Powell County Judge Ted Mizner issued his order in the controversial case over Mitchell Slough, a ten mile long waterway paralleling the Bitterroot River from Corvallis to Stevensville. Although the public has fished the slough in the past, following Mizner's ruling, the public will no longer be allowed to use the water way.

"The Court concludes by a clear preponderance of the evidence," wrote Mizner in his decision, "under the unique facts of this case, that the Mitchell Slough is no longer a natural water body."

Mizner goes on to state that "perhaps as early as 130 years ago the Mitchell Slough may well have been considered a natural water body under the Stream Access Law." But now, he claims, the Bitterroot River has migrated to the west and its bed is substantially lower than the bed of Mitchell Slough. He claims further that "there is clear and convincing evidence that if man had not manipulated the waters of the Bitterroot River with the Tucker Headgate and other diversions and also excavated the channel of the Mitchell slough, the Mitchell would no longer flow and it would most likely be a series of ancient, paleo channels connected by man." He said that considerations of sinuosity, gradient, hydrology and elevation all support this conclusion.

Mizner adds that the channel itself is so changed, by excavations along the bed and banks along with ditches, spills, lifts and channel relocations, that it can no longer be considered a natural channel even though some portions of it are still in identifiable historic locations. Mizner also points out that the amount of water contributed to the Mitchell system by irrigation practices makes up the bulk of the flow. He said that it remains diverted water when it reaches the Mitchell because the Mitchell is no longer a natural channel.

The case originally began over a decision by the local Bitterroot Conservation District to remove Mitchell Slough from its jurisdiction under the Natural Streambed and Land Preservation Act, often called the 310 Law. A local conservation group, Bitterroot River Protection Association, filed suit challenging the District's decision. The case quickly morphed into a two-pronged issue involving the Stream Access Law as well. Several intervenors joined the case including landowners along the Slough and the Montana Farm Bureau. The Montana Department of Fish, Wildlife and Parks, which was stopped from joining the case under Martz's governorship, was allowed by Governor Schweitzer to join. Mizner allowed the agency to join in the Stream Access part of the case but excluded it from participating in the Conservation District part of the case. FWP argued, along with BRPA, that Mitchell Slough is public waters and accessible under the Stream Access Law.

The Montana Farm Bureau (MFB), in a press release called the decision "a clean sweep for landowners."

Russ McElyea, attorney for the MFB in the case, said, "Judge Mizner made a real common sense decision based on the facts as they are, not on the facts as the BRPA wanted them to be. He recognized the difference and made a very good decision."

MFB District I Director, Stevensville rancher Hans McPherson, said, "I found it very rewarding that the judge ruled across the board that local government, in this case the Bitterroot Conservation District, made the correct decision. This goes a long way to protect local landowners' private property rights."

John Bloomquist, attorney for the landowners, is quoted in a press release from the Montana Stockgrowers Association (MSGA), saying, "The best thing about the ruling is the judge's recognition of the limitations of the Stream Access Law. The plaintiffs in the case were asking the court to go beyond that Law."

"This ruling encourages property owners to develop fisheries without the threat of having them overrun due to misunderstanding of Stream Access," said Bill Donald, MSGA president. "It also reinforces the limitations of Stream Access Law, which were critical in crafting the compromise that resulted in its original passage."

Head of legal services for Fish, Wildlife and Parks, Bob Lane, told the Bitterroot Star that he felt the judge had a good understanding of the facts but drew the wrong legal conclusions. He said that he and FWP director Jeff Hagner had discussed the ruling and decided that the department would certainly be making a recommendation to the governor's office to appeal the ruling to the Supreme Court.

Jack Tuholske, attorney for BRPA, said that he would be reviewing the ruling with his clients before making a decision to appeal. In an interview with the Missoulian, he called it a sad day when a water body that had been traditionally fished by the public for so long has now been privatized. He characterized it as "troubling" that private work on a natural waterway might lead to the privatization of the public water.

"I would point out that every river in this state has been manipulated in some way," Tuholske is quoted as saying. "The same things that have been done in the Mitchell - riprapping, channelizing - it's all been done in our rivers. I think it would be very unfortunate if you could privatize a natural waterbody simply by doing a lot of work to it."

Proceeds from endurance hike go to firefighters' memorial

By Michael Howell

Mario "Mountain Goat" Locatelli (right) is pictured here handing over a check for $2,467.21 to be used by Boy Scout Dallas Fadely (left) in his Eagle Scout project to construct a memorial in Stevensville for firefighters that died in the line of duty.

