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PPL Montana, LLC v. Montana

Oral argument transcript · No. 10-218 · October Term 2011 · argued December 7, 2011 · the petitioner won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

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From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We'll hear argument next today in Case 10-218, PPL Montana v. Montana. Mr. Clement. ORAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE PETITIONER

Paul D. Clement: Mr. Chief Justice, and may it please the Court: The State's claim to back rent here is truly remarkable. When these dams were built back in the day, PPL's predecessors, Petitioner's predecessors, secured all the necessary property rights and easements. As part of that process, particularly for the dams that created reservoirs, there was an elaborate process of getting flood easements and, in many cases, paying substantial amounts of money. In that process, nothing was hidden; it was open and notorious. Indeed, the State assisted by lending the utilities its eminent domain power to deal with holdouts. But now, a hundred years later, the State comes in with a holdout claim of its own and suggests that it's entitled to massive compensation based on the small strip of riverbed that lies underneath these flooded reservoirs and the dams. The Montana Supreme Alderson Reporting Company Official 1 Court allowed that claim to succeed to the tune of tens of millions of dollars of back rent. Now, it did --

Justice Kennedy: Well, is your point that there should be a Federal rule of laches or estoppel, or are you just building up to the fact that this is traditional, well-recognized doctrine and there's been -- and there's been a sudden change?

Paul D. Clement: That's exactly where I was going, Justice Kennedy. I was suggesting that the Montana Supreme Court could only approve this result, which clearly did unsettle settled expectations, by deviating from well-settled principles of Federal navigability law. Now, the mistakes were a little bit different for each of the rivers at issue. As to the Clark Fork and the Upper Missouri, the critical error I believe with the Montana Supreme Court decision was its failure to focus on the river segments that are directly at issue and instead focus on the river as a whole. With the Madison, the errors are different, because, as the Madison, there's no evidence that any stretch of that river was navigable at statehood. So, there the problem was principally that the court relied on modern-day evidence of recreational use to substitute for true historic evidence of commercial navigation at Alderson Reporting Company Official 1 statehood.

Justice Alito: On the issue of whether we should look to the segments or to the river as a whole, what authorities can we consult? You rely heavily on U.S. v. Utah, and that certainly is a relevant precedent; but there's disagreement about what it means, and the only authority that I see that U.S. v. Utah cited was The Montello, which seems to cite nothing whatsoever. So, where do we -- is that the end of the trail? Is there anyplace else we can look?

Paul D. Clement: Well, I -- I mean, it's close to the end of the trail. I mean, you can go back to The Daniel Ball, but that's not going to help you any more than The Montello. I think, though, that the critical cases really are Utah, but I also think there are other cases that this Court has had. Oklahoma v. Texas would be an example where this Court has looked at a discernible segment of a river. Brewer-Elliott is another one. And I think the starting point for the Court's analysis in every one of these cases has been to look at the segment of the river that's at issue, that has been put at issue. Now, if you have a sovereignty battle between the State and the Federal Government, a lot of times it's the segment of the river within a Alderson Reporting Company Official 1 State, or in Brewer-Elliott it was the segment of the river adjacent to an Indian reservation.

Justice Alito: Well, all of this, I take it, derives from the rule that pre-exists -- pre-existed the adoption of the Constitution, that the sovereign owned the navigable rivers within its borders. Is there some body of common law that addresses this, that would shed some light on whether that means the whole river or it means segments?

Paul D. Clement: There really isn't, Justice Alito, because we get our common law from England. In England, actually, the common law was different. At England, the navigable waters ended at the ebb and flow of the tide. So, every internal stream within Great Britain was viewed as nonnavigable, and the property belonged to the riparians.

Justice Alito: So, what -- what is the origin of the rule that the original 13 States owned the navigable rivers or parts of the rivers but not the parts that weren't. That was some feature of American colonial law?

Paul D. Clement: Sure. I mean, it was -- it was adopted as part of -- the sort of -- just the idea of creating the sovereign republic of the United States. We borrowed our common law. I think initially nobody Alderson Reporting Company Official 1 focused on these navigable segments. And it's important to recognize this issue really doesn't even arise in the eastern United States, because until about 1850 this idea that States could own the riverbeds if they were nonnavigable never really occurred to anyone. So, in most of the eastern States as a matter of State law, whether a river is navigable or nonnavigable, the riparian owns to the middle of the streambed. So, after 1851, this Court recognizes -- makes clear to the States that they actually have a choice. And so, the States that come into the Union after 1851, many of them, including Montana, adopt the rule that, well, unless these -- if these streams are nonnavigable, then we take the river stream. And so, that's where the question comes up. So, maybe the reason there isn't a great deal of precedent on this is explained by the fact that this is an issue that largely arises in the western United States. But that's why I think it's such a mistake to kind of look a gift horse in the mouth, so to speak, and not focus on Utah, because Utah is a situation that seems irreconcilable with the Montana Supreme Court decision and the State's basic theory, because there the special master and this Court Alderson Reporting Company Official 1 recognize a nonnavigable segment right in the middle of two navigable portions of stream.

Justice Sotomayor: Could you define "de minimis" for me?

Paul D. Clement: Well, I -- I'm -- I'm happy to try, but I think -- I'm not going to give you --

Justice Sotomayor: If we can't --

Paul D. Clement: Well, here -- I'm not going to --

Justice Sotomayor: -- what's the guidance or limit that we set for States?

