PPL MONTANA v. MONTANA

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 10–218

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PPL MONTANA, LLC, PETITIONER v. MONTANA

on writ of certiorari to the supreme court of montana

[February 22, 2012]

Justice Kennedy delivered the opinion of the Court.

This case concerns three rivers which flow through Montana and then beyond its borders. The question is whether discrete, identifiable segments of these rivers in Montana were nonnavigable, as federal law defines that concept for purposes of determining whether the State acquired title to the riverbeds underlying those segments, when the State entered the Union in 1889. Montana contends that the rivers must be found navigable at the disputed locations. From this premise, the State asserts that in 1889 it gained title to the disputed riverbeds under the constitutional equal-footing doctrine. Based on its title claims, Montana sought compensation from PPL Montana, LLC, a power company, for its use of the riverbeds for hydroelectric projects. The Montana courts granted summary judgment on title to Montana, awarding it $41 million in rent for the riverbeds for the period from 2000 to 2007 alone. That judgment must be reversed.

I

The three rivers in question are the Missouri River, the Madison River, and the Clark Fork River. The Missouri and the Madison are on the eastern side of the Continental Divide. The Madison flows into the Missouri, which then continues at length to its junction with the Mississippi River. The Clark Fork River is on the western side of the Continental Divide. Its waters join the Columbia River system that flows into the Pacific Ocean. Each river shall be described in somewhat more detail.

A

The Missouri River originates in Montana and traverses seven States before a point just north of St. Louis where it joins the Mississippi. 19 Encyclopedia Americana 270 (int’l ed. 2006). If considered with the continuous path formed by certain streams that provide the Missouri River’s headwaters, the Missouri is over 2,500 miles long, the longest river in the United States. Ibid. The Missouri River’s basin (the land area drained by the river) is the second largest in the Nation, surpassed only by the Mississippi River basin of which it is a part. Rivers of North America 427 (A. Benke & C. Cushing eds. 2005) (hereinafter Rivers of North America). As a historical matter, the river shifted and flooded often, and contained many sandbars, islands, and unstable banks. Id., at 432–433. The river was once described as one of the most “variable beings in creation,” as “inconstant [as] the action of the jury,” Sioux City Register (Mar. 28, 1868); and its high quantity of downstream sediment flow spawned its nickname, the “Big Muddy,” Rivers of North America 433.

The upstream part of the Missouri River in Montana, known as the Upper Missouri River, is better characterized as rocky rather than muddy. While one usually thinks of the Missouri River as flowing generally south, as indeed it does beginning in North Dakota, the Upper Missouri in Montana flows north from its principal headwaters at Three Forks, which is located about 4,000 feet above sea level in the Rocky Mountain area of southwestern Montana. It descends through scenic mountain terrain including the deep gorge at the Gates of the Mountains; turns eastward through the Great Falls reach, cascading over a roughly 10-mile stretch of cataracts and rapids over which the river drops more than 400 feet; and courses swiftly to Fort Benton, a 19th-century fur trading post, before progressing farther east into North Dakota and on to the Great Plains. 19 Encyclopedia Americana, supra, at 270; 8 New Encyclopaedia Britannica 190 (15th ed. 2007) (hereinafter Encyclopaedia Britannica); 2 Columbia Gazetteer of the World 2452 (2d ed. 2008) (hereinafter Columbia Gazetteer); F. Warner, Montana and the Northwest Territory 75 (1879). In 1891, just after Montana became a State, the Upper Missouri River above Fort Benton was “seriously obstructed by numerous rapids and rocks,” and the 168-mile portion flowing eastward “[f]rom Fort Benton to Carroll, Mont., [was] called the rocky river.” Annual Report of the Chief of Engineers, U. S. Army (1891), in 2 H. R. Exec. Doc. No. 1, 52d Cong., 1st Sess., pt. 2, pp. 275–276 (1891) (hereinafter H. R. Exec. Doc.).

The Great Falls exemplify the rocky, rapid character of the Upper Missouri. They consist of five cascade-like waterfalls located over a stretch of the Upper Missouri leading downstream from the city of Great Falls in midwestern Montana. The waterfall farthest downstream, and the one first encountered by Meriwether Lewis and William Clark when they led their remarkable expedition through the American West in 1805, is the eponymous “Great Falls,” the tallest of the five falls at 87 feet. W. Clark, Dear Brother: Letters of William Clark to Jonathan Clark 109, n. 5 (J. Holmberg ed. 2002) (hereinafter Dear Brother). Lewis recorded observations of this “sublimely grand specticle”:

“[T]he whole body of water passes with incredible swiftness. . . . over a precipice of at least eighty feet . . . . [T]he irregular and somewhat projecting rocks below receives the water . . . and brakes it into a perfect white foam which assumes a thousand forms in a moment sometimes flying up in jets . . . [that] are scarcely formed before large roling bodies of the same beaten and foaming water is thrown over and conceals them. . . . [T]he [rainbow] reflection of the sun on the sprey or mist . . . adds not a little to the beauty of this majestically grand senery.” The Lewis and Clark Journals: An American Epic of Discovery 129 (G. Moulton ed. 2003) (hereinafter Lewis and Clark Journals); The Journals of Lewis and Clark 136–138 (B. DeVoto ed. 1981).

If one proceeds alongside the river upstream from Great Falls, as Lewis did in scouting the river for the expedition, the other four falls in order are “Crooked Falls” (19 feet high); “Rainbow Falls” (48 feet), which Lewis called “one of the most bea[u]tifull objects in nature”; “Colter Falls” (7 feet), and “Black Eagle Falls” (26 feet). See Lewis and Clark Journals 131–132; Dear Brother 109, n. 5; P. Cutright, Lewis & Clark: Pioneering Naturalists 154–156 (2003). Despite the falls’ beauty, Lewis could see that their steep cliffs and swift waters would impede progress on the river, which had been the expedition’s upstream course for so many months. The party proceeded over a more circuitous land route by means of portage, circumventing the Great Falls and their surrounding reach of river before returning to travel upon the river about a month later. See Lewis and Clark Journals 126–152.

The Upper Missouri River, both around and further upstream of the Great Falls, shares the precipitous and fast-moving character of the falls themselves. As it moves downstream over the Great Falls reach, a 17-mile stretch that begins somewhat above the head of Black Eagle Falls, the river quickly descends about 520 feet in elevation, see Montana Power Co. v. Federal Power Comm’n, 185 F. 2d 491 (CADC 1950); 2010 MT 64, ¶¶29–30, 108–109, 355 Mont. 402, 416, 442, 229 P. 3d 421, 433, 449, dropping over 400 feet within 10 miles from the first rapid to the foot of Great Falls, Parker, Black Eagle Falls Dam, 27 Transactions of the Am. Soc. of Civil Engineers 56 (1892). In 1879, that stretch was a “constant succession of rapids and falls.” Warner, supra, at 75; see also 9 The Journals of the Lewis & Clark Expedition 171 (G. Moulton ed. 1995) (hereinafter Journals of the Lewis & Clark Expedition) (“a continued rapid the whole way for 17 miles”). Lewis noted the water was so swift over the area that buffalo were swept over the cataracts in “considerable quantities” and were “instantly crushed.” Lewis and Clark Journals 136–137. Well above the Great Falls reach, the Stubbs Ferry stretch of the river from Helena to Cascade also had steep gradient and was “much obstructed by rocks and dangerous rapids.” Report of the Secretary of War, 2 H. R. Doc. No. 2, 54th Cong., 1st Sess., pt. 1, p. 301 (1895).

B

The second river to be considered is the Madison, one of the Missouri River’s headwater tributaries. Named by Lewis and Clark for then-Secretary of State James Madison, the Madison River courses west out of the Northern Rocky Mountains of Wyoming and Montana in what is now Yellowstone National Park, then runs north and merges with the Jefferson and Gallatin Rivers at Three Forks, Montana, to form the Upper Missouri. Lewis and Clark Journals 158; Rivers of North America 459; 7 Encyclopaedia Britannica 658; 2 Columbia Gazetteer 2242. Along its path, the Madison River flows through two lakes artificially created by dams built in canyons: Hebgen Lake and Ennis Lake. Federal Writers’ Project of the Work Projects Administration, Montana: A State Guide Book 356 (J. Stahlberg ed. 1949); R. Aarstad, E. Arguimbau, E. Baumler, C. Porsild, & B. Shovers, Montana Place Names from Alzada to Zortman: A Montana Historical Society Guide 166 (2009).

C

The third river at issue in this case is the Clark Fork. That river, which consists in large part of “long, narrow streams confined by mountainous terrain,” rises at an elevation of about 5,000 feet in the Silver Bow Mountains of southwestern Montana. 3 Encyclopaedia Britannica 352; Dept. of Interior, U. S. Geological Survey, J. Stevens & F. Henshaw, Surface Water Supply of the United States, 1907–8, Water-Supply Paper 252, pp. 81–82 (1910). The river flows northward for about 40 miles; turns northwest for a stretch; then turns abruptly northeast for a short stint, by which time it has descended nearly 2,500 feet in altitude. It then resumes a northwestward course until it empties into Lake Pend Oreille in northern Idaho, out of which flows a tributary to the Columbia River of the Pacific Northwest. Ibid.; 1 Columbia Gazetteer 816. The Clark Fork is “one of the wildest and most picturesque streams in the West,” marked by “many waterfalls and boxed gorges.” Federal Writers’ Projects of the Works Progress Administration, Idaho: A Guide in Word and Picture 230 (2d ed. 1950).

Lewis and Clark knew of the Clark Fork River but did not try to navigate it, in part because the absence of salmon in one of its tributaries made Lewis believe “ ‘there must be a considerable fall in [the river] below.’ ” H. Fritz, The Lewis and Clark Expedition 38–39 (2004). This was correct, for shortly before the Clark Fork exits to Idaho from the northwest corner of Montana, “the waters of the river dash madly along their rocky bed,” dropping over 30 feet in a half-mile as they rush over falls and rapids including a “foaming waterfall” now known as Thompson Falls. O. Rand, A Vacation Excursion: From Massachusetts Bay to Puget Sound 176–177 (1884); C. Kirk, A History of the Montana Power Company 231 (2008).

II

Petitioner PPL Montana, LLC (PPL), owns and operates hydroelectric facilities that serve Montana residents and businesses. Ten of its facilities are built upon riverbeds underlying segments of the Upper Missouri, Madison, and Clark Fork Rivers. It is these beds to which title is disputed.

On the Upper Missouri River, PPL has seven hydroelectric dams. Five of them are along the Great Falls reach, including on the three tallest falls; and the other two are in canyons upstream on the Stubbs Ferry stretch. See K. Robison, Cascade County and Great Falls 56 (2011); Aarstad et al., supra, at 125, 119, 145–146. On the Madison River, two hydroelectric dams are located in steep canyons. On the Clark Fork River, a hydroelectric facility is constructed on the Thompson Falls.

The dams on the Upper Missouri and Madison are called the Missouri-Madison project. The Thompson Falls facility is called the Thompson Falls project. Both projects are licensed by the Federal Energy Regulatory Commission. PPL acquired them in 1999 from its predecessor, the Montana Power Company. 355 Mont., at 405–406, 229 P. 3d, at 426.

PPL’s power facilities have existed at their locations for many decades, some for over a century. See Robison, supra, at 40 (Black Eagle Falls dam constructed by 1891). 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. See, e.g., Montana Power Co., 8 F. P. C. 751, 752 (1949) (Thompson Falls project); Montana Power Co., 27 FERC ¶62,097, pp. 63,188–63,189 (1984) (Ryan Dam of Missouri-Madison project). Yet the State did not seek, and accordingly PPL and its predecessor did not pay, compensation for use of the riverbeds. 355 Mont., at 406, 229 P. 3d, at 427. 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. Reply Brief for Petitioner 4; App. to Supp. Brief for Petitioner 4–5; Brief for United States as Amicus Curiae 3, n. 3.

In 2003, parents of Montana schoolchildren sued PPL in the United States District Court for the District of Montana, arguing that PPL had built its facilities on riverbeds that were state owned and part of Montana’s school trust lands. 355 Mont., at 406, 229 P. 3d, at 426. Prompted by the litigation, the State joined the lawsuit, for the first time seeking rents for PPL’s riverbed use. The case was dismissed in September 2005 for lack of diversity jurisdiction. Dolan v. PPL Montana, LLC, No. 9:03–cv–167 (D Mont., Sept. 27, 2005).

