Marten Law: Supreme Court Preview--Ownership of Navigable Riverways and Due Process Challenge to Enforcement Orders to be Decided in 2011-12 Term

Steven Jones   By Steven Jones, Partner, Marten Law PLLC

"The U.S. Supreme Court's new term has just begun. There are two environmental cases on the Court's docket," reports Steve Jones. "The first, PPL Montana, LLC v. State of Montana, presents the question of who owns the beds and banks of three Montana rivers that play a prominent role in the history of the American West and the economy of modern Montana. The second case, Sackett v. EPA, presents the question of whether defendants have a right to contest a compliance order issued by the Environmental Protection Agency (EPA) under the Clean Water Act. The government contends that such challenges are limited by the agency's pre-enforcement review policy, even though the statute contains no express pre-enforcement bar."

"The PPL Montana case has to do with 10 federally-licensed hydroelectric dams on the Missouri, Madison, and Clark Fork rivers. In 2003, parents of Montana schoolchildren sued the dams' owner, PPL, arguing that PPL owed the State compensation because the riverbeds underlying its dams were part of Montana's 'school trust lands.' The State joined the suit in 2004, asserting that PPL also owed the State compensation pursuant to Montana's Hydroelectric Resources Act (HRA)," explains the author. "After the suit was dismissed by the district court for lack of diversity, PPL filed suit in state court seeking a declaration that the Federal Power Act (FPA) preempted the State's claims under the HRA. The State counterclaimed, maintaining that it had acquired title to the relevant streambeds at the time of statehood pursuant to the 'equal footing doctrine.' One of these 'rights of sovereignty' is title to the lands beneath 'navigable waters' within state boundaries. Under the equal footing doctrine, on the date that each new state was admitted to the Union, the federal government passed trust ownership of the navigable waters and the underlying riverbeds to the state."

"The second environmental case to have been accepted for review is Sackett v. EPA. The opinion being reviewed came from the Ninth Circuit, whose opinions have not fared well at the Supreme Court in the past few years," Jones points out. "Chantell and Michael Sackett own a 0.63 acre undeveloped parcel in Idaho. In 2007, the Sacketts filled a portion of their property without a CWA permit. EPA determined that the fill violated the CWA because the parcel contained a jurisdictional wetland and issued an administrative compliance order requiring the Sacketts to remove the fill and restore the parcel to its original condition. The Sacketts petitioned EPA for a hearing to challenge the wetland determination and, after EPA refused, filed suit in district court. EPA argued that review of an agency order was barred, unless the agency first sued (which it had not) and insisted that the Sacketts comply, threatening penalties if they did not. The district court agreed, and dismissed the Sackett's suit for lack of jurisdiction. The Sacketts appealed to the Ninth Circuit, where they raised two arguments: (1) that the Administrative Procedure Act (APA) allows pre-enforcement review of CWA compliance orders; and (2) that due process requires EPA to allow pre-enforcement review."

Lexis.com subscribers can access the complete commentary, Marten Law: Supreme Court Preview--Ownership of Navigable Riverways and Due Process Challenge to Enforcement Orders to be Decided in 2011-12 Term. Additional fees may be incurred. (approx. 10 pages)

If you do not have a lexis.com ID, you can purchase this commentary on the LexisNexis Store or you can access this commentary and additional Environmental Law Emerging Issues Commentaries on the Store.

Read the earlier EIA on Sackett v. EPA: Marten Law on Sackett v. EPA: Supreme Court to Hear Challenge to Clean Water Act Bar on Pre-Enforcement Review.

Ryan Dam on Missouri River

More Full Text Emerging Issues Analysis Related to Environmental Law on lexis.com.

Case Law Resources -

Lexis.com subscribers can access the Lexis enhanced version of PPL Montana, LLC v. State of Montana, 2010 MT 64 (Mont. 2010), with summary, headnotes, and Shepard's.

Non subscribers can access the free unenhanced version of the Montana Supreme Court decision in PPL Montana, LLC v. State of Montana, 2010 MT 64 (Mont. 2010) available from lexisONE Free Case law.

Lexis.com subscribers can obtain all of the briefs filed in PPL Mont., LLC v. Montana, 131 S. Ct. 3019 (U.S. 2011).

Lexis.com subscribers can access the Lexis enhanced Ninth Circuit decision in Sackett v. United States EPA, 622 F.3d 1139 (9th Cir. Idaho 2010) with summary, headnotes, and Shepard's.

Non subscribers can access the free unenhanced version of the Ninth Circuit decision in Sackett v. United States EPA, 622 F.3d 1139 (9th Cir. Idaho 2010) available from lexisONE Free Case law.

Lexis.com subscribers can obtain all of the briefs filed in the Sackett v. EPA, 2011 U.S. LEXIS 5010 (U.S. June 28, 2011).

For more information about LexisNexis products and solutions connect with us through our corporate site.