State of Montana v. Talen Montana, LLC et al
Filing
417
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER. Signed by Judge Dana L. Christensen on 8/25/2023. (ASG)
Case 6:16-cv-00035-DLC Document 417 Filed 08/25/23 Page 1 of 78
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
STATE OF MONTANA,
CV 16–35–H–DLC
Plaintiff,
vs.
TALEN MONTANA, LLC, f/k/a PPL
Montana, LLC, and NORTHWESTERN
CORPORATION, d/b/a NorthWestern
Energy, a Delaware corporation, and
UNITED STATES OF AMERICA,
United States Forest Service, United
States Bureau of Reclamation, and United
States Bureau of Land Management,
FINDINGS OF FACT,
CONCLUSIONS OF LAW,
AND ORDER
Defendants.
I.
INTRODUCTION
A 10-day bench trial was held in this case from January 4, 2022 to January
18, 2022, at the Russell Smith Federal Courthouse in Missoula, Montana. Plaintiff
State of Montana (“Montana”) was represented by John E. Bloomquist, Esq.,
James P. Molloy, Esq., Betsy R. Story, Esq., and Anthony Johnstone, Esq.
Defendant, Talen Montana, LLC (“Talen”), was represented by Robert L. Sterup,
Esq., and Kyle A. Gray, Esq. Defendant, NorthWestern Corporation, d/b/a
NorthWestern Energy (“NorthWestern”) was represented by Stephen D. Bell, Esq.,
Brian B. Bell, Esq., and Andy Brown, Esq. Defendant United States of America
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(“United States”), was represented by J. Scott Thomas, Esq., and David W.
Gehlert, Esq. Hundreds of exhibits were offered and received into evidence and a
total of 15 expert witnesses were sworn and testified, and at the Court’s request,
the parties submitted proposed findings of fact and conclusions of law, and posttrial briefs.
II.
PROCEDURAL HISTORY
This case commenced in 2003, twenty years ago, when parents of school
children filed a lawsuit in Montana Federal District Court seeking compensation to
the school trust fund from PPL Montana, LLC (“PPL”), the predecessor in interest
to Talen, based on the alleged occupation and use of state-owned riverbeds by
hydroelectric dam facilities constructed and operating on the Missouri, Clark Fork
and Madison Rivers of Montana (Am. Compl., Dolan v. PPL Mont., LLC (Cause
No. CV 03-167-M-DWM)).1
There are seven hydroelectric dam facilities involved in this case: four on the Missouri River
(Hauser, Holter, Black Eagle and Morony), two on the Madison River (Hebgen and Madison),
and one on the Clark Fork River (Thompson Falls). Montana is claiming title to those portions
of the historic riverbeds of the Missouri, Madison and Clark Fork Rivers between the ordinary
low water marks, and between the upstream and downstream FERC boundaries of the
aforementioned seven hydroelectric dam facilities. Montana’s expert Surveyor, Ken Jenkins,
testified that these particular river reaches between the FERC boundaries are considered the
“Disputed Reaches” which Montana claims title to under the Equal Footing Doctrine. As will be
explained in later detail, the Court adopts expert Jenkins’ definition of these Disputed Reaches.
The river segments within which these Disputed Reaches are located will be referred to as the
“Relevant Segments.”
1
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In general terms, this case, from its inception, concerns the ownership of the
riverbeds underlying the hydroelectric dam facilities on these three iconic Montana
rivers. Ownership of those riverbeds turns on whether the rivers, specifically
Relevant Segments of the rivers, were navigable at the time Montana achieved
statehood in 1889. PPL Montana, LLC v. Montana, 565 U.S. 576 (2012). Under
the equal footing doctrine of the United States Constitution, upon admission to the
Union, states take title within their boundaries to the beds of waters then navigable.
Id. The United States retains title to the riverbeds that were non-navigable at the
time of statehood. Id.
Montana claims that all of the Relevant Segments of these three rivers are
navigable-for-title and therefore the State owns title to the riverbeds underlying the
hydroelectric dam facilities, and thus seeks an order establishing title navigability
of the Relevant Segments, and quieting title to the disputed riverbeds or reaches
within those segments (“Disputed Reaches”). Defendants claim the Relevant
Segments were not navigable at the time of statehood and that title remained vested
in the United States or its successors-in-interest.
Following the filing of the original lawsuit in 2003, PPL moved to dismiss
for lack of standing and federal preemption. Montana later intervened as a party
plaintiff (Order Granting Motion to Intervene, Dolan v. PPL Mont., LLC (Cause
No. CV 03-167-M-DWM)). Because the intervention of Montana destroyed
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diversity between the parties, the Court dismissed the case for lack of jurisdiction.
(Doc. 95-4.)
In November 2004, before the federal case was dismissed, PPL sued
Montana in state court, seeking a declaration that Montana did not own the
riverbeds underlying its hydroelectric dam facilities. (Doc. 17.) Montana moved
for summary judgment on whether the rivers were navigable at the time of
statehood. The state trial court granted Montana’s motion for summary judgment.
(Doc. 48.) After a seven-day bench trial on damages, the trial court entered final
judgment in Montana’s favor awarding approximately $41 million in damages.
(Doc. 108.)
PPL appealed the district court’s decision, and the Montana Supreme Court
affirmed. PPL Mont., LLC v. State, 2010 MT 64, 355 Mont. 402, 229 P.3d 421,
rev’d, 565 U.S. 576 (2012). As explained next, the reasoning of the state trial
court and Montana Supreme Court was flawed in multiple respects.
PPL successfully petitioned the U.S. Supreme Court for a writ of certiorari,
and the Supreme Court reversed. PPL Montana, LLC v. Montana, 565 U.S. 576
(2012) (hereinafter “PPL” or “PPL v. Montana”). Because this opinion serves as
the roadmap for this order, further discussion of the holdings in PPL v. Montana
are warranted.
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The Court began with an explanation of the equal-footing doctrine: Under
the equal-footing doctrine of the United States Constitution, upon admission to the
Union, states gain title within their boundaries to the beds of water then navigable.
Id. at 591. When states obtain such title, they may allocate and govern those lands
according to state law subject only to the United States’ power “to control such
waters for purposes of navigation in interstate and foreign commerce.” Id.
(quoting United States v. Oregon, 295 U.S. 1, 14 (1935)).
Conversely, the United
States retains title vested in it before statehood to land beneath waters not then
navigable. Id. The Court stated that whether a river is navigable for title under the
equal-footing doctrine depends on whether the river is navigable in fact. Id. at
592. The Court then articulated the standard which governs this case: “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 conditions, 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. (quoting The Daniel Ball, 77 U.S. (10 Wall.) 557, 563 (1870),
superseded by statute in part on other grounds as recognized by Rapanos v. United
States, 547 U.S. 715, 723 (2006)). The Court stressed the navigability of a river
must be based on its natural and ordinary condition at the time of statehood. Id.
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Next, in addressing the deficiencies in the Montana Supreme Court’s
decision, the Court explained that “[t]he primary flaw in the reasoning of the
Montana Supreme Court lies in its treatment of the question of river segments and
overland portage.” Id. at 593. The Court held that “[t]o determine title to a
riverbed under the equal-footing doctrine, this Court considers the river on a
segment-by-segment basis to assess whether the segment of the river, under which
the riverbed in dispute lies, is navigable or not.” Id. The Court emphasized that
“the segment-by-segment approach to navigability for title is well settled, and it
should not be disregarded.” Id. at 594. The Court reasoned that “shifts in
physical conditions [that affect navigability] provide a means to determine
appropriate start points and end points for the segment in question,” such as
gradient changes and tributaries that provide additional flow. Id. at 595.
The Court held that “[i]n most cases,” portages defeat a finding of
navigability “because they require transportation over land rather than over the
water.” Id. at 597. The Court noted that a portage “demonstrates the need to
bypass the river segment, all because that part of the river is nonnavigable.” Id.
Responding to the State’s argument that small breaks in navigability do not render
a river non-navigable, the Court stated that “[e]ven 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
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that any of the segments in this case would meet that standard, and one—the Great
Falls reach—certainly would not.” Id. at 596. The Court reasoned that such nonnavigable segments would have to be so small as to be inadministrable for title
purposes. Id. at 596-97 (“[T]he 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.”).
After laying out these principles, the Court held “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.” Id. at
599. In reaching this conclusion, the Court relied on the State’s concession that
the Great Falls reach had never been navigated and were not passable by boat at
statehood. Id.
Finally, the Court held that the Montana Supreme Court erred as a matter of
law in its reliance upon present-day use of the rivers to support its navigability
determination. Id. at 600. In order to rely on present-day use to establish
navigability for title, a party “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.” Id. at 601.
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The Court remanded the case for an assessment of the navigability of the
Relevant Segments “in light of the principles discussed in” the Court’s opinion. Id.
at 600.
Upon remand to the Montana state courts, the case was dormant for several
years until the parties stipulated that Montana would be realigned as plaintiff, and
Talen would be re-aligned as the defendant, and that the case would be bifurcated
such that all claims or defenses relating to liability and navigability would be
adjudicated first as “Phase I” of the proceedings, to be followed by damage claims
and defenses in “Phase II.” Thus, in March 2016, Montana filed a Complaint on
Remand against Talen, which had changed its name from PPL. Montana also
joined NorthWestern as a defendant, which had purchased the hydroelectric dam
facilities after remand. Despite the U.S. Supreme Court’s decision that the Great
Falls Reach was non-navigable as a matter of law, the Complaint on Remand
alleged ownership of the riverbeds on the Great Falls Reach. NorthWestern
removed the case to this Court based on federal question jurisdiction and the
Federal Quiet Title Act, and Montana moved to remand the matter to state court.
This Court denied the motion to remand and retained jurisdiction. (Doc. 171.)
Once the jurisdiction issue was resolved, Talen and NorthWestern renewed
their motions to dismiss the State’s claims on the Great Falls Reach. The Court
granted the motions to dismiss the Complaint on Remand “to the extent that they
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pertained to approximately 8.2 miles of the riverbed of the Missouri River between
Black Eagle Falls and the Great Falls.” (Doc. 191.)
Talen and NorthWestern then answered the Complaint on Remand and
simultaneously moved the Court to require joinder of the United States as a
necessary party because the United States also owned land on the river segments
where the State claimed title. (Docs. 192, 197.) The Court granted the motion
(Doc. 216). Montana then filed an Amended Complaint joining the United States
on October 31, 2019 (Doc. 221).
Following the close of discovery on July 30, 2021, Defendants moved for
summary judgment on several of the Relevant Segments, and the parties filed
several motions in limine. The Court denied the motions for partial summary
judgment and reserved ruling on the motions in limine. The final pretrial
conference was held on January 4, 2022, and, as previously indicated, the bench
trial commenced on January 4, 2022.
Shortly following the filing of the parties’ post-trial proposed findings of
fact and conclusions of law, and trial briefs, Talen Montana, LLC commenced a
Chapter 11 Bankruptcy case on May 9, 2022 in United States Bankruptcy Court for
the Southern District of Texas, Houston Division (In re: Talen Energy Supply,
LLC, No. 22-90054). Montana then filed a motion before the Bankruptcy Court to
modify the automatic stay “in order to allow USDC Montana to decide the riverbed
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ownership for both Talen Montana and NorthWestern, on the ground that the
Riverbed Litigation has progressed to a point that the USDC Montana should
decide the issues in the interests of economy and efficiency given that the issue of
riverbed ownership has been subject to a ten-day evidentiary hearing and all posttrial briefing has been completed.” (Doc. 1035, In re: Talen Energy Supply, LLC.)
Pursuant to a stipulation, the Bankruptcy Court granted this motion on September
15, 2022 (Doc. 1229, In re: Talen Energy Supply, LLC), and thereafter, this Court
issued its Order documenting the lifting of the automatic stay “to permit this Court
to issue a decision on the title navigability phase of this action and to permit the
parties to file an appeal if necessary.” (Doc. 411.) Talen then filed its response to
Montana’s Amended Proposed Findings of Fact and Conclusions of Law on
October 6, 2022 (Doc. 412), and the case was fully submitted on Phase I.