Paul D. Clement: I've thought about this a lot, Justice Sotomayor, and I'm not here to give you a sound bite that's a bright-line definition of "de minimis." I think "de minimis" almost by its nature takes its -- its meaning from the context of the inquiry. But let me -- let me offer at least three guideposts that I think are helpful. One, as a practical matter, I think this Court can look to its own cases dealing with islands in navigable stream, and those cases are on page 17 of the Government's brief. And this Court's cases say, if there's a small island in navigable stream, under an acre, of negligible value, we basically ignore it. Later cases, though, came along and dealt with islands Alderson Reporting Company Official 1 that were much larger, and the Court analyzed those separately from the navigable stream and said the United States actually retains ownership to the larger islands, and they don't go. So, that's one place to look. The second place to look, I think, is also a practical judgment based on the nature of the lawsuit. And here the State itself has come in and identified stretches of riverbed that they think are significant enough to generate $50 million in back rent. And I think they, having identified those riverbed stretches as being worth $50 million, are hard pressed to then turn around and say, oh, but they're de minimis, just ignore them. The third rule I would point to is that I think topography has something of a role to play here. If you look at the special master's report in Utah or some of the other cases that have decided the point at which the navigability stops, they've pointed to features of the river as defining a discernible segment like a tributary coming in or the geology of the -- of the bed over which the river runs. If it shifts from kind of a silty loam to hard rock in a canyon, that's something that you can point to.

Justice Sotomayor: I know you've told me that you think Montello is not pertinent because it Alderson Reporting Company Official 1 involved a different issue. But assuming that it were pertinent, because I'm not quite sure how its discussion doesn't fit the needs here, one of the factors you haven't mentioned in terms of de minimis is the portage and its use with respect to commerce. And by that I mean, it appeared to me in Montello, what the Court was saying was the history of use of this river showed that these obstructions didn't stop the flow of commerce, that what people did was, it appeared, some extreme things. They got off -- they got their goods off one boat, walked it a certain distance or drove it by wagon another distance, and then put it on another boat or the same boat that they had lessened the load on and moved it over. And so, it doesn't talk about the distance of that portage; it talks about the impact on commerce.

Paul D. Clement: Right.

Justice Sotomayor: And so, why isn't that a factor in the de minimis issue?

Paul D. Clement: Well, I mean --

Justice Sotomayor: If there were a history here.

Paul D. Clement: Sure, but, Justice Sotomayor, I think -- I mean, there are sort of two portages that are floating around in The Montello, and I think it's important to distinguish between the two. There's kind Alderson Reporting Company Official 1 of the classic overland portage between the Fox River and the Wisconsin River.

Justice Sotomayor: There was a canal in there, wasn't there?

Paul D. Clement: Well, afterwards. But originally that was an overland portage. And so, that's really not at issue, but that's kind of the -- you know, the classic portage I have in mind is an overland portage. Now, they're also talking about the extreme efforts, and you could call them portages. I don't think you need to. But there's also talk about the extreme efforts to enable navigation on the Fox before improvement. But that's nothing like what's at issue here because those were efforts basically to use the riverbed to -- and they had to do some extraordinary things: get ox to pull the boat, lift them up over some rocks. But they never really left the bed of the river there. Where they left the bed of the river was the portage over to the Wisconsin.

Justice Sotomayor: Well, in Montello, they took the cargo off some boats --

Paul D. Clement: Oh, absolutely.

Justice Sotomayor: -- and moved it overland Alderson Reporting Company Official 1 to another spot before they put it back on a boat.

Paul D. Clement: Sure, but my understanding of what was going on there -- and maybe I misunderstood it, but I understand what they're talking about there is a portage where you take the cargo out of the boat in order to lighten the draft of the boat so it's not sitting as deeply in the river, and that allows the lighter boat to be carried over the --

Justice Sotomayor: We can both look at the opinion, but I think there is one spot where the Court says that in some areas they had to change boats.

Paul D. Clement: Well -- and that may be, but, I mean, again, I don't think we're talking about anything like the distances that we're talking here, and I also --

Justice Sotomayor: I don't disagree with you, but I -- what I'm asking is, if we had a history of navigation of cargo that went to the beginning of one of these rivers -- and I'm not a sailor, so my terms -- the cargo is taken off and driven by wagon or some other mode to another spot and picked up again. Is that a different situation than one where that doesn't happen? That because this -- this length of portage is so long that it is both economically and physically impossible to transport cargo in that way. Is that a different Alderson Reporting Company Official 1 case for the question of navigability?

Paul D. Clement: Well, sure, because these are all matters of degree, and those would be two different cases. But here's what I would point you to, which is, if at the point that you have to take the cargo off of the boats, and then you then have to leave the channel, you don't just do a little cut around some de minimus amount, but you leave the channel and go overland, at that point, I think, that portage demonstrates the non-navigability of the bypassed stretch. And then I think --

Chief Justice Roberts: Well, maybe it demonstrates the non-navigability of the particular stretch, but we would still speak of the transfer of commerce as being along the river.

Paul D. Clement: Well, I don't --

Chief Justice Roberts: The sort of case -- the analogy I was thinking of is if I say I fly from Washington to Tokyo; and someone says, no, you didn't, you flew to San Francisco, then you walked however many yards from one gate to another, and then you flew to Tokyo. And I would say, well, yes, there's a gap there when I -- you know, part of the distance where I wasn't flying, but people would still say you flew from D.C. to Tokyo. Now, why isn't this just like that, that the Alderson Reporting Company Official 1 commercial path, the commercial waterway people think of as the Missouri? And, yes, occasionally you've got to get out, and, you know, we can debate how long the portage is, but it doesn't interrupt the notion that that whole pathway would qualify as a navigable waterway.

Paul D. Clement: Well, two things, Mr. Chief Justice. One is I do want to make clear that we very much dispute factually that there ever was this kind of commercial portage over the Great Falls. And the really -- you know, there's very little evidence for the record. The State's own evidence identifies Fort Benton 30 miles below the Great Falls as the head of navigation on the Missouri. So, there is very much a factual issue here. But to answer the legal question you're asking, first of all, I'm not sure I would have the same instinct about the common parlance if you had to go from JFK to LaGuardia in a cab. And I'm even less sure that you would have the same notion if you had to drive from San Francisco to LA to switch planes. And I think the distance here really does matter. And I would submit the way you think about this, the way I would think about this, is that the very need to bypass, especially a substantial bypass where you leave the river channel, Alderson Reporting Company Official 1 is evidence that that part of the channel, that part of the river, is nonnavigable.

