Wednesday, March 9, 2011

HB 309!!

So yesterday the House Bill 309 came up in front of the senate committee. There were hundreds of people there to testify on either the pro-side of the bill or the opposition. In my estimation, the opposition to the bill outnumbered the pros about 15 to 1.

Basically the bill was proposed to "clarify the definition of what a ditch is." On the pro side of the bill, a few land-owners and of few so-called representatives of some organizations nobody has ever heard of testified with a liability perspective and to protect the land owners right to preserve their private property. There were a few testimonies of potential liability issues as one land-owner was asked to help a kayaker pull his kayak out of a suck-hole in a diversion ditch that he could have been killed in. Others testified that more and more recreationists are coming to them asking to fish and hunt their ditches, which they are ok with but the concern is that people will stop asking.

The problem here, is that neither of those issues are even addressed by the bill. Ditches are private property and as the law reads right now, nobody has access to them unless they have permission. And even if they have permission, the State has already granted land-owner immunity from any liability to recreationists on their property as long as their is no gross negligence or malice.

On the other side of the issue, many people are concerned that the way the definition of a "ditch" is defined in the new bill, will open up a lot of naturally occurring channels to interpretation of what a ditch is. By the new definition, any improvement of a channel to divert water for the use of a land-owner would now be considered a ditch. The problem is, there are literally thousands of naturally occurring channels that at some point have been altered in order to preserve continuous flows for land owners to divert water from. Even entire rivers have been 'diverted' by definition in order to preserve water flow for irrigation purposes--most notably and where this entire controversy came from, is the Mitchel Slough on the Bitterroot.

The Mitchel Slough is a historical channel that filled up during high-water and was used to irrigate land in the area. At some point, decades ago, a diversion dam was built to keep water flowing through the area so that land-owners would have water to use throughout the summer. A while back, much of the land was sold to rich guys from out of state--most famously, Hewey Lewis. These guys want the channel now for their own private purposes, which has come up in litigation over the years. Because of the way a ditch is currently defined, those lawsuits by the landowners fell short and access was granted to the public. The way the new definition reads, the Mitchel Slough would now be considered a ditch along with hundreds or even thousands of miles of rivers and streams throughout Montana and the public could, and most likely, would be shut out of many of those areas.

Now obviously, I'm a guide and a sportsman so I have a biased view on this. But honestly, I really didn't know what the big deal was and while listening to some of the proponents testimony I was kind of thinking it made sense. But as I listened more to the facts, i.e. the liability issues, the actual definition of a ditch as currently stated verses the new definition, it's clear to me why so many people are animatedly opposed to this bill and I'm now fully on that side of the fence.

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