Based on this entire trial record, the Court makes the following findings of
fact:
FINDINGS OF FACT
III. SEGMENT-BY-SEGMENT ANALYSIS AND DETERMINATION
OF THE RELEVANT SEGMENTS AND DISPUTED REACHES
1.
The U.S. Supreme Court’s decision in this case made it clear that in
order to determine the issue of riverbed title, this Court must first determine the
relevant segments:
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To determine title to a riverbed under the equal-footing doctrine, this
Court considers the river on a segment-by-segment basis to assess
whether the segment of the river, under which the riverbed in dispute
lies, is navigable or not. . . . 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.” . . . This was error. The
segment-by-segment approach to navigability for title is well settled,
and it should not be disregarded. . . .
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 question. Topographical and
geographical indicators may assist. . . .
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 and nonnavigability, and
substantial, as a matter of administrability for title purposes. . . .
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.” . . . 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.
PPL, 565 U.S. at 593–97 (emphases added).
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2.
Montana’s expert fluvial geomorphologists, Dr. Andrew C. Wilcox
and Dr. John C. (Jack) Schmidt identified seventeen (17) geomorphic river channel
segments for the portions of the Clark Fork, Missouri and Madison Rivers. Within
these segments, seven (7) Disputed Reaches are situated. The Court refers to the
segments containing Disputed Reaches as the Relevant Segments. With three
exceptions identified below, the parties agree with the following segment
designations:
Missouri River:
•
The Townsend Valley Segment between River Miles 2296 and
2254.2, which is upstream of any of the Disputed Reaches of the
Missouri River.
•
The Big Belt Mountains Segment between River Miles 2254.2 to
2208, which contains the entirety of the Hauser and Holter Dam
Disputed Reaches, between River Miles 2252.6 and 2210.5.
•
The Adel Mountain Volcanic Field Segment between River Miles
2208 and 2186, which is downstream of the Disputed Reaches related
to the Hauser and Holter Dam Projects.
•
The Long Pool Segment between River Miles 2186 and 2121.7,
which ends just upstream of the Disputed Reach related to the Black
Eagle Dam Project.
•
The Sun River to Black Eagle Falls Segment between River Miles
2121.7 and 2117.9 which contains the Black Eagle Dam Disputed
Reach, between River Miles 2121.1 and 2117.9. The Defendants
disagree with this segment.
•
The Great Falls Segment between River Miles 2117.9 and 2109.6,
which the Court has already determined to be non-navigable for title
purposes.
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•
The Big Falls to Belt Creek Segment between the base of the Great
Falls at approximate River Mile 2109.6 and River Mile 2104.3, which
contains the Morony Dam Disputed Reach between River Miles
2109.6 and 2105.3. The Defendants disagree with this segment.
Clark Fork River:
•
The Flathead Segment from the Flathead River confluence to Henry
Creek between River Miles 245.8 and 240, which is upstream of the
Disputed Reach related to the Thompson Falls project.
•
The Plains Segment from Henry Creek to Lynch Creek between
River Miles 240 to 232, which is just upstream of the Disputed Reach
for the Thompson Falls project.
•
The Eddy Segment between River Miles 232 and 208.1, which
contains the upstream portion of the Thompson Falls Disputed Reach
between River Mile 220.1 and 208.1. The Defendants disagree with
this segment.
•
The Thompson Falls Segment between River Miles 208.1 and 207.1,
which contains the downstream portion of the Thompson Falls Dam
Disputed Reach ending at River Mile 207.4.
•
The Noxon Segment between River Mile 207.1 and 169.7 which is
downstream of the Thompson Falls Disputed Reach.
Madison River:
•
The Headwaters Area or West Yellowstone Basin Segment
between River Miles 139 and 112.5, which contains the upstream
portion of the Hebgen Dam Disputed Reach, beginning at River Mile
125.1.
•
The Upper Canyon Segment between River Miles 112.5 and 101,
which contains the downstream portion of the Hebgen Dam Disputed
Reach ending at River Mile 108.4.
•
The Madison Valley Segment between River Miles 101 and 42.5 and
the Anabranching Sub-Segment between River Miles 61 and 42.5
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which contains the upstream portion of the Madison Dam Disputed
Reach, beginning at River Mile 46.2.2
•
The Lower Canyon Segment between River Miles 42.5 and 22.0 and
the Beartrap Canyon Sub-Segment between River Miles 42.5 and
33, which contains the downstream portion of the Madison Dam
Disputed Reach, ending at River Mile 39.4.
•
The Lower Madison Valley Segment between River Miles 22 and 0.
This segment is downstream of any of the Disputed Reaches of the
Madison River.
3.
As to those segments identified above where there is no disagreement
between the parties, the Court adopts those segments as designated by Drs. Wilcox
and Schmidt. The Court resolves the three segments where there is a disagreement
as follows:
Sun River to Black Eagle Falls Segment (Missouri River):
Defendants’ expert, Dr. Robert Mussetter, disagreed with the upstream
boundary of the Sun River to Black Eagle Falls Segment, arguing that it should
begin further downstream at River Mile 2121.1, rather than River Mile 2121.7 as
designated by Montana’s experts, Drs. Wilcox and Schmidt. Dr. Mussetter
testified that near Broadwater Bay, located at River Mile 2121.1, the “[g]radient of
the segment increased” which, in his opinion, justified an adjustment to the
segment boundary. Dr. Wilcox testified that he selected River Mile 2121.7
Although Dr. Schmidt designated the Anabranching reach of the Madison River as a subsegment of the Madison Valley Segment, the parties appear to agree that the Anabranching reach
could also be designated as a standalone segment. The Court does not consider this minor
distinction to be significant in its analysis of navigability for title, and thus adopts the
Anabranching reach as a sub-segment of the Madison Valley Segment.
2
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because it was the confluence of the Missouri River with the Sun River, which he
described as one of the most significant tributaries to the upper Missouri,
increasing the drainage area by 9%, contributing additional flow and sediment
beginning at River Mile 2121.7. Dr. Wilcox also testified that this significant
addition to flow related to the Sun River entering the Missouri River alone
distinguishes this segment from the upstream Long Pool Segment, and also serves
as a transition segment between the Long Pool and the Great Falls. The Court
agrees with the analysis of Montana’s experts, and thus adopts River Mile 2121.7
as the upstream boundary for this segment.
Big Falls to Belt Creek Segment (Missouri River):
Defendant’s expert, Dr. Mussetter, also disagreed with the downstream
boundary of the Big Falls to Belt Creek Segment identified by Drs. Wilcox and
Schmidt. Dr. Mussetter testified that the downstream boundary should be
relocated 2.8 miles further downstream to River Mile 2101.6, contending that the
additional 2.8 mile reach should be added to this segment in order to incorporate
the bed rock shelves and associated rapids that continue downstream from the
confluence of Belt Creek and the Missouri River. The Court agrees with the
analysis of Dr. Mussetter, and adopts River Mile 2101.6 as the downstream
boundary of this segment.
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Eddy Segment (Clark Fork River):
Defendants’ expert geomorphologist, Dr. Michael Harvey, disagreed with
the upstream boundary of the Eddy Segment of the Clark Fork River. He testified
that it should begin further upstream at River Mile 235.5 rather than River Mile
232. The basis for Dr. Harvey’s opinion was that unlike the Plains Segment, which
is upstream of the Eddy Segment, the Eddy Segment has considerable variation
(referring to the Plains Rapids and the Eddy Islands), and from a geomorphological
standpoint, it made more sense to place these complex mid-channel bars and riffles
into the more complex Eddy Segment than the uniform upstream Plains Segment.
With a single-thread channel, the Plains Segment lacks the complexity of the Eddy
Segment. The Eddy Segment includes areas where the flow divides between
multiple channels and where bedrock outcroppings create rapids. Thus, Dr.
Harvey concluded that the complex mid-channel bars and riffles should be placed
in the more complex Eddy Segment rather than the more uniform Plains Segment.
The Court agrees with the analysis of Dr. Harvey, and adopts River Mile 235.5 as
the upstream boundary of the Eddy Segment.
4.
As explained in footnote 1 above, Montana’s Expert Surveyor, Ken
Jenkins, testified that Montana is claiming title to portions of the historic riverbeds
of the Missouri, Clark Fork and Madison Rivers between the ordinary low water
marks, and between the upstream and downstream boundaries of the Hebgen,
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Madison, Hauser, Holter, Black Eagle, Morony and Thompson Falls hydroelectric
dam projects. Mr. Jenkins refers to these particular river reaches between the
FERC boundaries as the “Disputed Reaches” which Montana claims title to under
the Equal Footing doctrine. As described in paragraphs 2 and 3 above, the
geomorphic channel segments adopted by the Court do not directly coincide in
each instance to the Disputed Reaches. That is, the Court has designated segments
of the three rivers, on a segment-by-segment basis, as mandated by the U.S.
Supreme Court, even though some of those segments do not contain Disputed
Reaches. The ultimate inquiry into navigability for title under the equal footing
doctrine is to determine whether those portion of the rivers, which overlie the
riverbed land Montana has identified within the Disputed Reaches of each river,
are navigable or not.
5.
To summarize, the Court adopts as the Disputed Reaches the
following:
Missouri River: Those portions of the riverbed of the Missouri River
between River Mile 2252.6 and River Mile 2237.0 (Hauser Dam Disputed Reach),
between River Mile 2237.0 and River Mile 2210.5 (Holter Dam Disputed Reach),
between River Mile 2121.1 and the head of Black Eagle Falls at approximate River
Mile 2117.9 (Black Eagle Dam Disputed Reach), and between the base of the
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Great Falls at approximate River Mile 2109.6 and River Mile 2105.3 (Morony
Dam Disputed Reach).
Clark Fork River: Those portions of the Riverbed of the Clark Fork River
between River Mile 220.1 and River Mile 207.4 (Thompson Falls Dam Disputed
Reach).
Madison River: Those portions of the riverbed of the Madison River
between River Mile 125.1 and River Mile 108.4 (Hebgen Dam Disputed Reach),
and between River Mile 46.2 and River Mile 39.4 (Madison Dam Disputed Reach).
6.
Some general principles deserve repeating at this juncture. The issue
before the Court is whether the Relevant Segments containing the above-described
Disputed Reaches of the rivers at issue are navigable for title, or not. Again, they
are navigable in fact when they are used, or susceptible of being used, as highways
of commerce, over which trade or travel could have been conducted in the
customary modes of trade and travel on water at the time of statehood. PPL, 565
U.S. at 592. Thus, a segment is navigable in fact if the evidence establishes actual
use or susceptibility of use at the time of statehood.
7.
The parties disagree whether the presence of obstacles to free passage
in the river such as rapids, riffles, obstructions or occasional areas of low water,
defeat navigability. According to Montana, for title purposes, a river’s use “need
not be without difficulty, extensive, or long and continuous,” so that even the
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capacity for seasonal log drives will qualify a river as navigable. Oregon v.
Riverfront Protection Ass’n, 672 F.2d 792, 795 (9th Cir. 1982); Hardy v. State
Land Bd., 360 P.3d 647, 659–60 (Or. Ct. App. 2015), cert. denied, 137 S. Ct. 370
(2016). Nor must a river’s use be broadly commercial: use “limited in the sense of
serving only a few people” sufficiently distinguishes “between navigability and
non-navigability.” Utah v. United States, 403 U.S. 9, 11 (1971). Given a river’s
actual use or susceptibility of use, the mere presence of shallows and sandbars
“does not make a river nonnavigable.” United States v. Utah, 283 U.S. 64, 86
(1931); United States v. Holt State Bank, 270 U.S. 49, 57 (1926) (“Sand bars in
some parts of the lake prevented boats from moving readily all over it, but the bars
could be avoided by keeping the boats in the deeper parts or channels.”).