PPL and two other power companies sued the State of Montana in the First Judicial District Court of Montana, arguing that the State was barred from seeking compensation for use of the riverbeds. 355 Mont., at 407–408, 229 P. 3d, at 427–428. By counterclaim, the State sought a declaration that under the equal-footing doctrine it owns the riverbeds used by PPL and can charge rent for their use. Id., at 408, 229 P. 3d, at 428. The Montana trial court granted summary judgment to Montana as to navigability for purposes of determining riverbed title. Id., at 408–409, 413–414, 229 P. 3d, at 428, 431–432; App. to Pet. for Cert. 143. The court decided that the State owned the riverbeds. 355 Mont., at 428–429, 229 P. 3d, at 440. The court ordered PPL to pay $40,956,180 in rent for use of the riverbeds between 2000 and 2007. Id., at 431–432, 229 P. 3d, at 442–443. Whether a lease for future periods would commence, and, if so, at what rental rate, seems to have been left to the discretion of the Montana Board of Land Commissioners. App. to Pet. for Cert. 128–129.

In a decision by a divided court, the Montana Supreme Court affirmed. 355 Mont., at 461–462, 229 P. 3d, at 460–461; id., at 462, 229 P. 3d, at 461 (dissenting opinion). The court reasoned from the background principle that “navigability for title purposes is very liberally construed.” Id., at 438, 229 P. 3d, at 446. It dismissed as having “limited applicability” this Court’s approach of assessing the navigability of the disputed segment of the river rather than the river as a whole. Id., at 441–442, 229 P. 3d, at 448–449. The Montana court accepted that certain relevant stretches of the rivers were not navigable but declared them “merely short interruptions” insufficient as a matter of law to find nonnavigability, since traffic had circumvented those stretches by overland portage. Id., at 438, 442, 229 P. 3d, at 446, 449. Placing extensive reliance upon evidence of present-day use of the Madison River, the court found that river navigable as a matter of law at the time of statehood. Id., at 439, 229 P. 3d, at 447.

Justice Rice dissented. Id., at 462, 229 P. 3d, at 461. He stated that “courts are not to assume an entire river is navigable merely because certain reaches of the river are navigable.” Id., at 464, 229 P. 3d, at 462. The majority erred, he wrote, in rejecting the “section-by-section approach” and “declaring, as a matter of law, that the reaches claimed by PPL to be non-navigable are simply too ‘short’ to matter,” when in fact PPL’s evidence showed the “disputed reaches of the rivers were, at the time of statehood, non-navigable.” Id., at 463–466, 476–477, 229 P. 3d, at 462–464, 470.

This Court granted certiorari, 564 U. S. ___ (2011), and now reverses the judgment.

III A

PPL contends the opinion of the Montana Supreme Court is flawed in three respects: first, the court’s failure to consider with care the navigability of the particular river segments to which title is disputed, and its disregard of the necessary overland portage around some of those segments; second, its misplaced reliance upon evidence of present-day, recreational use; and third, what the state court itself called its liberal construction of the navigability test, which did not place the burden of proof upon the State to show navigability. Brief for Petitioner 26. The United States as amicus is in substantial agreement with PPL’s arguments, although it offers a more extended discussion with respect to evidence of present-day, recreational use. Brief for United States 27–33.

It is appropriate to begin the analysis by discussing the legal principles that control the case.

B

The rule that the States, in their capacity as sovereigns, hold title to the beds under navigable waters has origins in English common law. See Shively v. Bowlby, 152 U. S. 1, 13 (1894) . A distinction was made in England between waters subject to the ebb and flow of the tide (royal rivers) and nontidal waters (public highways). With respect to royal rivers, the Crown was presumed to hold title to the riverbed and soil, but the public retained the right of passage and the right to fish in the stream. With respect to public highways, as the name suggests, the public also retained the right of water passage; but title to the riverbed and soil, as a general matter, was held in private ownership. Riparian landowners shared title, with each owning from his side to the center thread of the stream, as well as the exclusive right to fish there. See Idaho v. Coeur d’Alene Tribe of Idaho, 521 U. S. 261, 285 (1997) (summarizing J. Angell, A Treatise on the Common Law in Relation to Water-Courses 14–18 (1824)); 3 J. Kent, Commentaries on American Law 528–529 (9th ed. 1858).

While the tide-based distinction for bed title was the initial rule in the 13 Colonies, after the Revolution American law moved to a different standard. Some state courts came early to the conclusion that a State holds presumptive title to navigable waters whether or not the waters are subject to the ebb and flow of the tide. See, e.g., Carson v. Blazer, 2 Binn. 475 (Pa. 1810); Executors of Cates v. Wadlington, 12 S. C. L. 580 (1822); Wilson v. Forbes, 13 N. C. 30 (1828); Bullock v. Wilson, 2 Port. 436 (Ala. 1835); Elder v. Burrus, 25 Tenn. 358 (1845). The tidal rule of “navigability” for sovereign ownership of riverbeds, while perhaps appropriate for England’s dominant coastal geography, was ill suited to the United States with its vast number of major inland rivers upon which navigation could be sustained. See L. Houck, Law of Navigable Rivers 26–27, 31–35 (1868); Packer v. Bird, 137 U. S. 661 –669 (1891). By the late 19th century, the Court had recognized “the now prevailing doctrine” of state sovereign “title in the soil of rivers really navigable.” Shively, supra, at 31; see Barney v. Keokuk, 94 U. S. 324, 336 (1877) (“In this country, as a general thing, all waters are deemed navigable which are really so”). This title rule became known as “navigability in fact.”

The rule for state riverbed title assumed federal constitutional significance under the equal-footing doctrine. In 1842, the Court declared that for the 13 original States, the people of each State, based on principles of sovereignty, “hold the absolute right to all their navigable waters and the soils under them,” subject only to rights surrendered and powers granted by the Constitution to the Federal Government. Martin v. Lessee of Waddell, 16 Pet. 367, 410 (1842). In a series of 19th-century cases, the Court determined that the same principle applied to States later admitted to the Union, because the States in the Union are coequal sovereigns under the Constitution. See, e.g., Lessee of Pollard v. Hagan, 3 How. 212, 228–229 (1845); Knight v. United States Land Assn., 142 U. S. 161, 183 (1891) ; Shively, supra, at 26–31; see United States v. Texas, 339 U. S. 707, 716 (1950) . These precedents are the basis for the equal-footing doctrine, under which a State’s title to these lands was “conferred not by Congress but by the Constitution itself.” Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U. S. 363, 374 (1977) . It follows that any ensuing questions of navigability for determining state riverbed title are governed by federal law. See, e.g., United States v. Utah, 283 U. S. 64, 75 (1931) ; United States v. Oregon, 295 U. S. 1, 14 (1935) .

The title consequences of the equal-footing doctrine can be stated in summary form: Upon statehood, the State gains title within its borders to the beds of waters then navigable (or tidally influenced, see Phillips Petroleum Co. v. Mississippi, 484 U. S. 469 (1988) , although that is not relevant in this case). It may allocate and govern those lands according to state law subject only to “the paramount power of the United States to control such waters for purposes of navigation in interstate and foreign commerce.” Oregon, supra, at 14; see Montana v. United States, 450 U. S. 544, 551 (1981) ; United States v. Holt State Bank, 270 U. S. 49, 54 (1926) . The United States retains any title vested in it before statehood to any land beneath waters not then navigable (and not tidally influenced), to be transferred or licensed if and as it chooses. See Utah, supra, at 75; Oregon, supra, at 14.

Returning to the “navigability in fact” rule, the Court has explained the elements of this test. A basic formulation of the rule was set forth in The Daniel Ball, 10 Wall. 557 (1871), a case concerning federal power to regulate navigation:

“Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.” Id., at 563.

The Daniel Ball formulation has been invoked in considering the navigability of waters for purposes of assessing federal regulatory authority under the Constitution, and the application of specific federal statutes, as to the waters and their beds. See, e.g., ibid.; The Montello, 20 Wall. 430, 439 (1874); United States v. Appalachian Elec. Power Co., 311 U. S. 377 , and n. 21 (1940) (Federal Power Act); Rapanos v. United States, 547 U. S. 715 –731 (2006) (plurality opinion) (Clean Water Act); id., at 761 (Kennedy, J., concurring in judgment) (same). It has been used as well to determine questions of title to water beds under the equal-footing doctrine. See Utah, supra, at 76; Oklahoma v. Texas, 258 U. S. 574, 586 (1922) ; Holt State Bank, supra, at 56. It should be noted, however, that the test for navigability is not applied in the same way in these distinct types of cases.

Among the differences in application are the following. For state title under the equal-footing doctrine, navigability is determined at the time of statehood, see Utah, supra, at 75, and based on the “natural and ordinary condition” of the water, see Oklahoma, supra, at 591. In contrast, admiralty jurisdiction extends to water routes made navigable even if not formerly so, see, e.g., Ex parte Boyer, 109 U. S. 629 –632 (1884) (artificial canal); and federal regulatory authority encompasses waters that only recently have become navigable, see, e.g., Philadelphia Co. v. Stimson, 223 U. S. 605 –635 (1912), were once navigable but are no longer, see Economy Light & Power Co. v. United States, 256 U. S. 113 –124 (1921), or are not navigable and never have been but may become so by reasonable improvements, see Appalachian Elec. Power Co., supra, at 407–408. With respect to the federal commerce power, the inquiry regarding navigation historically focused on interstate commerce. See The Daniel Ball, supra, at 564. And, of course, the commerce power extends beyond navigation. See Kaiser Aetna v. United States, 444 U. S. 164 –174 (1979). In contrast, for title purposes, the inquiry depends only on navigation and not on interstate travel. See Utah, supra, at 76. This list of differences is not exhaustive. Indeed, “[e]ach application of [the Daniel Ball] test . . . is apt to uncover variations and refinements which require further elaboration.” Appalachian Elec. Power Co., supra, at 406.

IV A

The primary flaw in the reasoning of the Montana Supreme Court lies in its treatment of the question of river segments and overland portage.

To determine title to a riverbed under the equal-footing doctrine, this Court considers the river on a segmentby-segment basis to assess whether the segment of the river, under which the riverbed in dispute lies, is navigable or not. In United States v. Utah, for example, the Court noted,

“the controversy relates only to the sections of the rivers which are described in the complaint, and the Master has limited his findings and conclusions as to navigability accordingly. The propriety of this course, in view of the physical characteristics of the streams, is apparent. Even where the navigability of a river, speaking generally, is a matter of common knowledge, and hence one of which judicial notice may be taken, it may yet be a question, to be determined upon evidence, how far navigability extends.” 283 U. S., at 77.

The Court went on to conclude, after reciting and assessing the evidence, that the Colorado River was navigable for its first roughly 4-mile stretch, nonnavigable for the next roughly 36-mile stretch, and navigable for its remaining 149 miles. Id., at 73–74, 79–81, 89. The Court noted the importance of determining “the exact point at which navigability may be deemed to end.” Id., at 90.

Similarly, in Brewer-Elliott Oil & Gas Co. v. United States, 260 U. S. 77, 85 (1922) , the Court examined the segment of the Arkansas River that ran along the Osage Indian Reservation, assessing whether the Arkansas River was “navigable in fact at the locus in quo.” The Court concluded that the United States originally, and the Osages as its grantees, unequivocally held title to the riverbeds because the Arkansas River “is and was not navigable at the place where the river bed lots, here in controversy, are.” Id., at 86. The Court found the segment of river along the reservation to be nonnavigable even though a segment of the river that began further downstream was navigable. Ibid. See also Oklahoma, supra, at 583, 584, 587–588, 589–591 (noting that “how far up the streams navigability extended was not known”; assessing separately the segments of the Red River above and below its confluence with the Washita River within Oklahoma’s borders; and concluding that neither segment, and hence “no part of the river within Oklahoma,” was navigable).

The Montana Supreme Court discounted the segment-by-segment approach of this Court’s cases, calling it “a piecemeal classification of navigability—with some stretches declared navigable, and others declared non-navigable.” 355 Mont., at 440–442, 229 P. 3d, at 448–449. This was error. The segment-by-segment approach to navigability for title is well settled, and it should not be disregarded. A key justification for sovereign ownership of navigable riverbeds is that a contrary rule would allow private riverbed owners to erect improvements on the riverbeds that could interfere with the public’s right to use the waters as a highway for commerce. While the Federal Government and States retain regulatory power to protect public navigation, allocation to the State of the beds underlying navigable rivers reduces the possibility of conflict between private and public interests. See Utah, supra, at 82–83; Packer, 137 U. S., at 667. By contrast, segments that are nonnavigable at the time of statehood are those over which commerce could not then occur. Thus, there is no reason that these segments also should be deemed owned by the State under the equal-footing doctrine.

