SCOTUS Hands the Rights to Our Public Waterways to Private Corporations

by jhwygirl

I’m more disgusted than shocked – it’s no surprise, really, that a court that would side with the sale of our elections to the highest willing buyer determined yesterday that our public waterways can be owned by private corporations, without even payment to use the land.

I won’t pretend to have studiously read the court’s opinon, issued yesterday. I have read through it quickly though, and prior I had read both PPL and the state’s briefs, along with many of the other documents.

My favorite read of the PPL v Montana case was one that I think anyone would enjoy, regardless of their opinion on the case or the court’s recent ruling. Historian Stephanie Ambrose-Tubbs’ amicus brief submitted in support of the state’s position is rich with descriptive language that brings to life the color and visual of early Montana – from Lewis & Clark’s first travels on the Missouri to the steamboat travel days, outfitting and present day fishing and floating.

My favorite television reporter Marnee Banks (Helena’s CBS news) did this reporting on the hearing just before the case was heard by SCOTUS in December.

In the end, the court did not agree with the state that a the PPL dam – one in particular which sits on a series of waterfalls on the Missouri River up near Great Falls (there are other PPL dams involved also) – was on a navigable river.

Montana’s claim to rivers goes back to the law of the Magna Carta – under the principle that the waterways are a primary source of commerce, so important to the state that it is within their interest to control. Here in Montana, rivers have been used to move logs. Here in Missoula people might be interested to know that Ninemile Creek, Lolo Creek and the Rattlesnake were all used to “float” logs. That’s in addition to what most would expect – the Clark’s Fork, the Blackfoot and the Clearwater.

“Lolo?” I said when I was first told that by an old logger smokejumper in problembear’s favorite bar over there in Bonner. Apparently the old guys would cut those logs and stack them through the winter in low lands that would then be flooded by damming the creek to then “float” them down to the mills. Today you can still see the old logs sprouting up like mushrooms on the Blackfoot, now that the dam is gone at Milltown.

Some old old maps of Missoula show a log mill a the bottom of the Rattlesnake, near its confluence with the Clark’s Fork.

In some drainages, you can still see the remains of the log structures used to hold the slats that dammed the creeks.

The courts, though, apparently didn’t find logging a compelling enough of a commerce interest for the state to protect.

Meh. Whatever. Sometime soon when the set the date, I’m heading to DC to occupy the steps of SCOTUS. They still haven’t denied the request to hear American Tradition Partnership v Montana, which challenges Montana’s ban on corporate money in elections – and two court justices are hinting that they want to hear the case – so when they do, I plan to be in DC to at least be there for what I’m sure will be well-directed chaos.

What does SCOTUS’ recent ruling mean for our waterways? Apparently if you can’t float a boat, it’s up for sale to the highest bidder.

That, my friends, is sad – no matter how you slice it.


  1. Mark Miwertz

    Great post; hideous decision. The idea that ranchers pay taxes on riverbeds but not the power company? Or that a river is only “partly navigable”? Reeediculous!

    • PPL pays taxes…the rent the state wanted to collect was for use of state-owned land for utility industrial commercial purposes. Like their oil and gas leases.

      Think of state leases for the trusts that fund schools, some school kids figured out that the state owned riverbeds, so they picked PPL and the rest is history.

      Though it was still remanded back to lower courts, where the state has to clarify its definition of what is a river, I guess.

      But yes – what a friggin’ nightmare. This court is reprehensible, if you ask me.

      • petetalbot

        You are correct, j-gal, but it should be noted that PP&L consistently withholds its tax payments to counties in the form of ‘protests.’ The Montana Department of Revenue had to sue to get millions of dollars owed to Cascade (Great Falls), Sanders (Thompson Falls), Lewis and Clark (Helena) and Rosebud (Colstrip).

        PP&L has always been a bad actor but what can you expect from an unregulated utility company headquartered two thousand miles away.

  2. Mark Miwertz

    Ah, rent vs taxes, I get it, but never did until now.

    And perhaps the worst is the idea that if you have a rapids on your portion of the river, it’s not navigable, but maybe the next section is.

  3. Ingemar Johansson

    And the word of the day is………unanimous.

  4. ladybug

    Corporate Congress, corporate President, corporate Supreme Court. It follows, naturally.

  5. I guess if you are a big corporation, you get to use public resources at no cost.

  6. I think you overstate the decision substantially j-girl. Read the analysis at ScotusBlog.

    I think there is a good foundation for why the most liberal members of the court agreed with the conservatives. A bit less hand-wringing is called for in this case insofar as the decision was very narrow.

  7. Thank you. Very interesting. And at first I thought it a good idea for all of us to go to D.C. for the ATP vs Montana case, but I have become less interested in government centric protests or protests in general where you carry signs and hope, yes, hope, someone will notice. I’d say Occupy the Dams, but they look scary. But then these are scary times.

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