Federal courts have historically ruled on issues that affect land and river ownership, and often such decisions impact outdoor companies and recreation outdoor enthusiasts. On February 22, 2012, the Supreme Court issued a decision in PPL Montana, LLC v. Montana which could impact recreational kayak, canoe, and raft paddlers. The case addressed whether the State of Montana could charge rent to a company which was using the Missouri, Madison, and Clark Fork rivers to create power with large dams. The decision hinged on whether the riverbeds in multiple river sections were “navigable water,” and therefore owned by the State of Montana. In its decision, the Court focused on the Great Falls section of the Missouri River.
Because the Great Falls section was not regularly boated or used for commerce in 1889 (evidenced by Lewis and Clark’s portage of the Falls), the Supreme Court ruled that the river section was not “navigable.” Since the river section was not navigable, the State of Montana could not charge rent to the dam-owner, PPL Montana, LLC. This determination is more restrictive than previously-evaluated standards regarding navigable waterways. The Court remanded the case back to the courts of Montana (which had ruled that the Great Falls section was navigable) to address the other river sections included in the underlying case.
The determination of whether a stream or river is navigable is important to an outdoor company or recreational paddler that uses waterways for canoeing, kayaking, or rafting because a positive determination precludes authorities and landowners adjacent to the river/stream/creek from obstructing the waterway. In other words, if a river or stream is deemed “navigable” then an adjacent landowner cannot erect any restriction (such as wires or fences) to prevent navigability of the waterway by kayaks, canoes, or rafts. While there have been decisions in the past which restricted navigable determinations, the PPL Montana, LLC v. Montana decision further eroded the likelihood that a whitewater river section will be deemed navigable if evaluated by a court.
While the Supreme Court stated that its decision in PPL Montana, LLC v. Montana was limited to streambeds, and not surface waters, the Court clearly established that the determination of “navigability” was extremely restrictive. While many whitewater kayakers have successfully navigated the Missouri River, including Great Falls, the Court stated that it only cared whether an individual in 1889 would have paddled through Great Falls proper. This decision could ultimately allow landowners to more aggressively restrict other recreationally-paddled rivers and streams throughout the country.
Ultimately, outdoor companies and recreational paddlers should always be respectful of landowner’s property adjacent to the waterway they are paddling. In light of the Supreme Court decision in PPL Montana, LLC v. Montana, this courteous behavior is even more important because waterway-adjacent landowners may be able to more successfully restrict a paddler’s access through such a creek or section of a river.
For further information about these issues, please contact Adam L. Van Grack at avangrack@mcmillanmetro.com. Adam Van Grack is an attorney at McMillan Metro, P.C.; President of Potomac Whitewater Racing Center; and past Qualifier for the U.S. Canoe-Slalom Olympic Trials.