Justice Alito: I don't see why --

Paul D. Clement: And then the question that's left is whether that's de minimis.

Justice Alito: I don't see why portage is relevant at all. What's the basis for the rule that the sovereign owns the navigable rivers? I assume it's because they are viewed -- they were viewed as highways for transportation and commerce. And to the extent that there's an obstruction that cannot be traversed by a boat, then there isn't going to be any commerce or transportation along that area. Now, there might be an argument that the sovereign should own the land next to the river so that you could portage around it, but what -- what would be the justification for saying the sovereign owns the portion of the river that can't be traversed at all by boat? I just don't understand it.

Paul D. Clement: Well, I'm with you on that, Justice Alito, and I think, you know, logically, if you think what's the highway of commerce here, if there really was this 18-mile overland portage route, that would be the highway of commerce, but the 17-mile bypassed stretch of the Missouri and the Great Falls Alderson Reporting Company Official 1 Reach would not be a highway of commerce. And I think that gets back to the expectations of the property owner that ultimately underlie these title questions. I mean, if you have boats going by a river in your backyard, I mean, you have -- you're on sort of notice that you don't own the riverbed. But if you're in a part of the river that's -- that's so unnavigable that it has to be bypassed and you've never seen a boat in your experience ever, then I think you have very different expectations, and your expectations would be the same as somebody who --

Justice Sotomayor: Seventeen miles is very long.

Paul D. Clement: It is --

Justice Sotomayor: I think the Thompson is only 2.8.

Paul D. Clement: Well --

Justice Sotomayor: That's really close to Montello, where it talked about, about 2 miles for some portage areas.

Paul D. Clement: Well, with respect, if I could take both points, I mean, you're absolutely right. Seventeen miles is very long. I mean, for the New Yorkers, you know, the East River is 16 miles long, the whole river. The Anacostia River is 8-1/2 miles long. Alderson Reporting Company Official 1 So, this bypass stretch --

Justice Sotomayor: But I'm not a Midwesterner, and rivers of 200 miles are normal there, I understand.

Paul D. Clement: Well, these -- this is still a big stretch and I do think, like I said, longer than some entire rivers. But the Thompson Falls -- I mean, the 2 miles of the Thompson Fall, I don't know exactly where that number comes from. It's kind of an artificiality. I mean, there -- again, the State's own evidence, look at JA 57, says that navigation stopped at Thompson Falls. There wasn't a portage around. But the other point is I would also ask you to look at the 1910 court decree because, as I said at the outset, you know, these companies didn't just put these dams up overnight as, you know, kind of -- as a lark. They went through elaborate efforts to secure the property rights. That's what generated that 1910 court decree about the Clark Fork River. The Clark Fork River court decree in 1910 addresses a stretch of river specifically that's not just the falls but those 6 miles of the reservoir that's created. And the court holds that that entire region and, indeed, the entire Clark Fork in Sanders County is nonnavigable. So, the stretches that are nonnavigable Alderson Reporting Company Official 1 are much longer than 2 miles. If I may reserve my time.

Chief Justice Roberts: Thank you, counsel. Mr. Kneedler. ORAL ARGUMENT OF EDWIN S. KNEEDLER ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONER

Edwin S. Kneedler: Mr. Chief Justice, and may it please the Court: The Montana Supreme Court committed three basic errors with respect to all three rivers that require a remand for further proceedings to actually weigh and make factual findings concerning the evidence of the -- of the relevant reaches of the river for purposes of navigability for title. We're not talking about navigability for interstate transportation or admiralty or regulatory jurisdiction under the Rivers and Harbors Act or the Clean Water Act. We're talking about navigability for title.

Justice Kagan: And why does that make a difference, Mr. Kneedler? Why do you think that there are separate tests for title than for regulatory authority?

Edwin S. Kneedler: Well, in The Montello, for example, the question was whether there was admiralty or Alderson Reporting Company Official 1 regulatory jurisdiction over the use of vessels on the -- on the upper reaches of the river, and that depended, in the Court's view, on whether that stretch was part of an interstate or international highway of commerce. And so, it would make sense to look at the whole river in determining whether there's a highway, and maybe in deciding whether there's a highway, you would look to a bypassed stretch. You would look at the highway, the land highway, to decide whether it's useful in interstate commerce. For title purposes, though, the question is, what happens to the stretch of the river right in front of the riparian owner's land? As Mr. Clement said, that reflects the expectations of the property owner; that if there are no ships or boats going back and forth, that that property is -- adheres to the riparian land more. I also think it pertains to the control or use of the beds of the rivers themselves. If the river --

Chief Justice Roberts: I think, though, if you start drawing these lines, they become very difficult, in some rivers anyway, to -- to apply. I'm sure there are seasonable fluctuations. They may be navigable in some seasons, but not in others. The line at which you pass from navigability to non-navigability may be difficult to ascertain. Alderson Reporting Company Official 1 It seems to me, once you start chopping the highway of commerce up, it does create all those difficulties.

Edwin S. Kneedler: Well, first of all, we're not -- we're not talking about chopping the river up into narrow slices. I mean, I think there has to be a discernible and substantial segment of the river. Often -- often, it will be self-evident from the topographical features of the area. Are there -- are there major falls and rapids over an extended period of time? But also, the points you're raising are -- I think are inherent, because in deciding where navigability stops under any test or in any circumstance, you could have the difficulties that you have described.

Justice Sotomayor: So, what's de minimis?

