A state district court has new direction from the highest court in the land on charging fees for dams operating on rivers in the state. U.S. Supreme Court Justices unanimously reversed the Montana Supreme Court’s decision that charged PPL Montana over $50 million in lease money and interest for its dams on three rivers. But the debate over much of that money is not done yet.
This case started because the state wants to charge rent money for 10 hydroelectric dams PPL operates on the Missouri, Madison and Clark Fork Rivers. In order to do that the state has to prove the rivers were navigable at the time of statehood. And if they were navigable, then the state owns the river beds and can charge rent.
This is all from the Equal Footing Doctrine It has its roots way back in English Common law. Much of the Supreme Court’s argument here centers on the Great Falls of the Missouri.
“We’re very thankful for the journals of Lewis and Clark. They certainly are definitive in a lot of respects,” said PPL Montana External Affairs Director David Hoffman.
U.S. Supreme Court Justice Anthony Kennedy points to this 1805 excerpt written by Meriwether Lewis about the Great Falls:
“The whole body of water passes with incredible swiftness over a precipice of at least 80 feet. The irregular and somewhat projecting rocks below receives the water and brakes it into a perfect, white foam.”
Clearly, that’s not navigable. It actually took the expedition a month to portage around the falls.
PPL says hey there you go, not navigable. State Government, you don’t own the bed of the Missouri River, you can’t charge us for our dams there.
But the Montana Supreme Court said wait a minute—in the 1800s you could get a boat up the vast majority of the Missouri. You can’t throw out the whole river because of one 17 mile stretch.
The U.S. Supreme Court this week struck that down. Justices say you have to look at the navigability of rivers in segments. They say the state cannot charge rent for the dam on the Great Falls. Other ones might be eligible though.
Anyway all this stuff about river navigability in the 1800s—it really matters. The money the state is hoping to collect from these dams would go to public education.
“Big time revenue source for the kids that we serve. Millions of dollars are at stake here,” said Eric Feaver, President of the state teachers union—the MEA-MFT. “There’s all sorts of revenue that flows off state lands to public schools in higher education and why shouldn’t the dams be part of that revenue stream as well.”
Yet, it’s not as if the U.S. Supreme Court’s decision is ending some long standing state revenue source. This would be brand new money, collected from dams that have been sitting there for more than a century in some cases.
“What this decision does is protect the status quo that we’ve enjoyed for over 120 years in Montana,” Hoffman said.
State District Court Judges now need to look at each dam and each river segment individually.
“The Supreme Court ruling wasn’t everything that I hoped for,” Montana Attorney General Steve Bullock said. “But it doesn’t change the fundamental factor of what the basis of the lawsuit was. And now we go to District Court and a lot of the same remedies we should be able to expect.”
This case has been going on for almost a decade. Bullock doesn’t expect a resolution any time soon.