United States Supreme Court
As part of a coalition, NAHB filed an amicus brief in PPL Montana v. Montana, a case that concerns whether recreation may be used to prove a water body is a "navigable water" for title purposes. It is NAHB's position that a determination that a water body is "navigable" for the purpose of federal statutes enacted pursuant to the Commerce Clause, such as the Clean Water Act ("CWA") and Rivers and Harbors Act, may not be based solely on mere recreational use.
This case is important to NAHB members regulated under the CWA because the Supreme Court's decision, although presented as a title issue, could affect the definition of "navigable waters" under the CWA. The principal goal of our amicus is to ask the court to issue a narrow opinion to keep the EPA from trying to apply the decision to CWA navigability determinations.
Our amicus brief was filed on Sept. 7, 2011. The Court entertained oral arguments on Dec. 7, 2011.
On Feb. 22, 2012, in a unanimous decision, the U.S. Supreme Court reversed the Montana Supreme Court and held that to determine title to state riverbeds under the equal footing doctrine the state court must consider the rivers on a segment-by-segment basis to assess whether each segment is navigable. The Court also found that modern-day recreation use did not offer proof of navigability under the equal footing doctrine because the court failed to examine whether the recreational watercraft were similar to those customarily used for trade and travel at the time of statehood or any changes in the river's physical characteristics since statehood.
Going into this case NAHB was concerned that the court may muddle the various "navigability" tests. The test for navigability differs depending on whether the issue involves navigability for title, admiralty jurisdiction or commerce clause jurisdiction. The Court got it right when it stated "the test for navigability is not applied in the same way in these distinct types of cases." Moreover, the Court explained that "[w]ith respect to the federal commerce power, the inquiry regarding navigation historically focused on interstate commerce" and cites The Daniel Ball in support of this point. This is consistent with NAHB's understanding of traditional navigable waters - they are waters that are used for interstate commerce based on the test outlined The Daniel Ball. Perhaps the most important point is that the Court did not say traditional navigable waters in the CWA context include waters that are navigable based on recreational use. Rather, the Court emphasized that there must be a link between modern recreational use and use in interstate commerce.