Montana Stream Access

FAOL Community Fly Anglers Online
1

Without taking a position on what the pending HB 309 actually says, here is a link to a proposed ammendment to Montana’s Stream Access Laws which strikes a good number of folks here in Montana as an attempt to severely limit anglers’ access to moving water in this State.

http://data.opi.mt.gov/bills/2011/billhtml/HB0309.htm

If you bing “Montana 2011 HB 309” you will find a number of articles on this subject.

Here are several links which will provide commentary on what is going on in the current Montana Legislature and reaction to it.

http://www.mtstandard.com/news/local/article_f70389fc-3364-11e0-8e41-001cc4c002e0.html

http://buttonvalley.wordpress.com/2011/02/08/stream-access-for-the-few/

You need to scroll down a way on this one to find the discussion.
http://www.montanasbestflyfishing.com/montanaflyfishingblog/?blog=7

Here’s one organization that is supporting passage of HB 309.
http://unitedpropertyownersofmontana.com/legislature.html

John

2

John,

Unfortunately, guys like James Kennedy and Huey Lewis have the resources (money and time) to continue their assault on the stream access laws. If they keep at it long enough they’re hoping they will find someone in the legislature who will support their agenda. Sad.

Regards,
Scott

3

Wow is that thoroughly disgusting! I sure do feel sorry for you folks out there trying to fish those waters. Can anything be done at the federal level to stop this?

4

This bill is so broad with its wording that potentially every river in Montana is affected as every river in Montana has multiple irrigation diversions and returns. While some rivers are natural, their sole purpose is irrigation as they are completely surrounded by private land and most years are run dry by irrigation demands.

5

YIKES!!!

“Landowners may fence across a waterway at a bridge site.”

http://unitedpropertyownersofmontana.com/streamaccess.html

Best regards, Dave S

6

Stream access is handled on a state-by-state basis. Sadly, if the access laws are repealed, Montana is going to lose a lot more in touro-dollars than they’ll gain by appeasing the wishes of this contingent.

Regards,
Scott

7

HB-309 approved by 55-44 margin. Hopefully, it’ll be voted down in the Senate or vetoed by Gov. Schweitzer.

Regards,
Scott

8

Follow the link for today’s article in the Missoulian.

http://missoulian.com/news/state-and-regional/article_0d875e0e-34d4-11e0-8b78-001cc4c03286.html

This is a much better discussion than the previous linked articles.

I’ve read HB309 a good number of times and don’t see any language in it that clearly applies to naturally flowing streams and rivers, nor their sidechannels. The language of the bill is vague, to say the least, but I am curious what specific language in the bill those who are saying that it could apply to rivers such as the Bitterroot, the Beaverhead, the Yellowstone, etc. etc. etc. are referring to.

Several things to consider. Keep in mind that I am not in favor of this bill. And I am disheartened that this was one of those surprises that came up in a matter of days, best I can tell, and got ramrodded through a quick vote without much debate. That vote is not final, but it does point in a direction that will likely be followed by the Republican majority in the Montana Legislature.

First, as indicated above, there is no language in HB309 that clearly includes all the naturally flowing streams and rivers in Montana as subject to the restrictions imposed on ditches, and no language that attempts to define those naturally flowing streams and rivers as ditches. The language that is in the bill may be vague, but not on this particular point.

Second, there is a clear record by the sponsor of the bill and at least some of its supporters that HB309 is NOT intended to apply to those naturally flowing streams and rivers.

Third, if there were any attempt to apply the restrictions to “ditch access” to those naturally flowing streams and rivers, there would be challenges pursued in the courts. Given the fact that the Montana Supreme Court has already given a broad application to the existing law, it seems they would be so disposed if presented with a case based on the the language of HB309, assuming that it passes the real vote, gets through the Senate, and is signed by the Governor. It seems quite likely the Court would construe the vague language against the writers of the bill and in favor of the people of Montana, especially where there is a clear written and video record of the limited intent of the bill to apply to ditches only. The cumbersome attempt to “redefine” ditches would probably be shrugged off by the Court.

Finally, it seems to me that the opponents of HB309 could better spend their time cooperating with the supporters to come up with language that works for both sides than fighting over a bill that is more likely to cause problems and cost dollars on down the road ( or should that be “on down the stream” ).

Don’t cancel your plans to visit or fish in Montana.

