# What Are Your Top 10 Ways PPL MT Relates to Colorado Navigability, Use and Portage?



## Ole Rivers (Jul 7, 2005)

*PPL Montana vs State of Montana will be argued before the United States Supreme Court this Wednesday, December 7, 2011 in Washington, D.C.:*
PPL Montana, LLC v. Montana : SCOTUSblog

_Issue: Whether the constitutional test for determining whether a section of a river is navigable for title purposes requires a trial court to determine, based on evidence, whether the relevant stretch of the river was navigable at the time the state joined the Union.

Plain English Issue: To determine whether a river is navigable, does a court look at how the river whether the river is navigable now or instead whether at whether it was navigable when the state joined the Union._

Argument preview: In the footsteps of Lewis and Clark - Argument preview: In the footsteps of Lewis and Clark : SCOTUSblog

Boulder, Colorado-based Western Resource Advocates/National Wildlife Federation, et al Amicus Brief in Support of the Respondent (State of Montana) at http://www.americanbar.org/content/...respondentamcu22wildlifegrps.authcheckdam.pdf

_ARGUMENT .............................................................7
I.	THE RULE THAT STATES OWN NAVIGABLE WATERS AND THE LANDS BENEATH THEM IS DEEPLY ROOTED AND SERVES VITAL SOVEREIGN AND PUBLIC
INTERESTS ........................................................ 7
A. State Ownership of Navigable Waters and the Lands beneath Them is Central to State Sovereignty ........................... 7
B. Sovereign Title to Navigable Waters Derives from their Vital Public Benefits............................................................. 9
II. PPL’S PROPOSED TEST IS INCONSISTENT WITH PRECEDENT............13
III. A FRAGMENTED ANALYSIS OF NAVIGABILITY FOR TITLE WOULD INTERFERE WITH THE PUBLIC TRUST AND IMPAIR STATES’ ABILITY TO MANAGE NATURAL RESOURCES................. 19
IV.	PPL’S OTHER ATTACKS ON THE MONTANA SUPREME COURT’S LEGAL ANALYSIS ARE UNFOUNDED ......................................... 25
A. The Montana Supreme Court Properly Relied upon Evidence of Log Drives as Evidence of Navigability........................... 25
B. Evidence of Post-Statehood Recreational Uses Can Support Navigability in Fact at Statehood................................................... 28_

(Colorado) Creekside Coalition, Colorado Cattlemen's Association, Colorado Farm Bureau and (Colorado) Dude Ranchers' Association Amici Brief in Support of the Petitioner PPL Montana at http://www.americanbar.org/content/...petitioneramcu4landownergrps.authcheckdam.pdf

_ARGUMENT ............................................................... 5
I. THE COURT SHOULD REVERSE THE ERRONOUS DECISION BELOW TO PROTECT LANDOWNER RELI- ANCE INTERESTS AND THE STA- BILITY OF RIVERBED TITLES ................... 5
A. The Decision Misunderstands This Court’s Cases On Navigability-For- Title ............................................................ 5
B. The Decision Defies This Court’s Warning Against State Abuse Of Navigability Determinations................... 10
C. The Decision Calls Into Question Titles To Both Federal And Private Lands........................................................ 11
II.	REVERSAL IS NECESSARY TO PROTECT VESTED PRIVATE PROPERTY INTERESTS IN COLORADO AND ELSEWHERE ............................................... 14
A. The Colorado Supreme Court Long Has Understood That All Colorado Rivers Were Non-Navigable At Statehood ................................................. 14
B. Colorado Property Owners Hold Title To Submerged Lands Under Non-Navigable Rivers And Enjoy Certain Exclusive Rights To Use The Streambeds....................................... 17
C. This Court Long Has Sought To Preserve Reliance Interests And Stability Of Titles .................................... 24
D. The	Montana	Supreme	Court’s Erroneous Decision In Effect Takes Private Property Without Just Com- pensation.................................................. 27_

26 state Attorneys General got together to file an Amicus Brief in support of the Respondent (State of Montana) http://www.americanbar.org/content/...0-218_respondentamcu26states.authcheckdam.pdf
_"Other states have joined in on the side of the state of Montana because they see it as a revenue stream — pardon the pun," Hoffman said. --from the "_...Great Falls?" article mentioned below

Why, do you suppose, didn't the Colorado State Attorney General participate in this brief?

