Angler Access, Montana’s bold New Precedent

5 comments / Posted on / by

The Mighty Madison, Who Does She Belong To? Photo Louis Cahill

How Will the PPL Montana v. Montana Case Affect Access Going Forward?

An article by Benjamin Clary

In the past few years, Montanans have become gun-shy about large, private landowners and rightfully so after battles against the likes of Huey Lewis and James Cox Kennedy. So as whispers of a case concerning the ownership of the riverbeds of parts of the Missouri, the Clark Fork and the Madison rivers began to emerge, citizens began to take notice.
Eventually, in 2010 the Montana Supreme Court seemed to put an end to the conflict when, in a decision celebrated by anglers and river access advocates alike, the Court decided that the riverbeds below various dams on the three rivers were owned by the State, not by the other party – a power company named PPL Montana.
However, legal experts were wary that the Montana Supreme Court had overstepped its bounds specifically in its definition of navigability – the issue that ultimately determines ownership. It was therefore not much of a surprise when the United States Supreme Court agreed to hear PPL Montana’s appeal. All of the sudden the battle, rather than being a Montana one, became a national issue and the stakes were high. Because the federal definition of navigability affects access in most states (some more than others), it immediately attracted attention from all interest groups advocating river access for recreation purposes including fly fishermen. Unfortunately, even though the Court had the opportunity to expand the definition of navigability, it overturned the Montana Supreme Court and at the same time restricted the federal definition of navigability.
Below is a brief analysis on the decision’s effect on river access. It should be fairly evident that this is merely a review of the events and not a complete summary of the current law. But, if for some reason it is taken otherwise, please do not rely on this article when making decisions concerning access. In any event, it is prudent for all anglers to brush up on their state’s access rules.
Background of the Case and Players
In 2003, parents of Montana schoolchildren filed suit against PPL Montana in federal court that sought to nullify an agreement between PPL Montana and the U.S. government in which the U.S. was being paid rent for the usage of the property. The plaintiffs felt that Montana, not the U.S. should be receiving rent because they were the rightful owners of the property. Eventually the State of Montana joined in on the side of the parents. But, that case was dismissed from federal court for lack of jurisdiction.
However, before the case was dismissed in federal court, PPL Montana filed a case in the state courts to bar the state from any future attempts at collecting rent from the power company. It was this case that eventually made it to the U.S. Supreme Court.
It Comes Down To Navigability
The issue at the forefront of the case was the navigability of the rivers in question because if a river was navigable at the time of statehood, then the state owns the riverbed. That is the short explanation. Why that is so is a more complicated question that digs deep into English law of yore, something tedious for an attorney much less an angler who just wants to know where it is legal to fish.
Basically, in English times ownership of a riverbed was determined based on whether the body of water was tidal or non-tidal. The public was allowed use of tidal rivers – including right of passage (and as a result the right to fish) – but the Crown owned the bed. Non-tidal waters, known as “public highways,” were also open to the public for passage but the beds were privately owned. The rule was eventually adopted by the United States from England. However, the rule did not work as well in the United States where navigable inland rivers where much more common than England.
To come up with a structure more applicable to the geography of the U.S. the Supreme Court in 1842 declared that states “hold the absolute right to all their navigable waters and the soils under them.” Furthermore, under something called the equal footing doctrine, that right was granted to the states later admitted to the Union because they were admitted as equals to the previous states according to the Constitution.
Lastly, navigability at the time of statehood is the pertinent question. Put summarily by Justice Anthony Kennedy in the opinion: “Upon statehood, the State gains title within its borders to the beds of waters then navigable (or tidally influenced).”
The State’s Navigability Decision
In order for a river to be navigable by law, it must actually be navigable. In other words, “Those rivers must be regarded as public navigable rivers in law which are navigable in fact.” A river is 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.”
The disagreement in this case is not the definition of navigable, but which test the courts should use to determine if it is navigable: Does the whole river, from headwaters to drainage have to be navigable? Does a majority of the river have to be navigable? What if the majority of the river is navigable but there are 1 mile portions for every 50 miles of a 400 mile river that are not navigable (in essence breaking it up into non-navigable segments)? Does merely the section of the river over the riverbed in question have to be navigable?
You can imagine the confusion
Montana’s lower court held, and the Montana Supreme Court agreed, that the rivers involved were navigable. Although there were portions that were non-navigable on the three rivers in question, those portions were mere interruptions and were insufficient to find non-navigability as a whole.
Supreme Court Lays Down the Law
Were the rivers, as a whole, navigable? Yes, they were according to the courts of Montana. Unfortunately, the Montana Supreme Court was answering the wrong question.
The U.S. Supreme Court stated that the correct inquiry is: “Are the sections of the rivers, flowing over the riverbed in question, navigable?”
Back to the State
While the U.S. Supreme Court merely presented the correct question and asked the Montana Supreme Court to answer it, they hinted heavily that the pertinent portions of the rivers were not navigable.
Because the correct inquiry is navigability at the time of the statehood, many passages from Lewis and Clark’s discovery of the rivers were quoted in the Supreme Court decision. The words “rushing”, “rapid”, “waterfalls”, and “rocky” are written frequently.
To summarize, Richard Frank, Director of the California Environmental Law and Policy Center, writes:
But it appears unlikely that much of the state court’s navigability ruling in favor of the State of Montana can or will be sustained on remand. For example, five of PPL Montana’s ten disputed hydro facilities are located on a single, 17-mile, stretch of the Upper Missouri River (the so-called “Great Falls” reach), a segment that Justice Kennedy categorically declares in his opinion to be non-navigable.
What Now?
First off, it seems appropriate here to say that there is a distinction between access to a river and the right to fish it.
“In theory, if you could get dropped off on in the middle of a river by a helicopter, you could fish, regardless of the access issues surrounding the body of water,” says Nathaniel Amendola author of “Let My People Go Fishing: Applying the Law of ‘Givings’ to Private Fishing Preserves, Exclusive Fishing Rights, and State- Stocked Rivers.” But unfortunately, as with everything else surrounding this confused area of law, that is not a hard-and-fast rule and it varies from state to state.
The good news is that the decision will not have an effect on Montana anglers.
Montana Attorney General Steve Bullock insists that this case only limits Montana’s ability to charge rent for the use of the riverbed, nothing more. “Montana’s access law says the public can recreate on any natural stream – irrespective of who owns the bed and banks – as long as that stream is capable of supporting recreation and as long as those using the stream do not go above the normal high-water marks where the banks are owned by private interests.”
To further explain, Bruce Farling, Executive Director of Montana Trout Unlimited says that the law “states that the public can recreate on any natural stream capable of supporting recreation irrespective of who owns the bed and banks as long as we stay within the normal high-water mark.” More to the point, “PPL v. Montana does not affect this.”
The bad news is that other states that do not have river access laws as strong as Montana may be affected.
According to Richard Frank, “the decision appears to interpret and apply that test [navigability test] in a somewhat narrower manner than had its earlier navigability precedents.” And while declaring a river not navigable may not have any effect on angler’s access, such as in Montana, in some states it may. But this decision’s consequence on each of the other 49 states is impossible to say, mainly because water access rules are so confused to begin with. Regardless, anytime the definition of navigability is restricted, it cannot be a good thing for public access, although it may not hurt.
Take for instance Utah. Thanks to the recent Public Waters Access Act – which despite its name is quite prohibitive – access to non-navigable streams is seriously limited, according to the Utah Stream Access Coalition. So, the Supreme Court’s definition of navigability could have a direct impact on the state’s rivers.
Worse for anglers of the other 49, as Tom Bie, editor of The Drake Magazine suggests, it may have been prudent for Montana to just stay out of this one.
Bie writes: “The State ended up joining the private individuals in the suit, and a district court awarded Montana almost fifty million dollars in damages. FIFTY million? I’m nervous about the outcome of this case, and I hope that the PPL power company loses big, but if attorneys for PPL are able to win—and anything is possible with our current Supreme Court—we might look back at this case that cost us a huge slice of our public domain and say that it was a greedy, opportunist overreach by the State of Montana, not PPL, that set this ball in motion.”
Long story short, it does not appear that wholesale changes are coming immediately. How the Supreme Court’s decision will steer river access litigation going forward is tough to say. In the worst case scenario, landowners will continue to ask courts to declare certain stretches of water non-navigable, whatever effect that may have. None the less, it is always prudent to be cognizant of water access laws if anything to remain safe from the consequences of trespassing but also to be an advocate of public use of waterways.