Edwin S. Kneedler: Well, I think --

Justice Sotomayor: Could 2.8 be de minimis in one situation and not, and how do we tell courts below --

Edwin S. Kneedler: I think it -- I think it may well be. I think it -- I think a -- an important -- I agree with the points that Mr. Clement made as guideposts. I think another one -- and this pertains Alderson Reporting Company Official 1 to --

Justice Sotomayor: If there's no falls but there are riparian waters that don't permit navigability over 2.8, then that's still navigable? I'm not sure --

Edwin S. Kneedler: No, I -- I think it has to be -- I'm speaking of a situation where the -- where the river is not navigable in fact. And that's the test, navigable in fact, not navigable in law. So, if a -- if a boat cannot pass in front of the riparian land, then that would be nonnavigable. I agree that --

Justice Scalia: And it shouldn't matter whether it's 2.8 miles or 1 mile, right?

Edwin S. Kneedler: Well, I --

Justice Scalia: I mean, if the land is nonnavigable -- if the river at that point is nonnavigable, it's nonnavigable.

Edwin S. Kneedler: For title purposes, yes.

Justice Scalia: That's what we're talking about --

Edwin S. Kneedler: Yes. And, you know, I don't want to --

Justice Scalia: -- the title purpose. I don't see why there ought to be any de minimis exception.

Edwin S. Kneedler: Well, I -- I think at some -- Alderson Reporting Company Official 1 if you -- if you consider part of the -- part of what's going on here is who controls the riverbed, I think it would be unworkable to have a passage or a portion of a river where you had 20 -- 10-foot strips across the river that are riparian owner-owned, and the State owned everything else, or if you had stripes across a river. So, I think -- I think the test also has to take into account --

Justice Kennedy: But how would the boat get up there? Does it just jump over the 10 feet?

Edwin S. Kneedler: Well, in The Montello, the -- there is -- there is evidence that the boat was lifted by -- men got out of the boat and lifted the boat up over the falls.

Justice Kennedy: Okay. Then that would work.

Edwin S. Kneedler: Pardon me?

Justice Kennedy: Then that would work.

Edwin S. Kneedler: In that situation, but if you have a long stretch of -- of river where that was not practicable, then you --

Justice Breyer: You can't lift a boat over Niagara Falls. And I -- and I read somewhere that -- I hope I'm wrong, but I have a feeling I read somewhere that the land under Niagara Falls has long been Alderson Reporting Company Official 1 considered to be navigable, and, therefore, it's owned by the United States.

Justice Scalia: It's an international boundary.

Edwin S. Kneedler: It's owned by the State.

Justice Breyer: It's owned by the State. Oh, you mean the navigable -- I get mixed up in that. The --

Edwin S. Kneedler: The reply brief I think describes --

Justice Breyer: The navigable ones are owned by the State. Okay. Everybody's thought the land under Niagara Falls is owned by the State. Oh, dear, because that sort of wrecks our nice theory that all the steps, all the little bits of it that are non -- that are --

Edwin S. Kneedler: That's not an -- I think that's not an extended strip in the way that -- the way that we're discussing here.

Justice Breyer: Okay. Now we have to define what's an extended strip.

Edwin S. Kneedler: Well, if I -- I think --

Justice Scalia: I think -- I thought it's also an international boundary --

Edwin S. Kneedler: Yes, and that -- Alderson Reporting Company Official

Justice Scalia: -- as to which there is a different rule.

Edwin S. Kneedler: Yes, and the -- or --

Justice Breyer: Okay. So, how much are we wrecking if we just say, look, the bit that's nonnavigable is different from the bit that's navigable?

Edwin S. Kneedler: Well --

Justice Breyer: Period. Doesn't matter if it's 5 feet of land or not. What are we wrecking?

Edwin S. Kneedler: I think it does matter whether it's 5 feet, because the -- because an important point here is that -- who can make sensible use or control the relevant stretch of the river. If it's 5 feet or 10 feet and you had strips that stayed private --

Justice Breyer: A quick question which you could probably answer just by saying we decided not to. But I was somewhat curious. It's really the United States v. Montana in this, who owns the land, and it's a question of Federal law. It's going to be highly factual no matter what this happens. Made for this Court's original jurisdiction. And -- and normally in original jurisdiction, we appoint a master, it's worked out, and we review the master's report. We can't do that here because it's a case -- Alderson Reporting Company Official 1 why didn't you go into, or why couldn't you go into, a quiet title action in Federal court?

Edwin S. Kneedler: We could, and we have not given consideration to that, but that might be -- that might be a possibility. The United States is not a party to this case and couldn't be -- and couldn't be bound by the judgment.

Justice Ginsburg: Could it have intervened somehow, because the -- the United States has come here rather reluctantly, as you recommended against granting cert in this case. When this was in the Montana courts and it was a question of what is the Federal law, because Federal law is going to control -- everybody agrees that -- could the United States have come into the proceedings in the Montana State court?

Edwin S. Kneedler: Ordinarily, the United States would not intervene in a State court proceeding, or if it did, it would remove the case to Federal court. So, that -- that would be -- that would be a -- an additional consideration as to whether to get into this suit. The United States would typically bring its own quiet title action in -- in Federal court.

Chief Justice Roberts: Your answer a moment ago gives me pause. You said the United States would not be bound by this litigation but could bring its own Alderson Reporting Company Official 1 quiet title action.

Edwin S. Kneedler: Well, we would be bound by this Court's decision, obviously. But I was just speaking of the law of -- the law of judgments. And if this Court remands back to the trial court with general directions but doesn't adjudicate particular stretches definitively, then, you know, I think we -- that's the situation that we would -- that we would be in.

Justice Ginsburg: And if we -- if it were remanded, the United States would still stay out of it because it's going to be in the State --

Edwin S. Kneedler: I assume so. Obviously, that would be a -- that would be a further consideration.

Justice Sotomayor: Am I to take that "de minimis" to you means small enough so that they get the boat physically over the portage?

Edwin S. Kneedler: Physically --

Justice Sotomayor: Whether they carry it --

Edwin S. Kneedler: No, I think if they --

Justice Sotomayor: -- drag it.

