The last time the US Supreme Court took on a case where the primary issue was determining river navigability for title purposes under the equal footing doctrine, the country was mired in economic depression, car manufacturers were going out of business, and drought was consuming the west. No, it wasn’t 2010. The year was 1931, when the Court decided United States v. Utah, 283 U.S. 64 (1931).
In Utah, the Court affirmed what was even then a long-held principle (first outlined in The Daniel Ball, 77 U.S. (10 Wall.) 557 (1870)): states admitted to the Union after adoption of the US Constitution are considered to hold title to the riverbeds if those rivers were navigable at the time of statehood just as the original states inherited that title upon achieving independence from Great Britain. The Utah case turned on the issue of how to determine navigability for title along certain segments of three rivers in Utah.
However, since that time, a number of decisions on tangential issues have muddied the law. The current US Supreme Court therefore took up and decided PPL Montana v. Montana on February 22, 2012, in an attempt to clarify the Court’s long-held and loosely-followed precedent on this critical issue. At issue in PPL Montana was ownership of the riverbeds along three rivers in Montana: the Upper Missouri, the Madison, and the Clark Fork, where PPL Montana had long-standing hydroelectric projects. The State of Montana and beneficiaries of Montana’s state trust lands sued PPL Montana, LLC for compensation for use of the riverbeds. The legal test of determining whether or not a river was navigable focuses on whether the river was navigable-in-fact at the time of statehood. This test was first described in The Daniel Ball as follows:
“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.”12
Following this principle, the trial court found that the three rivers were navigable and therefore owned by Montana, awarding it US$41 million on summary judgment. The Montana Supreme Court affirmed, discarding historic evidence from various sources (including the Lewis & Clark Expedition), that portions of the Upper Missouri were impossible to navigate. The Montana Supreme Court reasoned that waterfalls and other obstructions on the three rivers were mere insignificant obstacles to free passage.
In a unanimous 9-0 decision, the US Supreme Court reversed. The Court admonished the Montana Supreme Court for failing to follow the segment-by-segment approach to determining navigability that had been described in Utah. The Court disagreed with the reasoning that short interruptions are insignificant, finding that the necessity for portages is almost always sufficient to find that a river segment is non-navigable.
The Court also disagreed with the Montana Supreme Court’s reliance on evidence of current recreational use of the rivers by modern watercraft. The Court noted that to use such evidence in support of navigability-for-title, the party must show that (1) the watercraft is “meaningfully” the same as those used at statehood for trade and travel, and (2) that the current condition of the river is “not materially different” from its condition at statehood.
Finally, the Court disregarded Montana’s suggestion that denying title to the riverbeds would undermine the public trust doctrine. The Court reasoned that the equal footing doctrine is a federal, constitutional issue, while “the contours of public trust do not depend upon the Constitution.”
PPL Montana is an important case for property owners and those involved in activity along rivers and streams, especially in the Western US. As many states continue to struggle with determining title to the beds and banks of their rivers and streams, the PPL Montana decision could ultimately affect ownership to millions of acres of public and private land throughout the country, impacting hydroelectric projects, hard rock mining, pipeline siting decisions, and other industrial activities that utilize the country’s waterways.
12 The Daniel Ball at 563.
