Oped: Court erodes foundation of state’s stream access

Professor James Huffman expalins how the United States Supreme Court’s PPL decision undermines the legal theory underlying Montana’s stream access law; click here for the full opinion in the Missoulian. Here’s an excerpt:

“The unanimous United States Supreme Court decision in PPL v. Montana was a judicial smackdown of Montana’s attempt at a massive land grab. The decision dismantled a legal theory that would have led to the state’s expropriation of thousands of miles of privately owned streambeds. At the same time, it called into question the legal underpinnings of Montana’s 30-year-old stream access law.

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“The new legal theory that the state proposed in order to take PPL’s property was multi-faceted, but two main arguments are pertinent to Montana’s stream access law.

“First, for purposes of establishing navigability the state asserted that rivers and streams should be treated in their entirety. In other words, if any part of the waterway is navigable, then the entire thing is.

“Navigability matters because the federal government gave Montana ownership of streambeds of all waterways used for commercial navigation at the time Montana became a state. The streambeds of all the other rivers and streams, which is most of them, remained with the federal government. The federal government retained some of those lands, some were transferred to homesteaders and some were leased to power companies and the like, which is how PPL got the right to build its power plant.

“Montana sought to usurp that established ownership using their new legal theory. The state’s contention didn’t pass the straight-face test. One stretch of river at issue in the PPL case includes the Great Falls of the Missouri. It took Lewis and Clark a month to drag their expedition around these 17 miles.

“The court struck down Montana’s contention, clarifying that navigability must be determined segment by segment on the waterway.

“The second argument put forward by the state is that the public trust doctrine – the common law principle that particular surface waters are held in trust for specific public uses – can be applied to enlarge Montana’s control over streambeds. They argued that if a waterway was used for any purpose by the public at statehood, it was navigable for the purpose of establishing state ownership of the bed.

“That confiscatory view of the public trust doctrine was also rejected by the high court. It warned that Montana cannot enlarge what it got at statehood, i.e., the beds of navigable rivers only. Claiming more would result in the expropriation of long vested private property rights.

“Montana’s mistaken expansion of the public trust doctrine is also the foundation for Montana’s stream access law. In 1984, the Montana Supreme Court ruled that the public trust doctrine guaranteed public access to virtually all waters in the state. Thus, a century old right of streambed owners to exclude the public from their property was turned on its head. That is, the water controlled access to the soil underneath it instead of the other way ’round.”