Stream in Montana Is Open to All

Unhappiness After Stream in Montana Is Open to All

HELENA, Mont. — A group of landowners, including several wealthy out-of-staters, are none too happy that their exclusive use of a scenic trout-rich stream in the Bitterroot Valley is coming to an end.

The Montana Supreme Court ruled here recently that the 16-mile-long stream, Mitchell Slough, is open to the public and that the landowners are not entitled to fence it off as part of their private sanctuaries.

Montana law is firm in allowing the public access to streams and rivers that flow through private land, up to the high-water mark. The law states that fishermen can walk in a stream or along the bank up to the high-water mark if they enter the waterway from public land like a bridge. They may not cross or walk on private land above the mark without permission.

In this case, though, two dozen landowners — including the rock singer Huey Lewis and Charles R. Schwab, founder of the brokerage firm that bears his name — argued that irrigation diversions had so thoroughly altered Mitchell Slough that it was no longer a natural waterway and that therefore the stream access law should not apply. To reinforce that belief, they began calling it Mitchell Ditch.

But in a unanimous ruling, the State Supreme Court here ruled that in spite of the changes, the slough was still a “natural perennial flowing stream” and public access was warranted.

The stream, which is outside Victor, south of Missoula, is known for its abundance of large trout and is expected to attract fishermen from all over.
The landowners are preparing to have far less privacy.

“I’m crushed personally,” said Kenneth F. Siebel, managing director of Private Wealth Partners, a money management firm, who is the owner of the Bitterroot Springs Ranch, along Mitchell Slough. “We were totally surprised. A populist Supreme Court came to the conclusion they wanted and worked backward.”
Mr. Siebel, who has lived here for 29 years, said he had spent millions rebuilding, narrowing and deepening the slough. “I’ve put time and energy and love into the property,” he said, “and it’s all gone. And it’s a shame.”
A home belonging to Anthony Marnell II, the head of a casino construction company, is built over a tributary to Mitchell Slough. Robert N. Lane, the chief legal counsel for the Montana Fish, Wildlife and Parks Department, said he thought the public would soon be able to gain access to fish the tributary.

“I guess they’ll have to portage around his living room,” Mr. Lane said of Mr. Marnell.
Mr. Marnell did not return telephone messages seeking comment.
Mr. Lane hailed the ruling as “great — a significant decision” that would continue public access to other streams.

“It’s not the only place in the state,” he said, “where people could say, ‘It’s altered enough, it’s no longer public.’ ”

Despite having supported the landowners, Edith L. Wark, a rancher from just outside Victor, said she did not expect many problems. “I don’t think a lot of people will stampede through the place,” Ms. Wark said.
Mr. Lane said his department would watch for any conflicts. He added that the stream would not officially open until the completion of paperwork, expected in a couple of weeks.
At least one fisherman was not willing to wait. “I took a picture of a guy fishing there this morning,” said Michael Howell, publisher of The Bitterroot Star and a member of the Bitterroot River Protective Association, the lead plaintiff in the lawsuit that led to the court ruling. “The same guy who was arrested there in 1991, Randy Rose.”

Mr. Rose was arrested on trespassing charges for fishing on a section of stream that runs through Mr. Lewis’s property, but he was found not guilty by a justice of the peace. His arrest eventually helped to spark the association’s lawsuit, which challenged a 2003 decision by the Bitterroot Conservation District that the slough was not a natural stream for permit purposes.
As for Mr. Siebel, he said he and other landowners would be watching. “Anyone who trespasses,” he said, “will be arrested.”