The outcome of a complicated argument presented first to the Montana Supreme Court and now before the US Supreme Court will have nationwide consequences for recreation.
A brief legal history of the arguments facing the Supreme Court, taken from both PPL and Montana briefs presented in the Supreme Court case: In 1931, the Montana Legislature enacted the Montana Hydroelectric Resources Act (HRA), which contains the terms of hydropower leases on state-owned lands and compensatory provisions requiring the State to charge rent for the use of state-owned lands for hydropower projects on state land, including, in this case, the beds of the Missouri, Clark Fork, and Madison rivers.
In November 2004, PPL (Pennsylvania Power and Light Corporation) filed suit in Montana state court against the State of Montana seeking a declaration that it owed the state no compensation for the use of the riverbeds underlying its hydroelectric facilities.
Montana sought a declaration that it owned submerged lands beneath petitioner’s projects and that petitioner owed it compensation for use of those lands. The State also sought damages for petitioner’s past uncompensated use.
The state district court granted the State partial summary judgment on the question of ownership and held that the three rivers were navigable at statehood. The Montana Supreme Court upheld the district court 5 to 2.
Concepts of navigability are used to determine whether a state gained title to submerged lands at statehood. Specifically, “Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water,” taken from the Daniel Ball case.
In short, if the rivers in question were navigable at the time of statehood, the state owned them and could charge rent for hydropower projects.
The question before the U.S. Supreme Court: Whether the Montana Supreme Court erred in concluding on summary judgment that riverbeds occupied by petitioner’s hydroelectric facilities are the property of the State of Montana because they were navigable for title purposes at the time Montana became a state.
PPL argues the Supreme Court should reverse the Montana Supreme Court and return the case for continued arguments. Montana argues the state supreme court ruling should stand.
For the specific legal arguments, read or download the PPL brief and Montana’s counterargument on this site. The central argument keys on whether navigability is retained when stretches of the rivers in question are non-navigable due to waterfalls that require portaging.
Setting aside the detailed legal arguments for now, we’re left to consider the consequences of the Supreme Court’s ruling. Should PPL prevail, a cascade of loss begins with some waters determined as non-navigable at statehood, Montana’s loss of ownership of these waters based on non-navigability, and Montana’s loss of control over recreational access to these waters, and quite possibly, many others, since recreational access is premised on state ownership rather than private ownership.
More tightly focused is the question of whether the Madison river is navigable, state-owned and controlled, or not. The Montana district court concluded that the Madison was navigable at statehood, relying in part on modern-day evidence of “considerable recreational use” of the river.
With a Supreme Court reversal of the navigability/ownership argument, even passing the question back to state court for further trial, a cloud looms over our now-famous Stream Access Law and future recreational – and commercial – activities on our nationally-recognized streams.
We will follow this case and report, as will many others whose recreation or livelihood relies on public stream access. Check out Montana’s case and see if you agree. Tough question to answer, tough consequences possible.
As the Chinese proverb has it, “May you live in interesting times.” We’re there, folks.