John

9

John,

What concerns me is the vagueness of the bill and the possibility of using it as precidence in future legislation to enact more severe restrictions to access (I’m neither a lawyer or politician so my knowledge of the process is limited, at best). I’m basing my concerns on this and other recent actions like the change in regulations to allow increased motor boat access on the Henry’s Fork; different state, but again, a special interest group with the resources to see legislation pushed through that benefits a small minority. Heck, I can understand why the folks who restored Mitchell Slough are upset; I don’t necessarily agree, but I see their point. From what I’ve read, they put a lot of their own time and money into turning marginal habitat into a pretty good piece of water.

I’m a bit of a pessimist and tend to see the glass as half-empty; you’re a lot closer to the situation and I trust your judgement. Having said that I do have a vested interest in the situation and will voice my concerns to the Montana state senators.

Regards,

Scott

10

… this one to an editorial in today’s Missoulian by Bruce Farling, executive director of Montana Trout Unlimited.

http://missoulian.com/news/opinion/columnists/article_31e365b6-3526-11e0-9e74-001cc4c03286.html

I agree with a lot of what he has to say, but he does himself and the issue a disservice by not quoting the language of HB309 which is the source of his concern. Maybe because the language is not there ??

My experience with statutes and Supreme Court decisions, which is not so recent but is quite extensive, tells me that the “vagueness” of HB309 is ultimately to the benefit of its opponents, if it comes to litigation, not to the writers, sponsors, and supporters of HB309.

The best test of the intent of the supporters is to sit down with them and come up with language which clearly states that intent, both as to what it does mean and what it does not mean.

The next best thing is to keep this on a front burner through the next election cycle, if necessary - remembering that if the existing Stream Access statute can be modified by this Legislature, the one it comes up with can be modified by the some future Legislature, if not resolved sooner in the Courts.

John

11

I don’t live in Montana an therefore the legislature wouldn’t necessarily give a hoot about my opinion as I’m not a voter there. I do, however, travel to Montant every couple years to fish. If a law passes that will make Montana less attractive as a fishing destination, the hotels, rental car agencies, fly shops, resturants, gift shops, gas stations, grocery stores and other places that suck my wallet dry will no longer be getting my hard earned cash.

I would think the tourist industry in Montana has a voice nearly as loud as the ranchers and wealthy landowners. I would hope they can demonstrate what a bill that makes Montana less attractive as a destination would do to the local economies, jobs and tax base of the state.

12

Why go to fish Montana if access does actually change for the worse? I have had fishing just as good, or better, in both CA and ID. Have fished multiple locations in all 3.

13

ScottP/John Scott,

Could you explain to me the difference between a slough and the normal braiding that a stream or river takes to occupy all the area in its plain that is at the same contour or lower contour? In other words a stream/river occupies a given space because the topography allows it to. A “side channel” is just the far bank, with higher topography between it and the “main” channel. If something happens (flood/hurricane etc.) to the side channel (slough?), who says because you’ve taken it upon yourself (is this legal?) to put your money and effort into returning (Mitchell) slough to it’s original(?) condition, that you now own it?( is this the case? - I’m asking?) Groups like Trout Unlimited, put their time and money into hundreds of miles of creeks, rivers, and streams every year, but don’t own any of them, and it’s for everyones benefit - free of charge! There are quite a few of these side-channels (sloughs) on the Yellowstone, and it perplexes me as to how someone other than the public can own them. My home stream here in Penna. is Penns Creek. This creek has channel braiding in many, many places, as well as the Susquehanna River. It would be a nightmare, if individuals were to claim ownership of all the different side-channels!!! Is this practice legal in Montana? In many states, you can’t alter, improve, divert, fix etc., a waterway/wetland without permission from the agencies tasked to address these things, in any way, shape or form, no matter what YOU think your good intentions are! All of my questions may be moot, if a slough is not even a side-channel!
Remember, I’m just inquiring about a stream ownership situation that is foreign to me, this is not meant to be an indictment. I have, and hope to in the future, visit Montana, and do my part to contribute to its economy! It is without a doubt, a beautiful state!! (btw- I don’t know what was or wasn’t done on Mitchell slough, I just used the name because it is a slough - nothing more)

Best regards, Dave S.

14

… nor in HB309. Obviously, therefore, it is not defined in either. Absent a definition in the law, the plain, ordinary meaning of the word should be applied if a contest arises over what someone wants to call a slough, or is called a slough by common usage.

The following quoted definition is pretty typical of several definitions found by “binging” the word slough:

"- deep muddy hole: a hole or low area in the ground filled with mud or water

  • swampy area: a stagnant area of water connected to a larger body of water such as a marsh, inlet, bayou, or backwater
  • estuary: a saltwater estuary"

There is a section in HB309 which I think refers to “sloughs” and “backwaters”.

