Shingle Shanty update

[MichaelJ]

A similar case is heading to the US Supreme Court. This one comes out of Montana. At heart, it's about whether dam owners need to pay "rent" to the state; however, the specific question being presented to the Court is a clarification of what is required to determine title of a navigable river. There's some great stuff in here:

PPL appealed to the Montana Supreme Court, which affirmed by a vote of five to two. With respect to the title question, the court stated that “the concept of navigability for title purposes is very liberally construed by the United States Supreme Court.” A river need not be in actual use for commerce at statehood; instead, all that is required is that it be “susceptible” of providing a channel for commerce. Nor do obstructions or portages defeat a finding of navigability. The term “commerce” is also broadly defined, the court said, so that “emerging and newly-discovered forms of commerce can be retroactively applied to considerations of navigability.”

All agree that under the equal footing doctrine state governments take title to lands beneath navigable waters. They agree that the relevant question for title purposes is whether a river was navigable in fact at statehood, not whether it is navigable today. They further agree that the relevant question concerns the condition of a river in its natural state.
The principal disagreement concerns the proper treatment of obstructed segments of a river at statehood – in other words, segments that due to water falls, rapids, or sand bars could not be traversed by a watercraft.

So does this imply the situation in NY to already have precedent? It seems to say that if it was a navigable waterway at the moment of statehood: it's state-owned land. And now the Supreme Court has agreed to hear the case to decide on the burden of proof and definition of navigable in the presence of obstructions.

Cool.

PPL Montana, LLC vs Montana

 

[Peakbagr]

Good post and interesting update, Michael J.

 

[sardog1]

Here's the official transcript from today's oral argument in PPL Montana, LLC v. Montana.

 

[MichaelJ]

And here's a nice recap/summary of said oral arguments:
http://www.scotusblog.com/2011/12/argument-recap-the-law-of-portages/

Of interest here are the different viewpoints the petitioners and the justices have:

Paul Clement argued ... if the boat was lifted out of the river and carried overland, then the segment of the river requiring this kind of portage was not navigable.

Ed Kneedler largely agreed with this analysis, but he offered an important qualification: the overland portage had to be sufficiently lengthy that someone other than the state could make “sensible use or control” of the strip of riverbed requiring portage.

Gregory Garre argued that portages of any length do not defeat navigability; indeed, they only confirm that the river was being used for commerce and hence was navigable. Only if the obstruction was so great that portaging was not attempted would navigation and hence state ownership be defeated.

In the view of Justices Alito and Scalia, it was incoherent to say that a river segment over which a boat cannot pass is “navigable.”

The Chief Justice's ... point seemed to be that portaging, even when it entails hauling a boat overland, does not defeat the understanding that one is engaged in a continuous course of commercial travel.

 

[sardog1]

"In the view of Justices Alito and Scalia, it was incoherent to say that a river segment over which a boat cannot pass is 'navigable.'”

Pretty sure these two Jersey boys have never been in a canoe. (With apologies to IndianChris and any other exception in advance.)