear the Mitchell Slough case.

In an order issued last week, the court turned down two petitions seeking a rehearing on the court’s ruling in November that the slough was a natural waterway and therefore subject to state law for streambed permitting and public access.

“It’s a done deal now except for the formalities,” said Montana Fish, Wildlife and Park’s Chief Legal Council Bob Lane.

The 16-mile-long Mitchell Slough has been mired in controversy for years. The channel runs on the east side of the Bitterroot River between Hamilton and Stevensville through private property, including lands owned by 1980s rocker Huey Lewis.

The two petitions seeking a rehearing were filed by landowners who argued the Supreme Court overlooked material evidence when it issued its ruling on the slough’s status. Landowners argued – and two state district courts earlier agreed – that the slough had been dramatically altered over the years and was no longer a natural stream.

The Supreme Court disagreed and overturned two earlier state district court rulings.

Somedays you’re the trout, somedays you’re the stuck-in-the-shuck emerger. Today we’re all trout.

See you out of court, Tom Chandler.

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Montana Supreme Court Rules in Favor of Stream Access (and Fly Fishermen)

November 18, 2008, by 8 comments

Hot over the wires:

Court Opens Mitchell Slough in Landmark Stream Access Case: New West Missoula

With a 54-page ruling, the Supreme Court deemed the waterway a natural stream, which means access to it is protected by Montana’s stream access law, which is among the strongest in the country. The ruling has been coming for more than two years and overturns two lower-court decisions that had defined the stream the way the Bitterroot Conservation District and several high-profile landowners had advocated it be: Just a ditch.

The case, which has been watched closely across the West as a crucial test of stream access law, has been a long-running extravaganza of protests, celebrity, and political maneuvering but more than that, it has been a spur for complex and often heated discussions on water rights, landownership, what’s natural and what’s not and most of all, how to square the values of the Old West with the demands of the New.

I’m on my way to a class, but you can read the whole story here.

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Montana Stream Access Issues Continue to Simmer, But News is Good

October 5, 2008, by 5 comments

Montana’s enlightened stream access laws have seemingly always been contested by livestock operations and now a wave of wealthy landowners.

Found via the excellent Fly Fishing in Yellowstone blog, we learned a judge recently affirmed the public’s right to access streams where they intersect public roads.

This court case was brought by much-disliked-by-fly-fishermen landowner James Kennedy (Atlanta resident and heir to a media fortune) after he blocked fishing access by attaching fences to bridges, and asserted that the public right of way narrows to the bridge itself where it intersects a waterway.

Fortunately, he’s not just an ass, he’s an ass with a losing legal argument: Read more →