According to Defendants, relying on PPL v. Montana, once the start and end points
of a segment are established, a non-navigable portion defeats navigability for the
entire segment; that is, portages, whether caused by falls, shoals or other features,
typically defeat a finding of navigability. PPL, 565 U.S. at 597.
8.
The Court’s view on this disputed issue lies somewhere in between
the respective positions of the parties. The Court could envision a river segment of
significant length, with one or two difficult obstacles such as a rapid, riffle, or
some other obstruction of small length (which may even require a brief portage),
where the vast majority of the segment remains navigable in fact as a highway for
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commerce at the time of statehood. Perhaps the boat’s cargo would need to be
temporarily removed to lessen the draft and facilitate passage through or around
the rapid or riffle. Or perhaps, the segment is of such length that commerce could
occur within the reaches of the segment upstream and downstream of the
obstruction. These are only two of many examples of how a river segment could
be navigable notwithstanding the presence of intermittent obstacles. The Court
believes this analysis is consistent with PPL v. Montana, and thus, navigability of
the Relevant Segments will be analyzed with this principle in mind.
IV.
CUSTOMARY MODES OF TRADE AND TRAVEL
9.
As a threshold issue to answering the crucial question of whether any
of the Relevant Segments were actually used or susceptible of use at the time of
statehood, the Court must determine the types of watercraft customarily used for
trade or travel at or near statehood. In Section V of this Order the Court will
consider the natural and ordinary condition of the Relevant Segments of the rivers
at or near statehood.
10.
Here again, the parties present significantly divergent positions on the
customary modes of trade and travel. Defendants presented at trial the expert
testimony of Dr. Mark Newell, a marine archaeologist; Dr. David Emmons,
historian and Professor Emeritus, University of Montana; Dr. Jeremy Atack,
economic historian and Professor Emeritus, Vanderbilt University; and Joshua
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Alexander, Chief Cadastral Surveyor of Montana, North Dakota, and South
Dakota, Bureau of Land Management. They all opined that the upland steamboat,
and only this watercraft, was the customary mode of trade and travel on the rivers
of Montana at the time it became a state in 1889. There is no question that upland
steamboats plied many of the waters of Montana, specifically on the Yellowstone
River, upriver on the Missouri as far as Fort Benton, and on the Clark Fork River
downriver from Thompson Falls. There was also evidence introduced at trial that
steamboats were used for commercial purposes in the Long Pool segment of the
Missouri River at or very near the time of statehood, including the Fern, the
Minnie, the Francis, the Swan and the J.J. Hill.
11.
Upland steamboats had many advantages. Primarily, they could carry
between 150 and 350 tons or as much as 10,000 cubic feet of cargo. The
disadvantages of the upland steamboat were its size and draft. Although upland
steamboats were designed to have the lightest possible draft when fully loaded,
they were still long and broad beamed, averaging 100 to 178 feet in length and 1833 feet in width. These vessels were propelled by a steam-powered, side-mounted
paddle wheel, and outfitted with spars in order to “grasshopper” over sand or mud
bars. The upland steamboat had a loaded draft of at least 29 inches and an
operating depth of approximately 40-60 inches. A craft’s draft and operating depth
are different because substantial gradient changes and craft velocity cause the hull
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of any vessel to rise and fall based upon the rate of flow of the water and the boat’s
weight. In other words, in order to operate safely and avoid rocks, shallows and
other obstacles a watercraft requires significantly deeper water than the vessel’s
draft. Operating depth, coupled with gradient, were the key determinants whether
an upland steamboat could operate safely in a river.
12.
Defendants also presented considerable evidence that economic
conditions in Montana at or near statehood would have supported the use of upland
steamboats on the Relevant Segments, if it had been possible. Defendant’s experts
testified that in 1867 forty-two (42) steamboats docked at Fort Benton, steamboat
travel tapered off in the early 1870s due to a business recession in the United
States, and then surged again in the latter part of the 1870s and through the 1880s.
Traffic into and out of Fort Benton surged following gold and mineral discoveries
in the southwestern part of Montana during this same time period.3 Although the
arrival of the railroads in Montana in the 1880s lessened steamboat traffic into
Montana, nevertheless eight steamboats arrived in Fort Benton between 1888 and
In 1862, prospectors struck gold at Grasshopper Creek, which led to the establishment of the
town of Bannack in southwestern Montana. The next year, miners discovered gold in Alder
Gulch, near what would become Virginia City. Finally, in 1864, the discovery of gold in Last
Chance Gulch quickly led to the creation of Helena. In the mid-1860s, the discovery of silver
which was mined near Argenta, Phillipsburg, Helena and Butte, created a silver boom. These
gold and silver mines were large, industrial operations that required manpower and large
amounts of supplies. Mining led to mineral processing in the late 1860s, requiring stamp mills
and smelters, which increased the demand for equipment and workers. During this time period,
thousands of people began streaming into what became the Montana Territory in pursuit of fame
and fortune.
3
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1890, including three in 1889. Between 1888 and 1890, steamboats carried 1800
tons of cargo to and from Fort Benton. Defendants also presented evidence that
transportation of goods and people by upland steamboat was economically more
advantageous than rail transport or via overland roads.
13.
Unquestionably there was a demand for commercial transportation in
Montana during the territorial period (1864–1889) and at the time of statehood in
1889. Passengers and cargo traveled by steamboat as far upstream on the Missouri
as Fort Benton. For a brief period before statehood, miners and railroad builders
used steamboats on the Clark Fork downstream from Thompson Falls. But,
according to Defendants, the upland steamboat was unable to navigate any of the
Relevant Segments, requiring the construction of rudimentary, overland trails to
and from the centers of population in southwest Montana.4 According to
Defendants, with this increase in population and economic activity, people and
supplies had to come into the territory, and people and minerals had to exit the
territory. Defendants contend that none of these supplies or people traveled by
upland steamboat on either the Missouri River above Fort Benton, the Clark Fork
above Thompson Falls, or any part of the Madison River, notwithstanding the
The most significant of these roads was probably the Mullan Road, which was completed in
1866. The Mullan Road was 624 miles long and connected Fort Benton to the Columbia River at
Fort Walla Walla. The Mullan Road was used to transport goods within Montana. Another road
was the Bozeman Trail connecting the Montana Territory to the Oregon Trail. From the south,
the Montana Trail transported goods and passengers around 450 miles between southwest
Montana and Corrine, Utah. Other trails connected Helena, Virginia City, Bannack and Butte.
4
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proximity of these waterways to the mining and production activities, and the
associated population growth. In summary, Defendants contend that the
economics and efficiencies of steamboat commerce were so advantageous that if
they could have traversed the Relevant segments, they would have. That is,
because the upland steamboat did not, and could not, travel within the Relevant
Segments, Defendants argue that none of these segments were navigable in fact at
the time of statehood.
14.
Montana takes a more expansive view on the customary modes of
trade and travel. Montana presented at trial the expert testimony of Dr. Ted
Karamanski, a specialist in the history of the American West, maritime history, and
the history of the fur trade and logging industry, and Jason S. Cajune, an expert
boatman, river guide and boat builder.5
15.
Montana’s experts testified that numerous different types of watercraft
were present and used on western and Montana rivers up to and at the time of
statehood, including dugout canoes, bull boats, skin canoes, bark canoes, bateaus,
Jason S. Cajune has built various types of watercraft, including historical and contemporary
designs, and reviewed historical accounts of watercraft used at or near the time of Montana’s
statehood in 1889. As an experienced boatman and river guide, Mr. Cajune has piloted both
historical and modern boats on many of the Relevant Segments in this case. Although Mr.
Cajune does not have the academic qualifications of many of the experts in this case, he has
hands-on, practical experience. The Court found his testimony to be informative and reliable on
many of the issues in this case. In fact, expert Cajune was uniquely qualified to opine on the
type of watercraft, both contemporary and historical, that were capable of traveling the waters in
question.
5
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mackinaws, keelboats and steamboats. These two experts testified that many of
these types of boats were used by Native Americans, fur trappers, prospectors, and
explorers on Montana Rivers, and that these craft were used for subsistence,
fishing, local barter, and to transport goods and people.
16.
The advantages to these smaller types of watercraft were their size,
generally 10-20 feet in length, and shallow draft, 2-8 inches. These boats were
lightweight, maneuverable, and capable of traveling through Class II, III and IV
rapids. The obvious disadvantage of these watercraft is that their relatively small
size limited the amount of cargo they could transport, and for the most part they
were non-motorized, limiting their ability to travel upstream. Defendants’ expert
Dr. Mark M. Newell, opined in his report that the cargo capacity of the Upland
steamboat was 150-350 tons, as compared to keelboats, mackinaws and pirogues,
which were limited to +/-30 tons of cargo. The Court concludes that to exclude
these smaller craft from consideration in this case would be inappropriate and
contrary to the evidence presented at trial. To limit the analysis to only upland
steamboats, as urged by Defendants, would ignore the fact that smaller watercraft
contributed to the lives and well-being of many different populations of people
who were dependent on Montana’s rivers and waterways for transportation, trade
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and commerce.6 To the fur trapper, a bateau full of hides was his stock in trade.
To the indigenous people, a skin boat laden with people, food and possessions, was
a form of transportation, and in their way of life, a form of commerce.
17.
In The Montello, 87 U.S. (20 Wall.) 430 (1874), The U.S. Supreme
Court held that “the true test of the navigability of a stream does not depend on the
mode by which commerce is, or may be, conducted, nor the difficulties attending
navigation,” and that:
It would be a narrow rule to hold that in this country, unless a river was
capable of being navigated by steam or sail vessels, it could not be
treated as a public highway. The capability of use by the public for
purposes of transportation and commerce affords the true criterion of
the navigability of a river, rather than the extent and manner of that use.
If it be capable in its natural state of being used for purposes of
commerce, no matter in what mode the commerce may be conducted,
it is navigable in fact, and becomes in law a public river or highway.
Vessels of any kind that can float upon the water, whether propelled by
animal power, by the wind, or by the agency of steam, are, or may
become, the mode by which a vast commerce can be conducted, and it
would be a mischievous rule that would exclude either in determining
the navigability of a river. It is not, however, as Chief Justice Shaw
said ‘every small creek in which a fishing skiff or gunning canoe can
be made to float at high water is deemed navigable, but, in order to give
it the character of a navigable stream, it must be generally and
commonly useful to some purpose of trade or agriculture.
The Montello, 87 U.S. at 441–42.
Defendants contend that there is scant evidence of indigenous use of Montana rivers on or
about the time of Montana’s statehood. This is not surprising, considering the fact that the
history of the indigenous people who lived and populated the lands which later became the
Montana Territory was largely oral, passed from generation to generation. Unlike the upland
steamboat, a largely Eurocentric endeavor, where times of travel and tonnage of loads was
meticulously recorded, indigenous people did not maintain such records, notwithstanding the fact
that they populated many of the lands served by the rivers in question.
6
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18.
Thus, the Court will not limit its analysis to only the upland
steamboat. Other types of smaller watercraft were capable of, and in fact,
transported people and goods on Montana’s rivers up to and including the date of
statehood.
19.
It is a stretch, however, to contend as Montana does, that because
expert Cajune, an elite, fearless and accomplished boatman, could navigate any
number of boats down any of the subject waterways and Relevant Segments,
including the historical Thompson Falls rapids on the Clark Fork River, and the
Beartrap Canyon on the Madison River, which is seasonally laden with Class IV
rapids, that all of the Relevant segments were susceptible to navigation. The Court
does not doubt that expert Cajune, or someone else of comparable skills, could
navigate these waters in any number of historical or modern boats. But the Court
is not convinced that this establishes susceptibility of use as defined by the
applicable legal standard. That is, the issue is whether the Relevant Segments were
capable of use for purposes of transportation or commerce:
The question remains one of fact as to the capacity of the rivers in their
ordinary condition to meet the needs of commerce as these may arise
in connection with the growth of the population, the multiplication of
activities, and the development of natural resources. And this capacity
may be shown by physical characteristics and experimentation as well
as by the uses to which the streams have been put.
Utah, 283 U.S. 64 at 83.
