The Obama administration revealed yesterday that it will back a power company in its Supreme Court battle with the state of Montana over whether it should pay rent for the use of riverbeds where its hydroelectric projects are located.
The question raised by the power company, PPL Montana, is whether the rivers in question were navigable at the time Montana was admitted to the union in 1889.
In a March 2010 ruling, the Montana Supreme Court said they were, which -- under Supreme Court precedent -- means that they are owned by the state.
The Supreme Court decided in June to take up the case (Greenwire, June 20).
PPL and the Obama administration's lawyers say the court conducted the wrong legal analysis.
Solicitor General Donald Verrilli told the court in a brief filed yesterday that the case should be remanded back to the lower court for "intensive factual inquiry" on the navigability question.
Interestingly, the Supreme Court would not have taken up the case, set to be argued sometime during the 2011 term that starts next month, if it had listened to the administration's lawyers, who had initially said the case was not worthy of review.
Even then, however, now-departed acting Solicitor General Neal Katyal had raised questions about the Montana Supreme Court's analysis of the issue.
In the amicus brief filed yesterday, Verrilli wrote that the Montana court had failed to consider each river's navigability using a segment-by-segment analysis.
Instead, the court held that every part of all three rivers in questions -- the Madison, the Clark Fork and the Missouri -- were navigable, even though it conceded that certain sections were not at the time Montana was admitted to the union.
"When a discrete and substantial segment is not navigable at statehood, the state does not take title to that segment," Verrilli wrote.
The government also maintains that evidence of navigation from after Montana became a state was largely irrelevant.
"Montana would have to show that evidence of navigability by today's boats under today's river conditions is persuasive evidence that craft used in trade and travel at statehood could have navigated a particular river reach as it existed at statehood," Verrilli said.