Abandoning his original plans to build the memorial at Bass Creek on Forest Service property following difficulties in meeting the federal agency's requirements, Fadely was granted permission to build the memorial on property owned by the Town of Stevensville at River Park. The two are pictured standing on the dedicated site of the new memorial.

Fadely said that he was grateful for the donation and said that many people and businesses in the community were pitching in. He said that the Job Corps was going to donate some labor and some cement picnic tables. Montana-Idaho Log Homes had donated some wood and Massa agreed to donate $500. Fadely said that he also plans on calling in a crew of Boy Scouts to help. Construction may begin as early as next Saturday.

Locatelli was inspired to help when he first heard about the project. He subsequently helped arrange the Ward Mountain Endurance Hike sponsored by the Mountain Goat Benefit Fund that occurred on Saturday, April 29. The hike succeeded in raising the $2,467.21 that was passed on to Fadely last Wednesday.

Locatelli said that 33 hikers participated in the event at which over half the mountain was snowpacked. The fastest time to the top of Ward Mountain was achieved by 42-year-old Marvin Webster, who snowshoed to the top in 3 hours and 5 minutes. He was followed by skiers 35-year-old Dusty Wood, 43-year-old John Klingbile, 51-year-old Cathy Locatelli Erickson, and 43-year-old snowshoer James Perkins who made the top in 3 hours and 15 minutes. The remainder of snowshoers trailed in throughout the morning, or participated with funds: Tonia Bloom, Hannah Palmer, Glen Owings, Chris Sherman, Mark Dalton, Charles Sundstrom, Nancy Bender, Nathan Bender and friend Matt, Lori Hancock, Dean Lankford, Stan Duffer, Billy Christiansen, Michael Brooky, Vic Raso, Tim Rahmig, Sheryl Marquess, Steve Schombel, Angela Lind, Kirsten Cooper, Jeremy Lurgio and Caroline.

Lone Rock Summer Recreation Program receives grant

By Michael Howell

The Lone Rock School District received a grant of $5,000 from the Dennis and Phyllis Washington Foundation last week to help fund the Lone Rock Summer Recreation Program. The program offers healthy recreation activities for youth ages 7 through 17. According to Mike Halligan, Executive Director of the Washington Foundation, "Providing safe and healthy summer recreation opportunities helps kids learn leadership skills and enhances their overall social development. We're honored to partner with Lone Rock School District, parents, area businesses and volunteers to make this happen."

Art Perez, Lone Rock School physical education teacher and project director of the summer program, said, "This grant from the Washington Foundation is a big boost to our program."

He said that kids are charged a fee to participate in the summer program but they try to keep the fees affordable by getting donations and grants to cover much of the cost. He said that the school donates the use of the gym and services and has been great about supporting the program. Former school superintendent Bonnie Klein did the grant writing and Perez said that her help is much appreciated and has paid off for the district. He said that Jan Wehrli and Kathy Jarvis have also worked very hard on making the program a success.

The biggest change in this year's program is the addition of some mini-camps in tumbling, volleyball, and basketball. They are also sponsoring a two-week baseball camp and a golf camp, perhaps at the Whitetail Golf Course located on the Lee Metcalf National Wildlife Refuge.

Perez said that the Lone Rock Summer Recreation Program offers children an alternative to sedentary, often unsupervised activities, watching television or playing video games. He said that the program acts as a magnet to draw students in for the summer months, keeping them busy honing athletic skills, as well as offering them a chance to participate in a structured educational program where cooperation, teamwork and leadership skills are practiced. The days are split into two sessions with second to sixth graders attending in the morning and seventh grade through high school attending in the afternoon. Activities are coordinated with the library schedule and crafts and storytime, as well as volleyball camp.

The summer recreation program will run from June through August.

The Dennis and Phyllis Washington Foundation is the major philanthropic organization for the Washington Companies. A uniform assessment of the Washington Companies' pre-tax profits is the primary source of the Foundation's endowment used to fund successful grant requests. The mission of the Dennis and Phyllis Washington Foundation is "To invest in people to improve the quality of their lives." Foundation expenditures are designed to primarily benefit youth in the broad categories of: Education, Health and Human Services, Community Service and Arts and Culture.

Farmers State Bank has donated $1,000 to the program this year and Perez said that many other businesses have contributed and the names of donating businesses are displayed in the school gym.

Anyone with any questions or wishing to donate can contact Art Perez (ext. 212) or Sandi Boland (ext. 220) at the Lone Rock School, 777-3314.

