High water on the Bitterroot

There are some great aerial photos of the Bitterroot River during the recent high water posted over at www.wapiti-waters.blogspot.com.

Indy still doesn't get access issue

Editor's note: We apologize for taking so long to get to this, but May has been a busy month at Hook and Bullet. We've been distracted by end-of-the-school-year responsibilities at our jobs that actually provide income, as well as following the exploits of our favorite sports team, the U14 Flathead Force girls soccer team. Flathead's bid for a state championship was thwarted by injuries and a tough Billings team in the semifinals.

The Mitchell Slough/Bitterroot River stream access controversy spawned a cottage industry of bad journalism. Most of it fell into the category we like to call Think Tank Navel Gazing Journalism. TTNG journalism is marked by an inability to draw even the most elementary conclusions about obvious facts. A lot of this kind of failed journalism occurred in the run up to the Iraq War, when the evidence showed quite conclusively that Saddam had dismantled Iraq's weapon of mass destruction, yet the media continued to reported that rationale for invasion even after it was completely debunked. TTNG journalists are prevented from stating the obvious — the rationale for the war was a lie — and punt to the scholars in various Think Tanks who then mull endlessly the "complexities" of the issue, reinforcing the TTNG journalist's lack of conviction.

Which brings us to the latest example of TTNG journalism on the Mitchell Slough issue, published in the April 30 edition of the usually commendable Missoula Independent. The piece was titled "Muddy Waters." Get it, the issue is still clouded in complicity, despite a unanimous decision of the Montana Supreme Court which completely eviscerated the legal arguments that allowed landowners to block public access to the Bitterroot River for 15 years. Muddy Waters. It's just another example of a journalist unable to write that the sky is blue because some powerful interests in Montana say it's really green. Better side step the sky-is-blue reality entirely, and pass this clouded issue on to the hand wringing Think Tank scholars who are better equipped than us mortals to understand the color of the sky.

Muddy Waters, penned by reporter Jesse Froehling, starts with this stunning first paragraph:

This is the siphon. It’s two high-density polyethylene pipes, 36 inches in diameter, 100 feet long and buried about 15 feet under the Mitchell Slough. It’s simple enough, but yet, because of a landmark Montana Supreme Court decision, its existence required the approval of six government agencies and all of its owner’s patience.

Wrong. The approval of six government agencies before drying up a stretch of the Bitterroot River was required because Montanans long ago established laws that protect our waterways from unnecessary and harmful diversions and modifications. The Supreme Court’s ruling simply reaffirmed those laws still apply to the Bitterroot River, much to the chagrin of the landowners who have spent the last decade trying to exclude the Bitterroot River from the Natural Streambed and Land Preservation Act of 1975, otherwise known as the 310 law, and the Stream Access Law.

Or maybe it’s just that Froehling and the editors of the Missoula Independent who waved this on through to print pine for the good ole days when a Montanan could just drive his backhoe into any river or stream and get-r-done, ecosystem health be damned.

So Muddy Waters begins with what is basically a factual error, and slides further into journalism misconduct from there.

A few paragraphs later Froehling writes of the ranch manager, Lane Hutchings, who installed the siphon:

“He motions to a quiet stream—some still say it’s a ditch," but the Indy omits the obvious rejoinder: “They may still call it a ditch, but they’d be wrong.” Froehling makes this clear later in the piece when he writes: Last year, the Montana Supreme Court finally settled the issue for good, overruling the Bitterroot Conservation District and determining once and for all that the Mitchell Slough is a natural, perennial flowing stream.

Later, another factual error.

In 1975, the Bitterroot Conservation District began issuing 310 permits for the Mitchell Slough. The district continued this practice until 1991 when Randy and Robert Rose decided to go fishing.

Not true. The district continued issuing 310 permits on Mitchell Slough well into the 1990s. It wasn’t until the landowners realized the practice of receiving 310 permits directly contradicted their interest in overturning the Stream Access Law that they went back and had the Conservation District remove the Slough from 310 jurisdiction. That did not happen, as the story states, as a result of the Rose Brothers’ fishing expedition in 1991.

Again, Froehling points out his own error later in the piece when he writes:

In 1999, Jack Pfau, a Stevensville resident hoping to work on the shores of the Mitchell Slough, sent a letter to the Bitterroot Conservation District asking for clarification on the status of the Mitchell. If it was a ditch, Pfau could do whatever he wanted. If it was a natural, perennial flowing stream, he had to get a 310 permit. So, Pfau asked, which was it, a ditch or a stream?

Despite the fact that the district had issued 310 permits since 1975, the district shied away from responsibility: “This determination is the responsibility of the State Department of Natural Resources and Conservation, the State Fish Wildlife and Parks, and the State Department of Environmental Quality.”