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20.
The next issue is whether evidence of modern-day use of the Relevant
Segments should be considered by the Court. On this subject, PPL v. Montana
provides explicit guidance:
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. . . . Evidence of recreational use,
depending on its nature, may bear upon susceptibility of commercial
use at the time of statehood. . . . Similarly, poststatehood evidence,
depending on its nature, may show susceptibility of use at the time of
statehood. See [Utah, 283 U.S. 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.” . . . 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. . . . If modern watercraft permit
navigability where 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. . . .
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 use for
trade and travel at statehood. . . .
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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 not a commercial reality.
PPL, 565 U.S. at 600–01 (emphases added).
21.
All of the Relevant Segments, except those obviously impacted by
dams, are currently used by recreationists. For instance, dozens and dozens of
modern day driftboats and rafts transport anglers every day during the fishing
season through many of the segments of the Madison, Missouri and Clark Fork
segments which are the subject of this case. Experienced whitewater enthusiasts
navigate kayaks, canoes, inflatable rubber rafts and other boats with ease through
Class III and IV rapids. These boats, which are made of state-of-the-art pliable
materials, with low drafts, and extreme ease of maneuverability, have made it
possible for the experienced boatman, armed with sufficient courage, to navigate
pretty much any hazard in any river. Although many of the Relevant Segments are
not materially different from their physical condition at statehood, these modernday watercraft are not meaningfully similar to those in customary use for trade and
travel at the time of statehood. Thus, the Court concludes that the first factor of the
PPL v. Montana test has not been met in this case. Modern day usage will not be
considered by the Court. The Court now turns to the river-by-river analysis.
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V.
RIVER-BY-RIVER ANALYSIS
A.
22.
Missouri River
At the time at and near statehood, passengers and cargo traveled as far
upstream on the Missouri River as Fort Benton, but from there, goods and
passengers primarily moved over arduous overland trails to and from the centers of
population in southwest Montana. For example, as early as 1864, one stamp mill
was carried by steamboat on the Missouri River to Cow Island, downstream of Fort
Benton, then was hauled in pieces as freight by wagon train to Helena via Fort
Benton, costing more in freighting charges than it had cost to purchase the mill.
23.
Defendants’ expert witness Dr. Atack calculated the cost of
transporting goods on water, particularly between Fort Benton and Helena, and the
cost of transporting goods by overland routes used in Montana at the time of
statehood, and he found that even accounting for the additional costs of portages of
cargo around the Great Falls and from Stubbs Ferry to Helena, the cost of water
transport was less than half of the cost of overland transport.
24.
The first documented evidence of use of the Upper Missouri River
was the Lewis and Clark Expedition. The parties disagree as to the import of that
expedition. Dr. Swartout read all of the Lewis and Clark journal entries from the
Expedition’s travels from Great Falls to Three Forks. He opined that although
there were some challenges in traveling upstream from Great Falls to Three Forks,
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the Lewis and Clark Expedition did not encounter any major obstacles.
Defendants, by contrast, contend that the Expedition was intended to find a
passage from the Missouri River to the Columbia River and failed to achieve that
goal, recounting documentation of the Expedition’s portage around the Great Falls
(ending upstream from the mouth of the Sun River) and difficulty navigating rapid
currents and shallow water upstream of the Great Falls in dugout canoes. The
Court finds that the explorers’ accounts of navigational difficulties upstream of the
Great Falls do not support a finding of navigability in fact.
25.
Dr. Newell testified that there is no archaeological evidence of
commercial navigation, including landing places, vessel wreckage, or artifacts, in
or along any of the Relevant Segments of the Missouri. The Court considers this
fact in weighing the credibility of contemporaneous reports of commercial
navigation on the Missouri.
26.
Mackinaw boats were used by fur traders above Great Falls on the
Upper Missouri River, but the fur trade did not encroach into the Upper Missouri
upstream of Great Falls in any significant way.
27.
By the mid-1860s, there were newspaper reports of people using
mackinaws to travel from Stubbs Ferry (roughly 12 miles overland from Helena) to
Great Falls. The parties dispute whether these reports were credible. Defendants
attributed such reports to “frontier press boosterism,” in which promoters of towns
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competed to attract investors or new settlers. Dr. Swartout testified that this
particular announcement of eighteen mackinaws was directed at the local audience
and was not intended to attract people or money into Montana and was therefore
not boosterism, but he conceded at trial that the newspaper report relied upon was
describing a future event that was expected to happen rather than an event that had
already occurred. Accordingly, and in light of the lack of archeological evidence
of commercial navigation on the Madison, the Court assigns this evidence little
weight.
28.
In 1872, Thomas Roberts, an engineer for the Northern Pacific
Railroad, conducted a survey of the Upper Missouri River from Gallatin (now
known as Three Forks) to Fort Benton. The Northern Pacific Railroad tasked
Roberts with evaluating whether the Missouri River from Three Forks to Great
Falls was navigable by steamboat. Roberts conducted his survey of the Upper
Missouri River starting at Three Forks in a skiff with one assistant and gear and
supplies for the two-week survey. Roberts took his skiff down the Missouri to Sun
River, portaged the Great Falls, and put back in and took the skiff to Fort Benton.
29.
Roberts’ 1872 report to the railroad observed, “At present, there is no
business whatever done on the waters of the Upper Missouri, but one small raft
having descended part way this season.”
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30.
Montana contends that Roberts ultimately concluded that while
certain improvements would make it easier for steamboats, the Upper Missouri
River was navigable to steamboats drafting 20 inches as far upstream as Stubbs
Ferry in its original state with the exception of the Great Falls reach. However,
this conclusion rests upon a much shallower draft than the minimum required for
the upland steamboat, as noted above. Additionally, Roberts noted numerous
navigational impediments such as rapids and sand bars on the Upper Missouri, and
he advised that the watercraft used “will, at all times, even with the numerous
improvements that could be suggested, have to be of small size and navigated with
great caution.” Accordingly, the Court assigns Roberts’ ultimate conclusion of
navigability little weight.
31.
In its 1878 report, the Army Corps of Engineers noted trade and travel
bypassed the Missouri above Fort Benton to travel overland.
32.
In 1879, Captain Maguire floated 131.3 miles down the Upper
Missouri River from Stubbs Ferry to Great Falls with a party of 15 to 17 in a
mackinaw between April 9 and late May. Captain Maguire ordered a full-blown
survey of the river from Stubbs Ferry to Great Falls the following year, to be
conducted by the Army Corps of Engineers. Captain Maguire reported that the
Upper Missouri River was suitable for light-draft boats or light-draft vessels.
However, Captain Maguire noted that “[n]o steamboat has ever been on this
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portion.” Maguire’s Report noted there were “three places of a less depth than 2 ½
feet” on the Upper Missouri River. The 1883 Maguire Report indicated that the
standard of improvement was to establish channel depths of 2.5 feet between
Stubbs Ferry and the Sun River.
33.
In 1892, Captain Charles Powell recommended that the Army Corps
of Engineers spend $115,837.50 for river improvements above Great Falls. The
plan included (1) removal of snags from the reach of river extending up from Great
Falls, 51 miles, known as the “long pool”; (2) construction of 2,000 feet of dams
and 3,500 feet of bank protection, so as to extend the channel to the towns of
Cascade and St. Clair; and (3) construction of 10,000 feet of dams, removal of
boulders and rock, and marking other boulders and rock with buoys on the next
reach of 60 or 70 miles up to the canyon below Stubbs Ferry.
34.
Long after Montana’s statehood and after multiple dams altered the
Missouri River from its natural and ordinary condition, in 1940, the Federal Power
Commission held dam licensing proceedings to address whether the Upper
Missouri was navigable for regulatory purposes, which imposes a different
standard than navigability for title. The testimony of witnesses at those
proceedings, as recounted by expert historians in this case, reflected a consensus
that the Upper Missouri could not be commercially navigated by then-current
standards, and improvement to 6 to 12 feet depths to allow passage of commercial
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barges would be prohibitively expensive. The Court does not find this evidence
especially relevant to determining the Upper Missouri’s navigability for title at the
time of statehood because dam-building had significantly altered the river from its
natural and ordinary condition by this time, but this evidence does reflect how
rapidly customary modes of trade and travel on water were evolving around the
time of statehood and in the subsequent decades.
(1)
Big Belt Mountains Segment (River Mile 2254.2 to River
Mile 2208)
(a)
35.
Actual Use
In the mid-1880s, Nicholas Hilger, a ranch-owner along the Missouri
River near Helena and the mouth of the Gates of the Mountains, commissioned the
building of a steamboat. Named “The Rose of Helena,” Dr. Swartout testified that
the boat navigated the Missouri River from the Hilger Ranch to Great Falls and
back in 1887. Dr. Emmons reported that Hilger described that trip as a “dangerous
undertaking . . . The least mishap . . . would send the boat and men onto the
boulders, where disaster would be inevitable” and that Hilger concluded that it
would require “considerable time and expense to render the passage safe.”
36.
Dr. Swartout testified that the Rose of Helena successfully navigated
downstream and upstream through the areas where Holter and Hauser Dam are
currently located for several years, transporting passengers to a picnic area near the
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Hilger Ranch. An 1892 Army Corps of Engineers Report stated that the Rose “has
passed up through all the rapids between Stubbs Ferry and the Long Pool without
cordelling, and with comparative ease.” By contrast, Hilger’s son described the
steamboat’s experience passing through Beartooth Rapids on a trip with his father
on the Rose during the early 1890s: “[A]ny man who has any judgment at all
would have known better than to . . . run those rapids in the condition it was . . .
We couldn’t have handled the boat. We would have went straight into that rock,
with the waves rolling 20 or 30 feet.” The Hilgers waited two weeks in Beartooth
Rapids before they could get off the bank. The Rose of Helena never went down
the Missouri past Beartooth Rapids again.
37.
The Rose of Helena’s picnic area trips demonstrated actual
transportation of passengers on a six to seven mile portion of the Big Belt Segment
upstream of Beartooth Rapids.
38.
Dr. Swartout reported that two individuals floated lumber rafts
through the Big Belt Segment to the Sun River in the 1860s. However, the sources
for these reported log drives consisted of (1) an unsourced newspaper article
written twelve years after the first drive, and (2) reports of a planned future log
drive. Accordingly, the Court assigns this evidence of “actual use” of the Big Belt
Segment no weight.
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(b)
39.
Susceptibility of Use
Because Montana demonstrated actual use of only a small portion of
the Big Belt Mountain Segment by a preponderance of the evidence, the Court
must turn to the entire segment’s susceptibility of use.
40.
Prior to construction of the dams, the river flowed through relatively
narrow bedrock canyons through much of the segment, with the less constricted,
roughly two-mile long Hilger Valley near the middle of the segment.
41.
In his 1872 survey of the Upper Missouri, Roberts noted at least two
areas in the Big Belt Segment with depths in the 20-inch range (right chute at Red
Rock Island, River Mile ~2222.8 and the ripple adjacent to the several islands near
River Mile 2215.2) and two additional areas with 2 feet and 2.5 feet of depth,
respectively (White Rock Rapids at River Mile 2227.0 and Beartooth Rapids at
River Mile 2223.8).
42.
In 1893, the Missouri River Commission produced maps showing four
named rapids in the portion of the Big Belt Mountains Segment that is now
inundated by Holter Reservoir: Rock (River Mile 2235.9), White Rock (River Mile
2227.1), Beartooth (River Mile 2223.7), and Buck (River Mile 2221.4). The 1893
Missouri River Commission maps also show one named rapid (St. Germain,
~River Mile 2253), five unnamed rapids and two named ripples (Flume Ripple,
~River Mile 2245.3 and Trout Creek Ripple, ~River Mile2246.8) in the upper half
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of the portion of the Big Belt Mountains Segment now inundated by Hauser
Reservoir.
43.
