Supreme Court Rules for PPL Montana

The celebration of a Montana Supreme Court decision that protected river access in the state was cut short yesterday when the U.S. Supreme Court negated part of the state’s ruling.  Fly fishers have followed the case of PPL Montana v. Montana intently as it could seriously impact the access to three major trout rivers in Montana:  the Missouri, Madison and the Clark Fork.  PPL Montana represents the interests of a hydroelectric power company arguing that the streambeds in question are not public.

Because all navigable riverbeds belong to the state while non-navigable rivers can be private property, the case hinges on the definition of navigability.  When the state court ruled that the rivers were navigable they made two critical errors, according to Justice Anthony Kennedy, who wrote the opinion.  First, the state court ignored U.S. Supreme Court precedent that navigability be determined on a sectional basis.  The state court, erroneously, held that overall these rivers are navigable despite non-navigable portions within the disputed sections, writes Kennedy.

Second, because navigability at the time of statehood is the issue, it was not correct for the state court to rely on present day evidence of navigability unless a) modern watercraft able to navigate the rivers are similar to those used in the past and b) the condition of the river is the same as it was at the time of statehood.

While the Supreme Court has only remanded, or sent back, the case to the Montana high court, according to some legal experts it appears that, with the test mandated, the rivers will be declared non-navigable and property of PPL Montana.  But, these experts say, the decision does not come as a shock considering the “fast and loose” application of the law by the state court.

Why is this important to anglers concerned about river access?  Because the Supreme Court has applied a narrower definition of navigability, which could have implications down the road.

The full opinion can be read here.

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  • Bruce Farling

    The conclusion that the Supreme Court ruling in PPL versus Montana harms stream access in Montana is wrong. This ruling does not affect Montana’s stream access law because access in our state is not predicated on riverbed ownership, let alone riverbed ownership determined by any sort of federal navigability test. Montana’s stream access law stems from the Montana Constitution, which says that all water in the state is owned by the people of the State, subject to appropriation. And thus in 1985 the Supreme Court determined that in order for Montanans to reasonably exercise this ownership, they must have reasonable access to public water for recreation. And thus the balance in our stream access law, which states that the public can recreation on any natural stream capable of supporting recreation irrespective of who owns the bed and banks as long as we stay within the normal high-water mark. PPL v. Montana does not affect this. Further, it’s important to note that just because it’s okay to be recreating on a river between the high-water marks, that doesn’t entitle the public to cross private land above the high-water mark to get on the stream, at least without permission or at least where there isn’t a legal easement, such as at public bridges.  I encourage all recreationists who use rivers in Montana to familiarize themselves with the specifics of our stream access law. 

    It is highly probable this decision does affect stream access in states other than Montana, but it’s unclear at this time exactly how. PPL v. Montana is being remanded back to Montana’s courts to shape the specific contours of this decision within the high court’s sideboards. Until that occurs, it will be difficult to determine exactly what reaches of what rivers will be owned by whom. But in any case, it won’t affect stream access. 

    Bruce Farling
    Executive Director
    Montana Trout Unlimited