Who Really Owns America's Riverbeds?
Tomorrow is a big day in Washington, D.C. for anyone who likes fishing, rafting, or canoeing public water in the United States. In what is likely the most meaningful river-access case ever heard before the U.S. Supreme Court, PPL Montana v Montana is seeking to answer the long-disputed question of who really owns the riverbeds on navigable waterways, and whether the definition of "navigable" should be based on the present, or based on the river's navigability when the state joined the Union.
This case should greatly interest anyone in the country, especially considering recent access debates that have sprung up on the Jackson River in Virginia, the Provo River in Utah, and the Taylor River in Colorado— a conflict that led to HB1188—the "Right to Float" bill, which led to Governor Bill Ritter's "River Access Dispute Resolution Task Force," which led, eventually, to the appointment in September of the three-person "River Access Mediation Commission."
I write about the Taylor situation in the forthcoming winter issue of The Drake (check fly shops next week), but the subject of that piece is primarily about easements, like the one recently uncovered on the Provo by the Utah Stream Access Coalition. But this case is even more important, and has implications far beyond Montana. Indeed, one of PPL's executives might have put it best: "We welcome the Supreme Court's decision to take up this case," said Robert Grey, senior vice president of PPL, when the Supreme Court agreed back in June to hear the case. "Because of the broad implications it has for water users throughout the West."
Twenty-six State Attorneys General filed a joint Amicus Brief in support of the State of Montana, including Oregon, Washington, Idaho, Alaska, Nevada, and New Mexico. But not Colorado. Why? For the answer, you need look no further than four of the organizations who filed Amicus briefs in support of the power company—all of them from The Centennial State: Colorado Cattlemen's Association; Colorado Farm Bureau; The Creekside Coalition; and The Mountain States Legal Foundation (shocker).
At issue is whether a Montana Power company—PPL Montana, owners of several dams on Montana rivers, including Hebgen Dam on the Madison, Rainbow Dam on the Missouri, and Kerr Dam on the Flathead—owns the land beneath the rivers that flow past its property. The case came to be in 2003 after two private citizens filed a lawsuit claiming that PPL owed the state back-rent for use of the lands.
This is where I have a problem with the other side in this case. The State ended up joining the private individuals in the suit, and a district court awarded Montana almost fifty million dollars in damages. FIFTY million? I'm nervous about the outcome of this case, and I hope that the PPL power company loses big, but if attorneys for PPL are able to win—and anything is possible with our current Supreme Court—we might look back at this case that cost us a huge slice of our public domain and say that it was a greedy, opportunist overreach by the State of Montana, not PPL, that set this ball in motion.
Still, for the sake of fishermen and rafters everywhere, this is a scary situation. That this case comes out of Montana is not surprising. That it involves the Missouri, the Madison, and Clark Fork is notable. As long as Montana access debates stayed focused on Big Sky backwaters like Mitchell Slough or the Ruby River, they hadn't drawn much national attention. But these are three of the biggest, most popular, most fishable rivers in the West. If the beds and banks of these rivers can be given away to a private party, then it will be a fishing lodge land-grab and privatization stampede for many other waterways in the country.
Colorado already has the friendliest landowner laws in the nation in terms of riparian-zone property rights. But if the Supreme Court in this case rules for PPL, it will only embolden Colorado landowners to push for what many of them already feel they own: the river itself and the air above it. Nowhere was this more evident than on the Taylor, where one landowner compared rafting past his property to "walking across your lawn."
And as for the 26 states that sided with Montana? All they would have to do if the Court rules for PPL is change their river-access laws to match Colorado's. Which is a wonderful thing—as long as you're a riverfront landowner.