The high court ruled unanimously that Montana could not charge rent retroactively for PPL's use of the riverbed in the Madison beneath the Hebgen and Madison dams because the Madison River was not navigable at the time of statehood. Navigable rivers were ceded to the state in 1889 and are held in public trust for the people of Montana. Since the state had not charged PPL or its predecessors rent for more than 100 years, and because the Madison was not historically navigable, the state had no legal claim.

However, the ruling does not appear to endanger the public ownership of the riverbeds, as some had feared. In the applicable section of the ruling the court held:

"As a final contention, the State of Montana suggests that denying the State title to the riverbeds here in dispute will undermine the public trust doctrine, which concerns public access to the waters above those beds for purposes of navigation, fishing and other recreational uses . . . the contours of that public trust do not depend on the Constitution. Under accepted principles of federalism, the States retain residual power to determine the scope of the public trust over waters within their borders . . ."

Thus is appears the ruling does not threaten the public ownership of the Madison riverbed, the doctrine upon which the state's stream access law is based.

The court did rule that the Madison was not navigable at the time of Montana statehood in 1889. The court noted that the construction of the dams on the Madison significantly improved the river's navigability, reducing the spring runoff flows and deepening the river in the summer months. Historical use of the river by trappers and explorers was limited, often to those following the river as a guide, dragging small boats laden with goods, or to provide water for stock. These, the court ruled, were not commercial uses that meet the established legal definition of navigability. Moden watercraft such as drift boats, inflatable rafts, kayaks and others had no historical equivalents in the 19th Century.

For those interested, the full Supreme Court ruling in PPL Montana LLC v. Montana can be found at www.scotusblog.com and elsewhere on the web. Suffice it to say that for now it appears Montana's iconic stream access law has dodged a bullet.

News Source: Madison River Foundation - Feb. 23, 2012