PPL lawsuit 

Farm Bureau decries navigability

Montana farmers and ranchers have been caught in the crossfire of a long-running legal battle between the state and energy producer PPL Montana, prompting the Montana Farm Bureau Federation (MFBF) last week to back a federal appeal of a spring Montana Supreme Court ruling over navigable waterways.

PPL Montana filed a request with the U.S. Supreme Court in August that it overturn the Montana Supreme Court's March designation of the Clark Fork, Missouri and Madison rivers and their tributaries as navigable. The designation officially transferred ownership of those waterways to the state, and according to the Montana ruling, PPL Montana now owes $41 million for back rent on 10 hydroelectric dams operated on previously undesignated stretches of the rivers from 2000 to 2008.

The MFBF asked the U.S. Supreme Court to accept PPL Montana's appeal on Sept. 15 on the grounds that Montana's decision could slam private landowners with inflated energy payments as the company spreads the costs of past and future rent.

"These companies are not going to simply absorb the $41 million it's going to cost PPL or the $6 million ongoing," says MFBF Vice President for Governmental Affairs John Youngberg. "They're going to pass that cost on to the consumer. And being the largest consumer, that concerns us."

But the court's declaration also applies to property that private landowners have owned and paid taxes on for decades. Any farmer or rancher with riverbed structures—diversion weirs, headgates, bridges, etc.—on formerly non-navigable portions of the three rivers must now secure a lease, license or easement from the state for use of the property.

The MFBF disputes the process by which the state Supreme Court went about declaring those waterways navigable, and is even seeking legislation in 2011 to alter how such declarations can be made. Youngberg says the state's push to charge energy companies for use of public streambeds has become a serious property rights issue for agriculturalists statewide.

"Our folks see this as somewhat of a land grab by the state," Youngberg says.

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