The Supreme Court's multiple opinions in Stop the Beach Renourishment v. Fla. Dep't of Envt'l Protection, 130 S. Ct. 2592 (2010), although unanimous in concluding that the Florida Supreme Court's decison was not a judicial taking, were not the last words on the subject. Six justices concluded that in the right circumstances, a decision by a state supreme court would violate the takings or due process clauses, while the remaining two justices concluded that some future case might be the right vehicle to decide whether a court decision could take property.
Our suspicions that the case marked the opening of the judicial takings canon and not its closing were quickly confirmed. Last week, we posted this cert petition in another beach case from Hawaii that draws the takings question more precisely than Stop the Beach Renourishment, and earlier we asked "Why Isn't This A 'Judicial Taking?'" about a Washington Supreme Court decision ordering a property owner whose land was encroached upon by his neighbor to sell the land to the neighbor.
Now comes another, this time involving a question of who owns the land under certain Montana rivers. For more than 100 years, there wasn't any doubt: the riverbeds were private property, or were federal property. In PPL Montana, LLC v. State of Montana, 229 P.3d 421 (Mont., Mar. 30, 2010), the Montana Supreme Court concluded otherwise, and held that the state owns that property. The (former) property owner has filed this cert petition, asking the Supreme Court to review these Questions Presented:
The Montana Supreme Court held on a summary judgment record that the State of Montana owns the riverbeds under more than 500 miles of river, including the riverbeds under multiple hydropower facilities on the upper Missouri, Madison, and Clark Fork rivers. This came as quite a shock, because for more than a century the riverbeds beneath those facilities have been treated as owned by private parties or the federal government. In reaching this result, the lower court concluded that the rivers were navigable when Montana joined the Union in 1889 and, therefore, that Montana held title to the riverbeds. The court upheld summary judgment for the State, notwithstanding a prior federal court decree, as well as 500 pages of expert testimony and exhibits disputing Montana’s claim to title, establishing that the relevant sections of the rivers were not navigable at statehood. The consequences are draconian: The court below held that the State is entitled to collect tens of millions in retroactive back rent and millions more in future payments from the owners of the hydropower facilities.The questions presented are:1. Does the constitutional test for determining whether a section of a river is navigable for title purposes require a trial court to determine, based on evidence, whether the relevant stretch of the river was navigable at the time the State joined the Union as directed by United States v. Utah, 283 U.S. 64 (1931), or may the court simply deem the river as a whole generally navigable based on evidence of present-day recreational use, with the question “very liberally construed” in the State’s favor?2. When a hydropower project is licensed under the Federal Power Act, a process that includes an economic analysis of the project and solicits state input, and the hydropower producer has obtained easements from private parties and paid substantial rents to the federal government on the understanding that the riverbeds under the hydropower facilities are owned by those private parties or the federal government, is a State’s attempt retroactively to claim title and impose tens of millions of back and future rent obligations for use of the riverbeds preempted?
The Montana Farm Bureau and the Cato Institute have filed an amicus brief supporting the petition, arguing that "[t]he 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."
More to follow if and when the State files its Brief in Opposition. Hat tips to my Damon Key colleague Mark Murakami for sending the case our way, and to Ilya Shapiro at Cato for the cert petition.
