The old adage is that a waterway is “navigable” for purposes of federal law if it is deep enough to float a Supreme Court opinion. Seriously, though, the less cheeky test of navigability is whether a waterway is capable of being used in its natural state as an avenue of commerce, meaning whether it was actually navigable at the time of a state’s admission into the Union. Really, that’s the test.
But as the Supreme Court reminded more than 30 years ago, when applying this general test for navigability, you must keep in mind the purpose
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Wednesday’s oral arguments in PPL Montana v. Montana, No. 10-218 (cert. granted June 20, 2011) started off on familiar territory with Justice Kennedy breaking the ice quickly, asking Petitioner’s counsel Paul D. Clement whether his point is “that there should be a Federal rule of — laches or estoppel, or are you just building up to the fact taht this ia traditional, well recognized doctrine and there’s been — and there’s been a sudden change?”
The issue in the case, as you may recall from our earlier posts, is whether in PPL Montana, LLC v. State of Montana, 229 P.3d 421 (Mont. 2010),the Montana Supreme Court applied the proper test for measuring the navigability of rivers. In that case, the Montana court disregarded 100 years of private or federal ownership of the riverbeds under more than 500 miles of river, and held that the state owned them. The court concluded that The net result of the Montana court’s ruling was that the state was owed millions in back and future rent from the owners of hydropower facilities located on those riverbeds.
The case attracted a lot of amicus attention (a complete listing here)
Here’s the transcript.