Practical considerations also support segmentation. Physical conditions that affect navigability often vary significantly over the length of a river. This is particularly true with longer rivers, which can traverse vastly different terrain and the flow of which can be affected by varying local climates. The Missouri River provides an excellent example: Between its headwaters and mouth, it runs for over 2,000 miles out of steep mountains, through canyons and upon rocky beds, over waterfalls and rapids, and across sandy plains, capturing runoff from snow melt and farmland rains alike. These shifts in physical conditions provide a means to determine appropriate start points and end points for the segment in question. Topographical and geographical indicators may assist. See, e.g., Utah, supra, at 77–80 (gradient changes); Oklahoma, 258 U. S., at 589 (location of tributary providing additional flow).

A segment approach to riverbed title allocation under the equal-footing doctrine is consistent with the manner in which private parties seek to establish riverbed title. For centuries, where title to the riverbed was not in the sovereign, the common-law rule for allocating riverbed title among riparian landowners involved apportionment defined both by segment (each landowner owns bed and soil along the length of his land adjacent) and thread (each landowner owns bed and soil to the center of the stream). See J. Angell, A Treatise on the Law of Watercourses 18 (6th ed. 1869); Tyler v. Wilkinson, 24 F. Cas. 472, 474 (No. 14,312) (CC RI 1827) (Story, J.). Montana, moreover, cannot suggest that segmentation is inadministrable when the state courts managed to divide up and apportion the underlying riverbeds for purposes of determining their value and the corresponding rents owed by PPL.

The Montana Supreme Court, relying upon Utah, decided that the segment-by-segment approach is inapplicable here because it “does not apply to ‘short interruption[s] of navigability in a stream otherwise navigable.’ ” 355 Mont., at 442, 229 P. 3d, at 449 (quoting Utah, 283 U. S., at 77). This was mistaken. In Utah, this Court noted in passing that the facts of the case concerned “long reaches with particular characteristics of navigability or non-navigability” rather than “short interruption[s].” Id., at 77. The Court in Utah did not say the case would have a different outcome if a “short interruption” were concerned. Ibid.

Even if the law might find some nonnavigable segments so minimal that they merit treatment as part of a longer, navigable reach for purposes of title under the equal-footing doctrine, it is doubtful that any of the segments in this case would meet that standard, and one—the Great Falls reach—certainly would not. As an initial matter, the kinds of considerations that would define a de minimis exception to the segment-by-segment approach would be those related to principles of ownership and title, such as inadministrability of parcels of exceedingly small size, or worthlessness of the parcels due to overdivision. See Heller, The Tragedy of the Anticommons, 111 Harv. L. Rev. 621, 682–684 (1998) (explaining that dividing property into square-inch parcels, could, absent countervailing legal mechanisms, “paralyze the alienability of scarce resources . . . or diminish their value too drastically”). An analysis of segmentation must be sensibly applied. A comparison of the nonnavigable segment’s length to the overall length of the stream, for instance, would be simply irrelevant to the issue at hand.

A number of the segments at issue here are both discrete, as defined by physical features characteristic of navigability or nonnavigability, and substantial, as a matter of administrability for title purposes. This is best illustrated by the Great Falls reach, which is 17 miles long and has distinct drops including five waterfalls and continuous rapids in between. There is plenty of reason to doubt that reach’s navigability based on the presence of the series of falls. There is also reason to think that title to that segment of bed would not be worthless or inadministrable. Indeed, the State sought and was awarded rent in the amount of $41 million for PPL’s various hydroelectric facilities attached to the riverbeds, half of which are along the Great Falls reach.

Applying its “short interruptions” approach, the Montana Supreme Court decided that the Great Falls reach was navigable because it could be managed by way of land route portage. 355 Mont., at 440, 442, 229 P. 3d, at 447, 449. The court noted in particular the portage of Lewis and Clark’s expedition. Ibid. Yet that very portage reveals the problem with the Montana Supreme Court’s analysis. Leaving behind their larger boats, Lewis and Clark transported their supplies and some small canoes about 18 miles over land, which took at least 11 days and probably more. See Lewis and Clark Journals 126–152; 9 Journals of the Lewis & Clark Expedition 173; Dear Brother 109. Even if portage were to take travelers only one day, its significance is the same: it demonstrates the need to bypass the river segment, all because that part of the river is nonnavigable. Thus, the Montana Supreme Court was wrong to state, with respect to the Great Falls reach and other stretches of the rivers in question, that portages “are not sufficient to defeat a finding of navigability.” 355 Mont., at 438, 229 P. 3d, at 446. In most cases, they are, because they require transportation over land rather than over the water. This is such a case, at least as to the Great Falls reach.

In reaching its conclusion that the necessity of portage does not undermine navigability, the Montana Supreme Court misapplied this Court’s decision in The Montello, 20 Wall. 430. See 355 Mont., at 438, 229 P. 3d, at 446. The consideration of portage in The Montello was for a different purpose. The Court did not seek to determine whether the river in question was navigable for title purposes but instead whether it was navigable for purposes of determining whether boats upon it could be regulated by the Federal Government. 20 Wall., at 439, 445. The primary focus in The Montello was not upon navigability in fact but upon whether the river was a “navigable water of the United States.” Id., at 439, 443. The latter inquiry is doctrinally distinct. It turns upon whether the river “forms by itself, or by its connection with other waters, a continued highway over which commerce is, or may be, carried with other States or foreign countries in the customary modes in which such commerce is conducted by water.” Id., at 439 (citing The Daniel Ball, 10 Wall. 557). It is language similar to “continued highway” that Montana urges the Court to import into the title context in lieu of the Court’s established segmentation approach. Brief for Respondent 42–43, n. 16.

The Montello reasonably concluded that the portages required in that case did not prevent the river from being part of a channel of interstate commerce. Portages continued that channel because goods could be successfully transported interstate, in part upon the waters in question. This provided sufficient basis to regulate steamboats at places where those boats could and did, in fact, navigate portions of the river. 20 Wall., at 445. Here, by contrast, the question regards ownership of the bed under river segments that the Montana Supreme Court, by calling them “interruptions in the navigation,” 355 Mont., at 442, 229 P. 3d, at 449, acknowledges were nonnavigable. The reasoning and the inquiry of The Montello does not control the outcome where the quite different concerns of the riverbed title context apply.

Having clarified that portages may defeat navigability for title purposes, and do so with respect to the Great Falls reach, the Court sees no evidence in the record that could demonstrate that the Great Falls reach was navigable. Montana does not dispute that overland portage was necessary to traverse that reach. Indeed, the State admits “the falls themselves were not passable by boat at statehood.” Brief for Respondent 10. And the trial court noted the falls had never been navigated. App. to Pet. for Cert. 137. Based on these statements, this Court now concludes, contrary to the Montana Supreme Court’s decision, that the 17-mile Great Falls reach, at least from the head of the first waterfall to the foot of the last, is not navigable for purposes of riverbed title under the equal-footing doctrine.

This Court also determines, based on evidence in the record, that there is a significant likelihood that some of the other river stretches in dispute also fail the federal test of navigability for the purpose of determining title. For example, as to the disputed segment of the Clark Fork River, the Montana Supreme Court incorrectly stated the sole evidence for nonnavigability “consists of conclusory statements . . . without any specific factual support.” 355 Mont., at 440, 229 P. 3d, at 448. In fact, PPL introduced a report of the U. S. Army Corps of Engineers from 1891, two years after Montana’s date of statehood, documenting that the portion of the Clark Fork river between Missoula and Lake Pend Oreille (which includes the location of PPL’s Thompson Falls facility) had a fall of about 1,100 feet in 250 miles and “is a mountain torrential stream, full of rocks, rapids, and falls, . . . utterly unnavigable, and incapable of being made navigable except at an enormous cost.” 2 H. R. Exec. Doc., pt. 5, at 3250; see App. 379–380 (Docket No. 169). The report based its conclusions on various failed attempts to navigate the river. It found the Thompson Falls “a complete obstruction to navigation” and the river around that area “exceedingly rapid, rough, and full of rocks.” 2 H. R. Exec. Doc., pt. 5, at 3251. This was consistent with a 1910 Federal District Court decree. The decree adjudicated a title dispute between two private parties over the riverbed near and under Thompson Falls and declared the river at that place “was and is a non-navigable stream incapable of carrying the products of the country in the usual manner of water transportation.” Steele v. Donlan, Equity No. 950 (CC D Mont., July 19, 1910), p. 1; see App. 380–381 (Docket No. 169). While the ultimate decision as to this and the other disputed river stretches is to be determined, in the first instance, by the Montana courts upon remand, the relevant evidence should be assessed in light of the principles discussed in this opinion.

B

The Montana Supreme Court further erred as a matter of law in its reliance upon the evidence of present-day, primarily recreational use of the Madison River. Error is not inherent in a court’s consideration of such evidence, but the evidence must be confined to that which shows the river could sustain the kinds of commercial use that, as a realistic matter, might have occurred at the time of statehood. Navigability must be assessed as of the time of statehood, and it concerns the river’s usefulness for “ ‘trade and travel,’ ” rather than for other purposes. See Utah, 283 U. S., at 75–76. Mere use by initial explorers or trappers, who may have dragged their boats in or alongside the river despite its nonnavigability in order to avoid getting lost, or to provide water for their horses and themselves, is not itself enough. See Oregon, 295 U. S., at 20–21 (evidence that “trappers appear to have waded or walked” through the river, dragging their boats rather than floating them, had “no bearing on navigability”).

True, river segments are navigable not only if they “[were] used,” but also if they “[were] susceptible of being used,” as highways of commerce at the time of statehood. Utah, supra, at 76 (internal quotation marks omitted). Evidence of recreational use, depending on its nature, may bear upon susceptibility of commercial use at the time of statehood. See Appalachian Elec. Power Co., 311 U. S., at 416 (“[P]ersonal or private use by boats demonstrates the availability of the stream for the simpler types of commercial navigation”); Utah, 283 U. S., at 82 (fact that actual use has “been more of a private nature than of a public, commercial sort . . . cannot be regarded as controlling”). Similarly, poststatehood evidence, depending on its nature, may show susceptibility of use at the time of statehood. See id., at 82–83 (“[E]xtensive and continued [historical] use for commercial purposes” may be the “most persuasive” form of evidence, but the “crucial question” is the potential for such use at the time of statehood, rather than “the mere manner or extent of actual use”).

Evidence of present-day use may be considered to the extent it informs the historical determination whether the river segment was susceptible of use for commercial navigation at the time of statehood. For the susceptibility analysis, it must be determined whether trade and travel could have been conducted “in the customary modes of trade and travel on water,” over the relevant river segment “in [its] natural and ordinary condition.” Id., at 76 (internal quotation marks omitted). At a minimum, therefore, the party seeking to use present-day evidence for title purposes must show: (1) the watercraft are meaningfully similar to those in customary use for trade and travel at the time of statehood; and (2) the river’s poststatehood condition is not materially different from its physical condition at statehood. See also Oregon, supra, at 18 (finding that scientific and historical evidence showed that the physical condition of particular water bodies had not varied substantially since statehood in a way that might affect navigation). If modern watercraft permit navigability where the historical watercraft would not, or if the river has changed in ways that substantially improve its navigability, then the evidence of present-day use has little or no bearing on navigability at statehood.

The Montana Supreme Court opinion offered no indication that it made these necessary findings. The court concluded the evidence of present-day use of the Madison was probative of its susceptibility of use at statehood, but there is no apparent basis for its conclusion. 355 Mont., at 442–443, 438–439, 229 P. 3d, at 449, 446–447. The court did not find the watercraft similar to those used at the time of statehood, and the State’s evidence of present-day use for recreational fishing did not indicate what types of boats are now used. App. 46–48. Modern recreational fishing boats, including inflatable rafts and lightweight canoes or kayaks, may be able to navigate waters much more shallow or with rockier beds than the boats customarily used for trade and travel at statehood.

