SCOTUS Reviewing State Court's Land Grab In Navigability Case

The top-side brief and supporting amicus briefs have been filed in a case we've been following, PPL Montana v. Montana, No. 10-218 (cert. granted June 20, 2011).

In PPL Montana, LLC v. State of Montana, 229 P.3d 421 (Mont. Mar. 30, 2010), the Montana Supreme Court disregarded 100 years of private or federal ownership of the riverbeds under more than 500 miles of river, and held that the state owned them.* The net result of the Montana court's ruling was that the state was owed millions in back and future rent from the owners of hydropower facilities located on those riverbeds.Sound familiar?

In June, the Supreme Court agreed to review this question:

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?

Here are the briefs so far:

• Brief for Petitioner, PPL Montana, LLC

• Brief for Freeport-McMoran Corporation, Salt River Project Agricultural Improvement and Power District, and the Salt River Valley Water Users’ Association in Support of Petitioner

• Brief for the United States of America in Support of Petitioner

• Brief for the Creekside Coalition, Colorado Cattlemen’s Association, Colorado Farm Bureau, And Dude Ranchers’ Association

• Brief for Professors John L. Allen, David M. Emmons, Gary E. Moulton, Thomas J. Noel, Charles E. Rankin, Carlos A. Schwantes, and David M. Wrobel in Support of Petitioner

• Brief for the Montana Farm Bureau Federation, American Farm Bureau Federation, CATO Institute, and the National Federation of Independent Business Small Business Legal Center in Support of Petitioner

• Brief for the Mountain States Legal Foundation and the Utah Farm Bureau Federation in Support of Petitioner

• Brief for Montana Water Resources Association, the National Water Resources Association, Heidi Gildred, Patrick Byrne, Clinton Irrigation Disrict, Boyd Standley, Frank Sommer and Jeffrey Carlisle

• Brief for Edison Electric Institute, National Hydropower Association, Northwest Hydroelectric Association, Electric Power Supply Association, and Public Utility District No. 1 of Washington in Support of Petitioner

• Brief for American Petroelum Institutue, et al.

• Brief for Wilbur and Kathryn Hardy, et al.

We will keep following the case and have a complete summary once all the briefs are filed. We have a keen interest in the case because it involves (a) navigability, an issue we have a long history litigating, and (b) the case has judicial takings overtones. More on the case here from the Missoulian.

The Court's docket report is here.

Oral argument is scheduled for December 7, 2011.

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There are a lot of "Montanas" in that sentence. About the only Montana missing is this one.