The United States Supreme Court held in PPL Montana v. Montana held that the State of Montana did not own the beds beneath certain rivers and, therefore, rejected the State's claim that the power company owed it millions of dollars in "back rent" for the use of the riverbeds as sites for ten of its hydroelectric power plants. The Montana Supreme Court, which had ruled in favor of the State, declared that even if portions of a river were not navigable for commercial purposes because of physical conditions, the entire river would be treated as navigable if commercial traffic could bypass the non-navigable segments by utilizing land routes instead. On appeal, the Supreme Court rejected this approach to navigability, distinguishing between the tests of navigability that were traditionally used to determine federal regulatory jurisdiction in admiralty and commerce clause cases, and the test of navigability that had should be used to determine title to submerged lands under the equal footing doctrine. This Article discusses the concept of navigability and its use as a means of determining the ownership of tidelands and the beds of rivers, lakes and streams. It also examines the PPL Montana case and concludes that the Court was correct to reaffirm its traditional segment-by-segment test under which ownership of beds beneath non-navigable portions of a river would not be transferred to a state upon its admission to the Union.

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Virginia Environmental Law Journal, Vol. 31, No. 2 (2013), pp. 168-217