Edwin S. Kneedler: I think if they can take it through the river, it's not an interruption at all. But if -- if you have -- if you have something that can't be transversed by a boat at all and it's long enough that it could sensibly be thought of as a -- as a separate Alderson Reporting Company Official 1 parcel adhering to the -- to the riparian land, that would be --

Justice Sotomayor: Go back to carrying their boat on their shoulders, which apparently in The Montello they did. What's the answer to --

Edwin S. Kneedler: They didn't carry the boat out of the river. These were Durham boats that were 70-feet long and -- and weighed quite a bit. Now, maybe there were small canoes that could have been done. I -- I think a small portage -- again, I don't think it's the length of the portage; I think it's the interruption of the -- of the navigable portion of the river that -- that is -- that is relevant, and if it's large enough to constitute a -- a sensible administrable parcel, that that should be enough. I did want to take one moment to discuss the Madison River because there, as Mr. Clement discussed, the considerations are somewhat different. I mean, first of all, the court made a similar mistake there by discussing the river as a whole and a log float in the middle stretch of the river, but not focusing on the relevant stretches where the dams are located. But it also put a lot of emphasis on current recreational use by drift boats and whatnot, without a proper foundation to determine whether that Alderson Reporting Company Official 1 was relevant for title purposes at statehood, because the relevant question is whether whatever boats are used now are ones that would have been used as -- this is the language from The Daniel Ball -- as "the customary modes of travel and transportation" at the -- at the time of statehood. It had to be general --

Chief Justice Roberts: It's kind of odd. Maybe this is -- maybe this is Justice Alito's earlier question. It's kind of odd that the more navigable the river is, the more claim the State has. The less navigable -- where you're talking about sports boats and drift fishing -- then it's Federal.

Edwin S. Kneedler: Well, that's -- that's a product of the -- of the equal footing doctrine. And the Court has long said that the State gets the beds of navigable waters.

Chief Justice Roberts: Thank you, counsel. Mr. Garre. ORAL ARGUMENT OF GREGORY G. GARRE ON BEHALF OF THE RESPONDENT

Gregory G. Garre: Thank you, Mr. Chief Justice, and may it please the Court: This case is about who owns the riverbeds underlying the rivers at issue. It's not about flood lands; it's about the riverbeds. And under this Court's Alderson Reporting Company Official 1 precedents, it's settled that title to the riverbeds conveyed to the State under the Constitution if they are navigable. It's been understood in Montana for more than a century that these rivers are navigable. The rivers were meandered as navigable. PPL's deeds -- and this is at page 172 of the appendix to the opposition brief -- specifically exclude the riverbeds. The test for navigability that this Court has applied for 140 years, going back to The Montello and The Daniel Ball, is whether the river served as a continuous highway of commerce. In The Montello, the Court recognized the fact that few of the nation's great rivers did not include some, quote, "serious interruptions to uninterrupted navigation." And the -- and the Court's answer to that geographic fact was not to say then let's carve out the interruptions and say those aren't navigable. The Court's answer was to say unbroken navigation is not required to establish navigability.

Justice Sotomayor: Under your theory, if there's a fall like this of 17 miles, and a train is 50 miles away and traverses that 17 miles, that portage --

Gregory G. Garre: Under this Court's precedents -- Alderson Reporting Company Official

Justice Sotomayor: -- is good enough to make that area navigable?

Gregory G. Garre: -- you have to show that the commerce traveled along the river under the customary modes of trade and travel.

Justice Sotomayor: Outside of your fur traders and your gold miners, has that happened in any other situation -- your alleged gold miners and fur traders? Has that happened on -- on the -- in the Great Falls?

Gregory G. Garre: If you take the Great Falls, the history of portage from 1864 to 1868 was lively commerce of millions of dollars, in today's value, billions of dollars of gold, from Helena to Fort Benton back east. This is covered in detail by the Solicitor General briefs that we've appended here.

Justice Sotomayor: Could you -- could you do me a favor and you tell me again -- I'm having real trouble with the competing evidence in this case with respect to every one of the three areas in dispute, and I have some serious questions about whether the court properly granted summary judgment. Your brief seems to suggest that I can't do -- we can't do anything about that because it wasn't a part of the question presented.

Gregory G. Garre: I -- Alderson Reporting Company Official

Justice Sotomayor: Your adversary says that it's a fair question if we determine there's an illegal approach -- error in the legal approach of the court below. I'm assuming that also means on their weighing of evidentiary matters. So, why shouldn't we address the summary judgment issue?

Gregory G. Garre: The question presented is whether the Montana Supreme Court or whether a court -- a court -- what the constitutional test would be for a court in this situation. It's not even limited to the Montana Supreme Court here. It presents a legal question. With respect to summary judgment, the problem for PPL is not that it didn't present enough paper; the problem is, is it litigated the case under a wrong legal theory. It litigated the case that the -- that the Missouri, for example, was not navigable because you couldn't take a boat down the falls. This Court's precedents for more than 140 years asked the question of whether the river served as a continuous highway of commerce. We presented evidence, summarized --

Justice Scalia: For what purpose? Were they -- were they -- were we answering the question for the same purpose, or were we asking it for purposes of Alderson Reporting Company Official 1 whether Federal regulation could extend to the whole river? For that purpose, it's easy to say if the whole river is, you know, used for commerce, the Federal Government can regulate even those portions of the river that are nonnavigable, that have -- but that have to be portaged around. But that's a different question from who -- who owns title to the -- to the bed under the portions that have to be portaged.

Gregory G. Garre: Your Honor, PPL recognizes that The Daniel Ball supplies the test for navigability for title. This Court recognized that in the Utah case, the vanguard title case that they hold out. So, the only question is, did The Montello apply The Daniel Ball test or did it apply something else? And the first paragraph of the Court's decision in The Montello said it applied The Daniel Ball test. Courts -- this Court and lower courts for more than a century have understood The Daniel Ball and The Montello to supply the test for navigability of title. What they're asking this Court to do is upend more than 140 years of precedent. And the amicus brief filed by the States in this case gives -- gives the Court a sense of the disruption that this would cause.

