WASHINGTON, DC — SEPTEMBER 9, 2011 — Arguing that a 2010 decision by the Montana Supreme Court "unduly assaulted" property rights Montana farmers and ranchers have owned and enjoyed for more than a century, Arent Fox LLP filed an amici curiae brief with the US Supreme Court on behalf of the Montana Farm Bureau Federation, asking the Court to reverse the state high court's decision in PPL Montana, Inc. v. State of Montana.

The Cato Institute, the American Farm Bureau Federation, and the National Federation of Independent Business (NFIB) Small Business Legal Center joined the Montana Farm Bureau Federation on the brief.

In the brief, the amici asked the US Supreme Court to overturn a decision of the Montana Supreme Court that effectively converts title in hundreds of miles of riverbeds to the State of Montana, having a profound effect on all who own land neighboring the affected rivers and who depend on their existing water rights for their livelihood.

"The Montana Supreme Court's decision unsettled the established property interests of thousands of Montana families. These are not hypothetical concerns for Montana farmers," wrote the Arent Fox legal team of Thor Hearne, Robert O'Brien and Steven Haskins. "The loss of water for irrigation and related purposes will have serious economic consequences."

"The Montana Supreme Court's errant decision is all the more troubling for its disregard of conventional principles governing property law," reads the amici brief. "Courts must give existing property rights paramount consideration. ... Just as the courts have adopted rules forbidding the judicial branch from violating non-economic rights, so the judicial branch must be barred from redefining, and in effect nullifying title to, private property rights."
 
The amici write, "As an instrument of state power, the Montana Supreme Court's redefinition of established rights based on a novel legal standard is the very definition of a right destroyed by fiat."

The legal team from Arent Fox argued that the Montana Supreme Court ignored federal navigability law and precedent when it ruled 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. "The lower courts ignored a 'mountain' of evidence, while concurrently employing an amorphous legal standard inconsistent with federal navigability law," writes Arent Fox in the brief. "The Montana Supreme Court's analysis cannot stand."

The amici argue that Montana's highest court failed to properly analyze long stretches of non-navigable river, including a 17-mile stretch of the Missouri River containing Montana's famous Great Falls. The resulting conversion of Montanans' long-held property rights amounted to a taking by Montana's judicial branch.

The Arent Fox team is led by Arent Fox partner Thor 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 Arent Fox's Los Angeles office, and Steven Haskins, an attorney in the firm's commercial litigation group.

To read the amici curiae brief, please click here.
 
To read prior media releases about PPL Montana, Inc. v. State of Montana, please click here and here.

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