Arent Fox Asks US Supreme Court to Limit Judiciary’s Power to Take Private Property

The Montana Farm Bureau Federation is represented by Arent Fox LLP as amicus curiae before the United States Supreme Court. Cato Institute has joined the Montana Farm Bureau Federation on this brief. The amicus are asking the US Supreme Court to review and reverse a decision by Montana’s highest court that threatens to destroy the rights Montana ranchers and farmers have owned and enjoyed for more than a century in their land abutting and underlying the state’s rivers and streams.

“The Montana Supreme Court’s decision 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,” reads Arent Fox’s brief, urging the US Supreme Court to overturn the Montana judiciary’s ruling.

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 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. In doing so, the conversion of property rights held by Montanans for more than 100 years was 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,” writes the Arent Fox team. “Doing so violates Supreme Court precedent and merits reversal.”

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