Posted on March 28, 2012 by Paul Phillips
On February 22, 2012, the United States Supreme Court issued a rare 9-0 opinion addressing issues of interest to environmental lawyers and historians alike. PPL Montana, LLC v. Montana, 565 U.S., 132 S.Ct. 1215 (2012). The Court’s decision needs to be reviewed and properly understood by practitioners and parties dealing with a myriad of activities that take place along and under rivers, including environmental remediation and determination of ownership of river beds and banks within any environmental site through which a river flows.
The Court dealt with a dispute between the Petitioner (owner of hydroelectric facilities on three rivers in Montana) and the State of Montana regarding who owns the riverbeds. Under the Constitution-based “Equal Footing Doctrine,” first adopted by the Supreme Court in 1842, the answer to that question depends upon whether the rivers were navigable at the time of statehood.
The high court reversed the decision by the Montana Supreme Court holding that Montana owned the riverbeds in question, based upon the Montana Court’s “infirm legal understanding of [the Supreme] Court’s rules of navigability law for title under the equal footing doctrine.”
The Court reinstated bedrock principles of title and navigability law that it last ruled on in 1931. The Court reaffirmed that, while states do receive title at the time of statehood to the beds and banks of rivers that were “really navigable,” the states may not amend the pertinent federal navigability rules in their favor, post-statehood, because “it is not for a State by courts or legislature, in dealing with the general subject of beds or streams, to adopt a retroactive rule for determining navigability which would enlarge what actually passed to the State, at the time of her admission.” The Court also confirmed that, if a river was not navigable at statehood, then title to the river’s beds and banks stayed in the United States “to be transferred or licensed if and as it chooses;” for example, by land patents or grants, leaving private riparian landholders on either side of a river owning the beds “to the center of the stream.”
Some other important highlights from the unanimous opinion, authored by Justice Kennedy:
1. The Court explained that, other than for title, the concept of “navigability” is used in different contexts, including for purposes of assessing federal regulatory authority under the Commerce Clause and to determine admiralty jurisdiction, but emphasized that “the test for navigability is not applied in the same way in these distinct types of cases.”
2. The Court reiterated that rivers are deemed 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.” Importantly, however, in title disputes, the existence or absence of such commercial “navigation is determined at the time of statehood;” is “based on the natural and ordinary condition of the water;” and cannot be based on improvements made to that natural condition.
3. The Court rejected Montana’s reliance on present-day recreational use of the rivers, including anglers in drift boats, as evidence that the rivers had been susceptible of commercial navigation at the time of Montana’s statehood in 1889. The Court held that an assessment for title navigability at statehood “concerns the river’s usefulness for trade and travel, rather than for other purposes,” and explained that while “a river need not be susceptible of navigation at every point during the year, neither can that susceptibility be so brief that it is not a commercial reality:” “At a minimum, a party seeking to use present-day evidence for title purposes must show: (1) the watercraft are meaningfully similar to those in customary use for trade and travel at the time of statehood; and (2) the river’s post-statehood condition is not materially different from its physical condition at statehood.”