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Treason and the Big Hole Watershed Committee

[photo at right: hayfields flooded during a drought with the Big Hole River closed to anglilng (August 2006)]

The Big Hole Watershed Committee began in 1995 as a group of diverse stakeholders that wanted to: (1) Address the problem of the Big Hole River being chronically dewatered; (2) Address the problem of the Big Hole River grayling going extinct.

Though it appeared that some progress was being made, the past few years have seen a halt or maybe even regression in reaching these goals.

[photo at left: diversion dam near Maiden Rock; note that the irrigation ditch is in the LOWER left portion of the photo, and the river channel is in the UPPER left portion of the photo.]

What are the causes for this?

1. The watershed committee was not so diverse as we deluded ourselves into thinking it was. Moderate groups such as the Montana Wildlife Federation were not given a place at the table. This made the omission of Other groups, such as the Center for Biological Diversity (which had driven the grayling issue by petitioning for Endangered Species listing) more grievous.

2. The watershed committee claims to speak for critical stakeholders who do not accept the act of ventriloquism. This became graphically evident in the spring of 2003 when prominent upper river basin irrigators mocked the watershed committee's efforts at drought management, stating "You'll get our water when you pay for it;" and "We hope you succeed in getting other irrigators to let water go by their headgate, because we will take every drop of it."

3. The watershed committee is incapable of reining-in these and other irrigators--such as the downriver (from Maiden Rock to Twin Bridges) irrigators that seriously dewatered the river in summer 2006--in some cases with what proved to be illegal diversion dams.

4. The watershed committee regards stakeholders that speak out for their own interests as traitors. Guides and outfitters, conservation groups, and individuals--all commit treason if they refuse to be silenced, if they refuse to let the watershed committee speak on their behalf.

There is hope for the Big Hole Watershed Committee. But the watershed committee must learn to embrace and not silence diverse voices. Consensus and the alliances that support it can be challenged at any time. If the watershed committee continues to suppress or ignore criticism,* the group will simply become irrelevant. The number of dissidents is growing.

* By criticism, I mean actions as well as words. Actions speak louder than words: actions of irrigators who refuse to conserve water in a drought year; actions of irrigators that build illegal diversion dams; actions of irrigators that flood their fields with water while the river is closed to angling.

An Elk-scouting Hike

I picked up AJ Saturday morning and we set out on a hike to scout elk in an eastslope Pintler spot.

There was scattered snow beginning at 6500 feet or so elevation. We spoke briefly with a gang of Kalispell bow hunters who had been camped there a week, but saw very few elk. They were, of course, hunting way way way too low. I did not tell them that.

By the time we drove above 7000 feet, I had to turn the hubs in to climb across the icy spots.
We saw no elk tracks until we neared the 7600 foot elevation where we parked. There was fresh bear sign too. There were no man tracks. ZERO. The elk had been feeding extensively in the small openings and parks at this elevation, but had of course left early in the morning and ascended to their bedding grounds.

Photo: A mouse came to the end of its road, taken by a small hawk.

They were bedded in the whitebark pines at 8000 to 8200 feet in 3 to 4 inches of snow. We smelled them and circled around, intending to come in from above.

Because it was such a gorgeous day, we made a big circle--hiking up to the Continental Divide and eating our lunch [see photo of AJ with RolyTheDog] on the westslope scree. Out of the snowy trees and in the sun it was a pleasant spot. There was no elk sign at this elevation, but there had been a couple of very large mule deer bucks around, and we cut a set of wolf tracks that ran through a low pass.

As we headed back down toward the truck we busted up the elk herd at about 8200 feet. We were walking fast and talking loud but we were in amongst them before we knew it. RolyTheDog had a ball making little chases, and we got a glimpse of a cow and calf. There were tracks of a large bull along with 12 to 15 cows/calves. It was thick cover and the trees and ground were shaking as the herd ran off in several different directions.

Lots of snow coming this morning--looks like we might have an average weather year!

Conservationists: Keepers of the Flame

A friend and retired wildlife biologist told me about a story yesterday of a grad school experience when he was on a team trapping alligators as part of a study of alligator maternal behavior. He described the sinking feeling of getting a 'gator in the net, yelling "Let's get 'im," rushing toward the struggling monster, and then realizing that no one else had budged an inch.
Life is like that. Lots of people want to be on the team and they like to talk about the 'gator research theories. Not many want to get close though.

