Tomorrow, the U.S. Supreme Court will hear oral arguments in PPL Montana v. Montana, No. 10-218 (cert. granted June 20, 2011), a case in which 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?
We've been following the case, and have posted the merits and amicus briefs, and were all set to do a lengthy and detailed preview of the oral arguments. Really, we were just about to do that. But a worthier source than we, Professor Thomas Merrill, beat us to the punch, and posted his detailed preview of the case on SCOTUSblog here. He reminds us that our favorite Supreme Court cases dealing with navigability -- United States v. Utah, The Montello, and The Daniel Ball -- are in play. (We are invariably drawn to any case in which those cases are being discussed, stemming back to our representation of the petitioner in Kaiser Aetna v. United States, 444 U.S. 164 (1979)).
PPL filed a petition for certiorari, and the U.S. Supreme Court invited the Acting Solicitor General to file a brief expressing the view of the United States. The Acting SG urged the Court to deny review, arguing that the Montana Supreme Court’s decision was “largely fact-specific” and did not conflict with the decision of any other state supreme court or federal appeals court. The Court nevertheless agreed to hear the case, limiting its review to the question of state title and denying review on the preemption question.Why did the Court disregard the Acting Solicitor General’s advice? One can only speculate, but it is possible that some Justices saw a parallel to the recent judicial takings case, Stop the Beach Renourishment v. Florida Department of Environmental Protection (2010). PPL’s petition accused the Montana courts of perpetrating a “land grab,” and it cited Stop the Beach and other judicial takings cases as presenting analogous “temptations” for state courts eager to transfer property from private parties to the state without paying just compensation. The fact that Montana had made no effort to charge rent for the land for over a hundred years lent credibility to this claim of opportunism by the state.
The briefs on the merits, which are excellent, narrow the legal dispute significantly. All agree that under the equal footing doctrine state governments take title to lands beneath navigable waters. They agree that the relevant question for title purposes is whether a river was navigable in fact at statehood, not whether it is navigable today. They further agree that the relevant question concerns the condition of a river in its natural state.
Read his entire preview here. We'll post the oral argument transcript tomorrow, after its release.
