Motor boat ban being considered for Mitchell Slough

by Michael Howell

The Montana Fish and Wildlife Commission is considering a proposal by Montana Fish, Wildlife and Parks to ban the use of motorized boats in portions of the Bitterroot River. In the introductory statement to its proposal, FWP states that in recent years it has received complaints from numerous landowners along tributaries to the Bitterroot River regarding public jetboating. 

In its memorandum to the Commission the agency states, “FWP views motorized use of tributaries to the Bitterroot River between Woodside Crossing Fishing Access Site (FAS) and John and Nancy Owen FAS as being unsafe and potentially damaging to habitat for native fish. FWP proposes to close these tributaries for motorized use year-round.” 

Under current regulations, the Bitterroot River is closed to use of any motorized watercraft, except any motorized watercraft powered by 20 horsepower or less are permitted from October 1 through January 31 from the headwaters of the Bitterroot River to the confluence with the Clark Fork River. The proposed rule change removes that exemption and places a full closure to motorized use in a specific portion of the river stating:

“All tributaries, and natural streams, sloughs, and channels flowing into the Bitterroot River between the Woodside Crossing Fishing Access Site and the John and Nancy Owen Fishing Access Site are closed to the use of any motorized watercraft.” 

Although it does not mention Mitchell Slough, that branch of the river is apparently being included in the closure. Originally designated as the Right Fork of the St. Mary’s Fork of the Bitterroot River, it is a 17.5 mile long channel of the river running from just north of Corvallis to just south of Stevensville. It was only after a headgate was installed at the top of the channel to stop the spring flooding in order to allow downstream farmers and ranchers to increase their usable acreage that it became referred to locally as Mitchell Slough. According to old timers who fished up and down the slough, and longtime landowners, public access to the river channel was never an issue.

However, controversy began swirling around Mitchell Slough in the early 1990s when a group of new landowners purchased most of the land along the river bottom in the area. New fences posted with “No Fishing, No Hunting, No Trespassing” signs proliferated in the area and fishermen were chased off the slough.

Two young men tested the law by climbing over a posted fence at Bell Crossing in 1991 and a lawsuit was finally filed over the issue by the Bitterroot River Protection Association in 2002. The Bitterroot Conservation District, which issues 310 Permits for working in natural waterways, declared that Mitchell Slough was a ditch because “it had a headgate on it and flowed with diverted water.” Landowners along the slough joined the lawsuit and argued that, because the old river channel had been altered by the installation of headgates, dredging, re-location in areas and other alterations, it was no longer a natural waterway and was not subject to 310 Law or to Stream Access Law because it was no longer natural.

At the invitation of Huey Lewis, one of the landowners involved in the case, Governor Brian Schweitzer came to the Bitterroot for an on-the-ground inspection and made his own decision about whether FWP should be supporting BRPA in the case. It looked like the Bitterroot River to him. He decided FWP was right in supporting the case. He was quoted in the New York Times, saying, “If you want to buy a big ranch and you want to have a river and you want privacy, don’t buy in Montana. The rivers belong to the people of Montana.” 

The Montana Supreme Court ultimately sided with the Governor, FWP and BRPA, and in a landmark ruling found the landowners’ arguments “absurd,” noting that a ruling in their favor would remove virtually every stream and river in the state from environmental protection and public access. 

Despite that ruling the landowners have not given up on discouraging public access to the slough. Owners of the Bitterroot Springs Ranch recently tried to get a 310 Permit to place 16 new fences across the slough in order to better define their property line demarcations, but the permit was denied. 

Landowners along the slough, however, are claiming that the current proposal to stop motorized boat access to the slough during the hunting season is not a public access and privacy issue. It is instead a clear issue of fishery and habitat preservation. Although FWP has been denied access to the river through the Bitterroot Springs Ranch for scientific research on the grounds that the Stream Access Law only applies to “recreational access,” the ranch manager, Roy Fenster, recently produced his own report (Mitchell Slough Sampling and Protocol Data, August 2025) in support of the ban, concluding that, “The habitat present and channel characteristic data summarized in this report clearly support a change in regulation that would prohibit any and all motorized watercraft from ever operating on the Mitchell. It is simply not a waterway suitable for motorized watercraft without damage to sensitive and important wildlife and fishery habitats.”

His report mentions in the first sentence that the Mitchell Slough will hereafter be referred to as “the Mitchell,” as did most of the studies presented in defense of the landowners’ claims in the Mitchell Slough lawsuit, and describes it as “a heavily modified irrigation purposed waterway initially fed by diversion off the Bitterroot River through a headgate maintained by the Etna Ditch Company.” Ranch managers on the Bitterroot Springs Ranch also continue to refer to it as a ditch when they confront fishermen and floaters as they did this reporter on a canoe float down the slough.  

The report was prepared to support a landowner petition for a rule change, but instead FWP presented it as their own recommendation at the February 12 Commission meeting.

The latest proposal in rule change was met with some skepticism by members of the Fish and Wildlife Commission at the meeting.

Region 3 Commissioner Susan Kirby Brooke said immediately that she did not feel comfortable with the proposal, stating “I feel like this came before us with sketchy details and data.”

Jeff Hindoien, chief legal counsel for FWP, said that the agency proposed the rule after Region 2 managers expressed concern about jet boats causing safety issues in such shallow streams and that there had been enforcement issues related to conflict between boaters and landowners.

