Stream Access and PPL vs. Montana

Since this has been bouncing around since the PPL Montana LLC v. Montana decision, I thought this might add a bit of clarification. This is a statement by Bruce Farling of Montana TU regarding effects of the Supreme Court Decision.

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“About: Supreme Court decision on PPL v. Montana

A number of people have contacted me about yesterday’s Supreme Court decision in PPL v. Montana, so I thought I’d craft a memo to explain what I think it means. Understand I am not an attorney, but this note has been informed by a number of lawyers I’ve contacted. As many of you know, we were one of the groups that signed onto an amicus brief in support of the State of Montana. Laura, Stan and I tried to persuade TU national to sign on, because the case has national implications. However, national TU’s legal review group declined to have TU national’s name on it. But they approved the Montana and Oregon Councils signing on. So we have a formal interest, too. I will be talking about this a little at the upcoming State Council meeting in Bozeman on March 3.

What the court decided

In a unanimous decision the court decided against the State of Montana in its claim that the beds of the rivers underneath PPL’s dams on the Missouri, Madison and Clark Fork are publicly owned, and therefore PPL owes the State back rent and future rent for occupying state lands with its dams. The State had prevailed in its case in the Montana courts, but PPL appealed to the U.S. Supreme Court. The State had claimed the company owed it around $50 million. The State has long asserted that the beds of these rivers are owned by Montana because they were navigable for commerce purposes at the time of statehood. This is important because at statehood, under the Equal Footing Doctrine (talk to a lawyer for an explanation!), the federal government conveyed to many states the title to the beds of streams that were being navigated for commercial use (such as steamships moving goods, logs being floated to mills, trappers floating rivers with pelts, etc.). Montana, quite reasonably, had long claimed that the full reaches of the Clark Fork, the Madison and the Missouri were used for commerce. However, PPL argued that certain segments of those streams could not be navigated because of falls and cascades. And, this happens to be where they (actually the Montana Power Company) located some of their dams. So to the company, the ownership of the bed in these segments fell to the owner of the adjoining riparian land not the state of Montana. Montana argued, however, that these falls and cascades were merely short interruptions in the continuous use of the river. That is, you float the river until you hit the falls, then you portage around and continue floating along the river. The State argues that there is no discontinuity in the use of the river for commerce just because you have to get out at a spot or two and move your boat around a natural impediment. The Supreme Court disagreed. Further, the Supreme Court rejected that the evidence the State offered for its ownership of the bed of the Madison River — that the current use for commerce (commercial outfitting in boats) demonstrates that similar boats could have, and did, float the river for commercial purposes at the time of statehood.

Near as I understand it, the Supreme Court is essentially saying that without additional evidence, the State of Montana probably does not own the beds of the rivers under at least 8 PPL projects — Thompson Falls, Hebgen, Ennis and the 17-mile stretch of the Missouri where the Great Falls are. However…

Practical implications
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The Supreme Court rejected the State’s arguments, but it also remanded the case back to the Montana courts to shape the actual contours of the decision. For example, though certain segments might not be owned by the State, it is up to Montana to determine the extent of a segment, which could be really small. It also might be that additional evidence might be brought forward to demonstrate within the confines of the Supreme Court decision that indeed the bed of, say, the Madison is owned by the State. One thing that is probable: This decision could result in additional litigation from other landowners claiming that this or that river segment claimed by the State are owned by adjacent riparian owners. But they are going to have to have a pretty good case. One thing that is certain: THIS DECISION DOES NOT AFFECT THE APPLICABILITY OF MONTANA’S STREAM ACCESS LAW. In fact, the Supreme Court at the end of its decision makes oblique references to the Public Trust Doctrine, saying that recreational use established under it (which occurred in part with the establishment of our stream access law) is not meant to be affected by the findings in this case. That’s not to say somebody might not try to distort this decision to challenge stream access, however, they wouldn’t have much of a leg to stand on. Affected, however, is DNRC’s ability to require easements and land-use permits for activities that occur with the low-water mark of rivers it claims the State owns. Sometimes these requirements, when the public is paying attention, lead to less environmental harm when, say, a bridge is proposed over a river or some other activity is proposed within the channel. There might be one silver lining though: Though this decision could eventually lead to DNRC owning less riverbed miles and the federal government owning more. It is our experience that this isn’t necessarily a bad thing when it comes to protecting water quality and fisheries. DNRC still sees its primary fiduciary role as producing revenue from property it owns. It says it must do this because state trust lands, according to the Constitution, must generate revenues for the state school trusts. And thus it does stuff like lease riverbeds and adjoining lands for oil and gas development. Federal agencies on the other hand, don’t have the same assumed constitutional pressures.

In the end, the ultimate effects of this decision are still unknown. But from the TU perspective it shouldn’t result in any radical changes from the current conditions. I cannot speak for the effects on other states, but it looks like this decision was narrow enough that it might not result in huge problems elsewhere. Finally, this outcome didn’t surprise me. After reading the transcript of the oral arguments, and considering the line of questioning from some justices, it became clear that this Supreme Court doesn’t understand the West, its culture and geography, how we were settled and how we have used rivers. Some attorneys tell me the justices also misunderstood some of the case law they cited. But, we have the Supreme Court that we have.”

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Montana Attorney General Steve Bullock also issued a news release with pretty much the same conclusion:

“The U.S. Supreme Court’s decision in PPL Montana LLC v. Montana has no impact to Montana’s stream access law. Montana’s access law says the public can recreate on any natural stream — irrespective of who owns the bed and banks — as long as that stream is capable of supporting recreation and as long as those using the stream do not go above the normal high-water marks where the banks are owned by private interests.”

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So okay, we’re safe? I guess I would say I pretty much agree with these folks, but given the zeal with which the stream access law has been attacked in the past and given the huge amounts of money many of the zealots have, I would be reluctant to put the chances at 100%. I think we will probably see an attempt down the road to use this decision to attack our stream access. These guys do, however, give me hope that the attack will probably fail once again. For now, I think you are safe to slip into your rubber tuxedo and dance in the river. Just check for leaks first, it’s been a long winter. And, remember to stay below the high-water mark.