Navigating Summary Judgment Takings Lessons

Navigating Summary Judgment
Takings Lessons
PPL Montana LLC v. State of Montana
U.S. Supreme Court Docket No. 10-218
For Yale Environmental Law Association
Connecticut Bar Association
Environmental Law Section
Planning and Zoning Section
By Brian R. Smith
Robinson & Cole LLP
280 Trumbull Street
Hartford, CT 06103
[email protected]
The Issue
Navigability for title as to more than 500 miles of
river including the riverbed under multiple
hydropower facilities.
The state of Montana asserts “[f]rom territorial
times to this day the Great Falls of the Missouri
have appeared on the official seal of Montana.”
Respondent’s brief at 1.
The Question
For title purposes, what should be examined at trial,
the whole river or relevant sections?
Typically, a title dispute is resolved in the highest
court of a state and there is no federal question.
But, whether a river is navigable for title purposes
“is necessarily a question of federal law.” United
States v. Holt State Bank, 270 U.S. 49, 55-56 (1926).
From a takings perspective, the question here is
whether the Montana Supreme Court using the
Equal Footings Doctrine “allowed the State to
exploit supposed ambiguities in the doctrine of title
navigability to effectuate a massive land grab.”
Petitioner’s Brief at 25.
Montana responds by noting, PPL “decries the
Montana Supreme Court’s decision as a judicial
taking.” Respondent’s Brief at 3.
Montana asserts that PPL is the one doing the
taking “by asking this Court to substantially narrow
the centuries old concept of navigability and thereby
deprive Montana – [ ] of [ ] long-held title to the
riverbeds at issue.” Id.
Judicial Takings
PPL alleges that Montana unilaterally and
retroactively took lands by revising the history of
what happened in 1889 when Montana entered the
A state court can be accused of a judicial taking.
See Stop the Beach Renourishment, Inc. v. Fla.
Dep’t. of Envtl. Prot., 130 S. Ct. 2592, 2601 (2010)
(plurality opinion).
The Montana Supreme Court affirmed the trial
court’s grant of summary judgment. It considered
de novo the evidence presented by the parties that
was in the form of affidavits and deposition
PPL relies on United States v. Utah, 283 U.S. 64
(1931) for its section by section claim.
The Montana Supreme Court majority rejected
PPL’s analysis stating that Utah is distinguishable
because the sections in question in Montana are
relatively short and would not defeat a
determination of navigability of an entire river.
Montana’s Justice Rice dissented asserting that the
majority “erred in its analysis of the law governing
title navigability and also failed to properly apply
the tenets of summary judgment by disregarding
genuine material factual conflicts.”
A short section, according to the Montana Supreme
Court, is 17 miles long.
In Utah, a 4.35-mile section was found nonnavigable after special master’s fact finding.
Summary judgment may only be granted when
there are no genuine issues of material fact and as a
matter of law only when one outcome is indicated.
This case turns on what is meant by long or short
sections of a river and whether the five hundred
pages of documentary and expert testimony
presented by PPL is enough to defeat a motion for
summary judgment.
Curiously, PPL did admit to navigability of the
rivers in prior federal proceedings but was not held
to account for these admissions by the Montana
Supreme Court.
On the other hand, the Montana Supreme Court
discounts a 1930s Army Corps of Engineers report
as conclusory although it was more
contemporaneous with state of the rivers in 1889.
“It is settled that historical works generally
considered authentic are admissible in evidence
especially in cases such as this one which must delve
into relatively obscure origins of commerce on the
nation’s rivers.” Conn. Light & Power Co. v.
Federal Power Comm’n, 557 F.2d 349, 354-356
(2d Cir. 1977).
By affirming the granting of summary judgment,
the Montana Supreme Court has exposed itself to a
judicial takings claim first articulated in Stop the
Beach Nourishment.
Likely Outcome (No Guarantees)
Justice Rice notes that the majority “does not
explain why a non-navigable stretch running from
Fort Benton to Great Falls is too ‘short’ and how it
can so declare as a ‘matter of law’ without fact
The U.S. Supreme Court will likely reverse and
remand for precisely this type of fact-finding to
skirt the judicial takings issue.

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