Tennessee Environmental Law Blog

Opinion No. 11-75 addressed two main questions: (1) When is a river legally deemed navigable, and how does such a determination affect ownership of the land beneath the river? (2) Assuming a river is deemed navigable by the U.S. Army Corps of Engineers, then is the river navigable in a legal sense?  

Our Attorney General held that whether a particular waterway is navigable in the legal sense is a question of fact to be determined by a jury.  If the waterway is legally navigable, then the bed of the waterway (to its low-water mark) is publicly owned by the stated. If the waterway is legally non-navigable, then the land beneath may be privately owned; the public maintains a right “to free and uninterrupted use of the waterway for all the purposes of transportation and navigation to which it is naturally adopted” regardless of private ownership of the river’s bed. Federal law gives the U.S. Army Corps of Engineers the power to declare waterways navigable for the purpose of furthering its mission. While a jury may consider and give substantial weight to a Corps’ determination that a waterway is navigable for purposes of determining ownership rights, that determination is not binding. According to 33 C.F.R. § 329.3, precise definitions of “navigable waters of the United States” or “navigability” are ultimately dependent on judicial interpretation and cannot be made conclusively by administrative agencies. Thus, the Corps’ determination is evidence that may influence the jury in reaching its conclusion on a question of fact, but not conclusive per se.

The Attorney General’s opinion references an interesting 1913 Tennessee case, States ex rel. Cates v. West Tennessee Land Co., 158 S.W. 746 (1913), involving Reelfoot Lake and an exception to the general rule.  In Cates, Reelfoot Lake was deemed legally navigable. Nonetheless, the Tennessee Supreme Court held that land underneath the lake that had been granted by the State of North Carolina prior to the creation of the State of Tennessee could be privately owned, stating that “the mere fact that they have since become submerged by a body of navigable water does not deprive the owners of their title to the land as long as they can be reasonably identified.” 

Perhaps not coincidentally, certain aspects of these issues are currently before the U.S. Supreme Court in the “navigability for title” case of PPL Montana, LLC v. Montana. The issue in PPL Montana is whether a court looks at whether the river is navigable now or instead whether it was navigable when the state joined the Union to determine legal navigability. According to the private hydroelectric energy company PPL Montana and some supporting commentators, the Montana Supreme Court overturned more than 100 years of state property law concerning navigable waters by effectively converting the title in hundreds of miles of riverbeds to the state.  The majority of that court ruled that the entirety of the Missouri, Clark Fork, and Madison rivers were navigable at the time of Montana’s statehood, producing a broad holding that eradicates property rights to the rivers and riverbanks that Montanans had enjoyed for over a century. The ruling meant that PPL Montana would be required to pay over $40 million in back-rent, as well as yet-to-be-determined future rent, for use of the rivers to generate hydroelectric power. Montana has argued that the question presented raises a core issue of federalism. The Court is expected to hear oral argument on December 7, 2011.

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