The Bitterroot Protective Association (BRPA) held a press conference on Thursday, July 9 to announce that as a result of its recent victory before the Montana Supreme Court it would re-initiate its 2003 request and ask that three defined portage routes be permanently established along the 16-mile Mitchell Slough.

The conference was led by BRPA officers Ira Holt, Ray Karr and Michael Howell, Region 2 Director of Montana Fish, Wildlife and Parks (FWP) Mack Long, sportsman and publisher Dale Burk and state legislator Gary MacLaren.

At least thirty affected landowners or other interested parties attended the press conference, during which many of the contentious issues involved in the lawsuit were reargued, even though most of the most contentious issues argued back and forth were resolved by the Montana Supreme Court in November 2008.

One positive outcome from the press conference was the stated intention of FWP’s Long to convene a meeting in the near future of the landowners adjacent to Mitchell Slough and other invited stakeholders. The purpose of such a meeting will be to discuss what he described as, “an overall Mitchell Slough access plan.” A number of landowners gave their phone numbers to Long after the meeting.

In a telephone interview a few days after the press conference, Long stated that if he is able to convene a meeting it will cover a large range of issues, including but not limited to, possibly different and more desirable access locations, use of parts of Mitchell Slough for boaters and fishermen and avoidance of some side channels, creating ‘no shoot zones’ for fowl hunters that might endanger residents, as well as other issues that will be identified by those attending the meeting.

At the press conference, Michael Howell pointed out that the BRPA obtained a significant victory for recreational uses of the Mitchell Slough, over the strong, well-funded opposition of the adjacent landowners. Howell pointed out that the Supreme Court opinion held unequivocally that the Mitchell Slough: 1) qualifies as a natural, perennial-flowing stream under the 310 Law, and thus is not “a manmade ditch,” and 2) is subject to Montana’s Stream Access Law, which means that it is open for reasonably related recreational uses.

One large landowner stated that he would attend an FWP-led meeting with the intention of seeking closure on the now 10-year running battle between BRPA and the Mitchell adjacent landowners, while another prominent owner was just as adamant that “no one will get access to my place.”

Another owner accused the Supreme Court of acting for “pure political reasons,” while another voiced his opinion that the real issue is a mischaracterized “class war” between sportsmen and a few “larger, rich” landowners. He stated that most of the adjacent owners were neither. Another owner argued that if water were not diverted at the Tucker Headgate, Mitchell Slough would no longer exist, while BRPA leaders scoffed at this threat.

After the meeting, however, many owners were observed to give their names and phone numbers to Long so that he could convene a meeting in order to work out an amicable resolution for recreational use of the Mitchell.

Howell opened the press conference by pointing out that in 2003, BRPA made two statutory portage applications for Bell Crossing and Victor Crossing, but these applications were stayed in 2004.

BRPA has been advised by its legal counsel that the Supreme Court case is now final. Thus, Howell stated that BRPA will immediately re-initiate the application process for both the previous portage locations, as well as a new portage route at the Tucker Headgate.

Howell characterized the positions of many landowners, before and during the meeting, as living in “a state of denial,” as many fail to accept the reality that the open public access positions advanced by BRPA and FWP were clearly validated in the Supreme Court opinion.

Howell stated, “The positions of some landowners that the Court provided no ‘clear winner’ is baseless and patently untrue.”

However strongly the landowners may feel that the Mitchell is a “ditch” or exempt from Pubic Access laws because of physical changes through diversion, Howell, Ira Holt and Ray Karr, the other BRPA officials in attendance, pointed to clear and unambiguous Supreme Court language that the Bitterroot waters have flowed naturally into the Mitchell, “in a significantly historic, natural channel, parts of which date back over 100 years.”

Howell noted that the Supreme Court found “absurd” the argument that just because some physical changes are made to a stream such as the Bitterroot, that this prevents future public use of Mitchell. The Court noted few if any streams in Montana would be open for recreational uses if this were the law. Most Montana streams have been impacted by diversions or other physical acts that have caused changes from what the flows might have been in a pure state of nature.

Director Mack Long stated that the public is currently entitled to use the Mitchell for recreational purposes. Legal access to the Mitchell can be made at Bell Crossing and Victor Crossing. Users can drop below the bridges to the Mitchell and enter the water or exit at those two locations, because they would complete the acts entirely on public land.

In explaining the problem for recreation users, Long produced a photograph of Bell Crossing, which clearly demonstrates that users entering below the bridge and intending to move northerly will immediately be confronted by two consecutive fences stretched across the Mitchell. (According to Howell, it is presently unknown how many such barriers are erected between Tucker Headgate and where the Slough winds its way back to the Bitterroot River near Stevensville.)