[photo: George Grant examining his father's walking stick just prior to his 100th birthday party]

On an anthropological level, there are cultural traditions and embedded knowledge such as hunting that will simply vanish unless we guide children down the path.
And that is just the half of it.

On my visit with George Grant yesterday, I brought a VCR/DVD player, hooked it up, and played a video film documentary that Montana FWP made of George twenty or so years ago ("Three Men, Three Rivers"). At a young age and as an avid reader, he learned about the history of once-great trout streams in the eastern U.S. By the 1950s, these streams were polluted by industry, degraded by suburban sprawl, and owned by private interests that forbade public use. He came to realize that things did not have to be that way, and he set out to create a conservation movement in southwest Montana. He did some great things, and his "children" such as Tony Schoonen (public lands access), Jerry Manley (stream access law), and Bob Lienemann (streambed preservation act) all went on to do some great things.

As George points out, we do not catch big trout because we are great anglers and we do not kill the wily wapiti because we are great hunters: we catch trout and we kill wapiti because they are there, and because we have access to the land. Conservation and access do not just happen, and if taken for granted they will be lost. In this sense, I am George's grandchild.

Just as a young hunter must be started out on the path, I think conservationists also need mentoring. It is the fond wish of an inflated ego, but I would like to think that someday I can count as many children and grandchildren as George Grant. The NEXT BIG THING, I believe, is the Public Trust Doctrine as a tool to guarantee minimum stream flows needed to sustain public resources. It is an interesting legal theory, one promoted by legal minds such as Michael Blumm at Lewis & Clark College. The Public Trust Doctrine is to conservation what the takings clause is for private property advocates.

A Hunting Philosophy

I've become a hunting mentor to a young lad or two or recently completed their hunter safetey course, have a strong desire to hunt, but do not have parents or family that hunt. [The photos here are of my daughter Emily.]

A friend shared his thoughts on this issue, and believes one should teach the parent(s) to hunt, and let them take the kid hunting. Somehow, he thought that to take a lad hunting would be to replace the parent. These thoughts helped stimulate me to hone my thoughts about my hunting philosophy.

I understand the idealism about involving the mother or father in hunting as well as the child. I am doing this in once case. Though the dad does not and will not hunt, he is an experienced (sort of) outdoorsman and has the proper equipment. So he will accompany his son and I, at least on easy deer hunts where we stroll the pleasant hills of the Big Hole River and never have to drag a deer more than a mile or so. I'm not sure I could tolerate a non-hunter on the average elk hunt, however.

In thea case of my other apprentice, even an easy deer hunt would simply not be possible for the father. Not only does the father have no interest in hunting and little experience with the outdoors, but the family is very poor, the father works jobs that leave no time for hunting, the father has no outdoor clothing, and there cannot be firearms in the home because the step-mother got drunk and shot up the trailer.

In yet another case (and I've not yet decided if I can take on a third apprentice), there is a single mother who has no outdoor experience or gear, and whose physical health is rather poor.

Taking a neophyte parent who does not have proper gear or the desire to experience nature into the woods on a hunt would be disasterous. Even an easy little hunt like stalking antelope a mile or two or walking around the hills of the lower Big Hole would be far beyond what they could handle. If I hunted from a drive-up tree stand for whitetail does on a riverbottom ranch it might be possible, but in a very real sense that is not hunting--it is just shooting.

Had I not had my grandfather and his friend Bernard Dutka and my uncle's friend Joe Urban as mentors, I might have had little interest in hunting or become a very poor hunter. My father and most men I knew wouldn't make a wart on a hunter's ass. They might take a short walk in the woods if the weather was perfect and the ground was dry, but for the most part they drove the forest roads and parked in likely places, eating sandwhiches and drinking coffee, and hoping a deer might come along. They killed a fair amount of game, but they were not hunters. The antelope "hunters" I encountered Sunday were like this.

