March 12, 2012
On February 22, 2012, the Supreme Court announced its decision in PPL Montana, LLC v. Montana. This case involved a dispute over title to portions of various riverbeds in the State of Montana, riverbeds now occupied by hydropower projects owned by a utility company. The dispute turns on the extent to which the rivers involved are deemed “navigable,” because States generally take title to lands beneath navigable waters. The question before the Court was whether the test for navigability looks only to the navigability of a river at the time the State joined the Union, or also includes subsequent and present-day use. The Montana Supreme Court ruled that the state of Montana owns and may charge the hydropower projects rent for use of riverbed.
In an opinion delivered by Justice Kennedy, the Court unanimously reversed the decision of the Montana Supreme Court, declaring it “based on an infirm legal understanding of the Court’s rules of navigability for title under the equal-footing doctrine.” The proper test, the Court concluded, is whether, at the time of statehood, the pertinent segments of the river in question allowed the passage of a commercial vessel or instead required a portage.
To discuss the case, we have Thomas Merrill, who is the Charles Evans Hughes Professor of Law at Columbia Law School.