Beartooth Rapids covers about two miles of the river from
approximately River Mile 2222.7 to 2224.7. Beartooth Rapids is both shallow and
steep. The gradient through the primary part of the Rapids is 31 fpm (feet per
mile), which would have prevented commercial navigation and is ten times steeper
than the River at Fort Benton. It is also shallow; the shallowest maximum depths
of Beartooth Rapids at the 90 percent exceedance flow7 are about 24 inches, with
some locations as shallow as 18 inches. At the median flow, the minimum depth is
slightly less than 2 feet. Boulders can project above the average bed elevation and
into the flow of the river, further limiting depths available for watercraft.
Velocities reach 7 to 8 fps at median discharges; at a 31-fpm gradient, these
velocities would be challenging for navigation because they would cause the hull
of a watercraft to plunge into the water. For all of these reasons, the Court finds
the Beartooth Rapids was a complete barrier to commercial navigation in the Big
Belt Mountains Segment.
44.
The “reef of rocks” includes 3.5 miles of the pre-Holter Dam river
between River Mile 2212.5 to River Mile 2216. At seven locations in Reef of
The exceedance flow refers to the percentage of time the flow of a river at a specific point
exceeds an identified flow.
7
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Rocks, the maximum depth at the 90 percent exceedance discharge during the
navigation season is less than 20 inches. Under the pre-dam conditions at
statehood, boulders would have projected into the flow, further lessening the
available depth for watercraft.
45.
White Rock Rapids are a four-mile reach of the river between River
Mile 2225.5 and River Mile 2229.4, which is located in a confined section of the
canyon about 1.5 miles downstream from Hilger Valley and the entrance to the
Gates of the Mountains. The gradient through the steepest part of White Rock
Rapids is 18.5 fpm, and the slope over the total rapids is 9.3 fpm. These gradients
are between three to six times steeper than the River at Fort Benton. White Rock
Rapids has the highest modeled velocities in this reach of river, reaching about 8.5
fps (feet per second) at the 10 percent navigation season’s exceedance flow.
46.
Rock Rapids, from River Mile 2234.7 to River Mile 2237.1, have
depths of about 2.8 feet at the 90 percent navigation season flow, but are
considerably shallower across the bulk of the river—less than one foot in several
locations at the median navigation season flow.
47.
The Court finds the Big Belt Mountains Segment contained several
complete barriers to navigation and thus was not susceptible of use as a highway
for commerce over which trade and travel could be conducted at the time of
Montana’s statehood.
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(2)
Adel Mountain Segment (River Mile 2208 to River Mile
2186)
48.
The Adel Mountain Segment is not one of the Relevant Segments and
does not contain any hydroelectric facilities or disputed reaches, but the Court
discusses it here to provide context for its analysis for Relevant Segments
discussed below. The Adel Mountain segment is approximately 22 miles long and
it contains Lone Pine Rapids (also referred to as the Half Breed Rapids).
49.
Lone Pine Rapids had a gradient of 18.9 fpm. Roberts’ survey noted
Lone Pine Rapids as the most dangerous place above the Great Falls and the worst
section of the river because of its rocks, islands, shoals, and swift water.
50.
Lone Pine Rapids was a complete obstruction to navigation from the
Big Belt Mountains Segment for trade and travel to markets downstream.
(3)
Long Pool Segment (River Mile 2108.6 to River Mile
2121.7)
51.
The Long Pool Segment is an approximately 65-mile reach with its
upstream endpoint where the Missouri River emerges from the mountains. Like
the Adel Mountain Segment, the Long Pool is not one of the Relevant Segments
and does not contain any hydroelectric facilities or disputed reaches, but the Court
discusses it here to provide context for its analysis for Relevant Segments
discussed below.
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52.
The Long Pool is meandering and flat. The gradient was just .65 fpm.
53.
The Long Pool Segment had received several improvements in the
1890s, and by 1898, Captain Sanford reported that it was “thought that a 3-foot
[deep] channel of sufficient width [had] been obtained between Great Falls and
Buckshot Island.”
54.
In 1887, Dr. Asa Lee Davison completed construction of a steamboat
called The Fern and then undertook a journey from Townsend downstream to
Great Falls, which Dr. Swartout described as slow-going and fraught with
challenges from snags and sand bars in part due to low water conditions in late fall.
The Fern took 17 days to negotiate the 34 miles between Townsend and Canyon
Ferry. On the 172 miles from Townsend to Great Falls, the Fern averaged just
four miles a day. The distance could have been walked in ten days. The Fern
sailed “proudly” into Broadwater Bay in November 1887.
55.
The parties agree that steamboat navigation occurred on the Long
Pool Segment at or near the time of statehood. The Fern started operating
exclusively on the Long Pool in 1889, hauling wood, wool, baled hay, and other
agricultural products, and continued to do so for a few years. In the following
years additional steamboats began operating in the Long Pool, including the
Minnie, the Frances, the Swan, and the J.J. Hill.
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56.
The use of the Long Pool Segment by steamboats is relevant to this
Court’s analysis of the Relevant Segments insofar as it demonstrates actual use and
commercial navigability of at least one segment of the Upper Missouri and thus
proves that some demand existed for commercial water transportation via
steamboat in this area of Montana at the time of statehood.
(4)
Sun River to Black Eagle Falls Segment (River Mile
2121.7 to 2117.9)
(a)
57.
Actual Use
As noted above, the Court found that the upstream boundary of this
segment is River Mile 2121.7, where the Sun River enters the Missouri River. As
a result, this segment includes Broadwater Bay and lies next to the city of Great
Falls.
58.
Also as noted above, the Fern navigated to Broadwater Bay in 1887
and docked at the Holter Lumber Company dock. The historical record indicates
that steamboats that used the Long Pool would end up in Broadwater Bay.
59.
Montana has proven by a preponderance of the evidence that the
portion of this segment between the Sun River and Broadwater Bay was actually
used in commerce at the time of statehood.
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(b)
60.
Susceptibility of Use
Montana presented evidence that the Sun River to Black Eagle Falls
Segment contained about ten percent more water than the Long Pool, was slightly
wider, and had an increased but moderate gradient of roughly two feet per mile
according to 1889 longitudinal profile surveys—which is less than the gradient of
the river at Fort Benton. Dr. Wilcox estimated that channel depths would be
similar to what was reported for the Long Pool: five to twelve feet.
61.
Defendants, by contrast, introduced evidence that the river becomes
shallower and the gradient becomes significantly steeper at the end of Broadwater
Bay and that bedrock shelves and ripples in this area would have been
impediments to navigation. However, the Court assigns little weight to the
evidence of bedrock shelves and ripples because the photographs of such features
presented at trial were of the modern, highly modified river and were taken at
times of very low river flow.
62.
Although Defendants presented evidence that Captain Sanford of the
Army Corps of Engineers stated in 1896 that a portion of river within this segment
could never be made navigable, the Court assigns this evidence little weight
because this statement was made after the Black Eagle Falls dam was built, and
thus the river had been altered significantly from its natural state.
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63.
A map produced by Thomas Roberts indicates a rapid downstream of
the Sun River confluence (“First Rapids”). First Rapids is also noted on the
Missouri River Commission map. A 1914 longitudinal profile indicated that First
Rapids is 0.7 miles downstream of the Sun River confluence, at the location of the
Burlington Northern railroad bridge (River Mile 2121) and results in an elevation
loss of approximately 3 feet over a distance of 0.3 miles. Although the 1914
longitudinal profile suggests a steep gradient for First Rapids, again, the Court
assigns the profile little weight because it was created after the dam was built.
64.
Based on the evidence of actual use of part of this river segment from
the Sun River to Broadwater Bay, the similarities between the segment’s
geomorphic characteristics and the characteristics of the Long Pool Segment and
other indisputably navigable portions of the Missouri River not at issue in this
case, the Court finds that the Sun River to Black Eagle Falls Segment was
susceptible of use in its ordinary and natural condition as a highway for commerce,
over which trade and travel could be conducted at the time of Montana’s statehood.
(5)
Belt Creek to Big Falls Segment (River Mile 2109.6 to
River Mile 2101.5)
(a)
65.
Actual Use
The Court finds that there was no actual commercial use of the Belt
Creek to Big Falls Segment at the time of statehood.
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66.
There was one successful attempt to drive logs over the Great Falls to
Fort Benton through the Big Falls to Belt Creek Segment. However, as noted in
this opinion, the Supreme Court has held that the Great Falls reach was not
navigable for title as a matter of law; accordingly, this single log drive cannot
suffice to show navigability for title of the Belt Creek to Big Falls Segment, either.
(b)
67.
Susceptibility of Use
The Big Falls Segment was not susceptible of use at the time of
statehood. Sheep Creek Falls was a complete barrier to navigation, bedrock shoals
both upstream and downstream from the falls would have been a further barrier to
navigation, and over the entirety of the segment the gradients are many times
steeper and the depth under most flow conditions are much shallower than
necessary for navigation. In light of these geomorphological features, the Court
finds Dr. Wilcox’s testimony regarding the similarities between this segment and
the river downstream near Fort Benton unpersuasive.
68.
Maps of the Big Falls to Belt Creek segment created at or near the
time of statehood noted continuous rapids around Belt Creek.
69.
The Lewis and Clark Expedition began its portage around the Great
Falls at Belt Creek, within this segment.
70.
The Big Falls Segment was steep, with many parts dropping over 20
fpm. Between Big Falls and the mouth of Belt Creek, the gradient is .0042 (22
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fpm). The average gradient of the pre-dam river between the base of the Great
Falls and the base of Morony Dam is about 21.5 fpm, with the upstream
approximately 2.6 miles of that reach having a flatter gradient of 14.6 fpm and the
downstream 1.2 miles, which includes Sheep Creek Falls, having a much steeper
gradient of about 36.2 fpm. Between Belt Creek and the downstream segment
boundary, the gradient is approximately 12 fpm.
71.
Sheep Creek Falls presented a significant obstacle to navigation, but is
now inundated by the Morony reservoir. Sheep Creek Falls ran diagonally across
the river and had heights varying from 2 feet to 10 feet.
72.
The depths in the Big Falls Segment are around two feet. The MRC
maps show two shallow shoals upstream from Sheep Creek Falls.
73.
Extrapolation of depths and velocities from the Fort Benton gage data
as proposed by Montana’s experts is unreliable. The Fort Benton gage is 32 miles
downstream from Morony Dam. The gradient at the Fort Benton gage is less than
3 fpm. The reach between Belt Creek and the base of the Big Falls is 25 percent
wider than at Fort Benton, and the slope of the river is nearly eight times steeper
than at Fort Benton. Applying these gradients and channel widths with the same
discharge and hydraulic roughness, the average depth in the steep portions of the
river upstream from Sheep Creek would be less than one-third the average depth at
the Fort Benton gage. Dr. Mussetter explained that the Big Falls Segment is
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bedrock-controlled while the Fort Benton reach is a self-formed alluvial river, so
Montana’s comparisons were inappropriate.
74.
Because of steep gradients, shallow depths, and bedrock shelves in the
Big Falls Segment, the Big Falls Segment was not susceptible of use at statehood
in its ordinary and natural condition as a highway for commerce, over which trade
and travel could be conducted.
B.
75.
Clark Fork River
While Native Americans did not leave written records, the Salish,
Kootenai and Flathead tribes’ way of life was focused in the general area of the
Clark Fork River. Native Americans relied on the river and used canoes for
transportation, sustenance, and for trading with British and French fur trappers.
While the Native Americans who lived along the Bitterroot River did not use
canoes for sustenance, the other Native American Tribes along the Flathead and
Clark Fork Rivers did.
76.
Captain John Mullan was tasked by Congress with exploring routes
across the Pacific Northwest in 1853. George Suckley, a physician with Mullan’s
expedition of 1853, was sent down the Clark Fork River to record geological
features along the river. On a skin boat with three other passengers, Dr. Suckley
floated down the Bitterroot River and then the Clark Fork River, lining his boat
through sections where water was low and in other places running rapids in the
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boat with his supplies. Dr. Suckley continued to Thompson Falls, which Dr.
Littlefield testified that he assumed Dr. Suckley portaged around, and continued on
to Lake Pend Oreille.
