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Portage routes requested on Mitchell Slough


By Michael Howell

The Ravalli County Commissioners heard from Montana Department of Fish, Wildlife and Parks Fisheries Biologist Chris Clancy last week about the need to respond to a pending request for Portage Routes on Mitchell Slough. The County Commissioners received a letter from Andy Roubik on November 15, 2012, objecting to the language on the signs at the current Portage Route entrances to Mitchell Slough and requesting additional portage routes at several other fences that cross the slough and impede public access.

Clancy informed the commissioners that, according to state law, the commissioners were obliged to respond to such a request within 45 days and it had already been 90 days. He said that Mr. Roubik was not overly concerned about the delay but that he was also desirous of a response. Clancy said that he was there representing Roubik who was not in attendance. He said that Roubik told him he was willing to attend if needed and that he (Clancy) had determined it was not necessary.

In his November letter, Roubik reminds the commissioners that the Montana Supreme Court ruled in 2008 that Mitchell Slough was a branch of the Bitterroot River and thus open to public access under the state’s Stream Access Law. Subsequently, in 2009, three official Portage Routes were established to enter the slough at the Tucker Headgate and at Victor Crossing and Bell Crossing Roads.

Roubik points out that the signs posted at the legal entrance points are contrary to stream access law. The signs state that people must stay in the channel, “even when a fence crosses it.” The problem is that the law allows the public to exit the stream to circumvent manmade obstacles such as fences when it is not feasible to cross them in the stream channel.

Roubik claims that some of the fences across Mitchell Slough have barbed wire strands starting six inches below the surface of the water, extending up about four feet. Other landowners, he claims, have employed electric fencing six inches above the water with barbed wire above that and more electric wiring across the top.

“As you can imagine, going under the fences is very uncomfortable, dangerous, as well as painful. I would like to see the sign from FWP changed to reflect Montana Stream Access law and the fencing altered to allow watercraft and wading people safe and pain free fence crossings,” wrote Roubik.

Clancy told the commissioners that Roubik was correct in his assessment of the signs. He said they do not accurately reflect the law. He said that putting fences across a stream is allowable by law. But the fencing must still allow for public passage on the stream or else the law gives the person the right to exit the stream to cross the barrier in the “least intrusive manner possible” and then re-enter the water as soon as possible. Clancy said that some landowners may have constructed their fencing without realizing the need for public passage.

Clancy also noted that the law requires the landowners to make the fence adaptations necessary for public access at their own cost, but that FWP had paid for the alterations at the original three Portage Routes on the slough and was willing to pay for any needed alterations on subsequent fences on the slough if they are needed.

Commissioner J.R. Iman asked if the agency had a standard for implementation at the fence crossings and Clancy said there were lots of different solutions, each tailored to the site and the landowner’s purposes.

“The bottom line is that they’ve got to keep livestock in,” he said, “and allow public access.”

Commissioner Jeff Burrows said that he would have a tough time making any decisions without seeing the obstructions first.

Clancy told the commissioners that he had not yet inspected the fences and did not know exactly where they were located, or on whose property. He said he was coming to the commissioners first to see how they wanted to proceed.

Commissioner Iman said he had no problem with FWP locating the sites of the complaint and getting landowner input. It was agreed that Commissioners Iman, Ron Stoltz and Burrows would join FWP on a trip down the slough to inspect the sites along with the landowners. Commissioner Suzy Foss insisted that the landowners be contacted before any tour of the slough.

Clancy stated that the trip would be down the slough and that it was legal to do without getting approval of all the landowners along the slough. He said many fences may meet the requirements for public passage and the ones that don’t could be identified before having the landowner come down only to find out there is no problem.

“Even if it is legal it is not right to take people marching across private property without notification,” said Foss.

Clancy said he would arrange the trip and agreed to contact all the landowners prior to the trip and invite those that may have a fence across the slough to meet them at the fence if they desire.

In the public comment portion of the meeting, a few landowners along the slough complained about vandalism from the public use of the slough, some traps placed along the slough being stolen, and cars blocking the entrance to private property at the Portage Route on Bell Crossing.

Michael Howell, representing the Bitterroot River Protection Association, the organization that won the court ruling in 2008 and initiated action to establish the three existing Portage Routes on the slough, said that Roubik had contacted his organization with his complaints. He said based on a recent examination, he was satisfied with the routes at Tucker Headgate and Victor Crossing, but he urged the commissioners to take another look at the one at Bell Crossing.

“Either the water has gone up or the fence has been lowered,” said Howell. He said when examined recently the fence did not allow passage as it was envisioned.

As for applying a standard to portage route designs, Howell said, “In each case, it depended on what the landowners wanted and what worked best for them.” He advised working the designs out with individual landowners.

No date has yet been set for the tour by the commissioners.

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