PPL Mont., LLC v. Montana, No. 10–218.

CourtU.S. Supreme Court
Writing for the CourtJustice KENNEDYdelivered the opinion of the Court.
Citation132 S.Ct. 1215,182 L.Ed.2d 77
PartiesPPL MONTANA, LLC, Petitioner v. MONTANA.
Decision Date22 February 2012
Docket NumberNo. 10–218.

132 S.Ct. 1215
182 L.Ed.2d 77

PPL MONTANA, LLC, Petitioner

No. 10–218.

Supreme Court of the United States

Argued Dec. 7, 2011.
Decided Feb. 22, 2012.

Paul D. Clement, Washington, DC, for Petitioner.

Edwin S. Kneedler, for the United States, as amicus curiae, supporting the Petitioner.

Gregory G. Garre, Washington, DC, for Respondent.

Ashley C. Parrish, Paul A. Mezzina, King & Spalding LLP, Washington, DC, Robert L. Sterup, Kyle A. Gray, Holland & Hart LLP, Billings, MT, Paul D. Clement, Counsel of Record, Erin E. Murphy, Bancroft PLLC, Washington, DC, Elizabeth Thomas, K & L Gates LLP, Seattle, WA, for Petitioner.

Steve Bullock, Attorney General, Anthony Johnstone, Special Assistant Attorney General, Montana Department of Justice, Helena, MT, Gregory G. Garre, Counsel of Record, Lori Alvino McGill, Katya S. Georgieva, Latham & Watkins LLP, Washington, DC, Candace F. West, Chief Legal Counsel, Montana Department of Natural Resources and Conservation, Helena, MT, for Respondent.


Justice KENNEDY delivered the opinion of the Court.

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


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


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

The upstream part of the Missouri River in Montana, known as the Upper Missouri River, is better characterized as rocky rather than muddy. While one usually thinks of the Missouri River as flowing generally south, as indeed it does beginning in North Dakota, the Upper Missouri in Montana flows north from its principal headwaters at Three Forks, which is located about 4,000 feet above sea level in the Rocky Mountain area of southwestern Montana. It descends through scenic mountain terrain including the deep gorge at the Gates of the Mountains; turns eastward through the Great Falls reach, cascading over a roughly 10–mile stretch of cataracts and rapids over which the river drops more than 400 feet; and courses swiftly to Fort Benton, a 19th-century fur

132 S.Ct. 1223

trading post, before progressing farther east into North Dakota and on to the Great Plains. 19 Encyclopedia Americana, supra, at 270; 8 New Encyclopaedia Britannica 190 (15th ed.2007) (hereinafter Encyclopaedia Britannica); 2 Columbia Gazetteer of the World 2452 (2d ed.2008) (hereinafter Columbia Gazetteer); F. Warner, Montana and the Northwest Territory 75 (1879). In 1891, just after Montana became a State, the Upper Missouri River above Fort Benton was “seriously obstructed by numerous rapids and rocks,” and the 168–mile portion flowing eastward “[f]rom Fort Benton to Carroll, Mont., [was] called the rocky river.” Annual Report of the Chief of Engineers, U.S. Army (1891), in 2 H.R. Exec. Doc. No. 1, 52d Cong., 1st Sess., pt. 2, pp. 275–276 (1891) (hereinafter H.R. Exec. Doc.).

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

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

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

The Upper Missouri River, both around and further upstream of the Great Falls, shares the precipitous and fast-moving character of the falls themselves. As it moves downstream over the Great Falls reach, a 17–mile stretch that begins somewhat above the head of Black Eagle Falls, the river quickly descends about 520 feet in elevation, see Montana Power Co. v. Federal Power Comm'n, 185 F.2d 491 (C.A.D.C.1950) ; 2010 MT 64, ¶¶ 29–30, 108–109, 355 Mont. 402, 416, 442, 229 P.3d 421, 433, 449, dropping over 400 feet within

132 S.Ct. 1224

10 miles from the first rapid to the foot of Great Falls, Parker, Black Eagle Falls Dam, 27 Transactions of the Am. Soc. of Civil Engineers 56 (1892). In 1879, that stretch was a “constant succession of rapids and falls.” Warner, supra, at 75; see also 9 The Journals of the Lewis & Clark Expedition 171 (G. Moulton ed.1995) (hereinafter Journals of the Lewis & Clark Expedition) (“a continued rapid the whole way for 17 miles”). Lewis noted the water was so swift over the area that buffalo were swept over the cataracts in “considerable quantities” and were “instantly crushed.” Lewis and Clark Journals 136–137. Well above the Great Falls reach, the Stubbs Ferry stretch of the river from Helena to Cascade also had steep gradient and was “much obstructed by rocks and dangerous rapids.” Report of the Secretary of War, 2 H.R. Doc. No. 2, 54th Cong., 1st Sess., pt. 1, p. 301 (1895).


The second river to be considered is the Madison, one of the Missouri River's headwater tributaries. Named by Lewis and Clark for then-Secretary of State James Madison, the Madison River courses west out of the Northern Rocky Mountains of Wyoming and Montana in what is now Yellowstone National Park, then runs north and merges with the Jefferson and Gallatin Rivers at Three Forks, Montana, to form the Upper Missouri. Lewis and...

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