77.
Isaac Stevens, Territorial Governor of Washington, accompanied Dr.
Suckley’s canoe trip and recounted use of the Clark Fork River by Hudson’s Bay
Company fur traders, who purportedly used boats to go up the Clark Fork River in
Idaho all the way to the vicinity of the Town of Missoula to trade with the Native
Americans.
78.
However, there is no archaeological evidence, including landing
places, vessel wreckage, and artifacts, in or along all of the Relevant Segments of
the Clark Fork River.
79.
The vast majority of the Clark Fork River is canyon-controlled, with
extensive bedrock outcroppings in its bed and banks. The Clark Fork contains
shorter stretches of braided, meandering, and anabranching segments.
80.
In an 1882 Report, Thomas Symons, an engineer with the Army
Corps, referred to Captain George Pease who attempted to take a steamer above
Pend Oreille Lake on the Clark Fork River in Idaho. Captain Pease said the river
was “exceedingly rough[.]” Symons and Captain Pease described Thompson Falls
as a “complete obstruction to navigation.” Approximately ten years later, Symons
issued a “Preliminary Examination of Clarke Fork of the Columbia River (By
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Whatever Named Called).” Symons surveyed the entire 250-mile stretch of the
Clark Fork River from the mouth of the Blackfoot to Lake Pend Oreille. Based on
this survey, Symons found the Clark Fork to be “a mountain torrential stream, full
of rocks, rapids, and falls, and is utterly unnavigable, and incapable of being made
navigable except at an enormous cost.”
(1)
Eddy Segment (River Mile 235.5 to River Mile 208.1)
(a)
81.
Actual Use
One historical book published in 1895, Dryden’s Marine History of
the Pacific Northwest, described that the steamer “The Missoula” may have run
from Thompson Falls to the mouth of the Jocko River for a short time in the early
1880s prior to the completion of the railroad in 1883. Historical accounts indicate
that The Missoula did exist, but evidence that The Missoula actually operated
above Thompson Falls is unpersuasive. To make the trip described by Dryden, the
steamer would have had to navigate Class IV rapids in Alberton Gorge, and
Defendants presented persuasive evidence that Dryden’s account misinterpreted an
article describing aspirational, not actual, navigation efforts.
82.
There was a ferry above Thompson Falls. Montana contends that the
ferry demonstrates that the river above Thompson Falls was sufficiently wide and
deep for navigation, while Defendants contend that the existence of a ferry
indicates that the river was an obstacle to overland navigation rather than a place of
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water navigation. Both parties recount an 1884 disaster in which the ferry cable
broke, throwing overboard nine passengers who then drowned; two bystanders
entered a skiff and drowned in their rescue attempt. Two passengers managed to
stay on the ferry boat, which righted itself after going over Thompson Falls, and
survived. Montana contends that this incident demonstrates that skiffs were
present on this portion of the river and that some crafts could traverse Thompson
Falls intact; however, the Court finds that this evidence demonstrates that use of
the river in the lower Eddy Segment and Thompson Falls segment was perilous.
83.
Montana relies heavily on reports of log drives as evidence of actual
use of the Clark Fork River, particularly in the Eddy Segment and over Thompson
Falls. However, the most reliable evidence of log drives on the Clark Fork (e.g.,
historical records) occurred outside of the Relevant Segments, and the most
plausible account of a log drive through the Eddy Segment before the Thompson
Falls Dam altered the natural condition of the river reportedly occurred in 1905
during a time of high water and was never repeated. Likewise, although there is
evidence of bateaus being used on the Clark Fork River during log drives at
locations where log jams occurred, this took place far downstream of the Relevant
Segments of the Clark Fork River, near the Montana-Idaho border. There is
photographic evidence of a log boom in the Eddy Segment immediately above
Thompson Falls, but the parties dispute whether this photo indicates that the logs
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would later be driven downstream or that the logs were “parked” in the river to
avoid them drying out before they were processed. The Court finds that the log
drive evidence presented is not sufficient to establish actual use of the Eddy
Segment or Thompson Falls Segment.
(b)
84.
Susceptibility of Use
Three major obstructions to navigability are present in the Eddy
Segment: (1) the Eddy Islands; (2) the Plains Rapids; and (3) a 3.5-mile-long reach
of mid-channel bars and riffles.
85.
The Eddy Islands are a 3.5-mile reach from River Mile 215.5 to River
Mile 219 located upstream of a valley floor constriction caused by bedrock
outcroppings on both sides of the valley near the mouth of the Thompson River at
River Mile 214.5. The Eddy Islands look similar today to how they looked at
statehood. Today, however, the Eddy Islands reach is part of the reservoir for the
Thompson Falls dam. Current depth measurements thus reflect higher reservoir
depths, not depths at time of Statehood prior to dam construction in the river’s
natural and ordinary condition. Dr. Harvey persuasively testified that pre-reservoir
depths would have been shallower.
86.
At a flow of 13,100 cfs (cubic feet per second), which before flow
regulation was exceeded 40 percent of the time and exceeded just 28 percent of the
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time during the navigation season, there are shallow shoals within the individual
channels as seen in Figure 15 of Dr. Harvey’s report.
87.
Any watercraft attempting to navigate the Eddy Segment would have
encountered the Eddy Islands’ multiple channels and shallow shoals within a short
distance (about 6.5 miles) after entering the river above Thompson Falls.
88.
Plains Rapids are three rapids in the Eddy Segment and are still
present today. The first rapid is located at River Mile 230.2, the second rapid is
located at River Mile 229.8, and the third rapid is located at River Mile 229. Plains
Rapids are identified as both Class II and Class III rapids by C. Thompson,
Floating and Recreation on Montana Rivers.
89.
Over their length, the gradient of Plains Rapids was 7.3 fpm. Local
gradients ranged from 11 to 22 fpm. These gradients were between 150 and 600
percent steeper than what Roberts and Captain Mellon described as the upper end
for economical commercial navigation.
90.
Steep gradients increase the velocity of water, which at Plains Rapids
were 9.7 fps at high water. This increases the amount of power required for
watercraft to travel upstream. Going downstream, the increased velocity would
have made it more difficult to avoid the bedrock outcroppings that form Plains
Rapids. The gradients at Plains Rapids are comparable to the gradients at Cabinet
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Gorge in the Noxon segment of the Clark Fork, where the steamboat relay
portaged the river to avoid Cabinet Gorge.
91.
The third major obstruction to navigation in the Eddy Segment is a
reach of mid-channel bars and riffles from River Mile 232 to River Mile 235.5.
The 3.5 mile reach from River Mile 232 to River Mile 235.5 is dynamic, with the
active reach between River Mile 233 and River Mile 235.5 driven by sediment
deposition during backwater conditions at higher flows resulting from the
downstream constriction at River Mile 232. The multi-channel nature of the reach
would have contributed to ice-jams during the late winter and early part of the
runoff seasons.
92.
These mid-channel bars with their associated shallow riffles would
have been present during the majority of the navigation season. Steamboats with
operating depths of 40-60 inches would have risked running aground in these
circumstances. Steamboats would also have had difficulty negotiating the
relatively narrow channel.
93.
Montana’s experts extrapolated data from the distant Plains gage to
estimate the depths of the Eddy Segment. The Court finds that such estimates are
unreliable, especially as they relate to the Eddy Islands and Plains Rapids, because
of significantly differing widths, velocities, and gradient of these river locations
compared to the relatively placid single-channel location of the Plains gage.
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94.
The Clark Fork experiences extreme flow variation, from highs of
63,546 cfs in June to a low of 8,233 cfs in October, with corresponding velocity
variation from 6.8 fps in June to 1.6 fps in October. High flows would inhibit
navigation in the twists and turns of the Eddy Islands, while low flows would have
further exposed rocky shoals in the Eddy Islands.
95.
Historical records indicate that in the summer of 1889, a small
steamer named the Wilson ran once per week during a single summer season in the
Plains Segment of the Clark Fork River upstream of both the Thompson Falls and
Eddy Segments, carrying passengers between Paradise and Quinn’s Hot Springs.
Based on the evidence, the Wilson operated only in the Plains Segment. The
geomorphic features of the Plains Segment were more favorable for steamboat
operation than those of the Eddy, Thomson Falls and Thomson Landing Segments.
The fact that the Wilson was able to navigate the Plains Segment but never
traveled to the Eddy or Thompson Falls is additional evidence that the Relevant
Segments of the Clark Fork were not susceptible of navigation.
96.
Due to steep gradient, high velocity flows, shallow depths, and
numerous impediments, the Eddy Segment, in its ordinary and natural condition
throughout the entirety of the segment at the time of statehood, was not susceptible
of use as a highway for commerce, over which trade and travel could be
conducted.
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(2)
Thompson Falls Segment (River Mile 208.1 to River
Mile 207.1)
(a)
97.
Actual Use
As noted above, there was one instance of a ferry boat accidentally
going over Thompson Falls after its cable broke; eleven people (nine passengers
and two rescuers) drowned. There is no evidence that any watercraft intentionally
were navigated over the Falls. Historical evidence discussed above indicates that
Thompson Falls was routinely portaged by surveyors and explorers.
98.
The one example Dr. Emmons found of logs being floated west on the
Clark Fork proved fatal; the operators lost control of the raft, the raft went over
Thompson Falls, and one man drowned. This evidence does not establish actual
use of the Thompson Falls segment.
(b)
99.
Susceptibility of Use
Thompson Falls are formed in bedrock. Over the length of the falls,
the bed elevation drops 11.9 feet over a distance of 1100 feet, with an average
gradient equivalent to 58 fpm. The drop in elevation over the mile-long segment is
25 feet. Bedrock outcroppings contributed further to the hazards of attempting to
navigate watercraft over the falls.
100. All the expert fluvial geomorphologists in this case agreed Thompson
Falls is not navigable. Due to the steep gradient, high velocity flows, and
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numerous impediments, the Thompson Falls Segment, in its ordinary and natural
condition was not susceptible of use at statehood in its ordinary and natural
condition as a highway for commerce, over which trade and travel could be
conducted.
(3)
Thompson’s Landing Segment (River Mile 207.1 to
River Mile 204.5)
(a)
Actual Use
101. In 1825, John Work “traveled by canoe up the Pend Oreille River and
across Lake Pend Oreille” then “continued canoeing up the Clark Fork River to
Cabinet Falls” where he “probably” portaged. Work “continued by canoe upriver
to Thompson Falls, which he also portaged.” Work mostly traveled by horse,
ending his canoe travels at Thompson Falls. Dr. Emmons opined that there was no
evidence that John Work ever went upstream of Thompson Falls.
102. David Thompson, a literate fur trapper, recorded that he had been
trapping east and north of Thompson Falls, and went to Saleesh House on the
Clark Fork River to meet with members of the Northwest Company in 1811.
David Thompson reported that he constructed a canoe at Saleesh House and
floated down the Clark Fork River from Thompson Falls to Lake Pend Oreille.
103. The Court assigns little weight to this evidence because it is unclear
where Work’s or Thompson’s portages around Thompson Falls started or ended
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(i.e., within or outside of the Thompson’s Landing segment), and these instances of
navigation took place more than 60 years before Montana’s statehood; the lack of
more recent reports of navigation on the segment suggest that customary modes of
trade and travel and/or commercial demand had changed significantly by the time
of statehood, which is further supported by the evidence discussed below of
steamboat navigation stopping just downstream of this segment.
(b)
Susceptibility of Use
104. Thompson’s Landing was situated in the vicinity of the short-lived
town of Shannonville, which newspapers described as being either three or four
miles “below Thompson Falls.”
105. Steamboat traffic stopped at Thompson’s Landing, which Defendants
attribute to bedrock outcroppings immediately upstream. Bedrock outcroppings
are found between River Mile 206.5 and 207.1. Bedrock outcroppings are also
present in the bed and banks of the river at River Mile 204.8 that is located in a
narrow canyon section just above the historical head of navigation at Thompson’s
Landing. These bedrock outcroppings acted as barriers to further navigation
upstream.
