Bitterroot River Prot. v. Bitterroot Cons.

• Decision Date: 17 November 2008
• Docket Number: No. DA 06-0520.,DA 06-0520.
• Citation: 198 P.3d 219,346 Mont. 508,2008 MT 377
• Court: Montana Supreme Court
• Parties: BITTERROOT RIVER PROTECTIVE ASSOCIATION, INC., Plaintiff and Appellant, Montana Department of Fish, Wildlife and Parks, Involuntary Plaintiff and Appellant, v. BITTERROOT CONSERVATION DISTRICT, a political subdivision of the State of Montana, Defendant and Appellee, Walter R. Babcock, Bitterroot Springs Ranch, Tucker Crossing Ranch, and Valley Springs Ranch, Intervenors-Third Party Plaintiffs and Appellees, Marnell Carrao Associates, Inc., Intervenor-Third Party Plaintiff and Appellee, John & Kathy Lewis, Millie & Casey Dieffer, Edith L. & Skip Wark, Edwin C. & Judith Hebner, Susan A. & Larry Levenstein, Michael & Paulette Spaulding, Evelyn L. Locke, David J. Odell, Greg & Nancy Trangmoe, John & Patricia Cook, John & Elizabeth Fox, Etna Ditch Company, Webfoot Ditch Company, and Union Ditch Company, Intervenors and Appellees, Montana Farm Bureau Federation, Intervenor and Appellee, v. Ravalli County Commissioners, Third Party Defendant and Appellee.

198 P.3d 219

2008 MT 377

346 Mont. 508

BITTERROOT RIVER PROTECTIVE ASSOCIATION, INC., Plaintiff and Appellant, Montana Department of Fish, Wildlife and Parks, Involuntary Plaintiff and Appellant, v. BITTERROOT CONSERVATION DISTRICT, a political subdivision of the State of Montana, Defendant and Appellee, Walter R. Babcock, Bitterroot Springs Ranch, Tucker Crossing Ranch, and Valley Springs Ranch, Intervenors-Third Party Plaintiffs and Appellees, Marnell Carrao Associates, Inc., Intervenor-Third Party Plaintiff and Appellee, John & Kathy Lewis, Millie & Casey Dieffer, Edith L. & Skip Wark, Edwin C. & Judith Hebner, Susan A. & Larry Levenstein, Michael & Paulette Spaulding, Evelyn L. Locke, David J. Odell, Greg & Nancy Trangmoe, John & Patricia Cook, John & Elizabeth Fox, Etna Ditch Company, Webfoot Ditch Company, and Union Ditch Company, Intervenors and Appellees, Montana Farm Bureau Federation, Intervenor and Appellee, v. Ravalli County Commissioners, Third Party Defendant and Appellee.

No. DA 06-0520.

Supreme Court of Montana.

Argued and Submitted October 10, 2007.

Decided November 17, 2008.

Rehearing Denied December 31, 2008.

For Appellant: Robert N. Lane (argued); Department of Fish, Wildlife and Parks; Helena, Montana (State), Jack R. Tuholske (argued), Sarah K. McMillan (argued); Tuholske Law Office, P.C.; Missoula Montana (Bitterroot River Protective Association, Inc.).

For Appellees: John E. Bloomquist; Doney, Crowley, Bloomquist & Uda, P.C.; Helena, Montana (Intervenors Babcock, et al. and Lewis, et al. and Montana Farm Bureau Federation), George H. Corn, Ravalli County Attorney; Hamilton, Montana (Ravalli County Commissioners), Donald D. MacIntyre (argued), Attorney at Law; Helena, Montana; (Bitterroot Conservation District), John S. Warren (argued); Davis, Warren & Hritsco; Dillon, Montana; Ronald F. Waterman (argued); Gough, Shanahan, Johnson & Waterman; Helena, Montana (Intervenors Babcock, et al. and Lewis, et al.).

For Amici Curiae: Matthew Clifford, Attorney at Law; Missoula, Montana (Trout Unlimited), Elizabeth A. Brennan, Attorney at Law; Missoula, Montana (Sportsmen's Groups) Page Dringman; Dringman & Redmon, P.C.; Big Timber, Montana (Stockgrowers, Water Resources).

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Appellant Bitterroot River Protective Association ("BRPA") appeals the January 12, 2006 Opinion and Order of the Twenty-first Judicial District Court, Ravalli County, affirming the determination of the Board of Supervisors of the Bitterroot Conservation District ("BCD" or "Board") that the Mitchell Slough, a body of water in the Bitterroot Valley, is not a "natural, perennial-flowing stream" under the Natural Streambed and Land Preservation Act of 1975, commonly known as the "310 Law" after its original legislative designation as Senate Bill 310. The BRPA, along with the Montana Department of Fish, Wildlife and Parks ("FWP"), also appeals the District Court's May 10, 2006 Opinion and Order holding that the Mitchell Slough is not subject to Montana's statutes governing stream access for public recreational use, referred to by the District Court and commonly as the "Stream Access Law" or "SAL." We affirm in part and reverse in part.

¶ 2 As the above introduction notes, this appeal comprises two cases, the first applying the 310 Law and the second applying the SAL, to the Mitchell Slough. We address the following dispositive issues in these cases:

¶ 3 I. The 310 Law case:

A. Did the District Court err in upholding the process used by the BCD in determining the Mitchell Slough's status under the 310 Law?

B. Did the District Court err by upholding the BCD's declaratory ruling that the Mitchell Slough is not subject to the 310 Law?

