The often divisive stream access issue was back before the Legislature Wednesday as the House passed a bill sought by private landowners to clarify the state ban on recreational access on ditches.

But opponents warned the bill would erode sportsmen’s access by reclassifying hundreds of miles of natural stream channels as private irrigation ditches and make them off limits to anglers.

House Bill 309, by Rep. Jeff Welborn, R-Dillon, won debate stage approval, 55-44. It now faces a final House vote before heading to the Senate.

Welborn said the bill would make it clear that 6,000 irrigation streams aren’t subject to public recreation after a 2008 Montana Supreme Court decision put that into jeopardy.

“This is about jobs,” he said. “This is about protecting the private property rights of 6,000


What the bill does, he said, is honor the “handshake” the 1985 Legislature made with private landowners and sportsmen after some Montana Supreme Court decisions allowing recreational access to navigable streams.

Welborn said that 1985 agreement regarding prohibiting recreational access to ditches has been jeopardized by a 2008 Montana Supreme Court decision.

In 2008, the Montana Supreme Court unanimously overturned two district court decisions and declared that the Mitchell Slough, east of the Bitterroot River between Hamilton and Stevensville in Ravalli County, was open to recreation under the state’s stream access law. The court determined that the 16-mile slough generally flows along the historical course of a waterway that was mapped 130 years earlier and thus was subject to public access and permitting, the Ravalli Republic reported then.

Huey Lewis, a 1980s rocker, owns a ranch along the Mitchell Slough and was one of the ranchers who unsuccessfully argued in court that the slough was a manmade feature and thus not subject to the stream access law.

Rep. Mike Menahan, D-Helena, predicted that HB309, if passed, would “fuel the fire” and lead to much more litigation on the issue.

Rep. Christy Clark, R-Choteau, a rancher, said the bill isn’t out to gut the stream access law.

“It’s a good law,” she said. “It just needs clarification. It’s simply clarifying that ditches were never intended to be part of stream access.”

Rep. Ed Noonan, D-Butte, said groups opposing the bill provided a long list of rivers whose public access would be jeopardized by passage by this bill.

“Shareholders on both sides need to have input,” he said, adding that that clearly wasn’t the case with HB309.

Welborn said he did reach out to his constituents, “and they do not see a boogeyman in this bill.”

“They think this will strengthen stream access,” he said.

House Minority Leader Jon Sesso, D-Butte, condemned the bill, saying, “This is nothing more than a sore loser coming to the Legislature to get something fixed.”

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He called HB309 an attack on Montana’s stream access law and “an attempt to undo the decision of the Supreme Court.”

Rep. Gary MacLaren, R-Victor, said he lives about 1 1/2 miles from Mitchell Slough and doesn’t believe the bill will solve the problem.

“I’m afraid the bill would create more problems than it solves,” he said. “I’d rather see a bill that is better thought out.”

Afterward, Mark Aagenes of Montana Trout Unlimited, which opposed the bill, said: “If somebody’s recreating on an irrigation ditch, it’s illegal, and I’ll be happy to call a sheriff. The point of all of this is it’s clear in current statute we don’t have access to irrigation ditches. We don’t want access to irrigation ditches.

“There’s no need to have a conflicting and convoluted new law that so badly defines irrigation ditch that it includes side channels, streams and rivers.”

Sen. Kendall Van Dyk, D-Billings, author of a major change to the stream access law in 2009, questioned which groups Republicans in the Legislature were representing.

“Is it out-of-state Hollywood types like Huey Lewis or Montana sportsmen and women?” Van Dyk added. “Money and fame shouldn’t buy you special rights in Montana.”

In response, House Speaker Mike Milburn, R-Cascade, who worked on the 2009 bill with Van Dyk, but voted against the bill Wednesday, said, “HB309 has nothing to do with Hollywood or Huey Lewis. All this bill does is clarify that public stream access laws don’t apply to irrigation ditches,” Milburn said.


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