Thursday, January 6, 2011

Darlington: the Sequel

So I'm eating a little crow, but only a little.
After getting into a bit of an on-stream debate with a landowner on southwest Montana's Darlington Ditch about whether or not I had the right to be there, I decided I'd get my ducks in a row before I sent my cease-and-desist-harassing-anglers manifesto to that ranch.
I got in contact with the marvelous Mike Vaughn, the fisheries biologist in charge of Darlington Ditch, and he came back with a plethora of interesting information.
  • The dike alongside Darlington was built in 1949 by the Army Corps of Engineers – thus the linear/cornered channel that Darlington runs through (where it's not the manufactured S-curves).
  • Darlington has a headgate on the Madison, which is open during irrigation season and closed in non-irrigation season, which would make you think it's an irrigation ditch, and not open to the public. But Darlington has water year round from natural springs/groundwater, which would make you think it's a natural waterway.
  • However, when the dike was built, the Gallatin County Conservation district ruled that Darlington Ditch was not a perennial stream before the channel was created - what Vaughn called “jurisdictional”.
  • According to Vaughn, a map from 1953 shows what it calls Darlington Ditch – a braid of the Madison near Three Forks that flows under the interstate and Frontage Road, and back into the Madison. Not the channel it exists in today.
Therefore, the stream access law does not cover Darlington Ditch. Anglers can fish it on the public stretch, obviously, or on private land with permission obviously, but not on private land without permission. 

That said, Vaughn is apparently going to try to find some old maps of that area from the Gallatin County Historical Society or something to see if it shows a stream where Darlington currently is, which would mean that it was a stream before the dike/channel was built. If he does, he could make a case that it’s not “jurisdictional”, is a perennial stream, and he could work to change the ruling so anglers can have access.

Until then, I am humbled by this finding and admit I was wrong. The gentlemen I spoke with on Darlington (previously known as the "Darlington Bitch") made an odd case though - he said I was not even on Darlington, rather I was on a stream called "Spring Creek". He could have at least had his facts straight - I'd have been more likely to believe him if he told me I was on Darlington Ditch, but it's been ruled "jurisdictional" and non-perennial, so the stream access law does not apply here.
I will also concede that there are signs there that state Darlington Ditch is "closed to angling 500 yards upstream from the northern boundary..." but the signs are cracked and falling off the posts, and since the regulations brochure says no such thing, I figured it was an old regulation and FWP neglected to remove the broken-down signs. I always defer to the current regulations brochure.(3-15-11: That is officially an old regulation. I checked my 2005 regs and it said that is the case, and I checked my 2008 copy, and it was absent. This pdf explains the removal of that regulation: - page 14.)

So, there are some fishable "spring creeks" in Montana that are not covered by the stream access law. Who knew?


Bigerrfish said...

very interesting bit, Had my attention ever since you got busted.
really cool that you researched it and reposted the issue

Josh Bergan said...

Thanks. It's too bad one has to do all this research to find out if one can fish somewhere. Sometimes the stream access law is quite gray.