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Renting a riverbed

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Kimberly Hirai | Dec 08, 2011 06:00 AM

A land ownership case is in deep water, bringing property rights, public domain and commerce into question.

The U.S. Supreme Court heard arguments in PPL Montana vs. Montana yesterday, in a fight over who owns title to riverbeds in the state.

Black Eagle DamDetermining whether river sections are navigable is at the crux of the issue—states have traditionally held title to the land beneath rivers on sections considered navigable at the time they became a state. The State of Montana argues that in 1889, land beneath the Clark Fork, Missouri and Madison Rivers within its borders became state property. It wants to lay claim to these riverbeds in order to collect rent from power company PPL Montana, which operates 10 hydroelectric projects on five falls on the Missouri River near Great Falls, Mont. and on the Madison and Clark Fork Rivers.

In 2010, the Montana Supreme Court ruled the state held title to land beneath those 500 miles of rivers. PPL Montana was ordered to pay $42 million in past and future rent in addition to $11 million in interest. The case was appealed to the U.S. Supreme Court.

The power company argues eight of those are on non-navigable portions of the rivers and that private groups should be able to own river sections where falls and other obstacles made rivers non-navigable at the time of statehood.

Both sides hope the 1805 journals of Meriwether Lewis and William Clark's Northwest expedition, which included the Great Falls, will shed light on the navigability of the rivers. But historians are divided.

University of Montana history professor David Emmons, an expert witness in the case, submitted a court document on PPL's behalf. It states:

 

Once the expedition reached the Great Falls, it found that continued travel in large boats had become impossible. The expedition then portaged around Great Falls, a process that took 33 days. The party was then forced to resort to dugout canoes for the remainder of its trip up the Missouri to its headwaters. They could no longer navigate the river, at least not in any way relevant for commercial use.

 

Historian and Lewis and Clark expert Stephenie Ambrose Tubbs argued for the state, claiming that, in those times, portage was "common and not viewed as an obstacle to navigation." Though obstacles may have required people to portage, they did not disrupt the rivers as a highway of commerce.

Governor Brian Schweitzer, D-Mont., has stepped into the fray.

"If in fact they (PPL) win this then nearly 3,000 miles of Montana rivers will become the possession of the federal government, not the State of Montana. This would be one of largest land grabs in the history of the West," Schweitzer says.

The case could have implications for the rest of the West. A power company win would “upset centuries-old expectations and call into question the navigability of rivers not just in Montana but throughout the United States,” wrote Gregory Garre, attorney for the state who served as a U.S. solicitor general before the Supreme Court in 2008 and 2009.

But PPL says if it is forced to pay, the court will set a dangerous precedent of charging for river use.

"If we lose this case, it's really just the tip of the iceberg and the amount of money that could be collected from other users on these stream beds is immense," said David Hoffman, PPL's external affairs director. He said expenses could be passed on to consumers.

Montana Senator Bradley Hamlett, D-Cascade, introduced and successfully passed a Senate bill signed by the governor in May that would allow the State Land Board to usher in rules for leasing the riverbeds of navigable rivers.

Twenty-six states filed briefs to support the original ruling in favor of the state. So did 22 national and state wildlife or conservation organizations, who prefer state control to allow the public to have a more powerful hand in conservation measures when pipelines, bridges or other installations affect the protection of fisheries and the river, according to Bruce Farling, executive director for Montana Trout Unlimited. He said it could also impact stream access for recreators.

The federal government, the American Petroleum Institute, the National Mining Association, the National Hydropower Association, the Colorado Cattlemen's Association, the Montana Water Resources Association and the Montana Farm Bureau Federation are supporting the company. They fearthe decision could change property rights and negatively affect the industries they represent. The federal government also owns hydroelectric facilities on the Missouri River.

Once the court  decide swhat history reveals about river navigability; it will either help other Western states maintain a firm grasp on their rivers or allow them to slip through their hands.

Kimberly Hirai is an intern at High Country News.

Image courtesy Flickr user greaterfalls.

Charlie Hohn
Charlie Hohn
Dec 08, 2011 11:04 AM
I worry about any weakening of the navigable regulations because in more populated areas like southern California these regulations are one of only a very few things that keep rivers from being literally wiped off the map or turned into gutters.

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