Cato Institute and National Federation of Independent Business (NFIB) Small Business Legal Center joined the Montana Farm Bureau Federation Brief

WASHINGTON, DC — FEBRUARY 27, 2012 — In a landmark case in which Arent Fox LLP filed an amici curiae brief on behalf of the Montana Farm Bureau Federation, the US Supreme Court last Wednesday overturned a Montana court ruling that the amici successfully argued “unduly assaulted" property rights Montana farmers and ranchers have owned and enjoyed for more than a century.

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 case titled PPL Montana, Inc. v. State of Montana.

The US Supreme Court unanimously held in an opinion by Justice Anthony Kennedy that the Montana court incorrectly interpreted and applied the legal rules that determine who owns the riverbeds. Arent Fox had argued that the Montana Supreme Court decision erroneously converted title in hundreds of miles of riverbeds to the state of Montana, which had a profound and adverse impact on those who own land neighboring the affected rivers and who depend on their existing water rights for their livelihood.

Justice Kennedy's 26-page opinion was laden with references to the famed Lewis and Clark expedition of the early 19th century to support the Court’s finding that the large stretches of the rivers were not navigable at the time Montana became a state and thus Montana did not own the land underneath the water.

“Leaving behind their larger boats, Lewis and Clark transported their supplies and some small canoes about 18 miles over land, which took at least 11 days and probably more,” wrote Justice Kennedy. “Even if portage were to take travelers only one day, its significance is the same: it demonstrates the need to bypass the river segment, all because that part of the river is nonnavigable. Thus, the Montana Supreme Court was wrong to state, with respect to the Great Falls reach and other stretches of the rivers in question, that portages ‘are not sufficient to defeat a finding of navigability.’ In most cases, they are, because they require transportation over land rather than water. This is such a case.”

Justice Kennedy wrote the Montana court had misapplied an earlier US Supreme Court decision that held that portages could indeed defeat claims of navigability for title purposes.

The Supreme Court’s ruling and Justice Kennedy’s opinion largely mirrored the arguments made by Arent Fox in the filed amici brief. The legal team from Arent Fox had 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," wrote Arent Fox in the brief. "The Montana Supreme Court's analysis cannot stand. ... 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 amici argued 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.

Following the Court’s decision, Arent Fox partner Thor Hearne, a nationally known authority in constitutional and eminent domain litigation, said, “We are very pleased with the action taken today by a unanimous US Supreme Court. The Montana court’s erroneous decision unsettled the established property interests of thousands of Montana families. These are not hypothetical concerns for Montana farmers. The loss of water for irrigation and related purposes would have serious economic consequences."

“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," Mr. Hearne said.

The Arent Fox team was led by Mr. Hearne, 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 Supreme Court’s decision, please click here.

To read the amici curiae brief, please click here.

To read prior Arent Fox media releases about PPL Montana, Inc. v. State of Montana, please click here and here.