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.