The Pew Charitable Trusts

The outcome of a land rights dispute between the State of Montana and an electric utility company argued Wednesday (December 7) in the U.S. Supreme Court could change the way states manage their rivers, state attorneys say.  

In PPL Montana, LLC v. Montana , a case that has sent both litigants poring over faded writings and newspaper clippings dating back to Lewis and Clark's exploits across the American West, the question before the Supreme Court is who owns lands beneath three Montana rivers — the Missouri, Clark's Fork and the Madison. Are they the sovereign property of the people of Montana, or private property of PPL Montana, a company that purchased and began operating existing hydroelectric dams on the rivers more than a decade ago? 

The answer to those questions could prove important for many states, particularly for those in the rugged West. That's why 26 states have filed a brief supporting Montana, saying that a ruling against the state could challenge all states' rights to use waterways for recreation and commerce.  "This is no abstract property dispute," writes Richard Frank, director of the California Environmental Law and Policy Center, for the environmental law blog Legal Planet . "Whether the nation's inland lakes and rivers are sovereign lands impressed with public trust-based obligations or, instead, privately owned represents a major issue of natural resources law."  

The legal question in this case hinges on whether Montana's rivers were considered navigable under federal law in 1889 when Montana became a state — criteria the Supreme Court long ago established to determine claims to rivers. If so, the state would presumably own the riverbeds. If not, they would have been the federal government's property to sell or lease. That was the assumption of PPL and the federal government in 1999, when PPL purchased several dams along the rivers — all but one of which had been standing for decades. As part of its leasing agreements, the company has been paying the federal government to use the riverbed, Paul Clement, counsel for PPL, told the court Wednesday. 

Though the federal government is not a litigant in the case, Gregory Garre, counsel to Montana, described the case to the court as "a fight between the states and the United States." Clement agreed, saying PPL has been merely caught in the middle. The U.S. has filed a brief supporting PPL.  

Two years ago, the Montana Supreme Court ruled that PPL Montana owed the state almost $41 million in back rent for its use of the riverbed between 2000 and 2007. Now, as more time has passed, Montana is seeking more than $53 million.  Montana has argued that historical documents show that Lewis and Clark, along with subsequent explorers, navigated other sections of the rivers in the early 1800s, rendering the entire rivers into the public trust. Accusing Montana of attempting a "massive land grab," PPL argues that its dams sit on stretches of the river that were impassable more than a century ago, and that the navigability of the remainder of the waters is irrelevant. 

In their brief supporting Montana, states say they are "deeply concerned" about PPL's claim to the rivers, which they say could lead to new boundary disputes between states and the federal government. "It's going to wreak havoc in states across the country," Garre told the court. "What they're asking the court to do, is to chop rivers up in navigable and nonnavigable partitions."

Early in the proceeding Wednesday, Chief Justice John Roberts expressed concern with that possibility. "If you start drawing these lines…they become very difficult to apply," he said.  Justice Antonin Scalia, on the other hand, raised questions that were largely skeptical of Montana's argument.  "If this was such a well understood rule, why didn't Montana make the claim [on the riverbed] earlier?" he asked. "It's extraordinary."