Cato Institute and Montana Farm Bureau Federation Seek Reversal of State Supreme Court Decision that Takes Property Rights Long Held by Ranchers and Farmers

Washington, DC - September 27, 2010 – The Montana Farm Bureau Federation is represented by Arent Fox LLP as amicus curiae before the United States Supreme Court. Cato Institute has joined the Montana Farm Bureau Federation on this brief. The amici are asking the US Supreme Court to review and reverse a decision by Montana’s highest court that threatens to destroy the rights Montana ranchers and farmers have owned and enjoyed for more than a century in their land abutting and underlying the state’s rivers and streams.

“The Montana Supreme Court’s decision effectively converts title in hundreds of miles of riverbeds to the state, having profound effect on all who own land neighboring the affected rivers and who depend on their existing water rights for their livelihood,” reads Arent Fox’s brief, urging the US Supreme Court to overturn the Montana judiciary’s ruling.

In the case PPL Montana, Inc. v. State of Montana, the Montana Supreme Court ignored US Supreme Court precedent to rule that the entirety of three Montana rivers — the Clark Fork, Missouri, and Madison Rivers — were navigable at the time of statehood, and thus belonged to the state of Montana under the “equal footing” doctrine. “Its broad holding eradicates settled property rights Montanans have enjoyed for over a century,” argues Arent Fox.

The amicus brief argues Montana’s highest court deviated from US Supreme Court precedent by failing to properly analyze long stretches of nonnavigable river, including a 17-mile stretch of the Missouri River containing Montana’s famous Great Falls. In doing so, the conversion of property rights held by Montanans for more than 100 years was a taking by Montana’s judicial branch.

“In other words, Montana wants to avoid its Fifth Amendment obligations to pay compensation for taking the Petitioner’s property by applying this new ‘navigability’ standard to redefine ownership of the riverbeds,” writes the Arent Fox team. “Doing so violates Supreme Court precedent and merits reversal.”

The brief also argues that the decision of the Montana Supreme Court raised “grave federalism concerns” that “erode existing checks and balances between federal and state interests.” Arent Fox partner Thor Hearne said, “The Fifth Amendment does not allow government to take property from citizens ‘on the cheap’ by simply redefining property rights.”

The Arent Fox team is led by Mr. Hearne, a nationally known authority in constitutional and eminent domain litigation, Robert O’Brien, a partner in the firm’s commercial litigation department and head of the firm’s Los Angeles office, and Steven Haskins, an attorney in the firm’s commercial litigation group.

“These settled property rights cannot be redefined by judicial fiat, particularly when the standard used to determine those rights deviates from United States Supreme Court precedent in such spectacular fashion,” said Mr. Hearne.

Mr. Haskins added, “We hope the Supreme Court will grant review of this important case and, ultimately, restore to Montana farmers and ranchers those property rights that rightfully belong to them.”

“The Takings Clause of the Constitution prohibits any branch of the government from taking private property without the payment of just compensation,” said Mr. O’Brien. “Intervention by the US Supreme Court is the only hope for the thousands of farmers and ranchers who will lose their property rights as a result of the Montana court’s erroneous decision.”

The Supreme Court is expected to consider PPL’s petition later this year.

To read the amicus curiae brief, please click here.

To read an article on the case and Arent Fox’s filing of the amicus brief with the US Supreme Court, please click here.

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About Arent Fox:
Arent Fox LLP (www.arentfox.com), with offices in Washington, DC, New York City and Los Angeles, is a recognized leader in areas including intellectual property, real estate, telecommunications, health care, automotive, sports, white collar, international trade, bankruptcy, and complex litigation. With more than 350 lawyers nationwide, Arent Fox has extensive experience in corporate securities, financial restructuring, government relations, labor and employment, finance, tax, corporate compliance, and the global business market. The firm represents Fortune 500 companies, government agencies, trade associations, foreign governments and other entities.