As to the river’s physical condition, the Montana Supreme Court did not assess with care PPL’s evidence about changes to the river’s flow and the location and pattern of its channel since statehood. The affidavit of PPL’s expert in fluvial geomorphology—the study of river-related landforms—at least suggests that as a result of PPL’s dams, the river has become “less torrential” in high flow periods and less shallow in low flow periods. App. 575–577 (Docket No. 170). Thus, the river may well be easier to navigate now than at statehood.

The Montana Supreme Court altogether ignored the expert’s reasoning about the past condition of the river’s channels and the significance of that information for navigability. Further, contrary to the Montana Supreme Court’s suggestion, the expert’s affidavit was not mere evidence of change in “seasonal variations” of water depth. 355 Mont., at 440, 229 P. 3d, at 448. It provided meaningful evidence that the river’s conditions had changed since statehood in ways that made present-day navigation of the river easier in all seasons than it was at the relevant time. While the Montana court was correct that a river need not be susceptible of navigation at every point during the year, neither can that susceptibility be so brief that it is not a commercial reality. Against this background, the present-day recreational use of the river did not bear on navigability for purposes of title under the equal-footing doctrine. The Montana Supreme Court’s reliance upon the State’s evidence of present-day, recreational use, at least without further inquiry, was wrong as a matter of law.

C

The above analysis is sufficient to require reversal of the grant of summary judgment to Montana. Therefore, the Court declines to decide whether the Montana Supreme Court further erred as to the burden of proof regarding navigability.

D

As a final contention, the State of Montana suggests that denying the State title to the riverbeds here in dispute will undermine the public trust doctrine, which concerns public access to the waters above those beds for purposes of navigation, fishing, and other recreational uses. Brief for Respondent 20, 24–26. This suggestion underscores the State’s misapprehension of the equal footing and public trust doctrines.

The public trust doctrine is of ancient origin. Its roots trace to Roman civil law and its principles can be found in the English common law on public navigation and fishing rights over tidal lands and in the state laws of this country. See Coeur d’Alene, 521 U. S., at 284–286; Illinois Central R. Co. v. Illinois, 146 U. S. 387, 458 (1892) ; D. Slade, Putting the Public Trust Doctrine to Work 3–8, 15–24 (1990); see, e.g., National Audubon Soc. v. Superior Court of Alpine Cty., 33 Cal. 3d 419, 433–441, 658 P. 2d 709, 718–724 (1983); Arnold v. Mundy, 6 N. J. L. 1, 9–10 (1821). Unlike the equal-footing doctrine, however, which is the constitutional foundation for the navigability rule of riverbed title, the public trust doctrine remains a matter of state law, see Coeur d’Alene, supra, at 285 (Illinois Central, a Supreme Court public trust case, was “ ‘necessarily a statement of Illinois law’ ”); Appleby v. City of New York, 271 U. S. 364, 395 (1926) (same), subject as well to the federal power to regulate vessels and navigation under the Commerce Clause and admiralty power. While equal-footing cases have noted that the State takes title to the navigable waters and their beds in trust for the public, see Shively, 152 U. S., at 49, 15–17, 24, 46, the contours of that public trust do not depend upon the Constitution. Under accepted principles of federalism, the States retain residual power to determine the scope of the public trust over waters within their borders, while federal law determines riverbed title under the equal-footing doctrine.

V

As the litigation history of this case shows, Montana filed its claim for riverbed rent over a century after the first of the dams was built upon the riverbeds. Montana had not sought compensation before then, despite its full awareness of PPL’s hydroelectric projects and despite the State’s own participation in the projects’ federal licensing process. While this Court does not reach the question, it may be that by virtue of the State’s sovereignty, neither laches nor estoppel could apply in a strict sense to bar the State’s much belated claim. Still, the reliance by PPL and its predecessors in title upon the State’s long failure to assert title is some evidence to support the conclusion that the river segments were nonnavigable for purposes of the equal-footing doctrine.

The Montana Supreme Court’s ruling that Montana owns and may charge for use of riverbeds across the State was based upon an infirm legal understanding of this Court’s rules of navigability for title under the equal-footing doctrine. As the Court said in Brewer-Elliott, “It is not for a State by courts or legislature, in dealing with the general subject of beds or streams, to adopt a retroactive rule for determining navigability which . . . would enlarge what actually passed to the State, at the time of her admission, under the constitutional rule of equality here invoked.” 260 U. S., at 88.

*  *  *

The judgment of the Montana Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Print this transcript Transcript: 

ORAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will hear argument next today in Case 10-218, PPL Montana v. Montana.

Mr. Clement.

Paul D. Clement: Mr. Chief Justice and may it please the Court:

The State's claim to back rent here is truly remarkable.

When these dams were built back in the day, PPL's predecessors, Petitioner's predecessors, secured all the necessary property rights and easements.

As part of that process, particularly for the dams that created reservoirs, there was an elaborate process of getting flood easements and in many cases paying substantial amounts of money.

In that process, nothing was hidden; it was open and notorious.

Indeed, the State assisted by lending the utilities its eminent domain power to deal with holdouts.

But now, 100 years later, the State comes in with a holdout claim of its own and suggests that it's entitled to massive compensation based on the small strip of riverbed that lies underneath these flooded reservoirs and the dams.

The Montana Supreme Court allowed that claim to succeed to the tune of tens of millions of dollars of back rent.

Now it seems that--

Justice Anthony Kennedy: Well, is your point that there should be a Federal rule of -- of laches or estoppel, or are you just building up to the fact that this is traditional, well recognized doctrine and there's been -- and there's been a sudden change?

Paul D. Clement: --That's exactly where I was going, Justice Kennedy.

I was suggesting that the Montana Supreme Court could only approve this result, which clearly did unsettle settled expectations, by deviating from well-settled principles of Federal navigability law.

Now, the mistakes were a little bit different for each of the rivers at issue.

As to the Clark Fork and the Upper Missouri, the critical error I believe with the Montana Supreme Court decision was its failure to focus on the river segments that are directly at issue and instead focus on the river as a whole.

With the Madison the errors are different, because with the Madison there is no evidence that any stretch of that river was navigable at statehood.

So there the problem was principally that the court relied on modern day evidence of recreational use to substitute for true historic evidence of commercial navigation at statehood.

Justice Samuel Alito: On the issue of whether we should look to the segments or to the river as a whole, what authorities can we consult?

You rely heavily on U.S. v. Utah, and that certainly is a relevant precedent; but there is disagreement about what it means and the only authority that I see that U.S. v. Utah cited was The Montello, which seems to cite nothing whatsoever.

So where do we -- is that the end of the trail?

Is there anyplace else we can look?

Paul D. Clement: Well, I -- I mean, it's close to the end of the trail.

I mean, you can go back to The Daniel Ball, but that's not going to help you any more than The Montello.

I think, though, that the critical cases really are Utah -- but I also think there are other cases that this Court has had -- Oklahoma v. Texas would be an example -- where this Court has looked as a discernible segment of a river.

Brewer-Elliott is another one.

And I think the starting point for the Court's analysis in every one of these cases has been to look at the segment of the river that is at issue, that has been put at issue.

Now, if you have a sovereignty battle between the State and the Federal Government, a lot of times it's the segment of the river within the State, or in Brewer-Elliott it was the segment of the river adjacent to an Indian reservation.

Justice Samuel Alito: All of this, I take it, derives from the rule that preexisted -- preexisted the adoption of the Constitution, that the sovereign owned the navigable rivers within its borders.

Is there some body of common law that addresses this, that would shed some light on whether that means the whole river or it means segments?

Paul D. Clement: There really isn't, Justice Alito, because we get our common law from England.

In England actually the common law was different.

At England, the navigable waters ended at the ebb and flow of the tide, so every internal stream within Great Britain was viewed as non-navigable and the property belonged to the riparians.

Justice Samuel Alito: So what -- what is the origin of the rule that the original 13 States owned the navigable rivers or parts of the rivers, but not the parts that weren't.

That was some feature of American colonial law?

Paul D. Clement: Sure.

I mean, it was -- it was adopted as part of -- the sort of -- just the idea of creating the sovereign republic of the United States.

We borrowed our common law.

I think initially nobody focused on these navigable segments.

And it's important to recognize that this issue really doesn't even arise in the eastern United States, because until about 1850 this idea that States could own the river beds if they were non-navigable never really occurred to anyone.

So in most of the eastern States as a matter of State law, whether a river is navigable or non-navigable, the riparian owns to the middle of the stream bed.

So after 1851 this Court recognizes -- makes clear to the States that they actually have a choice, and so the States that come into the Union after 1851, many of them, including Montana, adopt the rule that, well, unless these streams -- if these streams are non-navigable, then we take the river stream.

And so that's where the question comes up.

So maybe the reason there isn't a great deal of precedent on this is explained by the fact that this is an issue that largely arises in the western United States.

But that's why I think it's such a mistake to kind of look a gift horse in the mouth, so to speak, and not focus on Utah, because Utah is a situation that seems irreconcilable with the Montana Supreme Court decision and the State's basic theory, because there the special master and this Court recognized a non-navigable segment right in the middle of two navigable portions of stream.

Justice Sonia Sotomayor: Could you define "de minimis" for me?

Paul D. Clement: Well, I -- I'm -- I'm happy to try, but I think -- I'm not going to give you--

Justice Sonia Sotomayor: If we can't, some guidance or limit that we set for--

Paul D. Clement: --I've thought about this a lot, Justice Sotomayor, and I'm not here to give you a sound bite that's a bright-line definition of "de minimis".

I think de minimis almost by its nature takes its -- its meaning from the context of the inquiry.

But let me -- let me offer at least three guideposts that I think are helpful.

One, as a practical matter I think this Court can look to its own cases dealing with islands in a navigable stream, and those cases are on page 17 of the government's brief.

And this Court's cases say if there is a small island in a navigable stream, under an acre, of negligible value, we basically ignore it.

Later cases, though, came along and dealt with islands that were much larger, and the Court analyzed those separately from the navigable stream, and said the United States actually retains ownership to the larger islands, and they don't go.

So that's one place to look.

The second place to look, I think, is also a practical judgment based on the nature of the lawsuit.

And here the State itself has come in and identified stretches of riverbed that they think are significant enough to generate $50 million in back rent.

And I think they, having identified those riverbed stretches as being worth $50 million, are hard pressed to then turn around and say, oh, but they are de minimis, just ignore them.

The third rule I would point to is that I think topography has something of a role to play here.

If you look at the special master's report in Utah or some of the other cases that have decided the point at which the navigability stops, they pointed to features of the river as defining a discernible segment like a tributary coming in or the geology of the -- of the bed over which the river runs, if it shifts from kind of a silty loam to hard rock in a canyon, that's something that you can point to.

Justice Sonia Sotomayor: --I know you've told me that you think Montello is not pertinent because it involved a different issue.

But assuming that it were pertinent, because I'm not quite sure how its discussion doesn't fit the needs here, one of the factors you haven't mentioned in terms of de minimis is the portage and its use with respect to commerce; and by that I mean, it appears to me in Montello, what the Court was saying was the history of use of this river showed that these obstructions didn't stop the flow of commerce.

That what people did was -- it appeared some extreme things.

They got off -- they got their goods off one boat, walked it a certain distance or drove it by wagon another distance and then put it on another boat or the same boat that they had lessened the load on and moved it over.

And so it doesn't talk about the distance of that portage; it talks about the impact on commerce.

Paul D. Clement: Right.

Justice Sonia Sotomayor: So why isn't that a factor in the de minimis issue?

Paul D. Clement: Well, I mean--

Justice Sonia Sotomayor: If there were a history here.

Paul D. Clement: --Sure, but, Justice Sotomayor, I think -- I mean, there are sort of two portages that are floating around in The Montello and I think it's important to distinguish between the two.

There is kind of the classic overland portage between the Fox River and the Wisconsin River.

Justice Sonia Sotomayor: There was a canal in there, wasn't there?

Paul D. Clement: Well, afterwards.

But originally that was an overland portage.

And so that's really not at issue.

But that's kind of you know, -- the classic portage I have in mind is an overland portage.

Now, they are also talking about the extreme efforts, and you could call them portages.

I don't think you need to, but there is also talk about the extreme efforts to enable navigation on the Fox before improvement.

But that's nothing like what's at issue here because those were efforts basically to use the riverbed to -- and they had to do some extraordinary things: an ox to pull the boat; lift them up over some rocks.

But they never really left the bed of the river there.

Where they left the bid of the river was the portage over the Wisconsin.

Justice Sonia Sotomayor: But in The Montello, get they took the cargo off some boats--

Paul D. Clement: Oh, absolutely.

