Mike Hansen’s family has owned land up the West Fork of the Bitterroot for a long time. He is an avid fisherman and has enjoyed fishing since the 1950s on a stretch of the West Fork that he can walk to from his house. He is especially avid about wade fishing.
“If you can suddenly get the urge and just grab your pole and gear and walk out of the house and be down on the river in seven minutes, it’s hard to think about getting a boat,” said Hansen.
The top part of the West Fork of the Bitterroot River below the dam is a very special sort of fishing ground. Late summer releases of cool water from Painted Rocks Reservoir, released specifically to preserve flows in the Bitterroot River mainstem, first come splashing down the West Fork.
Having walked up and down a portion of that stretch for so many years now, Hansen is quite familiar with the place, you can be sure. But having also fly fished it on foot for so many years has made him especially familiar with it.
He can point out a pool that he has fished for decades and tell in pretty good detail how the catch has been. It changes over time due to many variables. In fact, the whole course of the river changes over time. He can show you where pools he once knew no longer exist.
But some of the changes lately, over the last several years, he finds very disturbing. He believes laws were enacted by the state in 1975 to prevent the kind of change he is observing. One of them, the Natural Streambed and Land Preservation Act, requires a 310 permit before any disruptive activity, like removing woody debris, can take place. It was designed to protect the waters in their “natural and existing condition.”
He believes that indiscriminately cutting out log jams along a stream or a river is just the sort of thing this law should prevent. He has witnessed, over the last several years, a broad and braided riverbed, which made two significant splits and bends as it passed through the area, being reduced to a single branch, essentially turning it into a “highway of swift water for boaters.”
It’s something about which Montana Fish, Wildlife and Parks fisheries biologist Mike Jakober also has some concerns.
“Continually cutting out log jams on a stream or river can turn it into a straight channel over time,” said Jakober. He said that, over time, it would lead to a slow degradation of the fish habitat by concentrating flows into one deep channel, and the number of pools would be reduced, drying up habitat and ultimately reducing the population of the fishery.
“I find it hard to understand why an outfitter would be doing something like this,” said Jakober, “since it will ultimately lead to diminished habitat and a diminished fishery.” Just the things they need for their business.
Hansen decided it was time to speak out and get pro-active about addressing the situation. He and his friend, local fly-tier, outfitter, and newspaper columnist Chuck Stranahan, began speaking out publicly against the activity and seeking action from authorities over the issue.
What they got, according to Hansen, was a direct assault on the latest tree that had fallen across the river. He found it sawn almost all the way through into six chunks and left to be washed down the river in the first high water. A message was also carved into the tree trunk that Hansen believes identifies the culprit. It was the hashtag of a website blasting Stranahan for his stand on the issue. Hansen believes the outfitter who put the site up may be the culprit in this case. But maybe not. So, he took his complaint to the appropriate authorities.
Although FWP biologist Jakober was critical of the unpermitted activity, his agency has no jurisdiction over enforcement of the 310 Law. Under the Act, the law is enforced by the voluntary Board of Supervisors on the Bitterroot Conservation District which may levy a fine for violations. But enforcing the permitting process by prosecuting illegal activity is difficult, and, according to BCC chairman Howard Eldredge, not very practical.
Eldredge said he has been watching the law be employed for almost a dozen years and said it was being enforced “imperfectly” for a number of reasons.
First of all, patrolling the river looking for violations is not practical. Even when the violations are identified it is virtually impossible to identify the culprits. The actions generally take place in isolated parts of the river where the activity goes unobserved.
Not only that, the law does allow for taking action on the river without a permit in an “emergency” to protect the resource or property. You can go ahead and remove an obstacle on the spot, he said, but an emergency permit must be obtained “after the fact” in that case.
“But determining what’s an emergency is tricky,” said Eldredge. He said if someone comes in for an emergency permit after the fact, two things can happen. “First, we decide whether the action was correct, and the second step is to determine if there is remediation required. But in the meantime, no matter what was done, the clock is ticking” he said, adding, “the process to get a permit takes a month at the minimum.”
He said it was also difficult thing to judge what constitutes an emergency.
“The river can be a very dangerous place,” said Eldredge. “If you were not there, it is difficult to understand fully what was going on at the time.” He said it’s been a long time since anybody got fined for violating that law.
“But we are not in the cops and robbers business,” said Eldredge. “We are trying to protect the resource.”
Jakober was in agreement saying, “The outfitters are going to have to police themselves.” He believes they have the best chance to witness or otherwise come to know who is doing that sort of thing and get them to voluntarily stop. Both Jakober and Eldredge expressed hope that, through education and peer pressure, the urge to cut out log jams on the river can be curtailed.
Hansen said that the problem is not just one of ignorance or a misinterpretation of what an emergency is. He said the main perpetrators are obviously aware of the law and purposefully breaking it. He told how his neighbors were awakened late one night by the sound of chainsaws coming from down by the river. The next morning, they found that the large tree that had been blocking a portion of the river had been cut up and moved.
“Why would anybody come in and do something like that in the dark if they didn’t think it was illegal?” he asked.
Distressed by the fact that no action was taken following his original complaint, Hansen made an unusual request to the BCC this fall. He submitted a permit application to go into the river and cable a log that had been cut into pieces back together again and leave it in place.
Eldredge said that the request was denied primarily based on input from the county floodplain administrator which indicated the district would be taking on a liability under the floodplain regulations for what happens to the log after it is cabled together. Right now, any downstream damage that results from the illegal activity rests on the person who did it. If the District steps in and allows the log to be cabled together, it will be responsible for any future damage created by the log.
“Right now, we are going to leave it as is and see what happens,” said Eldredge. He said there is within the law a way to deal with problems like this, but somebody chose not to do it that way.
Hansen’s response was one of frustration.
“I guess I could go down at night and wrap the log back together with a cable and then nobody would legally be able to change that either,” he said.
“These things are being done for convenience,” he said, “not for safety reasons. It’s being done out of laziness. It’s sad.”