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PPL Montana's Hydroelectric Project on the Upper Missouri River, Montana
The U.S. Supreme Court has issued its decision in PPL Montana v. State of Montana, a fascinating case that combines the colorful history of the American West, the issue of the public?s access to state waterways, and a dispute over hefty royalties claimed to be owed the State of Montana for unpermitted use of public lands by a private energy company.
In a unanimous opinion authored by Justice Anthony Kennedy, the Supreme Court ruled that Montana state courts had misapplied federal law in finding the Upper Missouri, Madison and Clark Fork Rivers in Montana to be navigable for title purposes.
The State of Montana claimed that all three rivers are navigable under federal law, and that their beds and banks are therefore public lands owned by Montana in its sovereign capacity under public trust principles.? PPL Montana, by contrast, argued that the rivers are non-navigable under federal law; that their beds and banks are therefore private property; and that consequently the company is not obligated to pay the state royalties for PPL Montana?s installation and operation of ten hydroelectric facilities on the three waterways.? The Montana state courts had sided with the State of Montana, concluding that the rivers are navigable and therefore publicly-owned under federal law.
Not so, declared the U.S. Supreme Court.? The justices found that the Montana courts had misapplied the so-called federal title test of navigability.? That venerable legal standard limits navigability to those rivers that ?are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.?? Critically, navigability under this test is determined not by present-day conditions, but as of the time of statehood?in Montana?s case, in 1889.
Specifically, Justice Kennedy opined for the Court, the Montana Supreme Court made two critical errors in applying the federal title test of navigability here: first, the state court had ignored U.S. Supreme Court precedent requiring that a river?s navigability be determined on a segment-by-segment basis.? Instead, the lower court had declared the three rivers navigable notwithstanding the fact that there were undisputed, ?short interruptions? to navigability along several reaches of the disputed waterways.? That misconstrued?and improperly expanded?the federal title test of navigability.
Second, the Montana state courts had relied in part on present-day evidence of the Madison River?s navigability, including use by modern recreational craft.? According to Justice Kennedy, while use of such contemporary evidence is not improper per se, it is only relevant if: a) the modern recreational watercraft are ?meaningfully similar? to watercraft that plied the river for commercial purposes at the time of statehood; and b) the post-statehood condition of the river is not materially different from its condition upon the state?s admission to the Union.? The Montana Supreme Court had made neither of these findings, observed the U.S. Supreme Court, so its ultimate conclusion that the Madison is navigable for title purposes was fatally flawed.
The justices remanded the case to the Montana courts, with instructions to reconsider their navigability finding based on the principles set forth in Justice Kennedy?s opinion.? But it appears unlikely that much of the state court?s navigability ruling in favor of the State of Montana can or will be sustained on remand.? For example, five of PPL Montana?s ten disputed hydro facilities are located on a single, 17-mile, stretch of the Upper Missouri River (the so-called ?Great Falls? reach), a segment that Justice Kennedy categorically declares in his opinion to be non-navigable.
The Supreme Court?s ruling in PPL Montana comes as no great surprise.? The Montana Supreme Court?s now-reversed opinion did play rather fast and loose with certain aspects of the longstanding, multifaceted federal title test of navigability.? At the same time, the U.S. Supreme Court?s decision appears to interpret and apply that test in a somewhat narrower manner than had its earlier navigability precedents.
One aspect of the Court?s decision in PPL Montana is particularly troubling.? The State of Montana had argued that an adverse ruling on the disputed rivers? navigability would undermine the state?s administration of its public trust responsibilities.? In rejecting this point, Justice Kennedy and the Court seemingly misconstrue the parameters of the public trust doctrine and disregard its longstanding legal nexus to sovereign ownership of the beds of state waterways.? According to Kennedy?s opinion, ?the public trust doctrine concerns?public access to the waters above [river]beds for purposes of navigation, fishing and other recreational purposes.?? But while public trust uses unquestionably include those enumerated by Kennedy, they are actually far broader, and include such ?uses? as commerce, ecosystem preservation, and environmental study.
Hopefully, the Court?s unduly crabbed enumeration of public trust purposes will do no long-term doctrinal damage. ? Later in this portion of the opinion, the Court stresses that the public trust doctrine is a creature of state, rather than federal law.? Thus, state courts around the nation should have the final word in determining the scope and proper interpretation of the public trust within their respective jurisdictions.? And, given the U.S. Supreme Court general hostility to environmental principles in recent years, that?s not a bad thing.
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Several areas concerning your home and your locality or your business will be catered to with a good?home store. Local communities often need to be conscious in terms of the surroundings and the nature and these brilliant green solutions can spread the awareness of being eco-friendly. Managing the environment is something that can be done at all levels and these solutions will be able to address some of your most basic concerns too like plumbing supplies. You will be able to create a wonderful home that is great in terms of energy saving, water reduction, etc. with these eco-friendly home makers.
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The sentiment in the options market is increasingly bearish, says Mike Khouw, Options Market trader.