Justice Sonia Sotomayor: --and moved it overland to another spot before they put it back on the boat.

Paul D. Clement: Sure, but my understanding of what was going on there, and maybe I misunderstood it, but I understand what they are talking about there is a portage where you take the cargo out of the boat in order to lighten the draft of the boat so it's not sitting as deeply in the river, and that allows the lighter boat to be carried over the--

Justice Sonia Sotomayor: We can both look at the opinion, but I think there is one spot where the court says that in some areas they had to change boats.

Paul D. Clement: --Well, and that may be, but, I mean, again, I don't think we are talking about anything like the distances that we are talking here, and also--

Justice Sonia Sotomayor: I don't disagree with you, but what I'm asking is, if we had a history of navigation of cargo that went to the beginning of one of these rivers, and I'm not a sailor so my terms -- the cargo is taken off and driven by wagon or some other mode to another spot and picked up again.

Is that a different situation than one where that doesn't happen?

That because this length of portage is so long that it is both economically and physically impossible to transport cargo in that way.

Is that a different case for the question of navigability?

Paul D. Clement: --Well, sure, because these are all matters of degree, and those would be two different cases.

But here's what I would point you to.

Which is, if -- at the point that you have to take the cargo off of the boats, and then you then have to leave the channel, you don't just do a little cut around some de minis amount, but you leave the channel and go overland, at that point, I think, that portage demonstrates the non-navigability of the bypass stretch.

And then I think--

Chief Justice John G. Roberts: Even if it demonstrates the non-navigability of the particular stretch, but we would still speak of the transfer of commerce as being along the river.

Paul D. Clement: --Well I don't--

Chief Justice John G. Roberts: The sort of the case or analogy I was thinking of is if I say I fly from Washington to Tokyo, and someone says,

"No you didn't; you flew to San Francisco, then you walked however many yards from one gate to another, and then you flew to Tokyo. "

And I'd say,

"Well, yes, there is a gap there when I walked -- part of the distance where I wasn't flying. "

but people would still say you flew from D.C. to Tokyo.

Now why isn't this just like that, that the commercial path, the commercial waterway people think of as the Missouri.

And yes, occasionally you have got to get out, and, you know, we can debate how long the portage is, but it doesn't it interrupt the notion that that whole pathway would qualify as a navigable waterway.

Paul D. Clement: --Two things, Mr. Chief Justice.

One is, I want to make clear that we very much dispute factually that there ever was this kind of commercial portage over the Great Falls.

And there is really, you know, there's very little evidence for the record.

The state's own evidence identifies Fort Benton 30 miles below the Great Falls as the head of navigation on the Missouri.

So there is very much a factual issue here.

But to answer the legal question you are asking, first of all, I am not sure I would have the same instinct about common parlance if you had to go from JFK to La Guardia in a cab.

And I'm even less sure that you would have the same notion if you had to drive from San Francisco to LA to switch planes.

And I think the distance here really does matter.

And I would submit the way you think about this, the way I would think about this is that the very need to bypass, especially a substantial bypass where you leave the river channel, is evidence that that part of the channel, that part of the river is nonnavigable.

And then the question that is left is whether that is de minimis.

Justice Samuel Alito: I don't see why portage is relevant at all.

What is the basis for the rule that I assume it's the sovereign owns the navigable rivers?

I assume it's because they are viewed, they were viewed as highways for transportation and commerce.

And to the extent that there is an obstruction that cannot be traversed by a boat, then there isn't going to be any commerce or transportation along that area.

Now there might be an argument that the sovereign should own the land next to the river so that you could portage around it, but what, what would be the justification for saying the sovereign owns the portion of the river that can't be traversed at all by boat?

I just don't understand it.

Paul D. Clement: Well, I'm with you on that, Justice Alito, and I think logically if you think what's the highway of commerce here, if there was this 18-mile overland portage rout, that would be the highway of commerce.

But the 17-mile bypass stretch of the Missouri and the Great Falls Reach would not be a highway of commerce.

And I think that gets back to the expectations of the property owner that ultimately underlie these title questions.

I mean, if you have boats going by a river in your backyard, I mean, you have, you are on sort of notice that you don't own the riverbed.

But if you are in a part of the river that is so unnavigable that it has to be bypassed and you have never seen a boat in your experience ever, then I think you have very different expectations, and your expectations would be the same as somebody--

Justice Sonia Sotomayor: 17 miles is very long.

Paul D. Clement: --It is.

Justice Sonia Sotomayor: I think the Thompson is only 2.8 and that is really close to Montello where it talked about, about two miles for some portage areas.

Paul D. Clement: Well, with respect, can I take both points.

I mean, you are absolutely right.

17 miles have very long.

I mean, for the New Yorkers, you know, the East River is 16 miles long, the whole river.

The Anacostia River is 8 1/2 miles long.

So this bypass stretch--

Justice Sonia Sotomayor: But I'm not a Midwesterner, and rivers of 200 miles are longer than--

Paul D. Clement: --Well, these -- this is still a big stretch.

And I do think that, like you said, longer than some entire rivers.

But the Thompson Falls, I mean, the two miles of the Thompson Falls, I don't know exactly where that number comes from.

Its kind of an artificiality.

I mean, there -- Again, the State's own evidence, look at J.A. 57 says that navigation stops at Thompson Falls.

There wasn't a portage around.

But the other point is I would ask you to look at the 1910 court decree because as I said at the outset, you know, these companies do just put these dams up overnight as, you, kind of, as a lark.

They went through elaborate efforts to secure the property rights.

That's what generated the 1910 court decree about the Clark's Fork River.

The Clark's Fork River court decree in 1910 addresses a stretch of rivers specifically that is just the falls but the six miles of the reservoir that's created.

And the court holds that that entire region and indeed the entire Clark fork in Sanders County is nonnavigable.

So the stretches that are nonnavigable are much longer than two miles.

If I may reserve my time.

Justice Antonin Scalia: Thank you, counsel.

Mr. Kneedler.

ORAL ARGUMENT OF EDWIN S. KNEEDLER, FOR UNITED STATES, AS AMICUS CURIAE, SUPPORTING PETITIONER

Edwin S. Kneedler: Mr. Chief Justice, and may it please the Court:

The Montana Supreme Court committed three basic errors with respect to all three rivers that require a remand for further proceedings to actually weigh and make factual findings concerning the evidence of the relevant reaches of the river for purposes of navigability for title.

We are not talking about navigability for interstate transportation or admiralty or regulatory jurisdiction under the Rivers and Harbors Act or the Clean Water Act.

We are talking about navigability for title.

Justice Elena Kagan: And why does that make a difference, Mr. Kneedler?

Why do you think that there are separate tests for title than for regulatory authority?

Edwin S. Kneedler: Well, in the Montello, for example, the question was whether there was admiralty or regulatory jurisdiction over the use of vessels on the upper reaches of the river, and that depended in the Court's view on whether that stretch was part of an interstate or international highway of commerce.

And so it would make sense to look at the whole river in determining whether it's a highway; and maybe in deciding whether there is a highway, you would look to a bypass stretch.

You would look at the highway, the land highway to decide whether its useful in interstate commerce.

For title purposes, though, the question is what happens to the stretch of the river right in front of the riparian owner's land.

As Mr. Clement said, that reflects the expectations of the property owner, that if there are no ships or boats going back and forth, that that property is -- adheres to the riparian lands more.

I also think it -- it pertains to the control or use of the beds of the rivers themselves.

Chief Justice John G. Roberts: I would think, though, if you start drawing these lines, they become very difficult, in some rivers anyway, to -- to apply.

I'm sure there are seasonable fluctuations.

They may be navigable in some seasons, but not in others.

The line at which you pass from navigability to non-navigability may be difficult to ascertain.

It seems to me once you start chopping the highway of commerce up, it does create all those difficulties.

Edwin S. Kneedler: Well, first of all, we're not -- we're not talking about chopping the river up into narrow slices.

I mean, I think there has to be a discernible and substantial segment of the river.

Often -- often, it will be self-evident from the geo -- topographical features of the area.

Are there major falls and rapids over an extended period of time?

But also, the points you're raising are -- I think are inherent, because in deciding where navigability stops under any test or in any circumstance, you could have the difficulties that you have described.

Justice Sonia Sotomayor: So what's de minimis?

Edwin S. Kneedler: Well, I think--

Justice Sonia Sotomayor: Could 2.8 be de minimis in one situation and not, and how do we tell--

Edwin S. Kneedler: --I -- I think it -- I think it may well be.

I think -- I think an important -- I agree with the points that Mr. Clement made as guideposts.

I think another one -- and this pertains to--

Justice Sonia Sotomayor: --If there's no falls but there are riparian waters that don't permit navigability over 2.8, than that's still navigable?

I'm not sure--

Edwin S. Kneedler: --No, I think -- I think it has to be -- I'm speaking of a situation where the river is not navigable in fact.

And that's the test, navigable in fact, not navigable in law.

If a -- if a boat cannot pass in front of the riparian land, then that would be non-navigable.

I agree that--

Justice Antonin Scalia: And it shouldn't matter whether it's 2.8 miles or 1 mile, right?

I mean, if the land is non-navigable -- if the river at that point is non-navigable, it's non-navigable.

Edwin S. Kneedler: --For title purposes, yes.

Justice Antonin Scalia: And that's what we're talking about, for title purposes.

I don't see why there -- there ought to be any de minimis exception.

Edwin S. Kneedler: Well, I -- I think at some -- if you -- if you consider part of the -- part of what is going on here is who controls the riverbed.

I think it would be unworkable to have a passage, a portion of a river where you have 10-foot strips across the river that are riparian owner-owned, and the State owned everything else, or if you had stripes across a river.

So I think -- I think the test also--

Justice Anthony Kennedy: But how would the boat get up there?

Does it just jump over the 10 feet?

Edwin S. Kneedler: --Well, in The Montello, the -- there is evidence that the boat was lifted.

The men got out of the boat and lifted the boat up over the falls.

Justice Anthony Kennedy: Okay.

Then that would work.

Edwin S. Kneedler: Pardon me?

Justice Anthony Kennedy: Then that would work.

Edwin S. Kneedler: In that situation.

But if you have a long stretch of -- of river where that was not practicable -- then you--

Justice Stephen G. Breyer: You can't lift a boat over Niagara Falls.

And I -- and I read somewhere that -- and I hope I am wrong, but I have a feeling I read somewhere that the land under Niagara Falls has long been considered to be navigable, and therefore, it's owned by the United States.

Justice Antonin Scalia: The international boundary.

Edwin S. Kneedler: --It's owned by the State.

Justice Stephen G. Breyer: It's owned by the State.

I mean, the navigable -- I get mixed up in that.

Edwin S. Kneedler: The reply brief I think--

Justice Stephen G. Breyer: The navigable ones are owned by the State.

Okay.

Everybody's thought the land under Niagara Falls is owned by the State.

Oh dear, because that sort of wrecks our nice theory that all the steps, all the little bits of it that are non -- that are--

Edwin S. Kneedler: --That's not an -- I think that's not an extended strip in the way that -- the way that we're discussing here.

Justice Stephen G. Breyer: --Okay.

Now we have to define what's an extended strip.

Edwin S. Kneedler: Well, if I--

Justice Antonin Scalia: I thought it's also an international boundary--

Edwin S. Kneedler: --Yes.

Justice Antonin Scalia: --As to which there is a different rule.

Edwin S. Kneedler: Yes, and the--

Justice Stephen G. Breyer: Okay.

So how much are we wrecking if we just say, look, the bit that's non-navigable is different from the bit that's navigable, period?

Doesn't matter if it's 5 -- 5 feet of land or not.

What -- what are we wrecking?

Edwin S. Kneedler: --I think it does matter whether it's 5 feet, because the -- because an important point here is that, who can make sensible use or control the relevant stretch of the river.

If it's 5 feet or 10 feet and you had strips that stayed private--

Justice Stephen G. Breyer: A quick question that you could probably answer just by saying: We decided not to.

But I was somewhat curious.

It's really the United States v. Montana in this, who owns the land, and it's a question of Federal law.

It's going to be highly factual no matter what this happens.

Made for this Court's original jurisdiction.

And -- and normally in original jurisdiction, we appoint a master, it's worked out, and we review the master's report.

We can't do that here because it's a case about -- why didn't you go into, or why couldn't you go into, a quiet title action at the lower court?

Edwin S. Kneedler: --We could, and we have not given consideration to that, but that might be -- that might be a possibility.

