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  • Thursday, January 08, 2009

    BAD NEWS // GOOD NEWS

    The Bad News - Midnight Regulations
    The Good News - Mitchell Slough

    .. If you're planning an inauguration party or an inauguration ball please plan how to address the raft of midnight regulation that the Bush Administration has propagated. Just click on over to ProPublica to follow along the yellow brick road.
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    .. The Big Sky Business Journal has weighed in on the Mitchell Slough Case. The sanctity of personal property is their saw. The article is a rehash of one in New West from last November.
    .. The Montana Supreme Court has decided not to rehear the case and turned down two petitions to that effect, according to a piece in Ravalli Republic (via Trout Underground.)
    .. The case stems from a land consolidation action in 1979. This produced an 'inholding' of a bit of water that had been fished and used for irrigation for decades.
    .. It's all over but the final ruling of the lower court. The case has been returned to the district court for a final ruling to conform with the Supreme Court's ruling.
    .. The core argument about "man-made" seems settled, for the moment. There are other concerns, however, that will certainly be addressed. For some insight into the upcoming legal landscape on this matter check out last month's note by Cathy Gellis'.
    Money Quote
    So after rejecting the lower courts' interpretation of Montana law regarding the naturalness of streams, the Court then considered on its own (rather than remanding to the lower court for consideration) whether the facts surrounding the history and character of Mitchell Slough warranted a finding that it was itself a natural, flowing stream. Ultimately, and perhaps at this point unsurprisingly, the Court found that it was. It was then left to balance the rights of property owners (something protected by the Montana Constitution) with the rights of the public (also constitutionally protected) in deciding whether the public would be entitled access to the slough. But those issues had largely been dealt with in an earlier, unconnected case, Galt v. State, which had struck down some provisions of the SAL but otherwise left the law intact to the extent that it limited public access to natural waterways in their waters themselves and their banks up to their ordinary high-water marks. Unfettered public access to private property therefore remains just as prohibited as it ever was. But no longer are the Mitchell Slough fish.

    .. We suspect that there will be more, and similar cases in the future. As moneyed interests continue to 'discover' Montana, traditional lifestyles and practices will continue to be challenged. Some for the good - some for the bad.
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