¶ 4 II. The Stream Access Law case:

A. Did the District Court err by adopting verbatim Appellee's Walter E. Babcock, et al. and the Montana Farm Bureau Federation's proposed findings of fact?

B. Did the District Court err by requiring Appellants to prove by a "clear preponderance" that the Mitchell Slough is a natural water body, and in its application of that burden of proof?

C. Did the District Court err by concluding the Mitchell Slough is not a "natural water body" for purposes of the SAL, and therefore not subject to public recreational access?

PROCEDURAL BACKGROUND

¶ 5 In 1999, the BCD received a letter inquiring whether 310 Law permits were required for work done within the bed and banks of the Mitchell. The answer to this question necessitated a determination of whether the Mitchell was a "natural, perennial-flowing stream" under the 310 Law. The BCD unsuccessfully sought the intervention of the Department of Natural Resources and Conservation, the Department of Environmental Quality, or FWP to make this determination. Following these "three strikes," the BCD initiated its own process, publishing notices related thereto in the Ravalli Republic in December of 2000 and January of 2001.

¶ 6 On January 24, 2001, the BRPA petitioned the District Court for an alternate writ of prohibition to stop the BCD from determining whether the Mitchell Slough was subject to the 310 Law, asserting that the BCD did not have jurisdiction to do so. The District Court denied the BRPA's petition for writ, and thereafter the BRPA sought a writ of prohibition from this Court. We denied that request in Bitterroot River Protection Association v. Bitterroot Conservation District, 2002 MT 66, 309 Mont. 207, 45 P.3d 24 (hereinafter "BRPA I"). The BCD then continued its administrative declaratory ruling process, leading to the determination that the Mitchell is not a "natural perennial-flowing stream" and thus not subject to the 310 Law.

¶ 7 In November 2003, the BRPA sought declaratory relief and judicial review of the BCD's decision in the Twenty First Judicial District Court, Ravalli County, Hon. Ted L. Mizner, presiding. In its First Amended Complaint, the BRPA alleged four counts. Count I challenged the process employed by the BCD, Count II challenged the BCD's decision on the evidence and as an abuse of discretion, and Count III alleged that the BCD's 310 Law decision violated the Public Trust Doctrine. Count III was dismissed prior to trial and is not at issue on appeal. Based upon the administrative record and the parties' motions for summary judgment, the District Court entered an order on Counts I and II on January 12, 2006, affirming the BCD's 310 Law determination.

¶ 8 Count IV claimed that the waters of the Mitchell were open to recreational access under the SAL. A five-day bench trial was conducted in July 2005 on the stream access issue, and on May 10, 2006, the District Court filed an order holding that the Mitchell Slough was not subject to public access.

¶ 9 The posture of the parties and the issues in which they are participants are complex. The BCD is a party to the 310 Law issue only, by virtue of the appeal of its administrative decision. A group of individuals and ranch owners along the Mitchell Slough, Walter R. Babcock, Bitterroot Springs Ranch, John and Kathy Lewis, et al., intervened in the action, cross-claiming for a declaration that the Mitchell was not subject to the SAL. Landowner Marnell Corrao Associates, Inc., likewise intervened, contesting the status of the segment of the Mitchell passing through its property. The three primary irrigations companies, Etna Ditch, Webfoot Ditch and Union Ditch, and the Montana Farm Bureau likewise intervened. The Intervenors, along with the aforementioned landowners, about 25 in total, will be collectively referred to herein as the "Landowners." Landowners supported the decision of the BCD. The BRPA moved for joinder of FWP, who was a party in the proceeding before the BCD but did not appeal, as an "involuntary plaintiff" pursuant to M.R. Civ. P. 19(a). Given its failure to appeal from the BCD's decision, joinder of FWP was denied for the 310 Law case, but was granted for the SAL case. Certain of the Landowners filed a third-party complaint against Ravalli County alleging that the Mitchell Slough was not under the jurisdiction of the SAL, seeking to enjoin issuance of further portage permits on the Mitchell. After the parties stipulated to a stay of the County's intended portage hearings, it does not appear that the County further participated in the matter. Before this Court, Montana Trout Unlimited ("MTU") has filed an amicus brief supporting the BRPA's position on the 310 Law issue. Thirteen outdoor recreation organizations (collectively "Sportsmen's Groups") have filed a joint amicus brief supporting Appellants' positions on the stream access issue. Four stockgrower and resource organizations (collectively "Stockgrowers") have filed an amicus brief supporting Appellees' position on the stream access issue.

¶ 10 The BRPA appealed the District Court's decision upholding the BCD's 310 Law determination. The BRPA and FWP appeal the District Court's decision regarding stream access on the Mitchell Slough.

FACTUAL BACKGROUND

¶ 11 Two factual records were originally developed, one before the BCD for the 310 Law case, and the other before the District Court in the trial of the SAL case. The factual recitation here is drawn generally from both records, and more specific facts are referenced in the respective discussions under each case.

¶ 12 The Mitchell Slough is located in Ravalli County, Montana, east of the Bitterroot River between Hamilton and Stevensville. Tucker Headgate directs water from the East Fork of the Bitterroot River into the Mitchell. The water travels through and across private property in a north/northeasterly direction, covering a linear distance of approximately ten miles before rejoining the Bitterroot River. The Mitchell Slough itself meanders along a pathway approximately 16 miles in length. The Mitchell splits into its own east and west channels, which both flow northerly in a parallel fashion and empty into the Bitterroot River. Ditch companies and private...