106. The evidence that steamboat traffic stopped before it traversed this
segment and the lack of evidence contemporaneous with statehood that other
watercraft navigated this segment persuades the Court that the Thompson’s
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Landing Segment was not susceptible of use at statehood in its ordinary and natural
condition as a highway for commerce, over which trade and travel could be
conducted.
C.
Madison River
107. John L. Corbett of the United States General Land Office surveyed the
Madison in 1868 and 1870 and described the Madison as rapid, shallow, and
rocky.
108. No party presented evidence of watercraft use of any kind on the
Madison before or at the time of statehood, including for historical exploration or
experimentation.
109. There is some evidence of one or two post-statehood log drives on
portions of the Madison River outside of the Relevant Segments, from the West
Fork of the Madison River to a sawmill near Varney Bridge in 1913 and possibly
in 1914.
110. There is an absence of archaeological evidence, including landing
places, vessel wreckage, and artifacts, in or along the Relevant Segments of the
Madison.
111. Post-statehood historical records reflect a consensus that the Madison
had never been navigated for commercial use.
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112. In sum, there is no concrete evidence of actual use of the Relevant
Segments of the Madison for navigation at the time of statehood. Accordingly, the
segment-by-segment analysis will discuss only susceptibility.
(1)
Headwaters/West Yellowstone Basin Segment (Upstream
of River Mile 112.5)
113. Within the West Yellowstone Basin to the upstream end of Hebgen
Lake at River Mile 125.1, the Madison River is a highly sinuous meandering
channel. The river is also very shallow in this segment. Mean depths in the West
Yellowstone Basin were 1.0 feet or less during 75 percent of the year. The
majority of the Hebgen Reservoir is found in the West Yellowstone Basin
Segment.
114. Depths of less than two feet or less than one foot for the majority of
the year would not have been navigable at the time of statehood by the upland
steamboat. The sinuous nature of the channel and slow current would have made
water travel in the West Yellowstone Segment inefficient for craft other than
steamboats. Those craft traveled only as fast as the flow and would have been
required to zigzag back and forth down the valley.
115. Due to shallow depths and inefficient travel, the Headwaters/West
Yellowstone Basin Segment was not susceptible of use at statehood in its ordinary
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and natural condition as a highway for commerce, over which trade and travel
could be conducted.
(2)
Upper Canyon Segment (River Mile 112.5 to River Mile
101)
116. The Upper Canyon Segment is canyon-confined and steep, with a
gradient of 18.7 fpm. The riverbed in the Upper Canyon Segment is made of
coarse material, including cobbles and boulders. The river continues to meander in
this segment.
117. The steep gradient in the Upper Canyon Segment would have
increased the turbulence in the water, drawing watercraft deeper into the water.
The coarse bed material in the Upper Canyon Segment meant that if the turbulent
conditions caused the watercraft to strike bottom or veer off course, the
consequences could have included puncturing the watercraft’s hull.
118. A modern photograph of the Upper Canyon Segment at River Mile
106.7 taken at a flow of 902 cfs shows the boulder-dominated bed material and
generally shallow nature of the channel; this photograph illustrates the poor
conditions for navigation present during most of the navigation season as they
were taken at the 30 percent exceedance flow during the navigation season.
119. Due to steep gradient, shallow depths, and numerous impediments, the
Upper Canyon Segment was not susceptible of use at statehood in its ordinary and
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natural condition as a highway for commerce, over which trade and travel could be
conducted.
(3)
Anabranching Segment (River Mile 60 to River Mile
42.5)
120. The Anabranching Segment of the river is characterized by
anabranching channels where the river's flow divides between multiple relatively
stable islands.
121. Historical maps of the portion of the Anabranching Segment now
inundated by Ennis Lake confirm that the anabranching channels continued to the
head of Bear Trap Canyon.
122. The complex multi-channel topography of this segment meant that
even if a channel could be discerned, a traveler could be stranded by multiple
threads between the main channel and the dry bank, and thus there would be no
practical place to deliver commercial goods before reaching Bear Trap Canyon.
123. The anabranching channels combined with the steep gradient
presented additional obstacles to navigation. The Anabranching Segment had a
steep gradient of 19.5 fpm. These steep gradients, and attendant increase in
velocity, would have made it difficult for watercraft to navigate around the
meandering anabranched channels. The steep gradient would have caused craft to
lunge farther below the surface than the vessel’s draft, which was a liability given
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the shallows depths of less than two feet at various points of the Anabranching
Segment.
124. Due to shallow depths, and numerous impediments, the Anabranching
Segment was not susceptible of use at statehood in its ordinary and natural
condition as a highway for commerce, over which trade and travel could be
conducted.
(4)
Bear Trap Canyon Segment (River Mile 42.5 to River
Mile 33)
125. Through this 9.5 mile long segment, the Madison River is bedrock
and canyon-confined.
126. The Bear Trap Canyon segment has a gradient of 20.6 ft/mile that
contains a number of Class III and IV rapids. The steep gradient helps create the
conditions for those rapids.
127. Jason Cajune, an expert boatmaker and river guide, testified that he
had navigated a modern dory through a Class V rapid, and the dory’s predecessor
at the time of statehood—a bateau—could effectively navigate Class III and IV
rapids. Although Mr. Cajune’s testimony about the characteristics of historical
boats was informative, the Court assigns minimal weight to his opinions as to an
average statehood-era Montanan’s ability to navigate Class III, IV, and V rapids in
such historical boats because of his tremendous personal experience, combined
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with his admission that even an oarsman as talented and experienced as himself has
at times failed to navigate such high-intensity rapids in modern watercraft.
128. Historical photographs of Bear Trap Canyon show that, like today,
around the time of statehood a significant amount of rock fall was scattered
throughout the channel. This rock fall and attendant rapids come down from the
canyon walls.
129. Even Montana’s geomorphological expert on the Madison River “did
not make a statement about navigability in the late 1800s on Bear Trap Canyon.”
130. The steep gradient and velocity of the river would have made hitting
rock fall and other snags in the river difficult to avoid. The wooden hulls of
steamboats and other vessels would have been compromised and precluding
commercial navigation. For these reasons, the Court finds the Bear Trap Canyon
Segment was not susceptible of use at statehood in its ordinary and natural
condition as a highway for commerce, over which trade and travel could be
conducted.
CONCLUSIONS OF LAW
VI.
JURISDICTION AND VENUE
1.
The Court has jurisdiction over this action pursuant to 28 U.S.C.
§ 1331 (federal question); 28 U.S.C. § 2409(a) (Quiet Title Act); 28 U.S.C. § 2201
(declaratory relief); 28 U.S.C. § 1346(f) (conferring upon federal district courts
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exclusive jurisdiction over actions to quiet title to real property in which the United
States claims an interest); and 28 U.S.C. § 1367(a) (supplemental jurisdiction over
state law claims).
2.
Venue is proper in this Court because the lands in dispute are located
within the District of Montana. 28 U.S.C. §1391(b)(2). Venue is further proper in
the Helena Division because certain riverbeds at issue lie in Lewis and Clark
County. D. Mont. L.R. 1.2(c)(4), 3.2(b).
VII. THE EQUAL FOOTING DOCTRINE
3.
The 1889 Enabling Act admitted Montana “into the Union on an equal
footing with the original States.” 25 Stat. 676, 679 (1889); U.S. Const. art. IV, § 3.
4.
Under the Equal Footing Doctrine, “each State ‘receives absolute title
to the beds of navigable waterways within its boundaries upon admission to the
Union.’” (Doc. 171 at 11 (quoting Oregon v. Corvallis Sand & Gravel Co., 429
U.S. 363, 372 (1977)).) “Under the Equal Footing Doctrine, navigability at the
time the State joined the Union determines whether title passed to the State[.]”
(Id.) “Upon statehood, the State gains title within its borders to the beds of waters
then navigable . . . [and] the United States retains title vested in it before statehood
to land beneath waters not then navigable . . . to be transferred or licensed if and as
it chooses.” PPL, 565 U.S. at 591.
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5.
Congress recognizes Montana owns the lands beneath navigable water
bodies within its boundaries. 43 U.S.C. § 1311(a).
6.
Thus, Montana’s claims in this lawsuit hinge on whether the “lands at
issue did pass under the equal-footing doctrine[.]” (Doc. 171 at 13 (quoting
Corvallis Sand & Gravel Co., 429 U.S. at 372).) “State law is inapplicable to the
determination of this question.” (Id. at 14). State court navigability decisions
purporting to apply federal law in a manner that improperly favors title passing to
the state are unpersuasive authority. As the U.S. Supreme Court stated in this case,
“[i]t is not for a State by courts or legislature, in dealing with the general subject of
beds of 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 equity” that controls navigability for title determinations.
PPL, 565 U.S. at 604–05 (internal quotation marks and citations omitted).
VIII. BURDEN OF PROOF
7.
Montana appropriately concedes that it bears the burden of proof, by
a preponderance of the evidence, that the riverbed lands at issue were navigable in
fact at the time of statehood. (Doc. 239 at 8.)
IX.
STATE TRUST LAND
8.
Montana holds riverbeds as “public lands of the state that are held in
trust for the people as provided in Article X, section 11, of the Montana
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Constitution.” Mont. Code Ann. § 77-1-102(3); Mont. Code Ann. § 77-1-101(8),
(9) (defining “state land” and “state trust land”); Mont. Const. art. X, § 11.
9.
Montana may not dispose of any interest in riverbeds held in the state
trust lands “except in pursuance of general laws providing for such disposition, or
until the full market value of the estate or interest disposed of, to be ascertained in
such manner as may be provided by law, has been paid or safely secured to the
state.” Mont. Const. art. X, § 11(2); see also PPL Montana, LLC v. State, 2010
MT 64, ¶ 117, rev’d on other grounds, 565 U.S. 576 (2012).
10.
Montana may not sell state lands constituting “power sites capable of
developing hydroelectric energy in commercial quantities” but may issue a lease or
license for the development of power sites and the distribution, use, and disposition
of the electrical energy generated on such sites. Mont. Code Ann. §§ 77-4-201,
77-4-202 (defining “power site”). The rental payment to the state for power sites
must be paid annually or semiannually, and the rental may not be less than the full
market value of the estate or interest disposed of through the granting of the lease
or license. Mont. Code Ann. § 77-4-208. Montana has brought this case pursuant
to these constitutional and statutory obligations, seeking to obtain the full market
value of any navigable riverbed occupied by hydroelectric dam projects formerly
owned by Talen and currently owned by NorthWestern.
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11.
As previously indicated, the parties stipulated to the bifurcation of this
case into two phases. Phase I addresses all claims or defenses relating or
pertaining to navigability at the time of statehood. This Order addresses those
issues. Phase II will address all remaining claims or defenses relating to damages.
X.
NAVIGABILITY FOR TITLE
12.
In PPL, the U.S. Supreme Court reiterated that navigability for title is
determined by whether the river is navigable in fact:
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.
PPL, 565 U.S. at 592 (quoting The Daniel Ball, 77 U.S. at 563).
13.
In PPL, the Supreme Court confirmed that courts must analyze
navigability “on a segment-by-segment basis to assess whether the segment of the
river, under which the riverbed in dispute lies, is navigable or not.” Id. at 593.
PPL further explained that the segment-by-segment approach “must be sensibly
applied,” and avoid “parcels of exceedingly small size, or worthlessness of the
parcels due to overdivision.” Id. at 596. The Court must adopt segments that are
“both discrete, as defined by physical features of navigability or nonnavigability,
and substantial, as a matter of administrability for title purposes.” Id. at 597. In
determining a discrete segment, the Court should focus on physical conditions
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affecting navigability such as size (both depth and width of channel), sediment and
bedrock material, and flow and gradient. The final determination of segmentation
is tied to navigability, rather than solely based on physical conditions on
topographical or geographical indicators that are relevant to, but not necessarily
dispositive of, determining where navigability begins or ends. Id. at 595.
14.
Navigability for title is determined “at the time of statehood . . . based
on the ‘natural and ordinary condition’ of the water.” Id. at 592.