The United States is not a party to this case and couldn't be -- and couldn't be bound by the judgment.

Justice Ruth Bader Ginsburg: Could it have intervened somehow, because the -- the United States has come here rather reluctantly, because you recommended against granting cert in this case.

When it was in the Montana court and it was a question of what is the Federal law, the Federal law is going to control.

Everybody agrees with that.

Could the United States have come into the proceedings in the Montana State court?

Edwin S. Kneedler: Ordinarily, the United States would not intervene in a State court proceeding, or if it did it would remove the case to Federal court.

So that -- that would be -- that would be a -- an additional consideration as to whether to get into this suit.

The United States would -- would typically bring its own quiet title action in -- in Federal court.

Chief Justice John G. Roberts: Your -- your answer a moment ago gives me pause.

You -- you said the United States would not be bound by this litigation, but could bring its own quiet title action.

Edwin S. Kneedler: Well, we would be bound by this Court's decision, obviously.

But I was just speaking of the law of -- the law of judgments.

And if this Court remands back to the trial court with general directions but doesn't adjudicate particular stretches definitively, then, you know, I think we -- that's the situation that we would -- that we would be in.

Justice Ruth Bader Ginsburg: And if we -- if it were remanded, the United States would still stay out of it?

Edwin S. Kneedler: I assume so.

Obviously, that would be a -- that would be a further consideration.

Justice Sonia Sotomayor: --Am I to take that "de minimis" to you means small enough so that they get the boat physically over the portage, Whether they carry it, drag it?

Edwin S. Kneedler: No.

I think if they -- I think if they can take it through the river, it's not an interruption at all.

But if -- if you have -- if you have something that can't be transversed by a boat at all and it's long enough that it could sensibly be thought of as a -- as a separate parcel adhering to the -- to the riparian land -- that would be--

Justice Sonia Sotomayor: Go back to carrying their boat on their shoulders, which apparently in The Montello they did.

What's the answer--

Edwin S. Kneedler: --They didn't carry the boat out of the river.

These were Durham boats that were 70 feet long and -- and weighed quite a bit.

Now, maybe there were small canoes; that could have been done.

I -- I think a small portage.

Again, I don't think it's the length of the portage.

I think it's the interruption of the -- of the navigable portion of the river that -- that is -- that is relevant.

If it's large enough to constitute a -- a sensible administrable parcel, that that should be enough.

I did want to take one moment to discuss the Madison River because there, as Mr. Clement discussed, the considerations are somewhat different.

First of all, the Court made a similar mistake there by discussing the river as a whole, and the log float in the middle stretch of the river, but not focusing on the relevant stretches where the dams are located.

But it also put a lot of emphasis on current recreational use by drift boats and what-not without proper foundation to -- to determine whether that was relevant for title purposes at Statehood, because the relevant question is whether whatever boats are used now are ones that would have been used as custom -- this is the language from The Daniel Ball -- as "the customary modes of travel" -- "travel and transportation at the" -- "at the time of statehood".

Chief Justice John G. Roberts: It's kind of odd.

Maybe this is -- maybe this is Justice Alito's earlier question.

It's kind of odd that the more navigable the river is, the more claim the State has.

The less navigable -- you're talking about sportsboats and drift fishing -- then it's Federal.

Edwin S. Kneedler: Well, that's -- that's a product of the -- of the equal footing doctrine.

And the Court has long said that the State gets the beds of navigable waters.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Garre.

ORAL ARGUMENT OF GREGORY G. GARRE ON BEHALF OF THE RESPONDENT

Gregory G. Garre: Thank you, Mr. Chief Justice, and may it please the Court:

This case is about who owns the riverbeds underlying the rivers at issue.

It's not about flood lanes; it's about the riverbeds.

And under this Court's precedents, it's settled that title to the riverbeds is conveyed to the State under the Constitution if they are navigable.

It's been understood in Montana for more than a century that these rivers are navigable.

The rivers were meandered as navigable.

PPL's deeds -- and this is at page 172 of the appendix to the opposition brief -- specifically exclude the riverbeds.

The test for navigability that this Court has applied for 140 years, going back to The Montello and The Daniel Ball, is whether the river served as a continuous highway of commerce.

In The Montello, the Court recognized the fact that few of the nation's great rivers did not include some, quote, "serious interruptions to uninterrupted navigation".

And the -- and the Court's answer to that geographic fact was not to say then let's carve out the interruptions and say those aren't navigable.

The Court's answer was to say unbroken navigation is not required to establish navigability.

Justice Sonia Sotomayor: Under your theory, if there's a fall like this of 17 miles, and a train is 50 miles away and traverses that 17 miles, that portage is good enough.

Gregory G. Garre: You have to show that the commerce traveled along the river under the customary modes of trade and travel.

Justice Sonia Sotomayor: Outside of your fur traders and your gold miners, has that happened in any other situation -- your alleged gold miners and fur traders?

Has that happened on -- on the -- in the Great Falls?

Gregory G. Garre: If you take the Great Falls, the history of portage from 1864 to 1868 was lively commerce of millions of dollars, in today's value billions of dollars of gold, from Helena to Fort Benton back east.

This is covered in detail by the Solicitor General's brief that we've appended here.

Justice Sonia Sotomayor: Could you -- could you do me a favor and you tell me again -- I am having real trouble with the competing evidence in this case with respect to every one of the three areas in dispute and I have some serious questions about whether the court properly granted summary judgment.

Your brief seems to suggest that I can't do -- we can't do anything about that because it wasn't a part of the question presented.

Gregory G. Garre: I--

Justice Sonia Sotomayor: Your adversary says that it's a fair question if we determine there is any legal approach -- error in legal approach of the court below.

I'm assuming that also means on their weighing of evidentiary matters.

So why shouldn't we address the summary judgment issue?

Gregory G. Garre: --The question presented is whether the Montana Supreme Court or whether a court -- a court -- what the constitutional test would be for a court in this situation.

It's not even limited to the Montana Supreme Court here.

It presents a legal question.

With respect to summary judgment, the problem for PPL is not that it didn't present enough paper; the problem is it litigated the case under a wrong legal theory.

It litigated the case that the -- that the Missouri, for example, was not navigable because you couldn't take a boat down the falls.

This Court's precedents for more than 140 years asked the question of whether the river served as a continuous highway of commerce.

We presented evidence, summarized--

Justice Antonin Scalia: For what purpose?

Were they -- were they -- were we answering the question for the same purpose, or were we asking it for purposes of whether Federal regulation could extend to the whole river?

For that purpose, it's easy to say if the whole river is -- you know -- used for commerce, the Federal Government can regulate even those portions of the river that are non-navigable, that -- but that have to be portaged around.

But that's a different question from who -- who owns title to the -- to the bed under the -- the portions that have to be portaged.

Gregory G. Garre: --Your Honor, PPL recognizes that The Daniel Ball supplies the test for navigability for title.

This Court recognized that in the Utah case, the Vanguard title case that they hold out.

So the only question is did The Montello apply The Daniel Ball test or did it apply something else?

And the first paragraph of the Court's decision in The Montello said it applied The Daniel Ball test.

Courts -- this Court and lower courts for more than a century have understood The Daniel Ball and The Montello to supply the test for navigability of title.

What they are asking this Court to do is upend more than 140 years of precedent and the amicus brief filed by the States in this case gives -- gives the Court a sense of the disruption that this would cause.

Justice Samuel Alito: What -- what do you understand to be the reason for the rule that the States own the navigable rivers?

Gregory G. Garre: The reason for the rule was the public trust doctrine which -- which sought to keep these rivers free for the public to use for navigation, for fishing and for other uses; and this court's precedents--

Justice Samuel Alito: What do fishing and navigation have to do -- for -- what does fishing have to do with navigability?

Gregory G. Garre: --Well, it gets back to the -- the public trust doctrine, Your Honor.

Fishing doesn't have -- fishing is a purpose of the public trust doctrine, which is why it was understood--

Justice Samuel Alito: Let me put it this way.

Why -- why should -- why does the State own a navigable river but not a non-navigable river?

Gregory G. Garre: --Because the navigable rivers were the arteries of commerce in this country, and at the time of the founding it was understood -- and this gets to the core issue of federalism in this case -- that the States ought to be the ones that control the navigable rivers, not the Federal Government.

Justice Samuel Alito: Yes, and if that's the reason -- if that's the reason for the rule, than what is the justification for State ownership of a portion of the river that is not navigable?

Gregory G. Garre: I think this gets back to the question of whether you can just chop up the rivers into navigable and nonnavigable bits.

And we are talking -- this Court, Justice O'Connor observed in her dissent in the Phillips Petroleum case that navigability wasn't decided inch by inch.

What the other side is asking you to adopt here is a test of navigability that's at least by mile by mile, if not acre by acre, which is completely different than this Court has ever assessed navigability.

Justice Samuel Alito: The rule that you are arguing for might be an established rule that we should follow, but as a matter of theory I don't understand what the justification is for State ownership of a non-navigable portion of the river if the reason for the underlying rule is so that people will not put up obstructions on the river so that they -- it can be maintained as an -- as an avenue of commerce.

I can see that you -- why the State would own that, because otherwise riparian owners could put up fences and obstructions and charge tolls and -- and that sort of thing; but if it's not navigable I don't see what it has to do with -- with commerce or transportation.

Gregory G. Garre: What -- what the Framers were concerned about and this is also reflected in the Northwest Ordinance 2, was ensuring that the navigable waters, the major arteries of commerce in this country, remained open.

And so they -- they applied a much more -- much broader conception of navigability than as--

Justice Antonin Scalia: But -- but they are closed where they are -- they're impassable for ships anyway.

They're closed.

What do you mean, remain open?

Gregory G. Garre: --And so that was the argument--

Justice Antonin Scalia: You've -- you've got falls.

You've got waterfalls, you got rapids.

What does it mean to be sure that that river remains open to commerce?

Commerce is impossible over it.

Gregory G. Garre: --And so that was the argument that the district court adopted in The Montello case, and this Court emphatically rejected it.

And by the way, the portage in The Montello case was 5 miles long.

That's reflected in the -- the record in that case before this Court.

Justice Ruth Bader Ginsburg: Mr. Garre, what is -- you say that you are not taking just -- you look at the whole river as a whole.

You are saying no, that isn't the position?

Gregory G. Garre: No, it's not.

Justice Ruth Bader Ginsburg: And that it's also not inch by inch.

So what -- when is segmentation appropriate?

Gregory G. Garre: I think the relevant stretch or segmentation is really a litigation term.

Our position is this Court's test: continuous highway of commerce.

You would take the part of the river at issue in a case, take that part and look -- ask the question, was that part of a continuous highway of commerce or not?

So if you found yourself in Cataract Canyon in the Utah case, you would ask yourself that question, and you would say, no, this was not part of a continuous highway of commerce because no one argued either that the canyon was portaged or that goods was traveling down the Colorado River through the canyon and out into Arizona.

If you ask yourself that question in this case along the Great Falls, you would say yes, because the evidence was unrebutted that millions of dollars of gold was traveled up from Helena to Fort Benton along the -- the Missouri River with the aid of a portage, and that that was unquestionably a highway of commerce.

What they are asking this Court to do is chop rivers up into navigable and nonnavigable pieces.

How would that impact the public trust doctrine?

The -- the brief filed by the National--

Justice Ruth Bader Ginsburg: So you just -- so you are disagreeing with the United States, which has given us its view of what the Federal law is.

It doesn't coincide with Montana's.

Gregory G. Garre: --The United States has sided completely with Montana.

The answer it gives for what is a short interruption in its brief is an interruption that doesn't warrant separate consideration.

That's on page 17 of its brief.

That's the epitome of a circular test, and--

Justice Stephen G. Breyer: Just out of -- I mean, to waste your time for a second.

Why do the feds own the land underneath the -- and why -- under the nonnavigable part?

Why -- why do the feds own -- own the land under -- under nonnavigable streams?

Gregory G. Garre: --I think if you -- if you applied the proper test here you would conclude that the river--

Justice Stephen G. Breyer: I mean, a little creek somewhere which you'd think, gee, those belong to the State, but it turns out the feds own the land underneath the little creek; is that right?

Gregory G. Garre: --I think what -- the nonnavigable parts--

Justice Stephen G. Breyer: Yes.

Gregory G. Garre: --didn't transfer under the equal footing doctrine.

Oftentimes those were subject to separate conveyances, so they might come into private property.

