In a unanimous decision, the U.S. Supreme Court found that Montana does not own portions of riverbeds where PPL-Montana has dams. Because sections of the Missouri required portage, continuous commerce was interrupted and “because commerce could not have occurred on segments nonnavigable at the time of statehood, there is no reason to deem those segments owned by the State under the equal-footing doctrine,” argued Justice Kennedy. “[T]his Court now concludes, contrary to the Montana Supreme Court’s decision, that the 17-mile Great Falls reach, at least from the head of the first waterfall to the foot of the last, is not navigable for purposes of riverbed title under the equal-footing doctrine.”
So, what about Montana’s Stream Access Law (SAL)? According to the syllabus of the opinion, “The Montana Supreme Court further erred as a matter of law in relying on evidence of present-day, primarily recreational use of the Madison River. Navigability must be assessed as of the time of statehood, and it concerns a river’s usefulness for “ ‘trade and travel.’ ” Utah, 283 U. S., at 75–76. River segments are navigable if they “ ‘[were]’ ” used and if they “ ‘[were] susceptible of being used’ ” as highways of commerce at the time of statehood. Id., at 76. Evidence of recreational use and post statehood evidence may bear on susceptibility of commercial use at the time of statehood. See id., at 82–83. In order for present-day use to have a bearing on navigability at statehood, (1) the watercraft must be meaningfully similar to those in customary use for trade and travel at the time of statehood, and the river’s post statehood condition may not be materially different from its physical condition at statehood. The State Supreme Court offered no indication that it made these necessary findings. Because this analysis is sufficient to require reversal here, the Court declines to decide whether the State Supreme Court also erred as to the burden of proof regarding navigability.
With the Montana State Supreme Court’s determination of navigability so far intact, it appears that the SAL is also intact. Future legal wranglings may reveal a different story.