15.
Navigability for title is distinct from navigability determinations in the
context of admiralty jurisdiction (which extends to water routes made navigable if
not formerly so), federal regulatory authority (which extends to newly navigable
waters, formerly navigable waters, and waters that may become navigable with
reasonable improvements), and the federal commerce power (which focuses on
navigation involving interstate commerce). Id. at 592–93. Where admiralty,
regulatory, or commerce power cases determine navigability-in-fact based on a
river’s natural and ordinary condition at statehood, the Court can rely on
applications of the navigability-in-fact test in admiralty and regulatory cases for
determining travel, so long as it accounts for the additional elements in each test.
See id.
16.
The best evidence of navigability-in-fact is evidence of the actual use
of the Relevant Segments as highways for commerce at the time of statehood. Id.
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at 600–01. But the absence of use does not preclude a finding of navigability:
“[t]he evidence of the actual use of streams, and especially of the extensive and
continued use for commercial purposes may be most persuasive, but, where
conditions of exploration and settlement explain the infrequency or limited nature
of such use, the susceptibility to use as a highway of commerce may still be
satisfactorily proved.” Utah, 283 U.S. at 82.
A.
17.
Actual Use
Actual use of a river for navigability “does not depend upon the mode
by which commerce is conducted upon it, whether by steamers, sailing vessels or
flat boats, nor upon the difficulties attending navigation, but upon the fact whether
the river in its natural state is such that it affords a channel for useful commerce.”
Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S. 77, 86 (1922).
18.
Geographic expeditions by government officials, or other travel by
“boats of various sorts, including rowboats, flatboats, steamboats, motorboats,
barges and scows, some being used for exploration, some for pleasure, some to
carry passengers and supplies, and others in connection with prospecting,
surveying and mining operations,” qualify as actual use. Utah, 283 U.S. at 82.
Limited travel at or near statehood by “[e]arly visitors and settlers in that vicinity
. . . employing the small boats of the period for the purpose” of travel and
merchants “sending for and bringing in their supplies” qualifies as actual use. Holt
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State Bank, 270 U.S. at 57. Lumber rafts that carry cargo, and boats that are used
to manage log drives, may qualify as actual use. Occasional log drives only in
times of high water do not. Utah, 283 U.S. at 87 n.12; see also Oregon, 672 F.2d
at 794–96 (concluding log drives were not “occasional” when they took place for
several months in each of seventeen years).8
19.
There are cases which hold that a river’s use by Indigenous Peoples at
or near statehood, even if recorded by oral tradition rather than settler historians,
can qualify as actual use. Nw. Steelheaders Ass’n, Inc. v. Simantel, 112 P.3d 383,
394–95 (Or. Ct. App. 2005); Puyallup Tribe of Indians v. Port of Tacoma, 525 F.
Supp. 65, 71–72 (W.D. Wash. 1981), aff’d, 717 F.2d 1251 (9th Cir. 1983).
B.
20.
Susceptibility of Use
“[R]iver 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.” PPL, 565 U.S. at 600 (quoting Utah, 283 U.S. at 76).
Susceptibility of use establishes navigability for title and may be proven “by
physical characteristics and experimentation” and second “by the uses to which the
There was evidence presented of log drives over the Thompson Falls on the Clark Fork, and
log drives in the Big Belt Segment on the Missouri. The holding in PPL limits this Court to
consideration of commerce carried out in watercraft. Because loose logs are not watercraft, the
transport of logs by water does not constitute navigability for purposes of determining title under
the equal footing doctrine. Thus, the Court does not consider, as a matter of law, the mere
transport of logs down a river as actual use. Manned boats used to manage a log drive, or log
rafts transporting cargo would, in the Court’s opinion, constitute actual use.
8
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streams have been put.” Utah, 283 U.S. at 83. “The question of that susceptibility
in the ordinary condition of the rivers, rather than of the mere manner or extent of
actual use, is the crucial question.” Id. at 82.
21.
Physical characteristics relevant to susceptibility of use include the
channel and surrounding landscape, channel width, gradient, obstructions, rapids,
flows, and resulting depths for navigation. Id. at 77–80.
22.
Use of modern watercraft, including recreational uses, may qualify for
susceptibility of use only when “(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.” PPL, 565 U.S. at 601. The Court has already discussed
the use of modern watercraft and concluded that they do not meet the first factor of
this test, and thus the use of modern watercraft will not be considered. Supra,
¶¶ 20–21.
C.
23.
Ordinary and Natural Condition
“For state title under the equal-footing doctrine, navigability is
determined at the time of statehood [and] based on the ‘natural and ordinary
condition’ of the water.” PPL, 565 U.S. at 592. Whether a relevant segment is in
its “natural and ordinary condition” depends on whether improvements by human
intervention made the river “easier to navigate” than it otherwise would have been
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at time of statehood. Id. at 602. Proof that a segment has dams on it, or has dams
on tributaries that flow into it, which have regulated the river’s “high flow periods
[and] low flow periods” and made the river “easier to navigate,” is “meaningful
evidence” that the river is not in its natural and ordinary condition. Id.
24.
Seasonal flows support navigability for title when its use of
susceptibility of use is “not confined to exceptional conditions or short periods of
temporary high water.” Utah, 283 U.S. at 87. Mere presence of “impediments to
navigation” such as sandbars or rapids do not “make a river non-navigable.” Id. at
86. For example, where sandbars in a lake “prevented boats from moving readily
all over it, but the bars could be avoided by keeping the boats in the deeper parts or
channels,” the Supreme Court concluded that the lake was navigable. Holt State
Bank, 270 U.S. at 57.
25.
“In order to be navigable, it is not necessary that [a river] should be
deep enough to admit the passage of boats at all portions of the stream.” St.
Anthony Falls Water-Power Co. v. Bd. of Water Comm’rs, 168 U.S. 349, 359
(1897); Utah, 283 U.S. at 85 (distinguishing a “short interruption of navigability in
a stream otherwise navigable”). “[T]he 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,” where a “de minimis
exception to the segment-by-segment approach would be those related to principles
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of ownership and title, such as inadmissibility of parcels of exceedingly small size,
or worthlessness of the parcels due to overdivision.” PPL, 565 U.S. at 596. On the
other hand, evidence that a river segment required a portage “[i]n most cases” is
sufficient to defeat a finding of navigability when “[i]t demonstrates the need to
bypass the river segment, all because that part of the river is nonnavigable.” Id. at
597.
D.
26.
Customary Modes of Trade and Travel
Courts seeking to determine navigability for title must determine
whether, at statehood, the relevant segment of the river could have been used as a
highway for commerce, by the “customary modes of trade and travel on water”
available at that time. PPL, 565 U.S. at 601. Navigability “concerns the river’s
usefulness for ‘trade and travel,’ rather than for other purposes.” Id. at 600. “[T]o
give [a river] the character of a navigable stream, it must be generally and
commonly useful to some purpose of trade or agriculture.” United States v. Rio
Grande Dam & Irrigation Co., 174 U.S. 690, 698–99 (1899).
27.
For title navigability, “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.” PPL, 565 U.S. at 600.
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28.
“[A] river need not be susceptible of navigation at every point during
the year, [but] neither can that susceptibility be so brief that it is not a commercial
reality.” Id. at 602–03.
XI.
NAVIGABILITY FOR TITLE TO THE SEGMENTS AT ISSUE
A.
29.
The Missouri River
The Big Belt Mountains Segment, running from River Mile 2254.2 to
River Mile 2208, was neither navigated or susceptible of navigation in its natural
and ordinary condition in the customary modes of trade and travel on water at the
time of Montana’s statehood. Accordingly, the Big Belt Mountains Segment was
not navigable for title.
30.
The Sun River to Black Eagle Falls Segment, running from River
Mile 2121.7 to River Mile 2117.9, was partially navigated and otherwise
susceptible of navigation in its natural and ordinary condition in the customary
modes of trade and travel on water at the time of Montana’s statehood.
Accordingly, the Sun River to Black Eagle Falls Segment was navigable for title.
31.
The Belt Creek to Big Falls Segment, running from River Mile 2109.6
to River Mile 2101.5, was neither navigated or susceptible of navigation in its
natural and ordinary condition in the customary modes of trade and travel on water
at the time of Montana’s statehood. Accordingly, the Big Falls to Belt Creek
Segment was not navigable for title.
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B.
32.
The Clark Fork River
The Eddy Segment, running from River Mile 235.5 to River Mile
208.1, was neither navigated or susceptible of navigation in its natural and ordinary
condition in the customary modes of trade and travel on water at the time of
Montana’s statehood. Accordingly, the Eddy Segment was not navigable for title.
33.
The Thompson Falls Segment, running from River Mile 208.1 to
River Mile 207.1, was neither navigated or susceptible of navigation in its natural
and ordinary condition in the customary modes of trade and travel on water at the
time of Montana’s statehood. Accordingly, the Thompson Falls Segment was not
navigable for title.
34.
The Thompson’s Landing Segment, running from River Mile 207.1 to
River Mile 204.5, was neither navigated or susceptible of navigation in its natural
and ordinary condition in the customary modes of trade and travel on water at the
time of Montana’s statehood. Accordingly, the Thompson’s Landing Segment was
not navigable for title.
C.
35.
The Madison River
The Headwaters/West Yellowstone Basin Segment, running upstream
of River Mile 112.5, was neither navigated or susceptible of navigation in its
natural and ordinary condition in the customary modes of trade and travel on water
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at the time of Montana’s statehood. Accordingly, the Headwaters/West
Yellowstone Basin Segment was not navigable for title.
36.
The Upper Canyon Segment, running from River Mile 112.5 to River
Mile 101, was neither navigated or susceptible of navigation in its natural and
ordinary condition in the customary modes of trade and travel on water at the time
of Montana’s statehood. Accordingly, the Upper Canyon Segment was not
navigable for title.
37.
The Anabranching Channel Segment, running from River Mile 60 to
River Mile 42.5, was neither navigated or susceptible of navigation in its natural
and ordinary condition in the customary modes of trade and travel on water at the
time of Montana’s statehood. Accordingly, the Anabranching Channel Segment
was not navigable for title.
38.
The Bear Trap Canyon Segment, running from River Mile 42.5 to
River Mile 33, was neither navigated or susceptible of navigation in its natural and
ordinary condition in the customary modes of trade and travel on water at the time
of Montana’s statehood. Accordingly, the Bear Trap Canyon Segment was not
navigable for title.
ORDER
Based upon the foregoing findings and conclusions, IT IS ORDERED that:
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1.
Pursuant to the Federal Quiet Title Act, 28 U.S.C. § 2409(a), title is
hereby quieted to Montana for the riverbed lands within the Sun River to Black
Eagle Falls Segment of the Missouri River, running from River Mile 2121.7 to
River Mile 2117.9, as described herein.
2.
Pursuant to the Equal Footing Doctrine, title is also hereby quieted
against Talen and Northwestern Energy to Montana for the riverbed lands lying
between the ordinary low water marks within the Sun River to Black Eagle Falls
Segment of the Missouri River, running from River Mile 2121.7 to River Mile
2117.9, as described herein.
3.
Pursuant to the Montana Constitution, Mont. Const. art. X, § 11, and
statutes enacted thereunder, Talen and Northwestern must compensate Montana for
the past, present, and future use of the riverbeds within Sun River to Black Eagle
Falls Segment of the Missouri River, running from River Mile 2121.7 to River
Mile 2117.9, as described herein, to which Montana took title at statehood, in an
amount to be determined in Phase II of this case.
4.
Pursuant to the Federal Quiet Title Act, 28 U.S.C. § 2409(a), title is
hereby quieted to the United States for the riverbed lands within all other Disputed
Reaches as described herein.
5.
Pursuant to the Equal Footing Doctrine, title is also hereby quieted
against Montana to Talen and Northwestern for the riverbed lands lying between
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the ordinary low water marks within all other Disputed Reaches as described
herein.
DATED this 25th day of August, 2023.
78
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