PPL Montana, LLC v. Montana (10-218)

argument 10-218

PPL Montana, LLC v. Montana

Supreme Court of the United States 1h 0m 5 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the central dispute over riverbed ownership in PPL Montana v. Montana?

John G. Roberts 0:00

We'll hear argument next today in case ten two eighteen PPL Montana versus Montana. Mr. Plement.

Paul Clement 0:07

Mr. Chief Justice, and may it please the court, the state's claim to back rent here is truly remarkable. When these dams were built back in the day, PPL's predecessors, petitioners' predecessors, secured all the necessary property rights and easements. As part of that process, particularly for the dams that created reservoirs, there was an elaborate process of getting flood easements and, in many cases, paying substantial amounts of money. In that process, nothing was hidden, it was open and notorious. Indeed, the state assisted by lending the utilities its eminent domain power to deal with holdouts. But now, a hundred years later, the state comes in with a holdout claim of its own. and suggests that it's entitled to massive compensation based on the small strip of riverbed that lies underneath these flooded reservoirs and the dams.

Paul Clement 0:54

The Montana Supreme Court allowed that claim to succeed to the tune of tens of millions of dollars of back rent. Well is

Unknown 1:02

is your point that there sh should be a Federal rule of of latches or stop or are you just building up to the fact that this is traditional, well-recognized doctrine and there's been a and there's been a sudden change?

Paul Clement 1:13

That's exactly where I was going, Justice Kennedy. I was suggesting that the Montana Supreme Court could only approve this result, which clearly did unsettle settled expectations. By deviating from well settled principles of federal navigability law. Now, the mistakes were a little bit different for each of the rivers at issue. As to the Clark Fork and the Upper Missouri, the critical error, I believe, with the Montana Supreme Court decision was its failure to focus on the river segments that are directly at issue and instead focus on the river as a whole. With the Madison, the errors are different, because as the Madison, there is no evidence that any stretch of that river was navigable at Statehood.

Paul Clement 1:49

So there the problem was principally that the court relied on modern day evidence of recreational use to substitute for true historical evidence of commercial commercial navigation at the state.

Samuel A. Alito 2:05

What authorities can we consult? Uh You rely uh heavily on US versus Utah and that certainly is a a relevant precedent, but there's a disagreement about what it means. And the only authority I see that US versus Utah cited uh was the Montello, which seems to cite nothing whatsoever. So where do we is that the end of the trail? Is there any place else we can look?

Paul Clement 2:33

Well, I I mean it's close to the end of the trail. I mean you can go back to the Daniel Ball, but that's not going to help you any more than the Montello. I think, though, that the critical cases really are Utah, but I also think there are other cases that this court has has had. Oklahoma against Texas would be an example, where this court has looked at a discernible segment of a river. Brewer Elliott is another one. And I think the starting point for the Court's analysis in every one of these cases has been to look at the segment of the river that's at issue, that's been put at issue. Now if you have a sovereignty battle between the state and the federal government, a lot of times it's the segment of the river within a state, or in Brewer Elliott it was the segment of the river adjacent to an Indian reservation.

Samuel A. Alito 3:14

Well all of this I I take it derives from the rule that pre exist uh pre existed the uh adoption of the Constitution that the sovereign owned the navigable rivers within its borders. Is there some body of common law that addresses this that would shed some light on whether that means the whole river or it means segments?

Paul Clement 3:34

There really isn't Justice Alito because we get our common law from England. In England actually the common law was different. At England the navigable waters ended at the ebb and flow of the tide. So every internal stream within Great Britain was viewed as non navigable and the property belonged to the riparians.

Samuel A. Alito 3:52

So w what is the origin of the rule that uh the the original thirteen states owned the navigable par rivers or parts of the rivers, but not the parts that weren't?