I think--

Justice Stephen G. Breyer: I see.

So the rule is on the non-navigable streams it depends on what the conveyance was at the time of statehood, and those are individual matters, and sometimes you see the feds own them and sometimes the States.

Gregory G. Garre: --And what was--

Justice Stephen G. Breyer: Is that right?

Gregory G. Garre: --Yes, I think that's right.

Justice Stephen G. Breyer: Okay.

Gregory G. Garre: And what was critically important to the -- to the Framers was that the States would have control over the navigable waterways.

This Court has described that as an essential attribute of State sovereignty.

Chief Justice John G. Roberts: But we are talking about the land at the bottom of the -- the river.

What is it that the State can't do on the navigable waterways that it wants to do?

Gregory G. Garre: Well, owner -- ownership -- along with ownership goes the right to control whether facilities can be built on them, bridges or pipelines; it goes -- along with that goes the rights to mineral leases--

Justice Anthony Kennedy: But as the Chief Justice is indicating, I think, this concerns who owns the bed; and that is different from navigable waters of the United States.

And -- and some of the answers you gave to Justice Alito about the purposes and the reasons for navigable waters of the United States are quite different, really, than for the considerations we have about riparian ownership.

The navigable waters of the United States can be controlled by the United States for many purposes, but that is concurrent with a separate document -- doctrine for underlying ownership of the bed.

Gregory G. Garre: --Right.

Justice Anthony Kennedy: And it's not clear to me that the test for navigable waters is the same in each case as to the whole river.

Gregory G. Garre: Well, I think that the test that we are articulating is The Daniel Ball and Montello Test -- continuous highway test.

I think with respect to the riverbeds, it's always been understood that with controlled riverbeds, along navigable waters, States have a right to control fishing, navigation and other aspects.

Justice Stephen G. Breyer: But, now, Montello was a case -- to follow up this same question.

Montello, I take it was not a title case.

Montello was a regulation of the stream case.

So I can understand perfectly well why that language in Montello applies for the reason Justice Kennedy just said.

Now, I grant you that in later title cases this Court has taken the same words and written them.

But is there an instance in the later title cases where that language has played a controlling role?

Gregory G. Garre: Well, the--

Justice Stephen G. Breyer: What case should I look at to see -- was really meant that this -- to start with where Justice Scalia was and say what Justice Kennedy just said and then thinking well, I'm thinking well Montello is a case that involved a different purpose and now the later cases, although they quoted the language, it didn't have a role.

Am I right or not?

Gregory G. Garre: --This case has recognized always that The Daniel Ball and the Montello is the test for navigability for title as well as admiralty.

It has never drawn the kind of distinction that PPL and the United States has asked be drawn here.

Justice Antonin Scalia: The question is has it held that.

Do you have a case where it would have made a difference?

Gregory G. Garre: Not of this Court.

The lower courts--

Justice Antonin Scalia: Okay.

Gregory G. Garre: --have relied upon The Daniel Ball and Montello in plenty of circumstances adjudicating a title.

I think the Court has to think about what the world would look like if the Court adopted PPL United States--

Justice Antonin Scalia: If this is such an understood and traditional rule, why didn't Montana make its rights known earlier when these private owners bought the land?

Indeed the State gave them condemnation power to flood adjacent lands so that they could build their dams.

And you say while all this was going on, well of course everybody knew that Montana owned this land.

Now they come back what, 100 years later and they not only want to get the land back, they want to tax them for their use of it over all these 100 years?

That's extraordinary.

Gregory G. Garre: --PPL's deeds, Your Honor, PPL's deeds exclusively exclude the riverbeds at issue in this case.

So PPL can have no claim to those lands, and in fact in its supplemental brief says that the United States owns the lands.

We are not talking about the flood lands here, we are talking about between the low water marks.

Those lands were surveyed and meandered at statehood to show that they did not convey to private parties.

Montana courts have recognized for more than a century that these waters are not navigable.

Everybody understood that they were -- navigable.

The reason why this issue only arises now is because of a 1999 decision of the Montana Supreme Court that said that the State, made clear that the State had a fiduciary obligation to seek compensation for the use of the riverbeds.

So that then teed up the question of whether the State could actually charge rent for the riverbeds.

The State in this case--

Justice Elena Kagan: And what about other land owners on the riverbeds.

If Montana wins this case will they be paying rent as well?

Gregory G. Garre: --They are not using the riverbeds, Your Honor.

The reason why the facilities here are using the riverbeds is because they actually sit on it.

There are other instances where private land owners have easements and leases, like mineral leases with the State, under the -- because of the accepted understanding that the State does own those lands.

And this is not at all unusual.

If you look at the State's brief, Washington and Oregon have thousands of these types of permits because it is established that if the water is navigable than the State owns the riverbeds and there are consequences that flow over this.

But this really isn't a fight between the State and the private land owners.

It's a fight between the State and the United States.

Because if this case--

Justice Elena Kagan: I guess if I could understand then.

You think that this is a one of a kind landowner.

There are no other land owners in Montana who are in this situation of PPL?

Gregory G. Garre: --No, I think there are other land owners who have asserted -- who want rights to get minerals along rivers or have peers or bridges, and in those situations they get permits from the State to use it.

But I think what's going to happen is if this Court declares that every mile or so that is in interruption is nonnavigable, then title is going to transfer to the United States because under this Court's precedent in Utah, the Court held that if waters were not navigable the United States would have--

Justice Sonia Sotomayor: Is there a mile stretch anywhere on this river.

Gregory G. Garre: --A mile stretch?

Justice Sonia Sotomayor: Yes.

Is there a mile stretch in which the boats stop?

Some water in the middle--

Gregory G. Garre: The two areas at issue here is the Great Falls stretch--

Justice Sonia Sotomayor: --I know the two at issue.

But you're saying if we rule the way we do, we are going to slice it up and so does the Attorney -- the Solicitor General's office say, we are going to slice it up half mile or half acre by half acre.

I am not sure how that happens.

I go back to Justice Kennedy's question, which is does a boat stop mid stream?

Gregory G. Garre: --So the test would be any non-de minimis interruption, that's the one that PPL and the United States are urging here.

There are thousands of dams in the country.

There is Niagara Falls which for more than a century its been understood that the State owns it, not because its an international boundary, that's a line plucked out of the decision.

Read the decision and--

Justice Stephen G. Breyer: All right.

So how do I find that out.

If I start with a practical premise of not wanting to interrupt expectations.

I also believe that it's the most common thing in the world for electric power companies to put hydroelectric facilities where there are water falls or rapids and that's true all over the country.

So what's the status quo with the -- you know, somebody could count up how many hydroelectric plants there are on water falls and what's the general view?

Are those hydroelectric companies been thinking that they are leasing or buying from the feds or from the States?

I mean, I don't know what's happened in the past.

And I looked at the briefs and I can't get a very good picture.

Gregory G. Garre: --The best evidence I think we have about this question of the implications comes from the brief filed by 26 States, which explains that if this Court adopts the kind of segmentation approach, any interruption that is not de minimis has to be carved out it's going to wreak havoc in States across the country especially, in the western States.

Again, getting--

Justice Stephen G. Breyer: When you say wreak havoc, you mean to say that the States have leased those strips with the water falls which are impassable to hydroelectric companies and the leases will have to be renegotiated or something like that?

Gregory G. Garre: --I'm not referring to specific leases on that.

I'm talking about things like public access for fishing, for example.

The State decided that the Steelheader case in Oregon, and this is what's going to happen, either the public -- private landowners are going to claim people coming along my banks to fish, they don't have access to these waters.

If they were navigable -- understood as navigable waters owned by the State, it's clear that they had would have access.

There is going to be clashes, there's going to be--

Justice Antonin Scalia: Well, I thought you say it doesn't belong to the private individuals.

I thought you said it belongs to the United States if it doesn't belong to the--

Gregory G. Garre: --What this Court has said is if it's not navigable, the United States has it.

The question of--

Justice Antonin Scalia: --They are.

And you think the United States is going to keep off these fishermen.

Gregory G. Garre: --The question is whether there would be a separate conveyance from the United States.

There is certainly going to be plenty of private landowners, I think, who are going to claim private ownership.

So there is going to be some sorting out to do.

Justice Antonin Scalia: But you think they are wrong, right?

Gregory G. Garre: Well, no.

If the river is not navigable, then the land didn't convey under equal footing doctrine.

There would be a separate question of whether they conveyed by some other Federal patent, land patent, or the like.

And there are certainly -- certainly are plenty of those.

But I think what is clearer is--

Justice Ruth Bader Ginsburg: Mr. Garre, you said, this is genuinely a controversy between the States and the United States, but the United States is not a party to this litigation.

And we know from the briefing before us, the United States takes a different position than Montana, it doesn't agree with you.

But if this case -- how can a case be decided without any input from the United States when you say that's the true dispute is between the States and the nation?

Gregory G. Garre: --Well, the United States is here.

It's given its views.

It's true that it didn't participant below and it is a little bit unusual.

What's weird is that the United States has never actually asserted ownership to the riverbeds in this case.

But I think--

Justice Elena Kagan: Does PPL pay rent to the United States.

Gregory G. Garre: --Not with respect to the riverbeds.

There is a statement in the brief that suggest that they pay rent.

That's with respect to the upland, the flooded lands, for example, along the reservoir.

The United States has never charged rent for the use of the riverbeds themselves between the low water marks.

Justice Anthony Kennedy: Would you help me with this?

Navigable waters of the United States for purposes of Federal jurisdiction over many activities such as boating is one concept.

Navigable waters of the United States for purposes of State ownership of the bed serves different purposes.

Are the -- are the boundaries and the definitions of what is navigable co-ex-extensive and parallel and precisely the same in each case?

Or, on the other hand, are there some cases where a body of water, say the falls, is navigable waters of the United States but not navigable waters of the United States for purposes of bed ownership by the State?

Gregory G. Garre: There certainly--

Justice Anthony Kennedy: And, and if there is a difference, can you tell me a case?

And I think Justice Scalia basically was asking this earlier.

Gregory G. Garre: --There are two -- well, there is three distinctions between the test for title and the test for regulatory purposes.

Justice Anthony Kennedy: Yes.

Gregory G. Garre: None of which bear on the dispute in this case.

One is for title.

You look at the time of statehood.

You don't look at the river at a later time.

The next is, is that for purposes of title, you look at the river in its natural state.

You don't look at improvements.

And the third is, for purposes of title, kind of commerce you consider is actually more expansive in the type you could consider for regulatory purposes.

This case, the focus has been on the rivers at the time of statehood, their use as highways of commerce without improvements, which is in the heartland of the test for navigability under The Daniel Ball and the Montello.

None of the distinctions that this Court has ever recognized would bear on this, nor would it make any sense, I think, to say that the rule that we identified in the Montello that has, for more than a century has been established as the test for title for navigability somehow has to be applied differently in this case in a way that would require breaking up the rivers.

And I think--

Justice Anthony Kennedy: But it is conceded, is it not, that with -- if we rule for the power companies in this case, there still may be a situations in which these waters can be navigable waters of the United States for other purposes other than ownership of the bed.

Or am I wrong on that?

Gregory G. Garre: --No, I think the United States' position is, say they are navigable for Federal purposes but not for State purposes.

And I think -- and they have taken what I think is a pretty remarkable position.

If we look at the brief that we have appended to our brief, the United States in the Montana Power Company case, the United States is saying, the very same stretch of the Missouri along the Great Falls is navigable because it serves as a continuous highway of commerce and the falls did not prevent the river from being used as a continuous highway and, therefore, it's navigable under the Montello and The Daniel Ball, which is the theory that they recognize.

And now they are here saying, well, that was only for regulatory purposes and not for title purposes.

But it's the same test in both cases, and that's the test that the nation has understood for more than 150 years.

Chief Justice John G. Roberts: No, but I'm not sure it has the same consequences.

It seems to me that regardless of who prevails in this case, the State will be able to exercise regulatory jurisdiction over the waters.

You know, you can't fish during these seasons, or there are different limits on how many fish you can take.

And so will the Federal government.

It will be able to apply Federal law to the river regardless of who owns parts of the river, regardless of who owns the land underneath.

Gregory G. Garre: And so this Court has always recognized the State's authority to make those decisions as an essential attribute of their sovereignty.

And that's why the State's--

Chief Justice John G. Roberts: Without regard -- But I would say without regard to whether they happened to own the land under the river or not.