Justice Alito: What do -- what do you understand to be the reason for the rule that the States Alderson Reporting Company Official 1 own the navigable rivers?

Gregory G. Garre: The reason for the rule was the public trust doctrine which -- which sought to keep these rivers free for the public to use for navigation, for fishing, and for other uses. And this court's precedents --

Justice Alito: What do fishing and navigation have to do with -- for -- what does fishing have to do with navigability?

Gregory G. Garre: Well, it gets back to the -- the public trust doctrine, Your Honor. Fishing doesn't have -- fishing is a purpose of the public trust doctrine, which is why it was understood --

Justice Alito: Let me put it this way: Why -- why should -- why does the State own a navigable river but not a nonnavigable river?

Gregory G. Garre: Because the navigable rivers were the arteries of commerce in this country, and at the time of the founding, it was understood -- and this gets to the core issue of federalism in this case -- that the States ought to be the ones that control the navigable rivers --

Justice Alito: Yes, and if that's the reason --

Gregory G. Garre: -- not the Federal Government. Alderson Reporting Company Official

Justice Alito: If that's the reason for the rule, than what is the justification for State ownership of a portion of the river that is not navigable?

Gregory G. Garre: I think this gets back to the question of whether you can just chop up the rivers into navigable and nonnavigable bits. And we're talking -- this Court, Justice O'Connor observed in her dissent in the Phillips Petroleum case that navigability wasn't decided inch by inch. What the other side is asking you to adopt here is a test of navigability that's at least mile by mile, if not acre by acre, which is completely different than this Court has ever assessed navigability.

Justice Alito: The rule that you're arguing for might be an established rule that we should follow, but as a matter of theory, I don't understand what the justification is for State ownership of a nonnavigable portion of the river if the reason for the underlying rule is so that people will not put up obstructions on the river so that they -- it can be maintained as an -- as an avenue of commerce. I can see that you -- why the State would own that, because otherwise riparian owners could put up fences and obstructions and charge tolls and -- and that sort of thing. But if it's not navigable, I don't see what it has to do with -- with Alderson Reporting Company Official 1 commerce or transportation.

Gregory G. Garre: What -- what the Framers were concerned about -- and this is also reflected in the Northwest Ordinance 2 -- was ensuring that the navigable rivers, the major arteries of commerce in this country, remained open. And so, they -- they applied a much more -- much broader conception of navigability than is suggested --

Justice Scalia: But -- but they're closed where they're -- they're impassable for ships anyway. They're closed. What do you mean, remain open?

Gregory G. Garre: And so, that was the argument --

Justice Scalia: You've -- you've got falls. You got waterfalls. You got rapids. What does it mean to -- to be sure that that river remains open to commerce? Commerce is impossible over it.

Gregory G. Garre: And so, that was the argument that the district court adopted in The Montello case, and this Court emphatically rejected it. And by the way, the portage in The Montello case was 5 miles long. That's reflected in the -- the record in that case before this Court.

Justice Ginsburg: Mr. Garre, what is -- you say that you're not taking just -- you look at the whole river as a whole. You're saying that, no, that isn't Alderson Reporting Company Official 1 your position?

Gregory G. Garre: No, it's not.

Justice Ginsburg: And it is also not inch by inch. So, what's -- when is segmentation appropriate?

Gregory G. Garre: I think the relevant stretch or segmentation is really a litigation term. Our position is this Court's test: continuous highway of commerce. You would take the part of the river at issue in a case, take that part and look -- ask the question, was that part of a continuous highway of commerce or not? So, if you found yourself in Cataract Canyon in the Utah case, you'd ask yourself that question, and you would say, no, this is not part of a continuous highway of commerce, because no one argued either that the canyon was portaged or that goods were traveling down the Colorado River through the canyon and out into Arizona. If you ask yourself that question in this case, along the Great Falls, you would say yes, because the evidence was unrebutted that millions of dollars of gold was traveled up from Helena to Fort Benton along the -- the Missouri River with the aid of a portage and that that was unquestionably a highway of commerce. What they're asking this Court to do is chop Alderson Reporting Company Official 1 rivers up into navigable and nonnavigable pieces. How would that impact the public trust doctrine? The -- the brief filed by the National --

Justice Ginsburg: So, you just -- so, you are disagreeing with the United States, which has given us its view of what the Federal law is. It doesn't coincide with Montana's.

Gregory G. Garre: The United States has sided completely with Montana. The answer it gives for what is a short interruption in its brief is an interruption that doesn't warrant separate consideration. That's on page 17 of its brief. That's the epitome of a circular test, and --

Justice Breyer: Just out of -- I mean, to waste your time for a second, why do the feds own the land underneath the -- and why -- under the nonnavigable parts? And why do the feds own the land under a nonnavigable stream?

Gregory G. Garre: I think if -- if you applied the proper test here, you would conclude that the river --

Justice Breyer: I mean, little creeks somewhere which you'd think, gee, those belong to the State, but turns out the feds own the land underneath the little creek; is that right?

Gregory G. Garre: I think what -- the nonnavigable Alderson Reporting Company Official 1 parts --

Justice Breyer: Yes.

Gregory G. Garre: -- didn't transfer under the equal footing doctrine. Oftentimes, those were subject to separate conveyances. So, they might come into private property. I think --

Justice Breyer: I see. So, the rule is, on the nonnavigable streams, it depends on what the conveyance was at the time of statehood, and those are individual matters, and sometimes --

Gregory G. Garre: Right.

Justice Breyer: -- you'll see the feds own them and sometimes the States.

Gregory G. Garre: And what was --

Justice Breyer: Is that right?

Gregory G. Garre: Yes, I think that's right.

Justice Breyer: Okay.

Gregory G. Garre: And what was critically important to the -- to the Framers was that the States would have control over the navigable waterways. This Court has described that as an essential attribute of State sovereignty.

Chief Justice Roberts: But we're talking about the land at the bottom of the -- the river. What is it that the State can't do on the navigable waterways Alderson Reporting Company Official 1 that it wants to do?

