Supreme Court erodes foundation of Montana stream access

On April 29, before a crowd of hundreds at Montana State University-Bozeman, the Montana Supreme Court heard oral arguments in the case of PLWA vs. Madison County, a case pitting private property against public access to the Ruby River. Only once during 90 minutes of give and take between lawyers and justices was last year’s PPL v. Montana case mentioned. But it had to be on the mind of every member of the court. 

The unanimous U.S. 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.

The PPL case was a major setback to those hoping to find an easy payday for government — all told, the state was seeking a payout of $41 million from PPL for rent the state contended it was owed for use of the streambed underneath PPL’s hydroelectric dams.

But $41 million was just the tip of the iceberg — Montana and other states could have used the precedent to begin charging rent on other streambed property that everyone had previously recognized as private property.

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 U.S. Supreme 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.  

According to the Montana SupremeCourt, any waterway used for recreation — rather than the federal commercial navigation test — is open to the public regardless of who owns the streambed. That holding overruled settled Montana law and took a crucial property right from thousands of Montanans.

In light of the Montana Supreme Court’s 9-0 shellacking at the U.S. Supreme Court in the PPL case, it will be interesting to see if the Montana Supreme Court uses this week’s PLWA v. Madison case to reconsider the expropriations it wrought 30 years ago.

Professor James Huffman is the dean emeritus at the Lewis and Clark Law School in Portland, Ore.