I have a friend who is fat and out of shape, and dreams of "real" hunting. Luckily he lives in the Dillon area and has permission to hunt ranches where he does not have to walk much and where game is plentiful & relatively undisturbed. To his credit, he has also worked hard at becoming an excellent shot. He confidently shoots deer and elk 400 yards away--something I cannot do. He does not road hunt, but he also does not actively pursue the beast. He is in no way practicing bad ethics, but he is also the first to admit that he is not much of a hunter.

I embrace a serious fair chase philosophy in search of what I call a "quality hunt." That is a hunt that demands knowledge of terrain and habitat, tracking or covering a lot of ground to find the beast, confidence and ability in shooting (incl. knowing my limitations), staying with the hunt in inclement weather, and carefully caring for and using the meat. All that is not to say that I spurn lucky moments, such as the nice whitetail buck that my young friend Matt shot last year as it trotted past us shortly after we had left the truck. Or the mulie buck I dusted one morning just as Dave parked the truck. I accept these gifts just as I accept the buck shot on the backside of the razor back ridge after walking all day--the buck that has to be taken across the river to the nearest road rather than dragged back over the mountain.

There is, of course, a broad scale or range for the quality hunt. A quality hunt for whitetail does on a river bottom ranch in lovely late September weather is a thing vastly different from a quality hunt for bull elk on the north side benches two miles away and two thousand feet above the nearest road with temperatures below zero and snow up to your knees. To some extent, there is a large subjective element to the definition. But every individual should be aware of alternative elements for the "quality hunt" definition--such as the need to shoot a self bow without sights, the need to pack gear 14 miles in on horseback over rough terrain, the need to track several days over a featureless savannah or tundra, etc. As we come to know alternative commitments to a quality hunt, it keeps us humble. I remind myself that Native Americans of the past and Kalahari peoples even today kill every manner of beast with simple weapons at close range in a landscape that is simply their home. That is a humbling thought when I am snuggled into wool and polarfleece, wearing gore tex boots, and squeezing the trigger on a scope mounted 25-06 aimed at an elk over 200 yards distant.

So this is the hunter's fire that I am trying to pass along to the next generation. It is too late for their parents to learn such things. Even if they had the desire, chances are they would never become good at--in the same way that few adults master a foreign language or higher mathematics. To have such parents along on a hunt would simply ruin the experience with whining about cold feet, tired legs, anxiety of being lost, noisy & jerky movement through cover, etc.

As for parenting, I don't teach it. I'll leave that to the social workers. My view of poor parents is much like my view of poor hunters. They are unlikely to have the motivation to change, and many probably do not even have the requisite ability. Also, it's possible to be a very good parent even if you never take your kid hunting.

Antelope Hunt

Orion, the hunter's constellation now rises about midnight and stands high in the sky before dawn.


I saw a hunting friend drive down the hill very early Sunday morning, while I was out in the yard sipping a cup of coffee, contemplating the stars, and getting motivated to scrape the frost off my truck windshield. Hope his hunt went well. I left soon after and picked up AJ at Rocker c. 5:30 am.

We drove into the antelope hills of the lower Big Hole River and were just getting parked when another truck pulled in and parked a few hundred yards below us. I remembered why it is I don't often hunt the first day of antelope season, started the pickup, drove down and around the low ridge, and moved over to the next little valley.

Just before first shooting light we started up the western hillside to make a circle around an old homestead where Old Charlie lives--much like hunts of past years. It was clear and cool, but with increasing clouds. There were no antelope along the back side of that low ridge, though a buck did cough at us from the next ridge over. He ran off, and shortly after two guys on an ATV took a shot at him but apparently missed. I remembered why it is I don't often hunt the first day of antelope season.

We stayed below the ridge top and continued up the valley. As we came near Old Charlie's place we peeked over the ridge to see a dozen or so mule deer and several fairly large antelope bucks in the dooryard. I learned long ago to avoid shooting those stinky antelope bucks and so we walked over a bit further to carefully glass the field.

In the lower edge of the field -- perhaps 500 yards distant -- was a herd of a dozen or so does and fawns with a buck carrying 8 - 10 inch horns. AJ spotted these without using binoculars--he certainly has a good eye for game. Perhaps 100 yards from this group was a small bachelor herd, including one buck with horns considerably larger than the herd buck. He kept making feinting little charges toward the does, but the dominant buck of the herd -- although smaller -- outran him, headed him off, and faced him down each time. Most of the does grazed with little interest in the sparring match, but occasionally one doe would sprint away, angling toward the bachelor herd. Each time, the dominant buck would outrun her and keep himself between her and the challenger buck. The doe would then return to her group. This was fun to watch, but I thought maybe we could be home early with an antelope.