Gregory G. Garre: Well, owner -- the ownership -- along with ownership goes the right to control whether facilities can be built on them, bridges or pipelines. It goes -- along with that goes the rights to mineral leases --

Justice Kennedy: But as -- but as the Chief Justice is indicating, I think, this concerns who owns the bed; and that's different from navigable waters of the United States. And some of the answers you gave to Justice Alito about -- that the purposes and the reasons for navigable waters of the United States are quite different, really, than for the considerations we have about riparian ownership. Navigable waters of the United States can be controlled by the United States for many purposes, but that is concurrent with a separate document -- doctrine for underlying ownership of the bed.

Gregory G. Garre: Right.

Justice Kennedy: And it's not clear to me that the test for navigable waters is the same in each case as to the whole river.

Gregory G. Garre: I think that the test that we're articulating is The Daniel Ball and The Montello test -- Alderson Reporting Company Official 1 continuous highway test. I think with respect to the riverbeds, it's always been understood that with control of the riverbeds along navigable waters, States have a right to control fishing and navigation and other aspects.

Justice Breyer: But, now, Montello was a case -- to follow up this same question. Montello, I take it, was not a title case. Montello was a regulation of the stream case. So, I can understand perfectly well why that language in Montello applies for the reason Justice Kennedy just said. Now, I grant you that they -- in later title cases, this Court has taken the same words and written them. But is there an instance in the later title cases where that language has played a controlling role?

Gregory G. Garre: Well, the --

Justice Breyer: What case should I look at to see that it was really meant that that -- this -- see, start where Justice Scalia was and then say what Justice Kennedy just said --

Gregory G. Garre: There's certainly --

Justice Breyer: -- and then thinking, well -- I'm thinking, well, Montello was a case that involved a different purpose, and now the later cases, although they quoted the language, it didn't have a Alderson Reporting Company Official 1 role. Am I right or not?

Gregory G. Garre: This case has recognized always that The Daniel Ball and The Montello is the test for navigability for title as well as admiralty. It has never drawn the kind of distinction that PPL and the United States ask you to draw here.

Justice Scalia: The question is, has it held that? Do you have a case where it would have made a difference?

Gregory G. Garre: Not -- not of this Court.

Justice Scalia: Okay.

Gregory G. Garre: And the lower courts have relied upon The Daniel Ball and The Montello in plenty of circumstances adjudicating title. I think the Court has to think about what the world would look like if the Court adopted PPL and the United States' views.

Justice Scalia: Well, if this is such an understood and traditional rule, why -- why didn't Montana make its rights known earlier when these private owners bought the land? Indeed, the State gave them condemnation power to flood adjacent lands so that they could build their dams.

Gregory G. Garre: Again --

Justice Scalia: And you say while all this was going on, well, of course, everybody knew that Alderson Reporting Company Official 1 Montana owned this land. And now they come back, what, a hundred years later, and they not only want to get the land back, they want to tax them for their use of it over -- over all these hundred years.

Gregory G. Garre: PPL's deeds --

Justice Scalia: That's extraordinary.

Gregory G. Garre: Your Honor, PPL's deeds specifically exclude the riverbeds at issue in this case. So, PPL can have no claim to those lands and, in fact, in its supplemental brief says that the United States owns the lands. We're not talking about the flood lands here; we're talking about the -- between the low-water marks. Those lands were surveyed and meandered at statehood to show that they did not convey to private parties. Montana courts have recognized for more than a century that these waters are not navigable. Everybody understood that they were navigable. The reason why this issue only arises now is because of a 1999 decision of the Montana Supreme Court that said that the State -- made clear that the State had a fiduciary obligation to seek compensation for the use of the riverbeds. So, that -- that then teed up the question of whether the State could actually charge rent Alderson Reporting Company Official 1 for the riverbeds. The State in this case --

Justice Kagan: And what about other landowners on the riverbeds? If Montana wins this case, will they be paying rent as well?

Gregory G. Garre: They're not using the riverbeds, Your Honor. The reason why the facilities here are using the riverbeds is because they actually sit on it. There are other instances where private landowners have easements and leases, like mineral leases with the State, under the -- because of the accepted understanding that the State does own those lands. And this is not at all unusual. If you look at the State's brief, Washington and Oregon have thousands of these types of permits because it's established that if the water is navigable, then the State owns the riverbeds, and there are consequences that flow over this. But this really isn't a fight between the State and the private landowners. It's -- it's a fight between the State and the United States, because if this case --

Justice Kagan: Just if I could understand then, you think that this is a one of a kind landowner; there are no other landowners in Montana who are in the situation of PPL?

Gregory G. Garre: No, I think there are other Alderson Reporting Company Official 1 landowners who have asserted -- who want rights to use -- to get minerals along rivers or have piers or bridges, and in those situations, they get permits from the State to use it. But I think what's going to happen is, if this Court declares that every mile or so that is an interruption is nonnavigable, then title is going to transfer to the United States because, under this Court's precedent in Utah, the Court held that if waters were not navigable, the United States would have --

Justice Sotomayor: Is there a mile stretch anywhere on this river?

Gregory G. Garre: A mile stretch?

Justice Sotomayor: Yes. Is there a mile stretch in which the boats stop?

Gregory G. Garre: Well --

Justice Sotomayor: There's some water in the middle, and they --

Gregory G. Garre: There are two areas at issue here: the Great Falls stretch --

Justice Sotomayor: I know the two at issue. But you're saying, if we rule the way we do, we're going to slice it up and so does the Attorney -- the Solicitor General's office say, we're going to slice it up half mile or half acre by half acre. I'm not sure how that happens. I go back to Justice Kennedy's question, which Alderson Reporting Company Official 1 is, does a boat stop midstream?

