WASHINGTON, DC — June 21, 2011 — In a case in which Arent Fox LLP filed an amicus curiae brief on behalf of the Montana Farm Bureau Federation, the US Supreme Court announced June 20 it will review a decision by Montana’s highest court threatening property rights that Montana ranchers and farmers have owned and enjoyed for more than a century.

The Cato Institute joined the Montana Farm Bureau Federation on the brief. The amici asked the US Supreme Court to review a decision of the Montana Supreme Court that “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.”

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 that 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. The resulting conversion of Montana’s long-held property rights amounted to 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,” reads the Arent Fox brief. “Doing so violates Supreme Court precedent and merits reversal.”

The brief also argues that the lower court’s decision raised “grave federalism concerns” that “erode existing checks and balances between federal and state interests.”

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.

“We are very pleased that the US Supreme Court has granted our writ asking them to review the Montana court’s decision, which we believe substantially deviates from Supreme Court precedent,” said Mr. Hearne.

“This is a very important case involving the fundamental right of individuals to own property and use that property in a lawful and productive manner,” said Mr. O’Brien. “We are hopeful that upon review the US Supreme Court will reverse the Montana court’s erroneous decision and restore the property rights of thousands of farmers and ranchers.”

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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Arent Fox LLP (www.arentfox.com), with offices in Washington, DC, New York and Los Angeles is a recognized leader in areas including election law, complex litigation, intellectual property, real estate, telecommunications, health care, automotive, sports, white collar, international trade, and bankruptcy. 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.