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United States Supreme Court Confirms Navigability for Title Is Based on Use at Statehood, Is a Reach-by-Reach Determination

March 2, 2012

Earlier this week, the United States Supreme Court reaffirmed its approach to the navigability for title doctrine in PPL Montana, LLC v. State of Montana.  Under this doctrine, a state may assert title to the bed and banks of a water body if it was navigable at the time of statehood.  Many had hoped that the Supreme Court would also address the definition of “navigability” for purposes of the regulatory reach of the Clean Water Act, but the Court declined to do so.

The PPL Montana case evolved from a demand by the State of Montana for millions in back rent for the use of the bed and banks of three rivers by PPL’s hydroelectric facilities.  The case worked its way up to the Montana Supreme Court, which declared the rivers navigable using a river-wide approach, basing its decision in part on present day use of the waters for recreational activities.  The Montana Supreme Court awarded the state millions in back rent from PPL.

The United States Supreme Court unanimously rejected the Montana Supreme Court’s approach.  The Court confirmed that navigability is to be determined by looking at the character and use of the water body at the time of statehood.  It also upheld its segment-by-segment approach for determining navigability for title, meaning that a court is to determine the navigability of a river in small reaches.  Certain parts of a river can be declared “navigable” while other parts remain “non-navigable.”  The Court remanded the case for further factual development, with the exception of one reach containing waterfalls and rapids, which the Supreme Court declared non-navigable.

Limiting its opinion, the Supreme Court distinguished its analysis from cases that were focused on whether a water body was a “navigable water of the United States” for purposes of federal regulation under the Commerce Clause of the United States Constitution. Navigability under the Commerce Clause forms the basis for federal regulatory jurisdiction under the Clean Water Act and other federal regulations.

If you have any questions about this case, please contact me at MNash@dunncarney.com.

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