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Discussion Starter #1
This case has the potential to adversely affect the legal interpretation of a navigable waterway. The goal is to get the dam owners to pay leases to the state for the land upon which their dams sit. However if the dam owners prevail based on the waterways being non-navigable, this stands to throw public water law on it's head around the country. The Missouri and Clark Fork are huge rivers, if they are non-navigable we are in trouble.

U.S. Supreme Court hears Montana dam dispute
 

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I am not sure what the ultimate effect this decision might have (and there could be some negative consequences) - but it is important to distinguish between navigability for title and navigability the way we normally think about it.

The Supreme Court is reviewing the definition of navigability for title purposes - this is different than navigability in fact. This issue was supposedly settled long ago by the Daniel Ball case, but apparently not.

The navigability for title doctrine under Daniel Ball says that if a stream was navigable (unclear definition) at the time the state came into the union then the land under the water up to the normal high water line is owned by the public - regardless of who owns the land surrounding the stream. For Colorado I don't think this distinction is as important because the Colorado Supreme Court has held that there are no navigable streams in Colorado - thus no riverbed land is held in the public trust except for rivers that flow through public lands.

Navigability for title is different from a river being navigable in fact - or floatable. In most cases - and this is probably the case in Colorado - the water itself is held in public trust regardless of who owns the land, and it is free to float on (its not really clear if this is true in Colorado. In my opinion if it were ever challenged this would be the case, but many people disagree with me). Montana has much stronger laws protecting the right to float, and I don't think that would be an issue.

So while I think this decision could have negative effects on boating I think the right to float is not really at issue. Although I am sure some people disagree with me.
 

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Thanks for this post and reply. Interesting stuff. I wonder of the Colorado Supreme Court's finding that there are no navigable streams in Colorado would be followed by the US Supreme Court, i.e., was the reasoning in the CSCt case the same or similar to what is being argued in Montana? If not, it could, therefore, effect the precedential value of the Colorado state case. I recently settled a property dispute (quiet title and ingress/easement issues) for a client who owned a parcel that crossed the river. Everyone simply assumed, following the ColoSCt case, that the state's interests were not involved, i.e., commercial navigability never came up. And I guess that's probably where the focus should be - - commercial navigability versus simply the ability to run a kayak or canoe down the stream. Peace
 

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For Colorado I don't think this distinction is as important because the Colorado Supreme Court has held that there are no navigable streams in Colorado - thus no riverbed land is held in the public trust except for rivers that flow through public lands.
There has to be a definition problem here because this statement would imply that there are no Navigable waters of the US in Colorado, and therefore, there would be no need to obtain a Section 404 permit from the U.S. Army Corp to build a reservoir, which just isn't the case in Colorado. Here is the webpage that discusses the need for a permit from the Corp.

Do I need a permit?

The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor or refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.
In 1972, Section 404 of the Clean Water Act established a program to regulate the discharge of dredged or fill material into waters of the United States. The Rivers and Harbors Act of 1899 defined navigable waters of the United States as “those waters that are subject to the ebb and flow of the tides and/or are presently used, or have been used in the past, or maybe susceptible to use to transport interstate or foreign commerce." The Clean Water Act built on this definition and defined waters of the United States to include tributaries to navigable waters, interstate wetlands, wetlands which could affect interstate or foreign commerce, and wetlands adjacent to other waters of the United States.
Taken from http://www.fws.gov/habitatconservation/cwa.htm
 

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"Navigability" means different things depending on the context. There are 4 definitions of navigability that have been developed in case law and the definition of each depends on the context which the word is used.

My first post was articulating the difference between navigability for public access and navigability for title. Navigability for title is determined by the Daniel Ball test (maybe soon by this MT case). This is what the Colorado Supreme Court used in Emmert to hold that the Colorado river was not navigable for title - and thus the rafters? in that case were trespassing even though they were below the traditional high water line. (Also - to be fair I overstated the holding of Emmert a little - the holding is that the Colorado river west of Glenwood was not navigable under the Daniel Ball Test. The assumption is that if the Colorado that far west is not navigable then it is going to be hard to argue that any water way in Colorado is navigable for title purposes).

Navigability for the purposes of the clean water act is a completely different definition than the Daniel Ball, as is navigability for commerce clause purposes. Rapanos and Robinson are the latest navigability for the CWA cases - Rapanos is a plurality and the holding is unclear, but it seems like the test is whether there is a significant connection between the waterway in question and a permanent stream. This is a lower hurdle and includes most waterways in Colorado.
 

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Discussion Starter #7
One thing is for sure, something somewhere will change with access and use if the state of Montana loses this. Mt has Always operated with the streambed public. If the sc disagrees, we perhaps could face a reversal of use laws, such as you have in co where you can't touch the riverbed. If mt doesn't own the land under the dams, we are in a lot of trouble and upheaval.
 

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If you haven't already, you may want to check out the PPL thread in the Access forum, read the transcript, links, etc and then comment back here and/or also in that thread.

However way it goes, the PPL Montana vs State of Montana Opinion by the US Supreme Court will have major implications for navigability, use and portage here in Colorado and all western states based on the Equal Footings Law. If you want to know and understand how boating and fishing water use is going to go in the future, this is the case you want to learn about... good, bad or somewhere in between. You can bet the ranch that the private interest of this issue has been, is and will be watching and learning this case and opinion, too.

This Federal decision trumps State decisions such as Colorado's Emmert case. I'm sure many lawyers are licking their chops in anticipation. Besides the use issue, there are millions of dollars and lotsa title issues at stake. Just for starters, PPL Montana has been ordered in this lawsuit to pay over $50 million, counting interest, in back rent for the use of State of Montana's bedland. If this is upheld, a whollllllle buncha states are going to want to get this new source of revenue from commercial bedland users, too.

If, however, it goes PPL's way, rivers may well get segmented... public, private, public, private, etc. and boating/fishing, etc use may get totally screwed.

The transcript of Wednesday's oral argument is now available, the audio should be available Friday, Dec 9, and the Opinion will be made public around April-June, 2012.
 

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Looks like the court has boiled it down to this question:

"Does the constitutional test for determining whether a section of a river
is navigable for title purposes require a trial court to determine, based on
evidence, whether the relevant stretch of the river was navigable at the time the State joined the Union as directed​
by United States v. Utah, 283 U.S. 64 (1931), or may the court simply deem the river as a whole generally navigable based on evidence of present-day recreational use, with the question "very liberally construed" in the State's favor?"

Follow the case here: Search
 

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Is there really any doubt that the decision will be that states are to look at the river as a whole? A nightmare otherwise to examine every naturally obstructed spot or stretch on a 100 mile river based on 100 year old evidence.

Likewise, is there any doubt that the state courts will then find all their significant rivers 'navigable?'
 

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More than two centuries ago, Captain Meriwether Lewis stood on the banks of the Missouri in the territory that would become Montana. Taken by the sight before him, Lewis observed that he did not believe “that the world can furnish an example of a river running to the extent which the Missouri and Jefferson’s rivers do through such a mountainous country and at the same time so navigable as they are.”

Now that's a good start to an argument.

http://www.americanbar.org/content/...iew/briefs/10-218_respondent.authcheckdam.pdf
 

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Discussion Starter #14
Too much legalease for me, but thanks. Hopefully they just send it back to MT and the state drops it. Too much risk to our river access rights, imo
 
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