“…u water bodies created at least in part by waters diverted from a natural water body where the diverted water is the principal source of water in the water body”[/u]

The point preceding this one refers to diverted water which leaves the natural waterway and then returns to it. This one ( ii ) mentions water diverted from a natural water body but does not refer to any outlet or return of the water to the natural water body - which makes the diverted water a backwater or slough to my way of thinking. This point also effectively puts all water in such a slough or backwater within the landowner’s property line under his control and makes it the landowner’s property. That is quite a change from the existing situation, as I understand it, or maybe misunderstand it.

This may not be a satisfactory answer to your question, Dave, but hopefully it will advance the conversation.

John

15

Am I understanding this correctly ?? People are arguing for somewhere to fish, and others are denying them ???

16

Mitchell Slough starts at Tucker Headgate up around Corvallis and empties back into the Bitterroot down by Stevensville. The landowners, including Huey Lewis and Charles Schwab argue that since the diversion provides the water it is a man-made feature and not subject to the stream access laws. On the other side of the coin, their opponents, citing USGS flow measurement data studies requested by Montana FW&P stated that springs and ground water seepage provide enough water to render it a natural feature (county land maps from the 1870s show it pretty much as it exists today and labeled as the the Right Fork of the St. Mary’s Fork) and should be treated as a stream; the state Supreme Court agreed with them and in 2008 opened the slough to fishermen to access.

17

JohnScott/ScottP,

Thank you both for the additional info. I now have a much better understanding of this situation. Do you think this could impact the “status” of places like Depuys/Armstrong and Nelson spring creeks? Are they diversions, natural side-channels or feeder streams with their own springs or are they sloughs like Mitchell?

Best regards, Dave S.

18

http://billingsgazette.com/news/state-and-regional/montana/article_f2be8cdf-4621-5c55-b530-89b53e89dff1.html

19

Dave,

I always wondered about that myself. I’ve driven by them a number of times but have never fished them (even with my “A” game, I’d fail miserably there so I save the money). From what I know of the area:

DePuy’s receives it’s water from a diversion of Armstrong, so legally speaking, it’s considered man-made and not subject to river access; in addition it goes through a long culvert before it enters the Yellowstone making access from that direction problematic, at best. I know John has fished DePuy’s so maybe he could provide a better description.

Armstrong diverts it’s water to DePuy’s so there’s no direct connection to the Yellowstone and no way to access

Nelson’s (I think) has a culvert like DePuy’s making access from the Yellowstone unlikely

Another problem with fishing spring creeks on private property would be staying below the high water mark - since the flows tend to be pretty constant year-round, the mark doesn’t vary too much. At least on the ones I’ve fished here in the east, where the landowners have graciously allowed public access, if I had to stay below the high water mark, my remains would probably still be decomposing in some deeply silted pool. You know that folks who have the $$ to afford property along prime water and aren’t as receptive to fishermen, employ security measures to make sure no one puts so much as a fingerprint above that line - I’ve heard of people being constantly harassed on the Ruby River, another hotspot of contention, even when they access the river from public property and stay below the high water mark.

Regards,
Scott

20

… refers to “irrigation streams.” There is no such reference in HB309. For clarification, for those who have not read HB309, the references are to “diverted water”. And the bill seems to be clear that it applies only to water that is diverted from a natural waterway, and only from the point of diversion to the point of return. And to water that ends up in a backwater or a slough bounded by private property.

From HB309:
u the diverted water from the point of diversion to the point where the waters return to the natural water body from which the waters were diverted;[/u]

Also, diverted water is defined, and then used not to refer to ditches, as such, but to diverted water systems. Again, from HB309:

(6) “Diverted away from a natural water body” means a diversion of surface water for a beneficial use as defined in 85-2-102 and allowed by Title 85, chapter 2, through a constructed water conveyance system constructed by humans, including but not limited to:
(a) an irrigation or drainage canal or ditch system that may include natural features incorporated into the water conveyance system in conjunction with constructed features, devices, or structures to convey water for irrigation, including but not limited to diversion structures, channels, water distribution devices and locations, return flow capacities, laterals, bilaterals, head gates, flumes, spillways, and boxes;
u weirs, channel excavations, lifts, and drops[/u];

The reference to 6,000 such diversions has come up in a number of articles. It will get interesting.

If the Senate approves the bill and the Governor signs it.

John