We backed down the ridge and began a long circle crossing above Old Charlie's place and then proceeding down the fence line between the field and the eastern hillside. By keeping to the fence line and hugging the hill, the roll of the land kept us out of sight of the antelope in the lower field. As we got within a hundred yards or so of where they had been, we could hear some of them running up the coulee to the east, and the air hung heavy with their scent. I crept along the fence to see the largest buck trotting right toward us, just 60 yards or so away, apparently looking for an opening in the fence that he could squeeze under. Most of the larger herd had already taken off, but one doe was paused near the fence, watching the bachelor herd.

I took a rest on a fence post and shot her at a distance well under 100 yards. The main herd quickly disappeared up the coulee. The four bucks in the bachelor herd were confused. They were afraid of us two hunters, but they also wanted to follow the herd. Only when we walked over to the dead doe did they race off the opposite way.

We had barely begun field dressing the doe when we heard vehicles coming. Two trucks drove up from below, including one with the two hunters on the ATV we had seen earlier (they had put the ATV in the truck bed). Another truck drove in from the hills above Old Charlie's place. They all three parked near the gate where the road splits at the old homestead. It is common for antelope hunters to spend the day driving around, and if they hear shots they head toward the action. Lazy bastards can't or won't walk. I remembered why it is I don't often hunt the first day of antelope season

As we finished field dressing the doe and began dragging her toward the road, some of the hunters from the vehicles began shooting. Apparently, the bachelor herd had run up that way and were in the small coulee behind Old Charlie's place. The distance they were shooting was 200 to 250 yards. By the time we got to the road, about ten shots had been fired. We glassed the area, and saw that the larger buck had been wounded. He seemed to be gut-shot by the way he was humped up and one back leg didn't work so well. I left AJ with the doe antelope and jogged down to get my truck. Several more shots were fired. I remembered why it is I don't often hunt the first day of antelope season.

As I returned from the truck, two of the so-called hunters had started across the field by the homestead. The wounded buck went up and over the ridge, and the hunters made no attempt to follow. As we drove away, they walking down the fence line, where two of the other bucks were again trapped in the fence corner. I hoped they would run out of the field if we left the lower end near the road. I remembered why it is I don't often hunt the first day of antelope season.

This morning I butchered the doe, sauteed bits of meat in olive oil and garlic, snacked on these with sips of red wine, and thought about all that had happened yesterday. Though it was a vile experience, it was also a lesson for AJ about poor hunting ethics. As a new hunter, I hope it made an impression that will help him formulate his own hunter's code.

Make your Home Warmer with a Blowjob

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The Environmental Protection Agency's remedy for the Butte Montana superfund site

As we all know, you can’t always get what you want. But with Superfund, no matter how hard we try, we sometimes don’t get what we need, either.

Last week brought big news for Butte and the upper Clark Fork River: the Environmental Protection Agency released the long-awaited Record of Decision for the Butte Priority Soils superfund site. For more than a century, the Anaconda Company used our air, soils, and water as a free garbage dump.

[photo is of Walkerville looking west to the Pintler Wilderness; Walkerville is a small community north of Butte]

This site takes in the neighborhoods of the Butte hill – more than 4,000 residential homes – and Silver Bow Creek runs through it. Whatever happens with this remedy affects the health of thousands of residents, water quality in the major tributary of the upper Clark Fork River, and the economic vitality of a great old Montana city.

The press release just came out just last week, and no one has yet had time to fully digest the thousands of pages in the full decision—including the response to public comments. At this point, we are considering the main outline of the agency’s decision.

As you might expect with an EPA decision involving Arco-British Petroleum and the state of Montana – and engendering more than 1500 public comments – there is good news and bad news.

First, the good news: EPA will accelerate the schedule for testing and cleanup of toxic dust in our homes; and, the agency will require thorough monitoring of surface and ground water from reclaimed areas. The bad news? The notorious Parrot tailings will be left in place, where they can continue to bleed contamination into the ground water; and Arco-British Petroleum gets nearly full credit for all the work it has done to date. Much of that work involved covering up toxic mine waste – you know, cap it and fence it – and did not allow for public comment.