Region 2 Commissioner Jeff Burrows, who is familiar with Mitchell Slough, also expressed misgivings, stating that the proposal didn’t appear to be backed by scientific data. Other members of the board also expressed skepticism about the proposal.

FWP fisheries chief Adam Strainer admitted that wade-fishing could have similar impacts to jet boats running over shallows. He said native fish could also be affected, but there was a lack of data on the fisheries in the area because FWP biologists have not been allowed access to the area. 

FWP fisheries manager Pat Saffel said that there was little data specific to fish in Mitchell Slough but added that they don’t consider it a major spawning area. 

Burrows also wondered about the motivation behind the new rule.

“Are we trying to resolve a hunter’s access versus landowner conflict or are we trying to protect a resource?” he asked. He also wondered why, if damage to fish egg nests called “redds” was the issue, wade-fishing which has the same impacts was still being allowed and also why no other river channels were being considered.

“What I’m hearing right now isn’t jibing, because if there are impacts, you’d close the entire thing, not just a certain section,” Burrows said.

Other members of the Commission also expressed skepticism about the proposal. Region 4 Commissioner K.C. Walsh suggested a working group be established to work out a clear and acceptable solution to everyone’s concerns.

Zach Polanski, who uses a jet boat to access the area near the mouth of Mitchell Slough, said the complaints received by FWP were coming mostly from rich landowners who want privacy for their own fishing and duck hunting. He said the actual use of the area by jet boats is very limited.

“There aren’t 20 boats ripping up this branch,” he said. He and his hunting partner Mark Liedtka both claim that it was Bitterroot Springs Ranch that was mainly pushing for the closure and that the river is basically inaccessible by motor boats within a mile and a half up stream.

They both agree that creeks and tributaries should probably be closed to motor boats but claim that the bottom of Mitchell Slough is deeper, slower moving and too muddy to be conducive to trout spawning and should remain open.

Several conservation organizations have, however, come out in support of the restrictions, citing potential damage to the habitat and the fisheries.

The Commission received over 80 written comments from the public, with over 60 of them against the proposal. Less than 30 were in favor of the restrictions.

Liedtka stated in his written comments, “The river changes year by year and channels/branches are constantly being formed. How is the general public going to know what is opened and closed in the future if this proposal is passed? Just to be clear, the Mitchell branch of the Bitterroot River is not a tributary. It is one of the main branches of the Bitterroot River. In this proposal, FWP states their view that motorized use is unsafe and potentially damaging to habitat. Where is the evidence or how has it been determined to be unsafe? Are there documented accidents that include motorized watercraft?… If motorized use is banned, we will be walking up the channel making contact with the streambed with every footstep. How is that going to be less damaging to native fish?… Historically, jet boat usage on Mitchell branch has only occurred in the lower section where it returns to the main Bitterroot River at Stevensville. The section I access is up from the main river 1 ½ miles, beyond that, there are man-made waterfalls and fences obstructing the ability to go any further. The Mitchell branch forks twice and gets smaller in regards to waterflow and I would support restrictions placed on that section. I would like to propose you keep the first 1 ½ miles of the Mitchell branch of the Bitterroot River open to motorized watercraft under the same regulations as the main Bitterroot River. This section of the river has the waterflow, depth, and width to support safe motorized use without damage to the streambed. This section has excellent waterfowl hunting and should be accessed by all, including hunters with physical limitations.”

Most of the statements in opposition to the closure cited the lack of any credible data that the boats were a safety hazard or doing any harm to the habitat. Many of them stated that privatization was obviously the driving force behind the complaints that were being received. Most of the statements in favor of the restrictions cited potential harms to the fishery habitat by streambed disturbance, and bank erosion and noise disturbance of the fish.

While most of the comments were yes or no type responses, several were more nuanced.

Joshua Rokosch from Hamilton, for instance, wrote, “regulating side channels as their own entity sets a complex and poor precedent for watershed management. The management should pertain to sections of the watershed as a whole… The Bitterroot River is a dynamic watershed with new channel shifts each year. Trying to regulate channels of the river independently is a poor management practice and a slippery slope for privatization of public waterways… Simply restrict the motorized use on the river using a proper section landmark. Ex. Stevensville Bridge FAS or Florence Bridge FAS. Several years back the regulations included no motorized use upstream of Florence Bridge. That is what should have stayed in place.”

Some supporters of the closure stated that it should be extended to the entire Bitterroot River for all the same reasons.

Alex Hibala from Hamilton stated, “As an angler and hunter I cherish the tenants of the stream access law in Montana however the use of motorized craft in smaller tributary systems should not be allowed. In addition to noise nuisance and the possible use of firearms closer to residential areas along these tributaries, use of motors cannot help but disturb aquatic insect populations and trout spawning habitat far beyond that of walk & wade-in access. I hope the commission approves the proposed rule to prohibit motorized use on tributaries. If it is possible for the Commission to expand the range of this closure beyond the currently proposed limits I would be in support of that as well.”

Despite the Commissioners’ skepticism concerning the proposal as written, they unanimously approved moving it forward in the rule-making process which may include changes to the proposed wording and publishing a final draft and, following a public comment period, holding a public hearing before taking any final action on the proposed rule change. No time frame is set for initiating that review/amendment and approval process and FWP may take the opportunity to do more data and evidence collection.