Long emphasized that users have a right to use the waters, but that they must remain at or below the “ordinary high water mark.” If not, a user will be trespassing on private property and will be subject to citation and appearance in court.

Long admitted that particularly on the Mitchell, the public user may find it difficult to locate the “ordinary high water mark,” as even in high water years the Mitchell Slough channel remains in a fairly stable location, unlike the more free-flowing Bitterroot River.

Long added that it is the responsibility of each user to stay within the legal boundary. The difficulty for users will be to distinguish between the “ordinary high water mark” and the “floodplain.” This is defined as the area that may receive water from time to time but only during occasional flood events.

Under current flow conditions and if in doubt, Long cautioned users to “stay in the water.”

Long pointed out that when a user is faced with a manmade barrier that prevents further access along the Mitchell, the user has the right to portage around the manmade barrier, but only “in the least intrusive manner possible, avoiding damage to the landowner's land and violation of his rights.” (MCA 23-2-311(1))

Under the Stream Access Law, each user is seemingly able to self-define what portage route to take. From a sensible management standpoint and the protection of both the sportsman and landowner, the law provides an administrative process to establish a permanent route. Once a portage route is established, “the public shall use the portage route as the exclusive means to portage around or over the barrier.” (MCA 23-2-311(3j))

After the Portage Applications are resuscitated, the Ravalli County Commissioners will have 45 days to meet with the landowners, to inspect the existing barriers on the Mitchell and to determine the most reasonable portage routes.

If the affected landowners or recreation user group(s) disagree with the Commissioners’ determination, the process requires referral to a three-member arbitration panel, consisting of an arbitrator chosen by the landowners and one by the recreation users. The third member will be chosen by the first two arbitrators. The results of the arbitration panel are binding on the parties unless appealed to the District Court. It will be possible for any party to appeal the arbitral ruling to the District Court.

Election info corrected

Due to incorrect information provided by the Clerk and Recorder’s Office and published in last week’s Bitterroot Star, the following important corrections must be made:

Write-in candidates may submit declarations of intent to run in the upcoming municipal elections until August 20, 2009.

In Stevensville, Robin Holcomb is running for the Ward 1 seat on the Town Council. The Ward 1 unexpired term, and the Ward 2 seat, are both open.

Grasshopper population on the upswing

By Michael Howell

If it seems like there are a lot more grasshoppers around this year than usual, it’s probably because there are.

State entomologist Ian Foley said that Ravalli County was in a “hot zone” this year. He said that it was not a blanket infestation, however. He said the high populations are spotty with several “hot spots.”

“It’s going to be a very bad year,” he said.

According to experts at the state and federal level, the grasshopper population fluctuates cyclically, rising and falling over the years depending on climate and weather conditions to a large degree.

Foley said that we are experiencing a peak in population that happens every several years. A statewide emergency was declared in the early 1980s.

“Drought conditions favor grasshoppers and Montana has been experiencing drought conditions for at least the last eight years,” said Joe Morenz, entomologist and Domestic Program Director for the US Department of Agriculture (USDA). He said that the grasshopper is a native insect that is susceptible to a fungus that also grows naturally under cold and wet conditions. The fungus can kill the grasshopper. Thus, the drier the conditions, the better the grasshopper’s chance of survival.

Morenz said that the USDA monitors the grasshopper population in several states including Montana. The population surveys are made between mid-July and mid-August. One survey is conducted in every township in the state. A map with density numbers is produced and used to predict future grasshopper populations.

There are about 100 different species of grasshopper in Montana. According to Foley, many of them are considered beneficial. Around ten to fifteen species are considered to be rangeland pests. And 6 to 10 species are considered to be cropland pests. But two of the species can reap disastrous effects: the clear wing grasshopper and the migratory grasshopper.

Morenz said that the clear wing grasshopper eats mainly grass, and eats it to the ground. He said that it nests in concentrated groups in a localized area making it vulnerable to control by pesticides in the early egg stages if the hatching grounds can be located. The migratory grasshopper eats grasses and forbs. It lays its eggs in the hillsides and then migrates down to the lower ranch and croplands, making them more difficult to control.

Foley said that one way to reduce grasshopper population in an area is to use naturally occurring fungus or bacteria. These products are available commercially.

Nancy Kares, employee at Cottage Garden Greenhouse near Stevensville, said the business was sold out of its organic biological treatment for combating grasshoppers. The fine dust is applied one pound to the acre or 5 teaspoons per 100 square feet. She said it is not harmful to mammals or domestic animals. New supplies ordered on Monday were expected to arrive by Thursday.

