We warned you back on the 30th of October that this was coming down the pike.
Several 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 near and dear to fly fishers collective hearts will be heard today before the Supreme Court of the United States.
Bie writing at the Drake Online offers a somewhat unique spin on the issue; from today’s post -
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.
While Bie’s spin on the State of Montana’s motivations in the matter are debatable (PPL has long drawn the ire of many in Big Sky Country for a host of different reasons), we agree that, pending the outcome of the case, there are a potential flood of harsh consequences that could end up curtailing your ability to access your favorite waters.
And not just in Montana. Twenty-six states have documented their interest in the argument; you can bet other access battlegrounds around the country (Virginia, Utah, etc) are watching with sharp interest.
Several points of interest to consider:
The SCOTUS process will be months in duration. Oral arguments are today; to make a long story short, the opinion would / will be typically delivered at the end of the term (May or June next year).
Here’s the SCOTUS docket link for the case (10-218); it’s worth a click to read through the list of petitioners (at the bottom).
Several legal resources and blogs have posted commentary that’s interesting if not a bit (or worse) too heavy on the legalese (none of us are attorneys either). Here are several that we’ve found interesting….
Cornell’s Legal Information Institute: PPL Montana, LLC v Montana (10-218). Very readable summary of the key issues at hand. If you look at just one, look at this one.
SCOTUSblog: PPL Montana, LLC v. Montana. A veritable link fest of legal docs.
Interesting opinion from Robert Adler (Prof. of Law, Univ. of Utah) on the Center for Progressive Reform Blog – Is State Ownership of Public Trust Waters at Risk When SCOTUS Hears PPL Montana v. Montana?
Legal Planet (Environmental Law and Policy Blog, Bekerley Law): Supreme Court Grants Review in Montana Rivers / Public Trust Case
There’s been a flood of interest in the case in the regional as well as national media; a quick search this morning (montana ppl supreme court) yielded 15,000,000 hits on the topic. Proceed at your own risk.
Finally, history counts. The journals of Lewis and Clark have been used by sides as they’ve outlined and posted their arguments. If it’s not on your winter reading list this year, maybe it’s time to drag out your favorite Lewis and Clark tome and recount for yourself their travels. A recent AP article hits the history nail on the head – here’s a link to it from the Missoulian.
Several of our favorites are Ambrose’s Undaunted Courage, Meriwether Lewis’ The Journals of Lewis and Clark (DeVoto editor), Seefeldt’s Across the Continent, Jones’ The Essential Lewis and Clark and Ambrose-Tubb’s The Lewis and Clark Companion. (We’ll ask Wayne of WillFishForWork about his favorites, he’s somewhat of an authority on Lewis and Clark…..)
Stay tuned.
Tags: Access
{ 8 comments… read them below or add one }
I think Bie’s a little off the mark here; it’s true the original suit (filed by private citizens) may have been an overreach, but once the question was asked, the state absolutely had to resolve it as the riverbed ownership issue could not be left unresolved, greed or not.
Plus, the determination of navigability is a big part of this case, and that issue is not all that clear cut. For example, the establishment of a river’s navigability at the time of statehood isn’t the only test of navigability (modern-day recreational uses are also now considered), yet anti-public-access groups have long said that rivers not designated navigable at the time of statehood simply aren’t.
This whole issue needs to be clarified as extreme private property rights groups are currently trampling all over public access in states other than Montana. That it will be decided by one of the most extreme courts in recent memory is unfortunate, but there it is.
Agree the state really had no choice once the (legal) question was thrown out there.
The navigability issue is an ironic one – the issue of navigability at the time of the Lewis and Clark exploration, pre-Montana statehood, may end up being a critical determinant in how the case is decided. And of course navigability is a key component of many state’s river and stream access designations. The extreme private property faction is salivating.
Interesting that you picked up on Bie’s post today. I agree that he’s attributing rancor on the state’s part to disrupt the relationship they had tolerated with PPL over time, though once the private citizens set the legal wheel in motion, the state had no choice.
River users have let this one slip by and hit the courts without as much as a peep in reality. The TU you’ve been touting of late (and others) should have been all over this before arguments today.
I fear you may be right about that – letting opportunity slip away before oral arguments today. One of our legal friends out there needs to clarify for us how long amicus curiae briefs may be filed by interested parties…..
Shizz, this stuff just keeps getting uglier all the time. As for Lewis and Clark books and that sort of thing, while I was working on my L&C projects I always went to the source, the journals themselves. Gary Moulton’s work through the University of Nebraska is considered to be the best edit of the journals. I own half of them (the western half) and the atlas.
You can find them online through the U of N: http://lewisandclarkjournals.unl.edu/index.html
As this thing unfolds, we may be thanking the captains yet again for their painstaking documentations that have left us with a very thorough account of the waterways of the west from a historic perspective.
I’m a little surprised to hear that the U of M professors chose to side with PPL on the extent of what constitutes a a useful channel of commerce. Any student of the exploration and fur trade era knows that a stream deep enough to float a canoe in it was used as a means to transport furs and trade goods. And anyone that has spent any time in a canoe knows that it takes damn little water to float one.
Fast forward a couple hundred years and a slew of dams later, natural barriers have been replaced by man made ones and the extent to which they can be navigated has probably increased in general as a result as has the commercial opportunities associated with these increases. As others have mentioned, given the current members of the “Supremes” you have to wonder who will be generating the power for their decision making (pun intended).
Wayne, appreciate the input. Home run on the UofM profs…..
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.
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.
The pending SCOTUS decision just might rewrite water law across the country. With just a few months to go, maybe you should fish more and ‘meeting’ less. That’s our plan…..
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