Thanks Ben, for this great and informative piece.


Louis Cahill
Gink & Gasoline
Sign Up For Our Weekly Newsletter!

Follow Gink & Gasoline on Facebook:

5 thoughts on “Angler Access, Montana’s bold New Precedent

  1. I am so damned tired of this garbage about individuals and corporations trying to deny anglers access torivers and streams.

    Maybe we should make it a crime for these so called land owners to prevent the public from accessing publicly owned wildlife for sporting purposes.

    Slap a $5000 a day fine and a day in jail penalty or revocation of the corporate charter on them for every day they prevent citizens from access.

  2. Something to think about the next time a new SC justice is being named. Not as sexy as a nominee’s position on Roe v. Wade, I’m sure, but the impact of SJC rulings on issues like access is monumental and will be even more so as the population grows and land ownership becomes more restricted (& possibly more restrictive).

    • Not 100 % certain of out west, but most states east of the Mississippi River fall under riparian law in regards to real estate land ownership. Real estate property owners can own the land parcel adjacent to any river up to the mean high water mark on “navigable” rivers, on “non-navigable” rivers the land owners can own land (riverbed) to the center line of the river under the water. In which case either “non-navigable” or “navigable” river designation could determine if one fly fishermen was actually trespassing while wading in a stream. It depends on the survey on record and the states designation on river navigability or non-navigability.
      If its actually important enough to you, for fishing rights and access rights you could check real estate records at the county courthouse or registry of deeds in the county that the river is located in, some records will have a property survey on file. Most counties in US have a GIS system as a public resource for property ownership records you could reference.
      In many instances I have been driving past a house on a nice looking stretch of river, stopped, turned around and went back and knocked on the door, I introduced myself and asked permission to fish on their property…90% of the time I get a green light.
      If its posted “no trespassing”, don’t trespass.
      I can’t blame some property owners for posting, there’s a boatload of disrespectful slob idiots out there that have absolutely no respect for other peoples property and leave their trash all over the river banks or urinate and defecate on their property and worst of all keep to many fish. If it was happening on my private property I’d shoot first.

  3. Pingback: Drying out? | PPL Montana vs Montana | 8-14 Day Forecast —

Leave a Reply

Your email address will not be published.

Captcha loading...