Access Issues,    montana stream access,    News,    stream access

Supreme Court To Decide Issues of Commercial Navigability, Public Access For Missouri River (And The Rest Of Us)

Posted by Tom Chandler 12/5/2011

The Supreme Court of the United States (SCOTUS) will hear a case on Wednesday that could have huge implications for river and stream access across the United States.

The question is whether the Montana State Supreme Court ruled correctly when they said the Missouri River's "Great Falls" were owned by the state instead of PPL Montana -- an electrical utility with hydropower installations at Great Falls.

While the case revolves around a few obscure points -- one of them being whether the Missouri was commercially navigable during the time of the Lewis and Clark expedition -- the outcome could have a huge impact on recreational access, as this quote from the Great Falls Tribune story suggests:

"The fundamental thing here is PPL wants to take land owned by Montana for its own good," said Bruce Farling, executive director for Montana Trout Unlimited, which filed a brief supporting Montana in the case. "The state of Montana is saying, 'No, that's our land, you've got to pay rent for occupying it.'"

With state ownership of major riverbeds, the public has more influence over conservation and fishery protection in instances such as the installation of pipelines and bridges, Farling said.

Montana already has the toughest stream-access law in the country, giving recreationists access to any natural stream irrespective of who owns the banks, he said. But the PPL case could affect recreation in states where stream access laws aren't as strong, and are based on navigability, he said.

To get a sense for the extreme level of water law geekery involved, you should probably read the article, though I'll try to keep an eye on this one for you.

UPDATE: ChiWulff posted a good summary of this issue here.
See you in court, Tom Chandler

AuthorPicture

Tom Chandler

As the author of the decade leading fly fishing blog Trout Underground, Tom believes that fishing is not about measuring the experience but instead of about having fun. As a staunch environmentalist, he brings to the Yobi Community thought leadership on environmental and access issues facing us today.

13 comments
Tom, I just posted the note below on the Chi Wulff post you linked to: I had "bookmarked" Chandler's post on this topic and finally got to it, along with a link to your discussion. Previously, Tom and I have "chatted" on this topic via his excellent posts on the subject. I am on a conservancy board that deals with the same creek that Singlebarbed often posits on. While he fishes, I sit in boring meetings. ... more As someone very interested in maintaining public access below the high water line of this waterway almost entirely transecting private property, I have spent some time researching the Public Trust Doctrine. Interestingly, the current policy of the local law enforcement agency is to not kick out anyone having gained legal access, including four-wheelers and motorcycles. This has not been without pressure of the adjoining private landowners who feel--quite strongly--that this is trespassing on "their" land.
0
0
And around and around we go. I just glanced at the articles and links (BTW - the "well worth reading" one gets you a "404") and I did find mention of Public Trust Waters, which I assume is from the Public Trust Doctrine. I just attended another meeting regarding the ability of fly fishermen, and others, to walk below the high water mark on private lands along Cache Creek in Yolo County, CA. There ... more is a legitimate problem with a few OHV users, which is drawing negative attention to the access issue.
0
0
Appreciate the shout. We're working on digging a bit more dirt on this one and should have some tidbits in the next few days.....
0
0
[...] Trout Underground and Midcurrent.com were both reporting this week on the appeal between private hydroelectric company PPL Montana and the State of Montana over who owns the “Great Falls” on the Missouri River. [...]
0
0
ChiWulff posted about this issue, adding a few new thoughts (making it well worth reading).
0
0
[...] heavy hitters in the fly fishing news world – Midcurrent, The Drake (today in fact) and The Trout Underground to name a few – have joined a host of mainstream media outlets in reminding us that an issue [...]
0
0
I think Scalia and Thomas will go states rights. All the way. Traditionally, both are more adamant about states' rights protections. But see Scalia's concurrence in Gonzales v. Raich where he departed from previous decisions concerning the commerce clause, some say because marijuana was involved. That has nothing to do with big business but is one instance of Scalia willing to let the facts dictate ... more his opinion (assuming you don't find his reasoning compelling).
0
0
If the past is any indicator, I'd assume they'd lean towards private ownership. It's a shame that the least qualified and most-conflicted justices to sit on the court in recent years hold so much sway.
0
0
Interesting. A PPL win could lead to a smaller tourist economy and -- you'd have to assume -- many more challenges on Montana stream access laws, but that's a more complex idea.
0
0
Will the Scalia/Thomas crowd side with private business or states rights?
0
0
Several points of interest... PPL filed in August and was put on the docket in late October; rapid access in the eyes of many. While oral arguments take place this week, announcement of an opinion will likely be in May or June if SCOTUS follows typical routine. Take a look at the list of groups supporting PPL - the feds, extraction industry corporations and hydroelectric generators top the list. Our ... more friends in the Montana Farm Bureau Federation are reasonably worried about the state coming after them if Montana were to prevail, though most argue that the state holds a different covenant with farmers and ranchers. Interestingly opinion is fairly widely divided among the rank and file; many are concerned that a PPL defeat will mean higher rates.
0
0
Are Cliff Notes versions available?
0
0
For further reading, may I suggest Donald Pisani's "Water, Land, and Law in the West" and "Western Times and Water Wars" by John Walton. You know, for the water law geeks of the Underground.
0
0

Discover Your Own Authentic Fly Fishing Experience

With top destinations, guided trips, outfitters and guides, and river reports, you have everything you need.