Montana “Navigable Waters” designation Disputed by the U.S. Supreme Court
Posted in Absolute Horseshit, All that is way fucking wrong, beatdown, Chapped, Did that really just happen?, Down By Law, fuck you you fucking fucks, i am not fucking kidding, Just plain wrong, no, Politics, Ridiculous on February 28th, 2012 by GaperPart of what makes Montana super-badass is that all streams designated as “navigable” in the state are in the public trust, not just the water but the streambed beneath. Additionally, the state has accepted a very broad definition of “navigable”. Due to a recent Supreme court ruling, that designation may now be in jeopardy.
Over the past decade, the State Supreme Court has liberally applied the designation of navigable and repeatedly upheld the public trust law when various wealthy asshats attempted to keep the unwashed masses off “their” rivers. A few years ago some jackass at the capitol saw this as an opportunity to make money.
In 2007, the state of Montana joined a lawsuit to sue PPL Montana, the private corporation that runs and manages the dams in the state, for $41 million in unpaid rent plus interest. Their claim was that the riverbeds are owned by the state, so any commercial operation utilizing that land (the streambeds) should give the state a cut. The rivers involved in this lawsuit are the Missouri, Madison, and Clark Fork. Multiple complicated court cases followed but eventually the State Supreme Court once again upheld their definition of navigability and had no choice but to find for the state. PPL appealed and, last December, the case went before the U.S. Supreme Court. Last week they issued a ruling that threatens the future of the Montana stream access law.
“To be navigable for the purposes of title under the equal-footing doctrine, rivers must be “navigable in fact,” meaning “they are used, or are susceptible of being used . . . as highways for commerce” . . . it is doubtful that the segments in this case would meet that standard . . . Thus the State Supreme Court was wrong to conclude . . . that portages were insufficient to to defeat a navigability finding.”
The U. S. Supreme Court made one important addition to their decision. “Montana’s suggestion that denying the State title to disputed riverbeds will undermine the public trust doctrine–which concerns public access to the waters above those beds for navigation, fishing, and other recreational uses–underscores its misapprehension of the equal-footing and public trust doctrines. Unlike the equal footing doctrine . . . the scope of the public trust over waters within the state’s borders is a matter of state law.” I don’t speak legalese but what I interpret this to mean is that the U.S. supreme court tried to limit its decision to the definition of navigability to commercial issues only, leaving the recreational definition in the care of the state. It appears, however, that their ruling may create the possibility of altering Montana’s stream access laws to be more like those of other states.
For now, our rivers (and the beds below them) remain public but this case creates a very bad precedent. You can bet that many landowners are licking their chops and preparing their legal teams armed with a decision from the highest court in the land. This is all on the Treasure State. Montana chose to press this issue over a paltry $4o million, knowing full well that the outcome might threaten our stream access law and a significant factor in our tourism economy. Shameful.
If you want to read the whole court opinion yourself, here it is:
















