In his 13-page ruling, District Judge Ted Mizner wrote that the Bitterroot Conservation District had sufficient evidence and followed the law when it determined that the slough, which courses through private farmland east of the Bitterroot River, is not a natural, perennially flowing stream under Montana's Natural Stream and Land Preservation Act.
That act, also known as the 310 law, regulates work done in streambeds around the state.
The suit challenged the conservation district's October 2003 ruling that the Mitchell wasn't a stream, but also claimed the public should have access to the waterway. Mizner's ruling Thursday only concerns claims that the conservation district didn't allow due process in making its decision and was arbitrary and capricious in its ruling.
Mizner disagreed, siding with the conservation district. He said the district followed appropriate public participation laws in its decision-making process. That left him to determine whether the district's decision was based on sufficient evidence and without error of law.
The Bitterroot River Protective Association had alleged that the conservation district failed to use an FWP expert in its process, didn't allow cross-examination of some witnesses and used a report that previously had been withdrawn from evidence.
Mizner said it didn't matter that an FWP expert wasn't used because the case wasn't about a specific project under the 310 law, which requires use of such an expert. The report, the judge said, had in fact been withdrawn, but there was plenty of other evidence supporting the conservation district's decision, so using it was a harmless error.
Because of that harmless error, it didn't matter that the protective association wasn't allowed to cross-examine the report's author, the judge said.
The judge's ruling was carefully worded and doesn't reach a personal conclusion about Mitchell Slough's viability as a perennial stream. Instead, he focused on whether the conservation district had substantial and sufficient evidence to make the decision it made.
In doing so, however, Mizner waded gingerly into the legal waters that will be defined by his decision in the public access part of the case.
For instance: “Water diverted into the Mitchell is unnatural, appropriated water and must be excluded when determining whether the Mitchell is a natural, perennially flowing stream,” Mizner wrote.
Later, the judge wrote: “The hydrology, slope comparisons and channel geometry calculations received into evidence also support the conclusion that the Mitchell would not be a natural perennial-flowing stream absent the diverted water and return flows.”
Mizner agreed that parts of the Mitchell still flow through an original channel that represented a splinter from the main river, but said man-made changes have altered much of the slough's course, as has the river's natural migration.
“There is evidence in the record that shows that as a result of these natural processes, man-made alterations such as headgates, lifts, drops as well as channel excavations and renovations have been necessary to lift water from the Bitterroot River into the Mitchell for irrigation purposes,” the judge wrote.
Mizner said the court would not “substitute its judgment for the judgment of the BCD” on the issue of whether the slough is a stream or ditch. Instead, Mizner said the conservation district was the appropriate party to make the decision, and made the decision with reasonable evidence and in accord with state law.
Jack Tuholske, an attorney for the Bitterroot River Protective Association, voiced disappointment in the judge's ruling, but said he hadn't yet had a chance to study the full ruling.
“The judge clearly didn't give credence to our arguments,” said Tuholske, who said the decision will “almost certainly” be appealed to the Montana Supreme Court.
Reporter Michael Moore can be reached at 523-5252 or by e-mail at mmoore@missoulian.com
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