PPL Montana, LLC v. Montana

In this case, the Supreme Court will decide who owns title to riverbeds that have been privately used under licenses granted by the federal government. At the core of this dispute is whether the river was navigable when a state entered the Union. Petitioner PPL Montana argues that the equal footing doctrine bars a state from claiming title to the beds of rivers that were non-navigable at statehood. See Brief for Petitioner, PPL Montana, LLC at 28–29. According to PPL Montana, navigability for the purpose of resolving a title dispute requires a historical inquiry, without consideration of modern-era uses for the river and "hyperbolic accounts". See id. at 46–48. Respondent, the State of Montana, contends that dividing a river into segments compromises the navigability test by overlooking the ways in which commerce actually flows along the length of a river. SeeBrief for Respondent, State of Montana at 33. Montana argues that the Court should focus on the use of the river in commerce, including historical accounts of portage, i.e. carrying a vessel around a natural obstacle that is preventing river travel. Seeid. at 28–29.

Determining Which Portion of a River Matters for Navigability

PPL Montana argues that the Court should apply a segment-by-segment inquiry for each part of a river in order to determine navigability. See Brief for Petitioner at 34. Advancing a particularized test, PPL Montana argues that lower courts, the federal government, and the State of Montana have all previously employed a segmented approach for determining title to riverbeds. See id. at 34–38. PPL Montana also offers several cases in which the Supreme Court limited its scrutiny to the characteristics of specific segments of a river, rather than reviewing the river in its entirety. See id. at 36–38. According to PPL Montana, the segment-by-segment approach is consistent with the Court’s task of resolving controversies between the adverse parties alone: segmentation does not force the Court to enlarge these property disputes to consider the entire river. See id. at 35. PPL Montana argues that the Montana Supreme Court incorrectly broadened the inquiry to irrelevant sections of the river. See id. at 41.

In response, the State of Montana argues that segmenting the river frustrates the proper inquiry into the river’s continuity. SeeBrief for Respondent at 32–31. According to Montana, portage should be considered part of traveling along a river because courts have previously reasoned that the practice of portage for certain river segments does not render a river non-navigable. See id. at 29. Montana argues that the Court has previously determined that the Colorado River is navigable, except for one section that was impassable despite attempts to carry the boat around a large canyon. See id.at 34. Montana distinguishes one Supreme Court decision that the Colorado River is non-navigable in a section, due to the presence of a large canyon, because that canyon is twice as big as any obstacles at issue in this case and, unlike the instant situation, there was no evidence that portage was possible. See id. at 34–35. Additionally, Montana contends that, where the Court has segmented a river to determine navigability, the lines were drawn at the state borders. See id. at 35. Further, Montana challenges that PPL Montana’s segmented rule is too vague, as there are no meaningful criteria for determining when a natural obstacle would be considered de minimis, too small to cause a segmentation of the river. See id. at 35.

Evidence of Navigability

PPL Montana argues that evidence of present-day activities distorts the factual inquiry into actual or suspected historical navigability, and that the Court should not consider modern-era uses and historical reports of dubious accuracy in their determination. See Brief for Petitioner at 43–44, 46–47. PPL Montana explains that, under the equal footing doctrine, each state entered the Union with equal claims to sovereignty over their in-state rivers. See id. at 28–29. PPL Montana also maintains that this doctrine protects each state’s sovereignty by barring any state from retroactively claiming more than it was entitled to upon entering the Union. See id.Allowing modern-era uses to inform navigability, PPL Montana argues, would undermine the purpose of the equal footing doctrine. See id. at 48. Further, PPL Montana challenges some of the historical evidence that Montana presented to show navigability, and argues that the Court should avoid speculation about how early settlers actually used a river. See id.at 14, 44–45.

In contrast, Montana maintains that some post-statehood evidence of navigability may inform a historical inquiry. See Brief for Respondent at 45. Montana argues that the Court need not create a special evidentiary rule for determining navigability, but instead should rely upon the standard rule of relevancy when determining what evidence to consider. See id.Montana maintains that the correct test should be whether the rivers at issue were “susceptible of being used” for commerce, not whether each was actually used at the time the statehood. See id. at 44. This susceptibility test, according to Montana, is not only consistent with case precedent about navigability, but will also permit the consideration of a broad range of historical documents. See id. at 44, 51. Montanamaintains that the Court has previously considered various historical materials, including those that may contain hyperbolic descriptions, when ruling upon navigability; therefore, contrary to PPL Montana’s challenge, these documents should not be categorically banned from consideration. See id. at 51.

Distinguishing Between Disputes of Title and Regulation

PPL Montana argues that the Montana Supreme Court erred by blurring the distinction between disputes about title to riverbeds and disputes about the validity of state regulations. See Brief for Petitioner at 42. Highlighting the difference between regulation and title, PPL Montana explains that the Supreme Court has previously held that a ship would not escape federal regulation if it was carried around a natural obstacle, i.e. if the ship was used in portage. See id. According to PPL Montana, an area that is considered navigable for regulation may be non-navigable for the purposes of title disputes. See id.PPL Montana argues that the Court must distinguish between the two types of disputes because different portions of the Constitution will apply to each type—the Property Clause is considered in title disputes and focuses upon whether the river was navigable at statehood, whereas the Commerce Clause is utilized in regulation cases and may allow a state to expand its regulatory domain to newly navigable waters. See id. at 31–32.

In contrast, Montana argues that title disputes and regulation disputes share important attributes, which make them comparable. See Brief for Respondent at 31–32. For example, Montana claims that the question under a title dispute, whether a river is navigable for in-state commerce, is closely related to the question under a regulation dispute, whether a river is navigable for interstate commerce. See id. at 31. Sharply distinguishing between these categories of disputes, Montana argues, runs counter to case precedent, which has not honored such a rigid distinction. See id. at 31–32. Montana contends that stare decisis instructs the Court to affirm the method of the Montana Supreme Court, and allows the consideration of regulatory cases that have previously been deemed informative on issues of navigability. See id.