Navigable Water Supreme Court of the USA Sez:

Seems To Me Someone Dropped the Ball.........

.....way back when these power plants were first licensed and built.

> PPL’s power facilities have existed at their locations for many decades, some for over a century......Until recently, these facilities were operated without title-based objection by the State of Montana. The State was well aware of the facilities’ existence on the riverbeds—indeed, various Montana state agencies had participated in federal licensing proceedings for these hydroelectric projects...... Yet the State did not seek, and accordingly PPL and its predecessor did not pay, compensation for use of the riverbeds.

> Instead, the understanding of PPL and the United States is that PPL has been paying rents to the United States for use of those riverbeds, as well as for use of river uplands flooded by PPL’s projects.

I wonder: If the Court had ruled the other way, would re-imbursment by the Federal government have been in order?

Seems To Me Someone Dropped the Ball.........

They sure dropped the ball in Arkansas back in 1980!

There is no doubt that the segment of the Mulberry River that is involved in this lawsuit can be used for a substantial portion of the year for recreational purposes. Consequently, we hold that it is navigable at that place with all the incidental rights of that determination.

http://scholar.google.com/scholar_case?q=mulberry+river&hl=en&as_sdt=4,4&case=1003775629291567114&scilh= 0">State v. Mcllroy

DDSM:beer:

Seems To Me Someone Dropped the Ball.........

When the differences in ownership were defined by navigation, recreation use was never considered, the interest and intent was based on commercial navigation protection for the benefit of the population as a whole. That is the only measure that any court has the right to consider. Recreation is not a commercial use, many may feed from it but only as long as many people have a disposable income to spend on toys, those times are rapidly going away.
jud

Seems To Me Someone Dropped the Ball.........

Ahhhh...but the very next year:

Title 22 Public Property
Chapter 5 State Lands Generally
Subchapter 4 -- Title to Lands

(2) No affirmative action shall be required by the mineral owner or lessee of the State of Arkansas to enable the mineral owner or lessee to retain ownership of or leasehold interest in the minerals under the bed of the Mulberry River.

Acts 1981, No. 830, §§ 1, 2; 1981, No. 872, § 1; A.S.A. 1947, §§ 10-1027 -- 10-1029.

But Mcilroy is still cited by the State Attorney General to claim ownership of the beds of Navigable streams...based upon recreation...

STATE V. MCILROY

(there is gas in that there shale)

DDSM:beer:

Seems To Me Someone Dropped the Ball.........

> Recreation is not a commercial use
> jud

Of course it is.

Seems To Me Someone Dropped the Ball.........

> When the differences in ownership were defined by navigation, recreation use was never considered, the interest and intent was based on commercial navigation protection for the benefit of the population as a whole. That is the only measure that any court has the right to consider. Recreation is not a commercial use, many may feed from it but only as long as many people have a disposable income to spend on toys, those times are rapidly going away.
> jud

Recreation is considered for the purpose of title in some states. The state has title to the beds of rivers that supported commerce at the time of statehood. So the definition of commerce depended on the date of statehood. In Alaska for example, anything that can float a canoe for a significant portion of the year is considered navigable.

Seems To Me Someone Dropped the Ball.........

No drop of the ball there. State and Federal decisions have held that the commercial use need only be one of susceptability. In many areas of the new and old countries commercial recreational use was a regular thing on even rapid waters and short portages an integral part of it.

This decision introduces a new two part test for analysis of historical susceptability of use based on current use that is substantially different reasoning than any I've seen before. It might end in similar results though. Then again it could result in much more restrictive treatment to the public. It will be interesting to see what the Montana court does with the remand on this issue.

Thankfully this court remanded for the factual analysis because, while they seem to state the law pretty well, they show a lack of knowledge about transportation modes vis a vis modern and historical boats. There has not been any improvement in boat ability (non-navigable portions of colorado river were successfully run in the 1800's), there is merely more of a willingness to get wet and use smaller boats. On remand there should be much discussion and evidence submitted on these questions.

As far as Federal rents go, those were not in the form of title use but merely regulatory. So the power company would have had to pay both federal and state fees if the state prevailed. In fact, it will be surprising if after all this the state does not find some other regulatory fee structure to get some money out of the power company.

I think the state's attempt to garner 40 million in back rent was overreaching in the extreme. And it certainly swayed the court into promulgating this new two part test regarding current uses. The state may well have damaged public rights by their greed.

Seems To Me Someone Dropped the Ball.........

Not only can recreation be a commercial use (think river raft rental and guide service, fishing guide service), but boats of recreational size have historically been used for other commercial purposes such as transporting passengers and goods.

Further, the ability to navigate need not have been navigation without difficulty. If a portion of a river had to be portaged to get around obstacles, that portage would not necessarily render all upstream portions non-navigable.