Stevi vo-ag teacher's resignation not accepted

By Michael Howell

Trustees of the Stevensville School Board, which ordinarily accepts most resignation letters as a matter of course, decided not to accept the resignation of Vo-Ag teacher Ramey Lunceford at their last meeting on Tuesday, May 9. Lunceford, who was not present at the meeting, has been the sole teacher in the school's Vo-Ag program for the last three years. He is up for tenure if rehired for next year. But instead, he submitted a letter to the board announcing his resignation.

"At this time I have found more reason for me to leave than I have to stay," wrote Lunceford. "Though I have worked very hard and have built the program back to as workable and successful a program as I remember in High School I can not see myself continuing at the pace that I have set. I feel that I have gotten excellent support from the majority of the community and the staff here at the high school, but have noticed that the minority continues to harass the work that I do with very little regard to the success that FFA has had and the agriculture education classes that I teach."

He wrote that it was because of these and other personal reasons that he was resigning. He said that the school had gone through five agriculture teachers in eight years "and the main factor of this is 'burn out'."

His letter of resignation coincides with the administration's recent decision to deny the request of FFA members and other members of the public to hire another teacher to assist Lunceford, who, they claimed, was working in an overburdened situation. Members of the FFA lobbied strongly for creating the new full-time or part-time position back on March 7. But they were informed by Superintendent Dennis Kimzey, at this meeting, that the Vo-Ag Committee had decided that the district was not in a position to hire anyone. In fact, he told them, the district was facing a shortfall of about $100,000 and hoping to deal with it through natural attrition.

Jay Meyer, a strong supporter of the FFA and a strong advocate of the Vo-Ag program in the school, made an emotional plea for the board to consider addressing the underlying need of the students. He said that the Vo-Ag program was a success, so much so that too much demand is being placed upon the sole instructor, leading to a quick turnover in personnel in the program because of "burn out." Meyer said that he does not believe the program should be punished because it is working. Others in the audience agreed with Meyer and praised Lunceford's work with the students.

"I think you are losing something really valuable and I don't think anybody realizes what you are losing," said Donna Ralls.

Board member Wayne Stanford made the motion not to accept the letter of resignation from Lunceford.

"We need to look at the budget and see if we can save this program," said Stanford. Stanford resisted a proposal to table the matter, insisting that he wanted to make a motion that would require some action, some discussion with Lunceford and some reconsideration about the program funding.

"If it means taking money from something else to (do this), then we need to look at it," stated Stanford.

After some discussion about the procedure and ramifications of not accepting a resignation, the board voted not to accept Lunceford's resignation. It was agreed that Superintendent Kimzey would contact Lunceford and see if he would consider withdrawing his resignation if conditions changed.

Kimzey said Monday that he had not yet heard from Lunceford, but that Lunceford could still be tenured if he submitted a letter rescinding his resignation. He said that he looked forward to talking to Lunceford but said that one factor is that Lunceford has been feeling overwhelmed. Since the budget won't allow hiring additional help, he said, "What we need to do is make do with what we have and try to make his job more doable, perhaps by condensing the program in some fashion so that it makes less demands on him. But it is a demanding position and I'm not sure we can condense it and keep the quality of the program."

In other rehiring considerations at the end of the meeting, when recommendations for rehiring the high school coaches was under consideration, Trustee Ed Cummings said that he was not satisfied with the girls' basketball team performance over the past few years and thought some changes were needed. Head Coach Cody Omlid immediately asked to have any discussion about his performance in a closed meeting due to privacy concerns. That request was granted and the Board adjourned to a closed session. Following the closed session a motion was made to rehire Cody Omlid as Head Coach for Girls' Basketball for the 2006-2007 school year. There was some public comment both pro and con before the Board voted 6 to 2 to approve rehiring Omlid. Trustees Ed Cummings and Roger Bardsley cast the dissenting votes.

The Board, including returning members Bill Goslin and Wayne Stanford, as well as new members Roger Bardsley and Cathi Cook, also:

• accepted the resignations of elementary education teacher Kay Herron, physical education instructor Katrina Werner, elementary 6th grade instructor Joanne Puccinelli, and high school special ed para Flo Grippo.
• accepted Superintendent Kimzey's recommendation to remove the language allowing anonymous complaints from the Bully/Harassment/Intimidation/Hazing Policy #3226. With that provision deleted, the policy will be read again at the next Board meeting.
• approved the final draft of the Out-of-District Policy
• approved charging $34 for background checks, but allowing the individual to get a copy for his or her own use. TB tests will be charged at $8 to cover costs.
• hired Robert DoBell as High School Vice-Principal for 2006-2007.
• hired Kristen Helmbrecht as an elementary special education instructor.
• approved a first reading adopting a budget amendment in the amount of $48,000 to be taken from the general reserve fund.
• rehired tenured, non-tenured, administration and coaching positions.

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