No. 83-164 in the SUPREME COURT of the STATE of MONTANA

No. 83-164 IN THE SUPREME COURT OF THE STATE OF MONTANA MONTANA COALITION FOR STREAM ACCESS, INC. Plaintiff and Respondent, and MONTANA DEPARTMENT OF FISH, WILDLIFE AND PARXS, and THE STATE OF 1\IONTANA, Involuntary Plaintiffs and Respondents, and THE MONTANA DEPARTPINT OF STATE LANDS, Plaintiff and Respondent, -vs- DENNIS MICHAEL CURPAN, Defendant and Appellant. APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis & Clark, The Honorable Gordon Bennett, Judge Presiding. COUNSEL OF RECORD: For Appellant: Jardine, Stephenson, Blewett & Weaver; Alexander Blewett, 111, argued, Great Falls, Pllontana For Respondents: Goetz, Madden & Dunn; James II. Goetz argued for D-lont. Coalition for Stream Access, Bozeman, Montana Stan Bradshaw argued, Dept. of Fish, Wildlife & Parks, Helena, Montana John F. North argued, Dept. of State Lands, Helena For Amicus Curiae: Albert Stone, U of M Law School, P4issoula, Montana Vincent J. Kozakiewicz, National Wildlife Fed. and Mont. Wildlife Federation, Missoula, Montana Daniel C. Murphy, Mont. Stock & Wool Growers, Helena Michael Coil, Mont. Trout Unlimited, Bozeman, Montana Submitted: January 23, 1984 Decided: May 15, 1984 *A Clerk Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Appellant D. Michael Curran ("Curran"), appeals a Rule 54(b)-certified partial summary judgment entered in favor of plaintiff s, Montana Coalition for Stream Access, Inc. ( "Co- alition"), the State of Montana, the Montana Department of State Lands and the Montana Department of Fish, Wildlife and Parks. The District Court held that the public have a right to use waters and the streambed of the Dearborn River up to the high water mark as it flows through Currants property and that the State of Montana owns the streambed between the low wa.ter marks. The District Court also dismissed Curran's counterclaim for inverse condemnation. We affirm. The Dearborn River is approximately sixty-six miles long and originates along the east slope of the Continental Divide in west-central Montana. The river flows generally in a southeasterly direction from its source near Scapegoat Mountain, approximately thirty miles southwest of Augusta, Montana, to the Missouri River. The first twenty miles of the Dearborn is through mountains and canyon terrain, roughly twelve miles of which is within the Scapegoat Wilderness. After it leaves the Wilderness area., the river emerges onto rolling plains and continues its flow for about twenty-nine miles, where it again enters a moderately timbered region. It then extends another seventeen miles and enters the Missouri River near Craig, Montana. The Coalition is a nonprofit Montana corporation formed to promote public access to Montana's rivers. Individual members of the Coalition use the stretch of the Dearborn running through Curran's property for recreational pursuits such as floating and fishing. Some members of the Coalition who have floated or attempted to float the Dearborn have experienced interference and harassment from Curran or his agents. Curran and Curran Oil Co., of which he is a principal stockholder, have extensive land holdings in Lewis and Clark and Cascade Counties. Curran also holds leases to some state lands through which the Dearborn flows. Approximately six to seven miles of the Dearborn flows through property owned or controlled by Curran. About four and one-half sections of Curran's land on the Dearborn are immediately upstream from the point at which U.S. Highway 287 crosses the Dearborn and about six and one-half sections, including one isolated section, are downstream from Highway 287. Curran claims title to the banks and streambed of a portion of the Dearborn River and claims to have the right, as an owner of private property, to restrict its use. The District Court essentially held that the Dearborn River is in fact navigable for recreation purposes under Montana law; that recreation access to it is determined by state law according to one criterion--namely, navigability for recreation purposes; and that the question of recreational access is to be determined according to state, not federal, law. The following issues are raised by the parties: 1. Whether the District Court erred in its application of the federal test of navigability for title purposes. 2. Whether the District Court erred in granting summary judgment on the issue of navigability of the Dearborn. 3. Whether the District Court erred in determining that recreational use and fishing make a stream navigable. 4. Whether the District Court erred in dismissing Curran's counterclaim for inverse condemnation. 