A case before the U.S. Supreme Court on Wednesday over who owns the riverbeds beneath 10 Montana dams has drawn intense interest because of the potential effects on property rights, public access and wildlife management - but it has also spurred debate among historians as both sides reach more than 200 years into the past...

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A case before the U.S. Supreme Court on Wednesday over who owns the riverbeds beneath 10 Montana dams has drawn intense interest because of the potential effects on property rights, public access and wildlife management – but it has also spurred debate among historians as both sides reach more than 200 years into the past to bolster their arguments.

PPL Montana is appealing a Montana Supreme Court ruling that the state owns the submerged land beneath 10 dams sitting on three Montana rivers, and that the company owes Montana tens of millions of dollars in rent.

The power company is asking the Supreme Court justices to clarify the definition of a navigable river, a decision that could also affect the rights to lands beneath streams and rivers all over the U.S.

Both sides are citing the expedition of Lewis and Clark, and their 1805 portage around the Great Falls of the Missouri River, in their arguments on whether the rivers were commercially navigable.

Seven history professors are backing PPL by saying the Missouri above the falls was not a useful channel of commerce.

But historian Stephenie Ambrose Tubbs, the daughter of Stephen Ambrose, who penned an account of the Lewis and Clark expedition called Undaunted Courage, says there is no question the river was used for commerce even before the expedition.

The titles to riverbeds beneath commercially navigable waterways go to state governments upon statehood. Non-navigable riverbed ownership stays with the federal government.

Both PPL and Montana reference the journals of Meriwether Lewis and William Clark as the expedition carried their supplies 17 miles around the Great Falls of the Missouri River. The heart of the case centers on whether that made the particular portion of the Missouri non-navigable for title purposes, as PPL argues.

Montana claims that the title to all the land under the Missouri, Clark Fork and Madison rivers within its border transferred when it became a state in 1889. When deciding navigability, the entire river should be considered – not just segments – and a portage around a natural obstruction does not interrupt the flow of those rivers as a highway of commerce, the state says.

Attorneys for the state cite Lewis’ description of the Missouri in his journal to prove its navigability: “The world can furnish an example of a river running to the extent which the Missouri and Jefferson’s do through such a mountainous country and at the same time so navigable as they are.”

PPL argues that eight of the 10 dams in question are built on non-navigable portions of Missouri and Clark Fork rivers – the Great Falls of the Missouri and Thompson Falls on the Clark Fork – therefore the title to the lands under those dams should not go to the state.

The fact that Lewis and Clark had to get out of their boats and spend weeks carrying their supplies around the falls proves that portion of the river is non-navigable and should not fall under state title, the company said.

Backing the power company’s argument are seven history professors led by David Emmons of the University of Montana, whom PPL hired as an expert witness.

The professors say the upper Missouri River above the Great Falls was not a useful channel of commerce. Lewis and Clark’s description of the Missouri did not mean the river was commercially navigable, argued the professors led by University of Montana’s David Emmons.

“When Lewis and Clark’s journals refer to the river as navigable, they mean only that the expedition could follow its course as they explored the then-unchartered territory toward the Pacific,” the professors wrote in a brief filed with the court.

Taking the state’s side is historian Ambrose Tubbs, who wrote in a brief for the court that the Missouri River in its entirety was arduous, including stretches in other states that have always been recognized as navigable, not just at the Great Falls. But the commercial use of the Missouri among Indian tribes was well established before the time of Lewis and Clark, she wrote.

“There was unquestionably an established route of trade on the Missouri by this time,” Ambrose Tubbs wrote.

The stakes are huge for PPL, amounting to more than $52 million in back rent with interest so far. The power company said the state has never made a similar title claim over the last 100 years that many of the dams have existed.

The company’s argument is backed by the U.S. Department of Justice, livestock associations, farm bureaus and corporations that say giving the state that previously uncontested title to the submerged lands could disrupt property rights across the nation.

“If Montana’s action is allowed to stand, other states will surely follow suit with their own judicial takings,” PPL wrote in its brief to the court

Twenty-six states and numerous conservation groups are backing the state, saying a decision in favor of PPL would create a patchwork segmentation to the title to the beds of navigable rivers.