Kerr Dam is one of utility PPL's hydroelctric power facilities.

 

The U.S. Supreme Court's unanimous Feb. 22 decision overturning a Montana court ruling that had allowed state and federal agencies to claim ownership and regulatory control of non-navigable stretches of riverbed lands was hailed by opponents of the lower court opinion as a boost to needed transportation and energy infrastructure improvements. But state officials say they will continue their fight for control back in state courts.

The high court's ruling in a challenge brought by utility PPL Montana LLC, Billings, affirmed the commonly held understanding that non-navigable stretches of riverbed lands are not owned by the state and cannot be claimed by it retroactively.

 

The case came to the Supreme Court after Montana, in 2003, claimed ownership of the river bottoms on which hydroelectric dams sit and said that PPL Montana and other utilities in the state must pay back rent on the land. While other utilities settled, PPL Montana, which has 10 hydro dams in the state including one more than 100 years old, challenged the state's contention in court.

 

PPL says its 10 dams were built at spots where the rivers are not navigable, including five dams built on the Missouri River near Great Falls, Mont., where the river drops 600 ft over a 17-mile stretch. It petitioned the high court for review after losing in the state court.

 

The American Road and Transportation Builders Association filed a brief in support of PPL, along with other groups such as the National Association of Homebuilders and the American Petroleum Institute,“For purposes of transportation development, once something is considered ‘navigable,’ it is under federal control, and subject to the permitting authority of the U.S. Environmental Protection Agency and the Army Corps of Engineers,” ARTBA said in a statement. “An expanded definition of ‘navigability’ could have resulted in a scenario where [the agencies] would have the option of exerting jurisdiction over roadside ditches, potentially adding years to already expansive review and approval process for transportation infrastructure projects that are needed for increased mobility and improved safety.”

Montana had pointed to use of the Madison, Missouri and Clark Fork rivers for moving gold and other commerce as evidence that they were used for commercial purposes at the time of Montana statehood in 1889 – and are therefore navigable and owned by the state. But the Supreme Court said that portages necessary to get around non-navigable stretches, including the Great Falls on the Missouri, were proof that those stretches are not navigable.

 

"The reliance by PPL and its predecessors in title upon the State’s long failure to assert title is some evidence to support the conclusion that the river segments were non-navigable for purposes of the equal-footing doctrine,." wrote Justice Anthony Kennedy in the court's opinion. “As the Court said in Brewer-Elliott, ‘It is not for a State by courts or legislature, in dealing with the general subject of beds or streams, to adopt a retroactive rule for determining navigability which . . . would enlarge what actually passed to the State, at the time of her admission, under the constitutional rule of equality here invoked’.”

 

Montana Attorney General Steve Bullock indicated in a statement that the state’s fight over riverbed ownership and back rent is not over. “We are disappointed with the Supreme Court’s decision," he said. "They have left the next steps to our Montana state courts, and that is where we will continue our fight.”

Had the court ruled in the state’s favor, more than 1,000 hydroprojects in 32 states could have been subject to back rent owed their states, according to an amicus brief filed by the National Hydropower Association, the Edison Electric Institute and the Snohomish County, Wash., Public Utility District before the Dec. 7, 2011, oral arguments in the case.
 

“The navigability for title test has been misconstrued by the Montana Supreme Court and must now be clarified to prevent Montana and other states from disrupting long-held understandings of property ownership in order to raise additional income for the state,” the groups wrote in their brief.

Twenty-three states and environmental groups agreed with Montana, arguing in briefs that allowing portions of the rivers to be used by private interest is detrimental to public use of the waterways. The Supreme Court dismissed that argument, also made by Montana, saying that the state retains the right to oversee the use of the river.