Anglers blast access measure in Montana

Anglers blast access measure By Nick Gevock of The Montana Standard | Posted: Tuesday, February 8, 2011 3:45 am Anglers are blasting a bill carried by a Dillon lawmaker that would revamp Montana’s stream access law to make any waterway that receives water diverted from a natural stream off limits to public recreation. The measure, carried by Rep. Jeff Welborn, R-Dillon, would change state law to bar anglers from using water bodies that get water diverted into them. The measure is a sneaky attempt to undermine Montana’s stream access law that guarantees the public the right to get to streams and rivers, said Bruce Farling, executive director of Montana Trout Unlimited. “This is going to kick Montanans off of streams they’ve been fishing since Montana was a territory,” he said Monday. “Hundreds of miles of streams would be affected.” But Welborn disagreed. He said the bill is only intended to clarify that irrigation ditches through private land are off limits to the public. The bill is intended to remedy the wrong to landowners caused by a recent Montana Supreme Court ruling on the Mitchell Slough coming off the Bitterroot River that said it was open to the public, he said. “The bill basically says that if you build a ditch and there’s some naturally occurring water present, it’s still a ditch because that ditch is man-made,” he said. “It does not say that water diverted into a ditch and then returned to a river makes that a ditch.” The bill was spurred by the Supreme Court’s ruling on property owned by rocker Huey Lewis in the Bitterroot Valley. Lewis contended Mitchell Slough was in fact an irrigation ditch, but the court unanimously found it was a side channel of the Bitterroot River and therefore open to public use. Sportsmen hailed the decision as upholding Montanans’ right to use their waters. But agriculture and Libertarian groups said it will discourage landowners from making habitat improvements to streams on their land. Welborn said as a sportsman he supports access to streams, but the law has been abused in recent years by people who want to use private ditches. He said the language in the bill ensures that the public wouldn’t lose access to rivers. But in testimony before the House agriculture committee, the attorney for the Montana Department of Fish, Wildlife and Parks said the bill would obliterate the state’s stream access law. Bob Lane, FWP chief legal counsel, said the provision of the bill that defines any stream that gets the majority of its water from return irrigation flows would privatize virtually every river in the state. “HB 309 almost completely repeals the public’s right to recreate on rivers and streams,” he said. “The most comprehensive and partially hidden but intended effect of HB 309 is that return flows would count as diverted water when determining whether diverted water is the principle source of water in a stream or river. “HB 309 as written defines the Bitterroot River as a ditch.” Farling said while Welborn is claiming the bill is meant to clarify what is and isn’t a ditch, in fact it’s a gutting of the law at the request of a small group of landowners. He said if landowners are having problems on legitimate ditches, trespassing laws are more than sufficient. “If there are people trespassing on bona fide private ditches, tell us where they are, and we’ll turn them in,” he said. The bill passed last week in the House agriculture committee 13-8. Reporter Nick Gevock may be reached at


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