High court won't rehear waterway case

By Perry Backus of The Ravalli Republic - 01/06/2009

The Montana Supreme Court will not rehear the Mitchell Slough case.

In an order issued recently, the court turned down two petitions seeking a rehearing on the court's ruling in November that the slough was a natural waterway and therefore subject to state law for streambed permitting and public access.

"It's a done deal now except for the formalities," said Montana Fish, Wildlife and Park's Chief Legal Council Bob Lane.

The 16-mile-long Mitchell Slough has been mired in controversy for years. The channel runs on the east side of the Bitterroot River between Hamilton and Stevensville through private property, including land owned by 1980s rocker Huey Lewis.

The two petitions seeking a rehearing were filed by landowners who argued the Supreme Court overlooked material evidence when it issued its ruling on the slough's status. Landowners argued — and two state district courts earlier agreed — that the slough had been dramatically altered over the years and was no longer a natural stream.

The Supreme Court disagreed and overturned two earlier state district court rulings.

The court denied the petitions for a rehearing on Dec. 31.

To finalize the Supreme Court ruling that the slough is a natural waterway, the decision has to be remitted back to the district court and a new judgment must be entered that conforms with the higher court's ruling.

"It's just a matter of mechanics now," Lane said. "There's still a district court ruling on the books that the slough is not a natural stream. That still has to be changed to conform with the court's latest ruling. There's no real discretion left." Lane said it's not clear which district judge will address the matter.

District Court Judge Ted Mizner of Deer Lodge presided over the original case and made the decision that was eventually overturned. Mizner has since retired.

The process is expected to be remitted "fairly soon," Lane said.

Perry Backus can be reached at 363-3300 or editor@ravallirepublic.com.