Here is the news coverage (h/t How Appealing) of this interesting historical case involving the notes from the Lewis & Clark expedition. An excerpt:
Both the state and the company say Lewis and Clark’s experiences make their case.
Clement points out that the expedition never even attempted to navigate one of the rivers at issue, and that the record shows Lewis and Clark bypassed the 17-mile Great Falls Reach of the Missouri “not out of convenience, but out of necessity — the stretch was impassable.”
Historians who agree with PPL said the state’s evidence of the commercial history of the rivers is in part based on notoriously unreliable frontier-era newspapers with boosterish and fabricated tales of “28-pound radishes and steamboat traffic between Denver and the Gulf of Mexico.”
Montana replies with Lewis’s observation that he did not believe “that the world can furnish an example” of how rivers can run through such mountainous country as Montana and yet be “so navigable as they are.”
It is beyond dispute that the rivers played an important part of the new nation’s economic development, Montana argues.The state’s supportive historian is Stephenie Ambrose Tubbs, who has written extensively about Montana and is the daughter of Lewis and Clark scholar Stephen Ambrose.
“For those of us who have spent our lives on these Rivers, retracing Lewis and Clark’s historic footsteps,” she told the court in a brief, a piecemeal approach to ownership is threatening.
And, for those who look to original meaning, she proposed that the court affirm the Montana Supreme Court, which she said recognized “that these rivers were navigable, as that term was understood by President Jefferson and the Founders before him.”
The merits briefs are here.
Over 35 percent of the river miles within Montana flow through public lands. In addition, At least 200 miles of Montana rivers are navigable under federal Law.
Therefore at least one thousand miles of river are available for public recreation. The inability for some idle recreational user to access all private miles of river within the USA is simply not a ‘hardsihp’ any judge should even consider.
This is no different than a hiker not being able to hike on a scenic segment of private land in between two national parks.
That is just an opinion, and the example is not helpful. The legal issues and impact on affected persons are much more complicated.