Mitchell Slough ‘floating island’ permit denied, fencing permit still pending

by Michael Howell

The Bitterroot Conservation District (BCD) last week denied the application made by Bitterroot Springs Ranch owner Ken Siebel to install up to a dozen floating islands made out of pressure treated plywood into Mitchell Slough for habitat purposes, but discussions about a second application to install up to 16 fence crossings on the ranch to delineate various property lines is ongoing.

Following initial discussions with the applicant, BCD supervisor Dan Kerslake said at Tuesday’s BCD meeting where the application was being considered, “We talked with the applicant about the reasonability of these projects and the purpose of these projects. It was a good conversation, and I make the recommendation that we deny this permit application for the reason that there are reasonable alternatives to this project that would accomplish the exact same intent of what they are trying to do.” 

Kent Myers, board vice-chair, said, “We talked about a more natural solution for providing shade and cover for fish such as planting riparian trees, shrubs or whatever and perhaps installing logs in the stream.”

Kerslalke said that the landowner had done that sort of thing in the past but thought now that the process of going through floodplain approval annually and getting engineering float data and buoyancy data for each log annually makes it unreasonable and costly.

Myers said that issue did not have to be resolved at the current meeting because the applicant said they would go back and consider more natural means and come forward with another 310 application. “The point would be to get floodplain input on what kind of requirements there will be and if there are any kind of maintenance requirements going forward,” said Myers. “What they were saying didn’t seem to ring true.”

County Floodplain Administrator Rob Livesay said, “The maps show areas not in the floodplain but we will have to check on the ground. There may be areas that are in it but not shown on the maps.” He said that habitat work is viewed in the same way as putting in a bank stabilization project to protect a house.  

“What these folks should do is to put in a larger project proposal,” said Livesay. “He doesn’t need to put in a different permit request every time he wants to put a piece of wood in the stream. What he should do is apply for a larger permit project with multiple sites, like they did in the past about four years ago. Then it’s just one application with four or five sites.”

BCD supervisor Tom Dobberstein said, “I just want to say that I don’t think we should be approving artificial constructs that are going to float on rivers and streams in Montana.”

Kerslake said, “I think that goes against everything that this board stands for. There are so many better alternatives.” 

Randy Rose, a member of the public, said, “I’m the one who took this to court in 1991 to prevent this from being called a ditch. I’m just saying leave it as a natural stream.”

The board voted unanimously to deny the permit.

Kerslake said that the applicant had asked for a time extension on considerations of the second permit application for installing 16 cross fences on the slough.

“What they are trying to do is parcel out neighboring parcels, individual parcels that they own,” said Kerslake. “Each one would have a portage on the outer highwater mark and some within the highwater mark but out of the stream.” 

Myers said that the whole point was to demarcate property boundaries. “It’s not to prevent cattle from moving between pastures. Its sole purpose is to demarcate boundaries. So, we discussed other ways of doing this that would not involve the kind of fencing that they are talking about with three wires going across close to the water. They had their reasons for not using those kinds of approaches, but we left it where they were going to discuss it and come back.” 

Kerslake said that the idea of a need for 16 fences didn’t seem reasonable. “But we are giving them the chance to think this over, why they need it, where they need it.” He said the sites had not been marked on the map. He said that he told the applicant that, as a BCD supervisor, he was not comfortable with the proposal as it stands. 

“I need to know what we are permitting, where we are doing it and why we are doing it,” said Kerslake. “So that’s something we are going to think about too. It may mean a submittal of a different application, maybe not, but we are just trying to see how we might make this thing more reasonable and obtain the landowners desires within our 310 law.” He said the map only shows land ownership and there are not 16 of them. “So that’s why we need more information. The project is just too ill-defined at this point.”

Rose asked about stream access and said, “You do need to look at it.”

“No, we don’t,” said Kerslake. “We have only to look at the effects on the bed and banks and the stream itself. Stream access is a totally different issue and outside the jurisdiction of this board.”

“So, you can pass this stuff and let them get away with not letting people go through there?” asked Rose. 

Kerslake said that those issues were under the jurisdiction of DNRC and Montana Fish, Wildlife and Parks. He said sometimes wire fences over a stream collect debris and create erosion problems. “So, I think that might be the least desirable type of property delineation.” he said. He said distance from the surface of the stream was part of the discussion with the applicants. 

“That’s why we needed time to sit at this board table and why they needed time to think about their application,” said Kerslake. “Because there is just too much going on here and too many unknowns that have to be addressed before we can make any motion towards this.”

Myers said, “There is a requirement to look at alternatives to achieve the proposed purpose that may have less negative effect on the stream and the environment. They didn’t consider any alternatives, but there are alternatives to what they are proposing. That’s what we are asking them to do is consider alternatives.”

It was noted that the applicants are proposing to put stand-alone fences over the slough that have no associated fencing beyond that. For some it raised the question of whether they were really for the sake of property delineation if they didn’t continue along the property line beyond the stream.

Myers said that regardless of what they do on other portions of their property, the board had to look at what was being proposed within their jurisdiction. 

“The approach that they are proposing, even though we can’t require it, would result in a request for portaging capabilities around these fence crossings,” said Myers. “That, in turn would necessitate hauling boats or whatever watercraft out of the river onto the bank and dragging it around through the portage and then back in. That would not be necessary with higher wires where they could just float underneath. So, there is a reasonable alternative that is less impactful to the environment, to the stream and to the bank of the stream. To me that is the basis for denying the proposal as proposed. But we are not there yet. The ball is in their court. They have heard our concerns, and we will see what they come back with.”   

Fred Upchurch from Ravalli County Fish and Wildlife Association said he believed the motive for the cross fencing was simply to discourage the public from going down there. “Sixteen crossings in a three mile stretch? It has the motive of discouraging people from using public access.” He said going around that many fences was going to end up messing up the river bank.

“There is an ulterior motive here that simply wants to stop public access,” said Upchurch. “I hope that we all recognize the motive of these individuals. The motive is to keep the public out of there.”

FWP biologist and BCD team member Jason Lindstrom said that if fences were installed and portage routes were requested that FWP would be involved but that the agency had no say in what kind of portage would ultimately be installed. It would be up to the landowners, as long as it met the letter of the law and allowed access. 

Ravalli County Fish and Wildlife Association, Bitterroot Trout Unlimited and the Bitterroot River Protection Association all filed letters of objection to the applications.