Summary of a Recent
Judicial Development in
Water Law

District Court Erred in Construing Water Body Protection Acts Narrowly

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Bitterroot River Protective Association v. Bitterroot Conservation District, 198 P.3d 219 (Mont. 2008), the Supreme Court of Montana reversed and remanded the district court's ruling, and held that Mitchell Slough fell within the regulatory provisions of the Natural Streambed and Land Preservation Act ("the Act" or "310 law"). The Bitterroot River Protection Association challenged the Bitterroot Conservation District's decision to classify the Mitchell in a manner that put it outside the protection of the Act. The instant court held that the Mitchell was a "natural, perennial-flowing stream" that fell within the protections of the Act, and it was a "natural water body" capable of recreational use; thus, the Mitchell was subject to the Stream Access Law (SAL).

Background

In 1999, the Bitterroot Conservation District (District) received a letter asking whether 310 permits were required for work within the banks of the Mitchell. Id. at 222. To answer the question, the District needed to determine whether the Mitchell should be classified as a "natural, perennial-flowing stream" as used in the Act. Id. Shortly thereafter, the District initiated the process to make the determination. Id. On January 24, 2001, the association filed a writ of prohibition to stop the District from making the determination on jurisdictional grounds. Id. The district court denied the writ, and the association then sought a writ of prohibition from the instant court. Id. After the second writ was denied, the District resumed its administrative declaratory ruling process, and ultimately held that the Mitchell was not a "natural, perennial-flowing stream"; therefore, it was outside the protection of the Act. Id. In November 2003, the association unsuccessfully sought declaratory relief in response to the district's decision. Id. In addition to the issues involving the 310 permits, the association also sought protection of the slough under SAL. Id. After a five-day bench trial, the district court held that the Mitchell was not subject to public access, so it was outside the protection of SAL. Id. In the instant appeal, the association challenged the district court's decision upholding the District's 310 law determination, and the association was joined by the Montana Department of Fish, Wildlife and Parks in challenging the district court's holding regarding stream access on the Mitchell Slough. Id.

Arguments

The association argued that the process the District employed in rendering its 310 law determination was inadequate. Id. at 225. The District responded that it was not required to follow any specific process or procedure, and it complied with all constitutional mandates by providing a reasonable opportunity to the public to participate in the decision making process. Id.

The association also argued that Mitchell Slough was a "natural, perennial-flowing stream" that should be subject to the Act, and that the District erred in holding otherwise. Id. at 227. In contrast, the district employed that theory that natural, perennial-flowing streams must have flows that have never been diverted, impounded, or appropriated or otherwise manipulated by man. Id. Because man had manipulated the water and its channel, the District argued that the Mitchell was not a "natural, perennial-flowing stream" and, therefore, it was outside of the protections of the Act. Id. The District argued that the word "natural" should only be applied to the flow of the channel and not to the character of the channel. Id. at 231.

On the SAL issue, the association argued that the district court's decision was clearly erroneous because it was not supported by substantial credible evidence. Id. at 232-33. The district court held that the association did not prove by a preponderance of the evidence that the Mitchell was a natural water body. Id.

Analysis and Holdings

To determine whether the Mitchell was a "natural, perennial-flowing stream," the court employed a totality of the circumstances test. Id. at 232. In conducting the test, the court scrutinized the factual record. Id. Upon examining the factual record, the court discovered that although manipulated by man over the years, the Mitchell was acknowledged to flow in a significantly historic, natural channel, parts of which dated back over 100 years. Id. On this issue, the court held that

[t]o allow the volume of water flowing in the Mitchell which is not consumed by appropriative uses to simply cede from the jurisdiction of the law designed to protect the state's waters would be to fail to protect the use of water for any useful or beneficial purpose, and would be an unreasonable depletion of a state resource.
Id.

Upon a consideration of the totality of the circumstances, the court concluded that the Mitchell qualified as a "natural, perennial-flowing stream," subject to the protections of the Act. Id.

Although the Mitchell Slough qualified for protection under the Act, the court said that the question regarding the SAL was a different inquiry and analysis. Id. at 233. To be subject to public recreational use, the court held that the Mitchell must be a natural body of water, capable of recreational use, and not diverted away from a natural water body through a manmade conveyance system-one of the SAL's exceptions. Id. The court focused its SAL inquiry on one issue: Was the slough natural? Id. at 234-35. Ultimately, the instant court held that the district court erred by reading the word "natural" too narrowly and in a manner inconsistent with the purposes of the SAL. Id. The court concluded that the Mitchell was subject to stream access and public recreation as provided by the SAL. Id. at 241.

The case was decided on November 17, 2008.