You can read the transcript at: http://www.supremecourt.gov/oral_arg...pts/10-218.pdf
and The Daniel Ball
are the PPL Montana vs State of Montana's two most cited, relevant and definitive Federal cases to answer, essentially, the question of "What is the test to determine navigability?"
in yesterday's oral arguments. Essentially, State of Montana says yes, these settled cases are and should be the bases to determine navigability while PPL says no, these settled cases are not and should not be the bases to determine navigability.
"Natural state" and "ordinary conditions" refers to a waterway's state or condition at the time of statehood.
THE MONTELLO, 87 U. S. 430 :: Volume 87 :: 1874 :: US Supreme Court Cases from Justia & Oyez
1. The navigability
of a stream, for the purpose of bringing it within the terms "navigable waters of the United States," does not depend upon the mode
by which commerce is conducted upon it, as whether by steamers, or sailing vessels, or Durham boats, nor upon the difficulties attending navigation
, such as those made by falls, rapids, and sandbars, even though these be so great as that while they last, they prevent the use of the best means, such as steamboats, for carrying on commerce.
Page 87 U. S. 431
It depends upon the fact whether the river in its natural state is such as that it affords a channel for useful commerce.
2. These doctrines applied to the Fox River in Wisconsin, a river whose navigability was originally so much embarrassed by rocks, rapids &c., as that only Durham boats could use the stream, but which afterwards, by canals, locks, and other artificial means was so much improved as that steamboats could use it freely, the river having, however, never, in its natural state, been a channel for useful commerce.
--->By the Ordinance of 1787 for the government of the Northwest Territory, it was enacted that: "The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be COMMON HIGHWAYS, AND FOREVER FREE..."
The Daniel Ball
THE DANIEL BALL, 77 U. S. 557 :: Volume 77 :: 1870 :: Full Text :: US Supreme Court Cases from Justia & Oyez
1. The doctrine of the common law as to the navigability of waters has no application in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all of the navigability of waters.
2. The test by which to determine the navigability of our rivers is found in their navigable capacity. Those rivers are public navigable rivers in law which are navigable in fact.
3. Rivers are navigable in fact when they are used or are SUSCEPTIBLE of being used in their ordinary condition as highways for commerce over which trade and travel are or may be conducted in the customary modes of trade and travel on water.
4. And they constitute navigable
waters of the United States within the meaning of the acts of Congress, in contradistinction from the navigable waters of the states, when they form in their ordinary condition, by themselves or by uniting with other waters, a continued highway over which commerce is or may be carried on with other states or foreign countries in the customary modes in which such commerce is conducted by water.