"The river is deep and the river is wide...." Not really, actually.

PPL Montana, LLC v. Montana is it.  My favorite case pending before the Supreme Court this term.  It has nothing to do with the AEDPA or zombie copyrights or the Stolen Valor Act.  It is about...

Navigable waters. Oh, boy.*

Without going into detail (because I'm really, really wiped and not thinking clearly and because the good folks at SCOTUSBlog do such a much better job of that than I do), the issue is what tests do you use to determine whether the waters of a river were navigable at time of statehood?  In this case, 1889. (It should be noted that, in the words of the Montana Supreme Court, “the concept of navigability ...  is very liberally construed by the United States Supreme Court.” No joke.) This matters because the state owns title in the riverbeds of bodies of water that were navigable at the time of statehood.

Part of the evidence that has been introduced are the journals kept by Lewis and Clark.  This case is a Western history buff's wet dream.

For me, the most interesting aspect to this case is its origins.  The case before the Supreme Court is an action on the part of Montana to recoup back rent for the sections of the Missouri, Clark's Fork, and Madison riverbeds under several dams.  The oldest dam had been built in 1891, only two years after Montana achieved statehood.  All of the other dams likewise were decades old, and all had been bought by PPL in 1999-2000.  At no point between the time the dams were built and 2003 did the state attempt to collect compensation for use of these lands.

Actually, the state of Montana did not initiate this action, either -- parents representing Montana schoolchildren did. In Montana, some state-owned public lands are administered by the State Land Board for the benefit for the public schools.  The parents in this case argued that the land under the dams were part of the school trust lands, and that the power company was required to compensate the state.  

It was at this point that the state decided to join the suit, even though it had never sought payment for the use of the property before.** A couple of successful motions for summary judgment later, and violà!, here they are at the Supreme Court getting ready to argue over whether sandbars and portages made the rivers in question unnavigable in 1889.

I hope that every high school civics class in the state is following this case closely.  It's a rare chance to see the Court deciding on something that you can so clearly identify as being in your own interest -- in this case, whether the schools in Montana get the extra millions of dollars in their budget that a victory on the part of the state would provide.  And just think how much fun this would be to study in American History.  Talk about teachable moments.  It just goes to show how history really is just like a .... um, yeah.

I cannot wait for December 7th and the oral argument on this.

*No, I am not being sarcastic. I really do find navigable waters questions interesting.  Besides, as the Rocket Scientist pointed out when I told him about this, no one is going to die if the Court does something stupid, unlike in many of the cases I am passionate about.
**I am, of course, glossing over a ton of procedural and other case history here.  The history of the project and the case is more complex than I make it appear, and there are a whole set of affirmative defenses (estoppel, laches, preemption by federal law) that the Montana courts kicked out. Also, prior cases about the state school trust lands had held that the state had a fiduciary duty in administering those lands for the schools, and so the state joining the suit made sense.