Chemical treatments are also used.

Foley said that the state provides a lot of information to the public but does not do much on the ground about grasshoppers.

The USDA does have a block management program where it will participate in spraying chemicals to kill grasshoppers if it can gain the cooperation of landowners within a minimum of 10,000-acre blocks.

Most of this treatment is a Reduced Area Agent Treatment (RAAT) in which the concentration of the pesticide (Dimilin) is reduced and the treatment area is broken up into treated and untreated spaces.

This treatment, according to Morenz, is 80 to 90 percent effective when applied in early spring in the grasshopper’s molting stage.

Once the grasshoppers reach adulthood, control is more difficult and only a more powerful pesticide such as Carbaryl will work on adults and even then the populations may already be too great to be reduced much.

Morenz said that another chemical like Malathion might be more effective but it is never used because “there is no residual, everything is killed.”

The agency also practices “border protection” where grasshoppers are moving off federally owned land onto private land. The agency may treat a one-half to one-mile buffer zone on federal land in those areas with either RAATs or with “full coverage.”

Morenz said that the amount of land treated under the programs depends totally on the funding.

Foley said that the commercial pesticide Furidan, used on alfalfa and small grains, was cancelled by the Environmental Protection Agency in March due to toxicity to bees. A few new commercial agricultural use chemicals, Mustang and Warrior, are being used in place of Furidan. People may still use any stock of the chemical on hand but may not purchase new supplies for application.

Morenz said that local beekeepers are always contacted when a chemical application to combat grasshoppers is taking place in their area. He said they may choose to not let their bees out or even choose to move the hives.

[Editor’s Note: Employees at the USDA have been given strict instructions not to talk to the press. Morenz was not able to talk to the Bitterroot Star about grasshoppers until after his supervisor had sought and received clearance to speak to the press on the subject by the agency’s Information Officer.]

Neville Log Homes seeks stimulus funds

By Michael Howell

The owners of Neville Log Homes, a log home company located near Victor, are scheduled to ask the Board of County Commissioners for its support in the company’s application for stimulus funds earmarked for aiding the distressed wood products industry. The meeting is set for Thursday, July 16 at 2 p.m. in the commissioners meeting room at the County Administration Building located on 4th Street in Hamilton.

Mark Neville said that his family first started making log homes in 1965. But it was in 1978 that his father, mother and brother and himself started the current company and they have been in business ever since.

Neville said that the company has employed from 80 to 120 employees over the years, but with the latest economic downturn the number of employees has been reduced to 10.

“Our workers are like our family,” said Neville. “Now it’s just terrible, it’s such a bad feeling.” He said that many of the workers who have been laid off have not been able to find work and keep calling, wondering if he might be hiring again.

Neville said that he and his family are doing everything they can to put people back to work. They are selling off assets as well as seeking $1 million in stimulus funds to implement their plan.

The company is working with Big Sky Home Logs in Darby trying to bring in local timber and is having some success in getting logs from around Anaconda and Phillipsburg.

“It is somewhat working,” said Neville. “There is a lot of bug kill out there. Maybe it’s nature’s way of saying ‘we need to get things going here’.”

“We’ve been around for a long time,” said Neville of his family business. “We’d like to stay around.”

Commissioners to make decision on airport improvements

By Michael Howell

The Ravalli County Commissioners have scheduled a meeting on Monday, July 20 at 10 a.m. at the Commissioners’ office to discuss and possibly make a decision concerning the four options being considered for improvements at the Ravalli County Airport.

The Federal Aviation Administration (FAA) has mandated some sort of improvements at the airport to address safety violations, including a runway too close to the taxiway and hangars impinging on the taxiway space.

The options being considered range from doing nothing to moving the runway to the east various amounts and moving it north 600 feet and lengthening it 1,000 feet. The Airport Board and other supporters of airport expansion argue that the improvements should address projected growth as well as safety issues and they endorse option 4, the largest expansion. It involves constructing a new 5,200-foot runway about 400 feet east of the present 4,200-foot runway. The existing runway would become a taxiway and be extended an additional 400 feet to the north. They argue that the airport must grow to accommodate future growth in use and that the largest separation of runway and taxiway and the longest runway is the safest option as well.

Opponents of runway extension argue that only the safety violations need to be addressed. They claim there is no need for expansion or lengthening of the runway. They endorse a modified version of option 2 with no runway lengthening. They claim that this option would cost only $4 million compared to the $20 estimated cost of option 4.

The commissioners have mentioned coming to some sort of consensus among themselves to opt for a modified option 3. This option would involve moving the runway to the east and north but not extending it in length.

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