“Ditch Bill” heads to Senate!

Ditch Bill

Here is a great article from Ben Pierce from the Bozeman Chronicle regarding the Ditch Bill. It is a topic that has spurred controversy for quite some time in many different states.

A great read. Enjoy!

Posted: Monday, March 7, 2011 12:15 am | Updated: 8:30 am, Mon Mar 7, 2011.

‘Ditch Bill’ heads to Senate panel on Tuesday By BEN PIERCE, Chronicle OutThere Editor The Bozeman Daily Chronicle | 

A bill that has sparked controversy over private property rights and Montana’s landmark stream access law is headed for a Tuesday Senate Agriculture, Livestock and Irrigation Committee meeting.

House Bill 309, sponsored by Rep. Jeffery Welborn, R-Dillon, would amend Montana’s stream access to clarify what irrigation ditches are and clarify the prohibition of public access to them. It would also remove portions of the law ruled unconstitutional nearly 30 years ago.

Proponents of “The Ditch Bill,” which passed the House last month, say the bill protects private property rights and landowners from illegal recreation on their property, and enforces the decision handed down by the Montana Supreme Court in a 1986 ruling. Opponents say the bill is an outright assault on the state’s stream access law, alleging HB 309 would reclassify thousands of miles of rivers, side channels and streams as irrigation systems, and therefore off limits to recreational use.

Bob Lane, chief legal counsel for the Montana Department of Fish, Wildlife and Parks, painted a grim picture of HB 309’s implications for recreationists when speaking before a meeting of the House Agriculture Committee on Jan. 27.

“HB 309 almost completely repeals the public’s right to recreate on rivers and streams by making any stream or river a private stream or river where return flows from irrigation are the majority of the flow and by privatizing side channels of braided rivers and streams,” Lane said in a presentation to the committee.

John Youngberg, of the Association of Gallatin Agricultural Irrigators, said that’s not the intent of HB 309.

“This was never meant to be a stream access bill,” Youngberg said. “It is not anyone’s intention to restrict access to any water open to the public. This was simply intended to define what a ditch is. We thought that was taken care of in 1985,” with the passage of the stream access law.

The bill comes after a major state Supreme Court ruling in 2008 determined Mitchell Slough in the Bitterroot Valley – that local landowners including 1980s rocker Huey Lewis argued was a man-made irrigation channel – was open to public recreation.

Michelle Bryan Mudd, director of the Land Use Clinic and an assistant professor of law at the University of Montana, said the Mitchell case lies at the heart of HB 309.

“They want to change the outcome of future cases that might have facts in common with the Mitchell Slough decision,” she said on Thursday.

Bryan Mudd said the Mitchell Slough decision determined the slough was a natural channel of the Bitterroot River, but that over time it was reinforced and artificially manipulated to keep it from meandering. The ruling found the slough was used both naturally and for irrigation purposes. It developed its own fish and wildlife habitat, and had additional improvements made by landowners.

The court determine Mitchell Slough was subject to public trust doctrine — a tenet observed by many states in the country that recognizes the public has certain rights to use water and that landowners with waters running through their property take their titles subject to the public trust.

“What the court said was a lot of natural water bodies have been manipulated by man, and it would be a slippery slope to say anything that had been manipulated is closed to public use,” Bryan Mudd said.

Language proposed in HB 309 aims to redefine an irrigation ditch or drainage canal to “include natural features incorporated into the water conveyance system in conjunction with constructed features.”

Bryan Mudd said the inclusion of “natural features” addresses what the court ordered in the Mitchell Slough decision.

“What I think will happen is there will be a tension between the public trust doctrine and the stream access statutes,” Bryan Mudd said. “The court will have to decide if a statutory change can alter the traditional public trust rules.”

The fear among stream access advocates is twofold: First, that HB 309 would allow landowners the ability to install irrigation structures to effectively privatize waterways; and secondly, that majority return flows from irrigation systems could reclassify rivers, side channels and streams as ditches.

Travis Morris, president of the Madison-Gallatin Chapter of Trout Unlimited, said HB 309 is an unnecessary piece of legislation because the current stream access law already prohibits the public from recreating in irrigation ditches. He said the bill would create loopholes in the stream access law and result in endless litigation.

“It will open Mitchell Slough Creek problems all over the state,” Morris said. “That is a scare for me.”

Youngberg moved to assuage those worries on Thursday.

“It is not a ditch when the water is diverted back to the main water body,” he said. “We are working on amendments that address concerns of those opposed to this bill. We are not trying to run them off the rivers.”

HB 309’s other stipulation, to remove portions of the stream access law deemed unconstitutional, alludes to a ruling handed down by the Montana Supreme Court in the 1986 Galt decision.

The court determined that portions of the stream access law enacted in 1985 overstepped the bounds of the public trust doctrine. Those parts of the law – including the public’s right to hunt big game with a bow or shotgun, camp overnight, and to build permanent duck blinds, boat moorings and other structures within the boundaries of the high waters mark – were deemed unconstitutional.

However, that language was never struck from the stream access law. HB 309 addresses that discrepancy.

Ben Pierce can be reached at bpierce@dailychronicle.com and 582-2625. Follow him online at chronicleoutdoors.com and twitter.com/BGPierce.

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