5. Whether the claims of the Coalition, the Department of Fish, Wildlife and Parks and the Department of State Lands should have been dismissed for failure to name indispensable parties under Rule 19, M.R.Civ.P. 6. Whether the Coalition has standing to bring this action. 7. Whether the District Court lacked subject matter jurisdiction. 8. Whether Montana has adopted the log-floating test of commercial navigability. 9. Whether the Dearborn River is navigable under the federal commercial use test. I The first issue to be addressed is whether the District Court erred in its application of the federal test of navigability for title purposes. Curran maintains that the District Court erred by misconstrui-ng the law to be applied in determining the navigability of the Dearborn at the time Montana was admitted to the Union. The United States Supreme Court has held, and all parties agree, that federal law control-s the issue of navigability for title purposes. Brewer-Elliott Oil and Gas Compa- ny v. United States (1922), 260 U.S. 77, 43 S.Ct. 60, 67 L.Ed. 140. Federal law on navigability for title purposes provides that rivers are navigable in law which are navigable in fact. The Daniel Ball (1870), 77 U.S. (10 Wall.) 557, 19 L.Ed. 999. "And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water." The Daniel Ball, supra, at 563. In 1874, the United States Supreme Court elaborated on its holding in The Daniel J supra, and stated that ". the true test of navigability of a stream does not depend on the mode by which commerce is, or may be, conducted, nor the difficulties attending navigation. If this were so, the public would be deprived of the use of many of the large rivers of the country. The capability of use by the public for purposes of transportation and commerce affords the true criterion of the navigability of a river, rather than the extent and manner of that use." The Montello (1874), 87 U.S. (20 wall.) LZ 430, ,&T' L.Ed. 391. Navigability in fact under federal law can be determined by the log-floating test. The Montello, supra; Sierra Pacific Power Co. v. Federal Energy Regulatory Commission (9th Cir. 1982), 681 F.2d 1134, cert. denied, U.S. I 103 S.Ct. 1769 (1983); State of Oregon v. Riverfront Protec- tion Association (9th Cir. 1982), 672 F.2d 792. In River- front Protection Association, supra, the McKenzie River was declared navigable despite the fact that log drives could only be conducted during April, May and early June. The evidence in this case, supplied by the affidavits of two competent historians, demonstrates that the Dearborn River was used. in 1887, two years before Montana statehood, to float approximately 100,000 railroad ties. Furthermore, in 1888 and. 1889, one or two 3-09 drives per year were floated down the Dearborn. One drive in 1888 contained 700,000 board feet. Clearly the Dearborn satisfied the log-floating test for navigability under the federal test of navigability for title purposes. Since the Dearborn was navigable under the log-floating test at the time of statehood in 1889, title to the riverbed was owned by the federal government prior to statehood and was tra.nsferred to the State of Montana upon admission to the Union. The landmark case dealing with state and federal owner- ship of beds underlying navigable waters is arti in v. Waddell- (1842), 41 U.S. (16 Pet.) 367, 10 L.Ed. 997. In delivering the opinion of the Court, Mr. Chief Justice Taney sta.ted, "For when the Revolution took place, the people of each state became themselves sovereign; and in that character hold the absolute right to all their navigable waters and the soils under them for their own common use, subject only to the rights since surrendered by the constitution to the general government." Waddell, supra. Under English common law, the crown owned only the beds of waters which were (1) below the high water mark, (2) navigable and (3) affected by the ebb and flow of the tide. Title to nontidal beds was prima facie in the owner of the share to the thread of the stream, usque -ad filum aquae. In 1851 the Supreme Court held that admiralty jurisdiction extended to nontidal waters. The Genesee Chief (1851), 53 Keokuk (1876), 94 U.S. 324, 24 L.Ed. 224, Genesee Chief, supra, was applied to hold that the states owned the beds to nontidal navigable waters. States admitted to the Union subsequent to the original thirteen succeeded to the same rights on the theory that the 1-ands acquired by the United States from the original thirteen colonies or from foreign governments were held in trust for the new sta.tes in order that they might be admitted on an equal footing with the original states. Pollard's Lessee v. As far as treatment of the lands still in a territorial status, the federal government exercised sovereignity.

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