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Dam dispute draws on Lewis and Clark's travels

Tuesday, December 6, 2011 | 5:15 p.m. CST

HELENA, Mont. — U.S. Supreme Court justices will hear arguments invoking the Lewis and Clark expedition from two centuries ago when they take up a dispute Wednesday that could affect who controls waterways across the nation.

PPL Montana is appealing a Montana Supreme Court ruling that the state owns the lands beneath nine hydroelectric dams sitting on three Montana rivers and that the company owes Montana tens of millions of dollars in rent.

The titles to riverbeds beneath commercially navigable waterways go to states upon their entry to the U.S. Non-navigable riverbed ownership stays with the federal government upon statehood.

Now, the Supreme Court justices are being asked to clarify the definition of a navigable river, a decision that could also affect the rights to lands beneath the streams and rivers all over the U.S.

The case might hinge upon the journals of the 1804-06 Meriwether Lewis and William Clark expedition that opened up the West. Both sides cite Lewis and Clark's 1805 portage around the Great Falls of the Missouri River in their arguments on whether the rivers were commercially navigable at the time Montana became a state.

At that time, the explorers had to carry their supplies for 17 miles around the Great Falls. The heart of the current case centers on whether that made the particular portion of the Missouri non-navigable for title purposes, as PPL argues.

Montana claimed that the title to all the land under the Missouri, Clark Fork and Madison rivers within its border transferred when it became a state in 1889. When deciding navigability, the entire river should be considered — not just segments — and a portage around a natural obstruction does not interrupt the flow of those rivers as a highway of commerce, the state says.

"Lewis and Clark were sent out to explore for commercial purposes," Montana Attorney General Steve Bullock said. "They had to go around the natural falls, but the portaging doesn't render a continuous highway all of a sudden non-navigable."

PPL argued its dams are built on non-navigable portions of Missouri and Clark Fork rivers — the Great Falls of the Missouri and Thompson Falls on the Clark Fork — therefore the title to the lands under those dams should not go to the state.

The fact that Lewis and Clark had to get out of their boats and spend weeks carrying their supplies around the falls proves that portion of the river is non-navigable and should not fall under state title, the company said.

"I think it was probably a continuous water highway until you got to a natural impediment — the Great Falls," PPL Montana spokesman David Hoffman said. "Walking around the river for 17 miles doesn't make that waterway navigable."

The same is true for a hydroelectric dam that sits on Thompson Falls in the Missouri River, PPL argued. The falls may connect two navigable portions of the river, but the falls themselves are not navigable, the company said.

The third river, the Madison, was not used for commercial purposes at the time of statehood, and the state court improperly considered post-statehood use in making its ruling, PPL said.

The stakes are huge for PPL, amounting to more than $52 million in back rent with interest so far. The power company said the state has never made a similar title claim over the last 100 years that many of the dams have existed.

The company's argument is backed by the U.S. Department of Justice, livestock associations, farm bureaus and corporations that say giving the state that previously uncontested title to the submerged lands could disrupt property rights across the nation.

"If Montana's action is allowed to stand, other states will surely follow suit with their own judicial takings," PPL wrote in its brief to the court.

Montana attorneys, on the other hand, argue that portages around naturally occurring obstructions were part of the commercial navigation of the river at the time. The heavy use of the Missouri from Lewis and Clark's time, through the state's gold rush and past statehood in 1889, proves the Missouri's commercial navigability, they said.

The state noted a passage from Lewis' journal in which the explorer directly addresses the Missouri's navigability, writing, "The world can furnish an example of a river running to the extent which the Missouri and Jefferson's do through such a mountainous country and at the same time so navigable as they are."

Twenty-six states and numerous conservation groups are backing the state, saying a decision in favor of PPL would create a patchwork segmentation to the title to the beds of navigable rivers.

The result could restrict public access to those rivers, make wildlife management more difficult and throw into question thousands of leases, agreements and easements granted to river users, the states and conservation groups said.


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