12/5/11 - "Who owns the Great Falls?" (aka- "Who Owns the Yampa, Blue, Arkansas, Gunnison, Animas, et al, Rivers?") ---> USE of ALL navigable creeks, streams, rivers, waters, etc.? Who owns the Great Falls? | Great Falls Tribune | greatfallstribune.com
_"Observers say the case also has national implications because it pits private property rights and commerce versus public benefits derived from river beds, such as unimpeded travel and access."

"'This case has huge implications for anyone who uses the streambed under a navigable river,' PPL spokesman David Hoffman said."_

The currently in-process pending Utah Stream Access Coalition (USAC) Weber River Navigability law suit at
http://www.i9studios.com/USAC/USAC Complaint - Lawsuit 2.pdf
---> Factual Legal Background-The Weber River, paragraphs 13-17

12:31-12:42 at 1320 KFAN - Listen: 11-30-11 Inside the Outdoors: Utah Farm Bureau Federation
Apparently, UFB thinks how the US Supremes' PPL Montana's finding goes is important enough to the Utah USAC Weber case to physically attend the SCOTUS oral argument in Washington, DC. 

How important is it to your interest?

I am continuing to read, understand and focus on PPL Montana vs State of Montana with great interest, including the transcript (available Wednesday, December 7, 2011... (the day of the oral argument), the audio (available probably Friday, December 9, 2011) and, most especially, the SCOTUS Opinion... (available probably April-June, 2012 or so), for its similarity, relevancy and relationship with Colorado (and Utah, for that matter) state streams and waters' navigability for use and portage issue, under the federal Equal Footings Law, in Colorado state's, all states' and the public's interest.

How about you?


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## Ole Rivers (Jul 7, 2005)

*The Test for Navigability*

You can read the transcript at: http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-218.pdf


*Montello* and *The Daniel Ball* are the PPL Montana vs State of Montana's two most cited, relevant and definitive Federal cases to answer, essentially, the question of *"What is the test to determine navigability?"* in yesterday's oral arguments. Essentially, State of Montana says yes, these settled cases are and should be the bases to determine navigability while PPL says no, these settled cases are not and should not be the bases to determine navigability.

"Natural state" and "ordinary conditions" refers to a waterway's state or condition at the time of statehood.

*Montello*:
THE MONTELLO, 87 U. S. 430 :: Volume 87 :: 1874 :: US Supreme Court Cases from Justia & Oyez

1. The *navigability* of a stream, for the purpose of bringing it within the terms "navigable waters of the United States," *does not depend upon the mode* by which commerce is conducted upon it, as whether by steamers, or sailing vessels, or Durham boats, *nor upon the difficulties attending navigation*, such as those made by falls, rapids, and sandbars, even though these be so great as that while they last, they prevent the use of the best means, such as steamboats, for carrying on commerce.
Page 87 U. S. 431
*It depends upon the fact whether the river in its natural state is such as that it affords a channel for useful commerce.*

2. These doctrines applied to the Fox River in Wisconsin, a river whose navigability was originally so much embarrassed by rocks, rapids &c., as that only Durham boats could use the stream, but which afterwards, by canals, locks, and other artificial means was so much improved as that steamboats could use it freely, the river having, however, never, in its natural state, been a channel for useful commerce.

--->By the Ordinance of 1787 for the government of the Northwest Territory, it was enacted that: *"The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be COMMON HIGHWAYS, AND FOREVER FREE..."*


*The Daniel Ball*:
THE DANIEL BALL, 77 U. S. 557 :: Volume 77 :: 1870 :: Full Text :: US Supreme Court Cases from Justia & Oyez

1. The doctrine of the common law as to the navigability of waters has no application in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all of the navigability of waters.

2. The test by which to determine the navigability of our rivers is found in their navigable capacity. *Those rivers are public navigable rivers in law which are navigable in fact.*

3. *Rivers 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.*

4. And they constitute *navigable* waters of the United States within the meaning of the acts of Congress, in contradistinction from the navigable waters of the states, *when they form in their ordinary condition, by themselves or by uniting with other waters, a continued highway over which commerce is or may be carried on with other states or foreign countries in the customary modes in which such commerce is conducted by water.*


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## Ole Rivers (Jul 7, 2005)

Audio --> PPL Montana, LLC v. Montana : SCOTUSblog --> PPL Montana v. Montana | The Oyez Project at IIT Chicago-Kent College of Law --> listen, pause and take notes while reading the transcript.


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## wasatchbill (Apr 9, 2007)

http://www.nytimes.com/2011/12/21/o...nas-rivers.html?nl=todaysheadlines&emc=tha211


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