It is difficult to form a solid opinion of the EPA’s decision for Butte, because this remedy is very different from most. The Butte remedy involves a lot of adaptive management—that is, the agency will try things out, measure results, and (we hope) improve the remedy as needed. For example, although the Parrot Tailings will not be removed, there will be a lot of data gathering to try and figure out what the aquifer is doing. There will be a big effort to capture contaminated water for treatment in existing lagoons. If effluent continues to contaminate Silver Bow Creek, the agency will then require a new water treatment facility. Because even the possible new facility would use technology that has failed to remove arsenic at Warm Springs Ponds, this is not especially encouraging. We could well end up with more arsenic in downstream waters than what we have now.

This remedy is essentially the same as what the agency proposed a year ago. Then, it was valued at 39 to 56 million dollars. Now, using a new formula for its calculations, EPA values the remedy at 110 to 157 million dollars. Hmmm…. Talk about new math. I suppose there is psychological comfort in knowing Butte’s value has nearly tripled in the past year.

There is also huge uncertainty in how the state will react. Several state agencies were very critical of the original proposal. Montana even threatened a legal challenge where the remedy is unsupported by substantial evidence. Like the general public comment, EPA dismissed most of what the state had to say. Behind closed doors, there will be some tough wrangling before Montana signs off on a Consent Decree that allows remedy to go forward.

Toxic attic dust is a serious health issue for Butte residents. If Arco-British Petroleum and Butte government will agree to it, then all residential properties will be sampled for arsenic, lead, and mercury. Properties will be cleaned up “as required.” “As required” means that toxic attic dust will be removed—but only if homeowners plan to use the attic for living space, or if obvious problems such as deteriorating ceilings admit attic dust to the living space.

As any dog can tell you, this is not enough.

Montana Tech Professor Holly Peterson and her grad student Stacie Barry just completed a study of Butte dogs as biosamplers. “Trip the Remediation Dog” is of special interest to Butte residents. Trip lived in a contaminated house. Samples of Trip’s fur showed high and hazardous levels of lead and arsenic. Then, Trip’s owners decided to rid the house of that toxic material—primarily through removal of attic dust. Lo and behold, within a few months Trip’s hazard quotient declined to baseline levels.

Let me get an expert opinion about this. What do your say, Roly? - - -

There you have it: if removing toxic attic dust makes life safer for the pet dog, imagine what it can do for human owners and their children.

For more news about the Butte Priority Soils remedy and other Superfund issues, please check out CFRTAC’s website at http://www.clarkforkoptions.org/.

From Butte to Missoula, we deserve a clean, healthy, and accessible Clark Fork River. It’s your river. Wade in, and help make the future.