Then, in what almost seemed like an afterthought, the district determined the status of the Mitchell Slough: “However, until these Departments take on this responsibility, the District will not require any 310 permits. This is based on the fact that the head water begins with a head gate and being that it is diverted water.”

Later, this wording that seems designed not to ruffle the feathers of access denying landowners along Mitchell Slough.

To reach the slough, the Rose brothers had crossed private property, drawing the ire of the landowners.

Actually, the Rose Brothers reached the stream at the intersection of two public right of ways, Victor Crossing road and the Bitterroot River. Maybe Froehling and the editors of the Independent have had their heads in the sand for the last decade. If so, here's a news flash: In 2002 the Montana attorney general confirmed what was common knowledge to anyone with a functioning brain — accessing streams and rivers in this fashion is perfectly legal. And in the just-completed Montana legislative session that bit of common sense was codified into statute.

The Rose brothers did, however, have to cross two fences to fish the Slough. One is the expected barbed-wire fence that usually runs along public roadways. The second is about 30 feet beyond, built, apparently so it would be an extra hassle for anglers to exercise their right to fish the Bitterroot River.

Froehling then ends this howler:

Duck hunters, as long as they stay off private property, may hunt on any public stream. Technically, a hunter could wade the stream as it winds in front of Hutchings’ house. And although the Double Fork owns the land and the water, a hunter, wading the shallow stream, could blast ducks a hundred yards away from the swing set, where Hutchings’ kids usually spend long fall afternoons. It makes Hutchings thankful that conservation districts sometimes side with private landowners. Sometimes, he says, that’s what’s best for those who use the land.

No, not technically or otherwise. Since the ownership of the land remains with the landowner, Froehling’s straw men duck hunters would need the landowner’s permission to blast ducks next to the swing set where Mr. Hutchings’ kids play. The Stream Access Law cannot be used for to hunt on private land: permission must be granted by the landowner. Maybe Mr. Hutchings is glad conservation districts sometimes side with landowners, and maybe he wants some rivers and streams to be private just like they are back in his home state of Wyoming. But personal desire doesn’t trump the law.

Here are a few of questions we wished Muddy Waters had answered:

If the diversion had worked for a decade or so, why was the siphon needed now? And why didn’t they proceed with the more environmentally friendly plan FWP proposed? Was the project retaliation for the smack down the landowners received at the hands of the Supreme Court?

If the Independent had published this story a year ago, we'd probably cut them some slack. Lord knows mistakes this bad — or worse — were made by legions of Montana journalists when it came to Mitchell Slough. But Muddy Waters was published in April of 2009, right on the heels of the Montana Legislature's historic act codifying access rights at bridges, and the Supreme Court's unwavering defense of the Stream Access Law in its 2008 decision on Mitchell Slough. Maybe folks at the Independent haven't been paying attention, but Montana is real clear on the SAL and landowners responsibility not to interfere with that access right. It's time this newspaper joins the rest of Montanans in the 21st century, where it's not OK to dry up a river because you're a salt-of-the-Earth type who displays a photograph of your family on the dashboard of your pickup truck.

Here at Hook and Bullet News we fear this isn't the last time landowners will needlessly dry up a portion of the Bitterroot River at Mitchell Slough. Heck, the landowners have been issuing threats to harm the resource if they didn't get their way on access for as long as this has been a controversy. We hope, however, that this is the last time we'll have to read one of these whiney screeds about how complicated things are down on Mitchell Slough. Here's a bit of advice for journalists interested in wading into this crystal-clear controversy in the Bitterroot Valley: read the Supreme Court decision. It calls the rationale used to block public access an "absurdity." The only reason the bogus claims for blocking access survived as long as they did was that the landowners along that portion of the Bitterroot River are rich, and they could throw money at lawyers in an attempt to make those claims stick.

Now no doubt there will be difficult issues related to access at the Slough down the road. Management is often complicated. But at the heart of this fight was one of the most dangerous assaults on Montana's Stream Access law since its inception. If the lower court ruling that blocked access had stood, the SAL would have been undermined on almost every river in the state. And requiring landowners to jump through a lot of hoops before they dry up portions of Montana rivers is a good thing. We'd like to see the Missoula Indepentdent — one of our favorite newspapers — get up to speed on that.

Bitterroot claims another

Fly shop owner Dick Galli died in a rafting accident on the Bitterroot River on Wednesday. His boat overturned when they ran into some wood in a particularly tricky stretch of the river on the south end of Hamilton.

The Bitterroot is running about 2,700 cfs at the Darby gauge right now. That's way to high to fish, and makes the wood-laden Bitterroot especially treacherous.

Wolves off the list

Wolves come off the endangered species list today, but for how long?