By Michael Howell
At a meeting on April 15, the Montana Fish Wildlife and Parks Commission approved a revised annual rule providing criteria for possible closure of the Bitterroot River to floaters on a five-mile stretch between Woodside Fishing Access Site and Tucker Fishing Access Site. Following the drowning of a young girl in 2013 at the Supply Ditch Diversion dam, that stretch of the river was closed for 86 days under emergency procedures in 2014. The dam creates a recycling hydraulic current that FWP Region 2 Fish Manager Pat Saffel told the commission was popularly known as a “drowning machine.” After going over the dam a strong back flow can push the boat back into the dam where it may be swamped and capsized by the water coming over the dam. Swimmers may then be caught in the same re-circulating current.
Saffel told the commission members that the river shifted from the west to the east in 2011 in the area and in the course of the next two years nine incidents at the dam were reported and, a year later in 2013, there was a fatality. The river was subsequently closed between Woodside FAS and Tucker FAS in 2014 under emergency measures. That closure was contested in court and a settlement was reached allowing for the closure from April 11 to July 1 or when the flow reaches 4,000 cfs at the Missoula gauge.
The current revised regulation would allow the closure until after July 10, if conditions warrant and no alternatives exist, such as taking the west channel. Saffel told the commission that FWP was doing everything possible to keep the river open but efforts at signage seem to have been taken to their limit and were proving to be less effective than expected.
There was no public comment at this meeting. But at a preceding meeting held in Hamilton a lot of opposition to the closure of the river was expressed. The commission received 73 comments on the rule amendment, 73% of which were in opposition to the rule change. Many of the opposing comments mentioned that it sets a bad precedent.
George Corn, one of the plaintiffs in the lawsuit filed over the emergency closure last year, said, “This decision to allow government to dictate what risks adults can take in the outdoors is an unwarranted and dangerous expansion of government control over our private lives.” He said the government has no legitimate business prohibiting adults from making individual decisions about taking risks in the outdoors absent a damage to the resource. He argues that it amounts to “collective punishment” of the hundreds, if not thousands, of people who have safely floated the dam.
“It is unfair to punish this enormous number of people for the mishaps and misfortunes of very, very few,” said Corn.
Saffel told the commission that FWP would only close the river as a last resort to protect public safety. He said as the water rises with spring runoff the dam becomes more dangerous, but at the same time the alternative channel to the west becomes more floatable and the agency will watch the developments closely. He argued that a precedent was not being set. He said the agency does close rivers for certain public safety issues such as fires and wrecks and that this manmade hazard did represent a unique danger.
Commissioner Matt Tourtlotte, who is an attorney, expressed concerns about a lawsuit against the agency if it did nothing.
“I think this is perhaps the minimum the department can do,” he said. “I get the opposition’s concern, if you’re going to go rafting on the river you do so at your own risk. However, there’s a wide spectrum of experience out there and humans don’t do well under water.”
A few other commissioners expressed concerns about restricting recreational opportunities but considered this a unique and compelling situation.
Although adopted for the current year, the authority to close this specific stretch of the river does not roll over into future years. If the dam is not fixed by the summer of 2016, the Commission would have to take up the issue once again and consider re-authorization at that time.