Gregory G. Garre: --No, when they own the land under the river, that -- the ability to control access along those rivers and fishing and the like is an essential attribute of State sovereignty.

So just saying that, well, the Federal government and State government can regulate together is, I think, an important intrusion on State sovereignty as this Court has always understood under the Equal Footing Doctrine and the Public Trust Doctrine.

And you also have the problem of competing regulation of these rivers when you go from mile to mile, interruption to interruption, potentially thousands along rivers.

And that's laid out in the brief by the environmental groups here, the National Wildlife Foundation, Tribal Unlimited and other groups that talk about the problems with fragmented regulatory jurisdiction.

And you also get into the question of public access for fishing, too.

The rivers are used for commerce, but the Public Trust Doctrine was always used to protect access to rivers for fishing, too.

And so if you look at a place like the Great Falls or the Thompson Falls, these are among the most sought after fishing rivers in the world.

Justice Antonin Scalia: You are willing to concede on behalf of the State that if we find that the State does not have ownership of the bed, the State does not have regulatory jurisdiction for all of these purposes that you were now describing?

Gregory G. Garre: Absolutely not, Justice Scalia.

Justice Antonin Scalia: Well, then your argument doesn't carry much weight.

The State can continue to regulate all those things whether or not it owns the bed.

Gregory G. Garre: And so every time this Court has said that the ability to do that is an essential attribute of sovereignty, it must not have meant it because the United States could do it, too.

I mean, it is important to the states because having the sovereign capacity over those riverbeds as navigable waters under the Public Trust Doctrine is critical to the State's authority.

Justice Antonin Scalia: Well, you have sovereignty over the land owned, owned by other private persons.

Gregory G. Garre: And I think it gets back to the Public Trust Doctrine, the Equal Footing Doctrine, what this Court has said in the Utah case and other cases about the role of states in regulating navigable rivers and owning title to the river beds underlying those rivers.

Chief Justice John G. Roberts: We haven't talked much about the Madison.

What is your best piece of evidence with respect to the Madison for the proposition that it was navigable at statehood?

Gregory G. Garre: Well, there was some evidence of use by fur trappers and the like.

It was not extensive because this area was relatively sparse.

Chief Justice John G. Roberts: Well, fur trappers are going to go -- they don't need a lot of water to ply their canoes up the river.

Gregory G. Garre: Well, and this Court has recognized that things like pirogues and bateaux were sufficient to establish the continuous highway of commerce.

I think the point on the Madison is the susceptibility for use as a navigable river.

And the main point that we made below is that where their own expert had recognized that PPL's dams had impeded the flow of water over of the river, that if those dams impede the flow of water of the river but yet today there are thousands of drift boats similar to the boats that would have used it at the time of statehood, then it is good evidence that it was susceptible for use.

But I think the Madison is in a different category than the Missouri and the Clark Fork.

I do want to answer the question about the The Des Plaines River in the Economy Light case, there was an 18-mile portage.

That's made clear at page 18 A of our addendum where the government recognized that.

In -- Montello it was a five-mile portage.

And there are other examples of portages.

Justice Sonia Sotomayor: Counsel, was that the canal -- what subsequently became the canal area.

Gregory G. Garre: I -- I think that's right.

It's in the testimony in that decision.

But certainly 17 miles -- and the other thing is that in the amicus brief, on page 27 of the Tubbs brief, she suggests that the actual portage before Statehood was only 8 miles.

I don't think you can draw a constitutional line between 5, 7, or even 10 miles and 17 miles.

We think the line the Constitution draws is whether -- asks whether the river was served as a continuous highway of commerce, notwithstanding any interruption along that way.

Justice Sonia Sotomayor: I think that then the simplest rule is, is the river from shore to opposite shore -- any portion of it -- did boats traverse it.

That would be I think what Justice Alito was asking.

Gregory G. Garre: But that's not even a rule that PPL was asking for, because they acknowledge that some interruptions would be navigable.

They call it "non-de minimis".

It's not clear how you get there.

If you go between the low watermarks, there's only a part of the way that you could actually bring a boat up, but yet it's established that the State owns the entire riverbeds between low watermark to low watermark.

After traversing the Missouri and the very falls at issue in this case, Meriwether Lewis described it as

"he didn't think the world could furnish a finer example of a navigable river through a mountainous country than the Missouri. "

That assessment made by the President's own agent, charged with assessing the suitability of the Missouri for commerce, was consistent with more than 140 years of this precedent--

Justice Anthony Kennedy: Did he write that during his 30-day -- 32-day portage?

[Laughter]

Gregory G. Garre: --Your Honor, it was an 11-day portage.

At the time of Statehood, it was a one-day portage.

I think what's significant is he wrote it after that portage.

And yet he recognized that there was not a finer example of a navigable river through a mountainous country.

That assessment is consistent with this Court's precedents for more than 140 years.

It's consistent with the actual use of the Missouri as a continuous highway of commerce along the very stretch at issue here.

We don't believe that PPL or the United States has -- has provided a legal reason for this Court to overturn the judgment of the Montana Supreme Court that the Missouri or the other rivers at issue in this case are navigable.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Clement, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE PETITIONER

Paul D. Clement: Thank you, Mr. Chief Justice.

A few points in rebuttal.

First, it's--

Justice Sonia Sotomayor: Portages that are de minimis.

Point me -- I don't care where they are in the United States -- give me a list of some that are de minimis.

Paul D. Clement: --I mean, I don't have any de minimis portages for you.

The portages he's talking about, as far as I can tell, the 5-mile and 8-mile are portages between rivers, and that has nothing to do with whether the bypassed stretch of the river would be non-navigable because it's de minimis, because if you portage between two rivers, you're not bypassing anything.

Where I can talk about sort of portages being de minimis, if you look at the special master's report in the Utah case, there are a few places in the Cataract Canyon where he talks about portages, and he talks -- you know, in parts where they got boats to.

But the -- the key point is, whenever the Court has talked about portages in the context of navigability, they've pointed to them as suggesting non-navigability.

And in certain circumstances, well, you had to portage a little bit, but that's not enough to make the stretch non-navigable.

Justice Anthony Kennedy: And what were your -- what were your other four points you were going to give us?

Paul D. Clement: Well, I've given you a couple, I'd start with the deeds.

Your Honor.

You know, the -- the State wants to make something of the fact that the deeds stop at the river.

But that's true throughout the State.

And the question then becomes what rule governs the ownership of the riverbeds?

And that's where navigability versus non-navigability.

So the deeds don't prove anything.

That's just the way the deeds were written.

The next point: Justice Kagan, you asked about, you know, did the other owner -- other people on the river have anything to fear.

And the answer as far as I heard was, well, these are different.

They sit on the riverbed.

Well, two things, Your Honor: so do some of the peers.

And that's why people have filed amicus briefs and are very concerned.

But more to the point, these things have not moved under the riverbed recently.

They've been sitting there for 100 years, and the State lent its eminent domain power to us to help us build these dams.

These dams were critical to developing energy and development in this area.

And now 100 years later, they want compensation for the little river strip--

Justice Antonin Scalia: Could the United States demand compensation?

Paul D. Clement: --We pay the United States compensation right now.

The difference is, the United States isn't going in afterwards and trying to put a hold-up to us and saying it wants $50 million for this.

We pay rents to FERC for some of these lands.

Actually, the State gets 37.5 percent of the--

Justice Antonin Scalia: For the riverbed?

For the riverbed land?

Paul D. Clement: --Well, look at footnote 3 of the government's brief.

I mean, again, the problem here is if you want people to have deeds that really are -- parse out whether it's riverbed or upland, they don't because everybody defaults to the bottom line -- the background rule.

The background rule is if it's a non-navigable river, the riparian owners, whether it be the United States or private property owners, get to midway, or if they own both on both sides, they get the whole thing.

I think on de minimis, we've talked about it a lot.

But I would point out that the one thing we know that is not de minimis from Utah is 4.35 miles.

Because that's what the Court analyzed separately in the portion of Cataract Canyon.

Every stretch at issue here, every dam at issue here, is more than 4.35 miles.

Fully five of the dams are on the 17-mile Great Falls stretch, which they agree is impassable.

The other five are reservoir dams that create reservoirs that extend over 4.35 miles.

There's nothing de minimis in the best evidence that is the $50 million in compensation.

I think the $50 million in background also shows that although this is a dispute between Montana and the United States, my client is caught in the middle of it, and they are obviously concerned about it, too.

I want to talk about what's disputed and what's undisputed.

What is undisputed is the 17 miles is impassable.

That's enough, as I say, to give us judgment as a matter of law for the five dams on that stretch.

What is hotly disputed, despite my friend's representation, is whether or not there was through commerce through this bypass route.

He suggests it's undisputed that gold went from Helena down to Fort Benton down to St. Louis.

And that of course is not disputed.

But it went on roads.

It didn't go on the upper Missouri.

And if you want to know who's got the better of this argument, I ask you to think about this question: the United States Army built a 600-mile overland road from Fort Benton, the traditional head of navigation on the Missouri, to Walla Walla, Washington.

Now, if the State is right and the upper Missouri and the Clark Fork were navigable, all they had to do was have a 60-mile road to connect the two.

They were never navigable.

Thank you, Your Honor.

Chief Justice John G. Roberts: Thank you, counsel.

Thank you, counsel.

The case is now submitted.

Print this transcript Transcript: 

Chief Justice John G. Roberts: Justice Kennedy has our opinion this morning in Case 10-218, PPL Montana, LLC versus Montana.

Justice Anthony Kennedy: As a general rule, when a State enters the Union, it takes title to riverbeds where the river above the bed is navigable.

This rule follows from the constitutional principle known as the equal-footing doctrine.

And the purpose of that -- that doctrine is to allow newly admitted States the same ownership and control of riverbeds that the original 13 States enjoyed.

The general principles of the original 13 States and newly admitted States are on an equal-footing.

Navigability is determined as of the date the State entered the Union.

Typically, the United States owned the beds of navigable rivers before statehood and it's ownership of beds within the State's borders passed to the States when it entered the Union and there are qualifications to that general principle, but those need not be of a concern for this brief summary.

Montana became a State in 1889.

This case presents the question whether parts or segments of three different rivers were of navigable, as the law defines that concept, on that date.

The three rivers or to be more precise, the -- the rivers whose segments are in question here are the Missouri River, the Madison River and the Clark Fork.

On portions of each of these rivers, all -- and they're all in Montana, a power company, which is the petitioner here, owns and operates dams or related hydroelectric facilities and the company is PPL Montana, the petitioner in the case.

For a number of years, PPL paid rent to the United States on the understanding that it was paying for use of lands that included the riverbeds that the United States owned.

Then in 2003, parents of Montana school children filed a suit arguing that the beds belong to the State.

This suit was later filed and the suit -- and the State argued that rent should be paid to it because it, the State of Montana, owns the beds under the equal-footing doctrine.

The Montana Supreme Court held the rivers were navigable at the time of statehood and so they awarded judgment to the State.

This Court granted certiorari.

For the reasons explained in today's opinion, the judgment of the Montana court is reversed.

The principle error of the Montana court was in its failure to adhere to this Court's precedents on whether and when certain segments of the river must be deemed nonnavigable.

This Court's well-settled rule that navigability can be assessed on a segment by segment basis, a rule given too little weight by the Montana court, is based on practical considerations and these include the fact that physical conditions may very significantly along the whole length of a river.

This Court's segment by segment approach applies to the river segments here.

The case involves riverbed parcels and segments of the rivers where it is doubtful, the State can establish navigability, even if there might exist some riverbed parcels too small for the river segments above them to merit separate treatment, the parcels here, in particular, the portions of the riverbed under the Great Falls reach of the Missouri River are not so small as to be worthless or in administrable and there are other points as well.

Explorers at some places, particularly at the Great Falls reach, could not continue travel by river without inland portage.

Portage generally demonstrates the river waters cannot be navigated.

The state court did not give the necessary consideration to this factor in considering navigability.

The state court was mistaken too in the weight it placed on evidence of present-day primarily recreational use of the Madison River.

As the opinion explains, the reliance was not supported by the necessary findings.

Finally, Montana files its claim for riverbed rents over a century after the first PPL's dams was built upon the riverbeds.

Today's opinion notes that the State's long failure to assert title is some additional evidence that the river segments here involved were deemed nonnavigable for purposes of the equal-footing doctrine.

The judgment of the Montana Supreme Court is reversed and the case is remanded, the opinion is unanimous.