Say good night, Roly: - - -

Fall Fishing on the Big Hole River

Walking down to Tech this morning, there were a bunch of mulie does and fawns along the trail just north of Kennedy Elementary School. The cool fall weather stimulates all creatures to prepare for winter, and the mulies are seeking out the best forage while they can. I am so thankful for Kriss Douglass and the other local heroes that put an end to ATV traffic on Big Butte.
Yesterday I fished the Big Hole and came home with a sore arm. Usually I fish only a few hours and am content with two or three larger fish, but yesterday I was a glutton. With not another angler's boot track or a boat in sight all day long, it was as if these fish had never seen an artificial fly. It was a very windy day, blowing down canyon which made casting upstream difficult. Usually I adapt to those conditions by pitching the fly downstream with some slack line. For some reason, however, I kept missing the fish that were taking in this manner. And so I sucked it up, increased the line speed, and the combination of 5X tippet and #12 yellow humpy did OK when the gusts were not TOO strong. Sometimes the wind blew hard enough to lift spray from the river's surface and to push me off balance. Still, the warm sun made for a pleasant day.
I fished the swift waters of the canyon, carefully working back and forth across the river so as to hit all the good little pockets amid the boulders.
There were lots of smallish brown trout in the slack water along the edges, but the larger browns and rainbow trout were in pockets and surprisingly fast runs from one to two feet deep. The takes were very delicate, and most times I could not see an actual rise--just a head slurping the fly from slightly beneath the surface. The fish I caught were generally 10 to 15 inches long, but a few nicer ones came to hand. It is delightful and a little unusual (for me) to catch larger fish on dry flies, so I made the most of it--fishing from 9 in the morning until nearly 4 in the afternoon.
RolyTheDog had a great time, swimming back and forth across the swift waters, climbing out on the occasional boulder to bask like a seal in the sun, and trying to inspect every fish I caught. She is very good at staying behind me and swimming only in waters that I've already fished. Rarely does she get so excited while inspecting a fish about to be released that she gets her feet tangled in the line.
Several larger fish turned out from their station into fast water and headed down river. Usually I end up losing such fish even before they run me into the backing, as if they get much slack it is easy for them to shake a barbless hook. Also, a hook wears a bit in its hole, and the longer you play a fish the larger the hole wears and the easier the fish escapes--especially with no barb to hold the hook in place. But no matter, as I was not out to kill a lot of fish.
One of the last fish I caught was a strong rainbow of about 14 inches. It turned from its pocket and raced down the swiftest water toward a hole several hundred feet downstream. I wanted to land this fish, and so (foolishly) tried to move across the swift run to where I might land the fish against the gravelly shore. Alas I slipped on a slick boulder in three feet of water and took a good dunking. Surprisingly, though, when I found my footing the fish was still on; I landed it and killed it for supper.. This made for cold fishing, as the sky had clouded over, the wind continued to blow, and I was soaked. I fished for another half-hour or so, caught and killed one more fish of the same size, and called it a day. Both fish I killed were stuffed with nymphs, including several large, black salmonfly nymphs.
Well, as George Grant liked to say, "We don't catch fish because we are good anglers; we catch fish because they are there!"
Life is good, enjoying these lovely Indian summer days from my home in Butte, Montana.

Big Hole River Diversion Dams

Today, I sat in on the meeting of the Mile High Conservation District Meeting (Butte). Last week, the Beaverhead County Conservation District met in Dillon (I did not attend this meeting, and am relying primarily on notes from Mike Bias). Per Montana law, the Conservation Districts ruled on the alleged violations of the state’s Streambed Preservation Act. We should note that Butte conservationists George Grant and Tony Schoonen (both intimately connected with the founding of the Big Hole Foundation and our local Trout Unlimited chapter) helped create the Streambed Preservation Act in 1975. This law is enforced through local Conservation District committees. To do work in the streambed, an irrigator must first obtain a 310 Permit.

There were five alleged violations of the Streambed Preservation Act. They were made known to the Conservation District by individuals who filed the “Official Complaint Form 274.” The five included one large diversion dam built near the downstream end of Maiden Rock; two near the Meriwether Ranch access bridge above Melrose; one near the turn off to the Twin Bridges road just below Melrose; and one near the Burma Road by the public bridges at the turn-off from Glen to Notchbottom.

These diversion dams were large structures built primarily of gravel pushed up by operating heavy equipment in the river bed. Several included large trees and in some cases the trees were anchored into the bank. In at least one case, the diversion dam was impassable to boats. In all cases, the large dams were intended to divert more water into irrigation ditches.

It is important to note here that the legality of the dams themselves is the point in question. No one is questioning the alleged violators’ water rights, or whether the alleged violators are taking an amount of water exceeding their legal right.

The Conservation Districts ruled that in four of the five complaints, a violation had indeed occurred. When a Conservation District deems that a violation has occurred, it may require the violator to fix the problem and may fine the violator up to $500 for the initial violation, and up to $500 per day for an ongoing violation.

Although the Beaverhead County district agreed that the dam near the Burma Road had been “built too big—too high and wide, and with an added wing dam” not specified in the original 310 Permit, this structure was ruled “no violation” because it could be covered by a maintenance permit previously granted to the irrigator.

The Mile High district found that the Maiden Rock dam was built with an excessive amount of material that very likely violated the 25 cubic yard limit imposed by DEQ. To move more material than this, the irrigator is supposed to apply for a 318 Permit. No such permit was applied for. Despite the apparent violation, it seems that no action will be required of this irrigator—primarily because the dam was not extended in length beyond its historic endpoint. It was not at all clear how or why a violation of the 318 Permit should be overlooked, although as in the other dams cited in the complaints, this one was constructed by “a new contractor unfamiliar with the rules.”

