Friday, February 24, 2012

Speed Bump

Champagne Flowing In Billings
fast & loose lost

.. Yesterday the Supreme Court of the United states handed down a decision in the case of PPL Montana vs. State of Montana.
.. As of this moment Montana probably owns less river bottom than it thought. As of this moment there is great celebration in the PPL offices in Billings, Montana. As of this moment fly fishers and other recreational users of Montana's waters have some worries. As of this moment the courts in Montana have the herculean task of trying to be a bit more considered in their application of laws and precedents. As of this moment it seems that the law of the land has been changed regarding the definition of navigability. As of this moment there may be fewer rivers where access is legal because of the navigability precedent.
.. You can read all about the concerns:
-- MidCurrent - HERE,
-- Moldy Chum - HERE,
-- Chi Wulff - HERE,
.. The legal stuff is also available:
-- Legal Planet - HERE,
-- Environmental Law Prof Blog - HERE,
-- Thomas Merrill - HERE,
-- Decision (PDF) - HERE.

.. So, Batman, what's it all mean? Well, as in many Supreme Court cases, the high court has criticized the lower courts for playing fast and loose with the law and remanded the case for correction.
.. Interestingly the test of ownership by navigability seems to have been glossed over by much of the post decision analysis. The test of navigability at the time of statehood could be a genuine ball buster if title and ownership questions arise about current water that was not in existence then. At present there is not a set precedent - YET.
.. Finally it also means that fly fishers have just one more thing to worry about on the river and stream access front. Consensus seems to be that the Montana stream access law is not in immanent danger - we'll see: especially if the state does not have title to currently navigable waters that did not exist at time of statehood, (think Mitchell Slough, think the re-arranged Ruby River, etc.)
.. We believe that the real import of this case will be felt for a long time. It takes no real genius to understand that "navigability," will be a concern in legal cases for several more decades and may really mean: PORTAGE THEN - PORTAGE NOW.  Now there's a can of wigglers for ya!