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FILE - In a Thursday, Dec. 16, 2010 file photo, West Virginia University Athletic Director Oliver Luck speaks addresses the media during a news conference, at the WVU Coliseum in Morgantown, W.Va. West Virginia University announced Tuesday, Feb. 14, 2012 that it has settled a lawsuit with the Big East for an unspecified amount, clearing the way for the Mountaineers to join the Big 12 in July. Luck said the terms of the deal were confidential and WVU wouldn't release details. But Luck said no state, taxpayer, tuition or other academic dollars will be used in the settlement. (AP Photo/The Dominion Post, Jason DeProspero, File)
FILE - In a Thursday, Dec. 16, 2010 file photo, West Virginia University Athletic Director Oliver Luck speaks addresses the media during a news conference, at the WVU Coliseum in Morgantown, W.Va. West Virginia University announced Tuesday, Feb. 14, 2012 that it has settled a lawsuit with the Big East for an unspecified amount, clearing the way for the Mountaineers to join the Big 12 in July. Luck said the terms of the deal were confidential and WVU wouldn't release details. But Luck said no state, taxpayer, tuition or other academic dollars will be used in the settlement. (AP Photo/The Dominion Post, Jason DeProspero, File)
MORGANTOWN, W.Va. (AP) ? West Virginia University announced Tuesday it has settled a lawsuit with the Big East for an unspecified amount, clearing the way for the conference power Mountaineers to join the Big 12 in July in time for the fall football season.
Athletic Director Oliver Luck said the terms of the deal were confidential and WVU wouldn't release details. But Luck said no state, taxpayer, tuition or other academic dollars will be used in the settlement.
A person familiar with the agreement said the settlement totaled $20 million but did not know how much money would come from the university and how much the Big 12 may contribute. The person spoke on condition of anonymity because financial terms were not being made in the announcement of the agreement.
Luck said the funding will come only from private sources and money that athletics raised independently. WVU has already paid half of the required $5 million exit fee to the Big East.
Luck said the new relationship puts WVU among peers that are also large, public, flagship institutions for their states and have strong academic and research programs. Athletically, it's "challenging and competitive" group, he said, populated by schools with "tremendous legacies, passionate fan bases."
It's also lucrative: Luck said WVU should get about $18 million to $19 million a year in television payouts, about double what it gets from the Big East. Payments are being prorated for the first three years at 50 percent, 67 percent and 87 percent, he said, reaching 100 percent in the fourth year.
"It's a very healthy television payout, and it's important we maintain our self-sufficient status," Luck said. "With this move, we'll be in an excellent position to do so."
A spokesman for the Big 12 didn't immediately comment on the deal, but the conference released its football schedule about an hour after the announcement. West Virginia will make its Big 12 debut on Sept. 29 at home against Baylor.
The Mountaineers and their explosive offense went 10-3 last season and finished ranked in the Top 25. West Virginia capped off the season with a record-setting 70-33 victory over Clemson in the Orange Bowl.
Luck didn't rule out the possibility of a nonconference game against archrival Pitt after the 2012 season but said that both schools have nine nonconference games and a matchup would be "difficult to schedule."
"It's pretty obvious there will be no Backyard Brawl" in 2012, he said.
WVU sued the Big East in Monongalia County Circuit Court in Morgantown in November, challenging its bylaws in a bid to join the Big 12 in time for the 2012 season.
The Big East countersued in Rhode Island four days later, arguing that WVU had breached its contract with the conference and should remain in the Big East for another two years as required in the bylaws. In late December, the judge there denied WVU's motion to dismiss.
Luck said the Big 12 gives WVU "significant advantages" over the Big East.
"The Big 12 is a strong and vibrant conference academically and athletically," he said in a statement. "We look forward to the potential academic and athletic partnerships and financial opportunities that membership in the Big 12 offers."
WVU President James Clements called the partnership with the Big 12 "an investment in WVU's future."
Big East Commissioner John Marinatto had repeatedly said West Virginia would not be allowed to leave until the 2014 football season.
But in a statement Tuesday, Marinatto said the board of directors voted to terminate WVU's membership in the conference as of June 30. Marinatto said the board agreed to the deal because WVU was willing to drop its lawsuit and pay an exit fee "well in excess of that required by the bylaws."
He said WVU has agreed to have the West Virginia court enter a judgment that declares the Big East's bylaws "valid and enforceable."
With its recent additions, Marinatto said, "the future for the Big East Conference has never been brighter."
Boise State, Central Florida, Houston, Memphis, San Diego State University, Southern Methodist University and Navy have all recently joined the conference.
The Big East still has work to do to figure out how next season will play out. Pittsburgh and Syracuse announced in September they are leaving for the Atlantic Coast Conference, but have said they will not challenge the Big East's notification rules.
That leaves the Big East with seven football teams for 2012 and a hole in the schedule that could leave its remaining members scrambling to find a game so late ? unless one of its future members can be convinced to join a year early.
Boise State, which is joining the Big East in football only, has been approached about leaving the Mountain West early.
The urgency of the lawsuits and the eventual settlement was driven by football, but the conference realignment affects other West Virginia sports. The Mountaineers must find a home for their men's soccer team because the Big 12 doesn't sponsor the sport.
Teams in rifle, wrestling and women's gymnastics at West Virginia compete in other conferences besides the Big East.
Big 12 membership requires WVU to add a men's sport, but Luck said he hasn't determined which it will be or when it will happen.
___
Russo contributed to this report from New York. AP Sports Writer John Raby contributed from Charleston, W.Va.
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