Both Districts agreed that the two dams near the Meriwether Bridge were clear violations. Both dams were constructed by the same irrigator. The primary violations lay in blocking river travel (i.e. in extending a dam clear across the river channel) and in anchoring large trees into the bank to enhance the dam. The violator was notified to reduce the structure in accordance with their 310 Permit. To date, however, only one tree has been removed because the irrigator cannot get to the other one with the equipment that he has. “High water will take care of the other one,” according to the Mile High district. The violator had been asked to reduce the size of their structure well before the 274 Complaints were filed, but refused to do so. But once the complaints were received and the violator was notified by the Conservation Districts, he became contrite and so no fine will be levied.

The Beaverhead district ruled that the irrigator violated their 310 Permit in constructing the dam below Melrose. The permit specified that it was to be a wing dam extending ¼ of the width of the channel, but the dam had been built nearly the full width of the river. Also, the irrigator had illegally installed a tree into the diversion structure. Furthermore, the irrigator’s permit has been expired for 16 years. Because boats could still pass by this diversion, it was not seen as a serious problem. The violator will be ordered to reduce the size of the diversion and to remove the tree. No fine will be levied.

Prominent in both Conservation District meetings was a reprimand by the chair of those who had made the alleged violations a public issue by talking with newspaper reporters and writing editorial pieces. The committee chairs were seriously pissed about this because as a public issue “It makes agriculture look bad.” It seems hard for the agricultural community to fathom why such violations are a public issue. The State of Montana, however, manages the waters and fish as a Public Trust. This Public Trust is of great interest to thousands of anglers, hunters, and other outdoor recreationists. When we see large diversion dams that block travel on the river and harm the streambed and aquatic life, the conservationist public is upset. After all, it is the public’s natural resources that are being damaged.

The Conservation Districts would like aggrieved anglers, outfitters, and conservation groups to find ways to fund improved diversion structure rather than resorting to the hammer of law. It seems that there are several potential sources of funding – including Montana FWP, Big Hole Watershed Committee, and DNRC monies – and it is up to the complainants to help raise the needed funds. The idea is that if irrigators had lots of money to construct efficient diversion structures, then they would not need to resort to “emergency” actions that violate their 310 Permit. Efficient diversion structures include permanent dams, concrete road barriers, and large metal plates. Both the concrete barriers and metal plates must be installed and removed on a seasonal basis.

Two other options are available to anglers, outfitters, and conservation groups that would like to reduce 310 Permit violations that damage public resources.

The first option is to amend the Streambed Preservation Act. When the law was passed, the conservation community had to make many concessions. The Conservation Districts were given wide discretion in interpreting the nature of violations and the penalties for violations. Individual irrigators were given a loophole for “emergency actions” that “safeguard life or property, including growing crops.” A tighter law with less leeway and fewer loopholes would be more protective of the Public Trust. The best strategy here would be to work with a lawyer to draft the language for the amendment, and then to lobby local legislators to carry and support the bill.

The second option is to reinstate DNRC’s decision that the Big Hole River is chronically dewatered. As you will recall, this is the action (along with the pending ESA listing for grayling) that brought the Big Hole Watershed Committee into existence in 1995. Because the watershed committee has not dealt with irrigation problems on the lower and middle river, this situation led to the spasm of 310 Permit violations this year. Several agency personnel I have talked with are fed up with the low flows on the lower Big Hole River, and encourage reviving the “Chronically Dewatered” designation. Among other things, this would force irrigators to install measuring devices on their head gates. As explained to me by a state agency person, the DNRC has prepared for adjudication by calculating how much water irrigators actually need based on their crop acreage. Often times, irrigators take and use far more water than their crops need or can effectively use. In one case, an irrigator with an 8 cfs diversion and a 5 cfs water right reduced his usage to 1.4 cfs. I am having an ongoing conversation with some state agency folks, and can let you know more about this option in a few days.

The next step is up to the George Grant Chapter of Trout Unlimited and the Big Hole Foundation. Some conservation goals require conservationists to lead and not merely be led.