Gregory G. Garre: So, the test would be any non-de minimis interruption. That's the one that PPL and the United States are urging here. There are thousands of dams in the country. There's the Niagara Falls, which for more than a century, it's been understood that the State owns it, not because it's an international boundary; that's a line plucked out of a decision. Read the decision --

Justice Breyer: All right. So, how do I find that out? If I start with a practical premise of not wanting to interrupt expectations, I also believe that it's the most common thing in the world for electric power companies to put hydroelectric facilities where there are waterfalls or rapids, and that's true all over the country. So, what's the status quo with the -- you know, somebody could count up how many hydroelectric plants there are on waterfalls. And what's the general view? Have those hydroelectric companies been thinking that they are leasing or buying from the feds or from the States? I mean, I don't know what's happened in the past. And I have looked at the briefs. I can't get a very good picture.

Gregory G. Garre: The best evidence I think we Alderson Reporting Company Official 1 have about this question of the implications comes from the brief filed by 26 States, which explains that if this Court adopts the kind of segmentation approach, any interruption that is -- that is not de minimis has to be carved out, it's going to wreak havoc in States across the country, especially in the western States. Again, getting back to --

Justice Breyer: When you say "wreak havoc," do you mean to say that the States have leased those strips with the waterfalls which are impassable to hydroelectric companies, and the leases will have to be renegotiated or something like that?

Gregory G. Garre: I'm not referring to specific leases on that. I'm talking about things like public access for fishing, for example. The States have cited the Steelheader case in Oregon. And this is what's going to happen: Either the public -- private landowners are going to claim people coming along my banks to fish, they don't have access to these waters. If they were navigable -- understood as navigable waters owned by the State, it's clear that they had would have access. There's going to be clashes. There's going to be --

Justice Scalia: I thought you say it doesn't belong to the private individuals. I thought Alderson Reporting Company Official 1 you said it belongs to the United States if it doesn't belong to the State.

Gregory G. Garre: I think -- what this Court has said is if it's not navigable, the United States has it. But there would be the question --

Justice Scalia: Well, there you are. And you think the United States is going to keep off these fishermen?

Gregory G. Garre: The question is whether there'd be a separate conveyance from the United States. There's certainly going to be plenty of private landowners, I think, who are going to claim private ownership. So, there is going to be some sorting out to do.

Justice Scalia: But you think they're wrong, right?

Gregory G. Garre: Well, no. They're -- if -- if the river is not navigable, then the lands didn't convey under the equal footing doctrine.

Justice Scalia: Right.

Gregory G. Garre: There'd be a separate question of whether they conveyed by some other Federal patent, land patent, or the like. And there are -- certainly are plenty of those. But I think what's clear is --

Justice Ginsburg: Mr. Garre, you -- you Alderson Reporting Company Official 1 have said this is genuinely a controversy between the State and the United States, but the United States is not a party to this -- to this litigation. And we know from the briefing before us, the United States takes a different position than Montana. It doesn't agree with you. But if this case -- how can a case be decided without any input from the United States when you say that's the true dispute; it is between the State and the nation?

Gregory G. Garre: Well, the United States is here. It has given its views. It's true that it didn't participate below, and that is a little bit unusual. What's weird is that the United States has never actually asserted ownership to the riverbeds in this case. But I think --

Justice Kagan: Does PPL pay rent to the United States?

Gregory G. Garre: Not with respect to the riverbeds. There's a statement in the brief that suggests that they pay rent. That's with respect to the upland, the flooded lands, for example, along the reservoir. The United States has never charged rent for the use of the riverbeds themselves between the low-water marks.

Justice Kennedy: Would you help me with Alderson Reporting Company Official 1 this? Navigable waters of the United States for purposes of Federal jurisdiction over many activities such as boating is one concept. Navigable waters of the United States for purposes of State ownership of the bed serves different purposes. Are the -- are the boundaries and the definitions of what is navigable co-extensive and parallel and -- and precisely the same in each case? Or, on the other hand, are there some cases where a body of water, say the falls, is navigable waters of the United States but not navigable waters of the United States for purposes of bed ownership by the State?

Gregory G. Garre: I mean, certainly --

Justice Kennedy: And -- and if there is a difference, can you tell me a case? And I think Justice Scalia basically was asking this earlier.

Gregory G. Garre: There are two -- well, there's three distinctions between the test for title --

Justice Kennedy: Yes.

Gregory G. Garre: -- and the test for regulatory purposes --

Justice Kennedy: Yes.

Gregory G. Garre: -- none of which bear on the dispute in this case. One is for title. You look at the time of statehood. You don't look at the river at a Alderson Reporting Company Official 1 later time. The next is, is that, for purposes of title, you look at the river in its natural state. You don't look at improvements. And the third is, for purposes of title, the kind of commerce you consider is actually more expansive than the type you could consider for regulatory purposes. This case, the focus has been on the rivers at the time of statehood, their use as highways of commerce without improvements, which is in the heartland of the test for title for navigability under The Daniel Ball and The Montello. None of the distinctions that this Court has ever recognized would bear on this, nor would it make any sense, I think, to say that the rule that we identified in The Montello as -- that has -- for more than a century, has been established as the test for title for navigability somehow has to be applied differently in this case in a way that would require breaking up the rivers. And I think --

Justice Kennedy: But it is conceded, is it not, that -- if we rule for the power companies in this case, there still may be a situation in which these waters can be navigable waters of the United States for other purposes, other than ownership of the bed? Or am I wrong on that? Alderson Reporting Company Official

Gregory G. Garre: No, I think the United States' position is say they're navigable for Federal purposes but not for State purposes. And I think -- and they've taken what I think is a pretty remarkable position. If you look at the briefs that we've appended to our brief, the United States' in the Montana Power Company case, the United States is saying that the very same stretch of the Missouri along the Great Falls is navigable because it served as a continuous highway of commerce, and the falls did not prevent the river from being used as a continuous highway; and, therefore, it's navigable under The Montello and The Daniel Ball, which is the theory that they recognize. And now they're here saying, well, that was only for regulatory purposes, not for title purposes. But it's the same test in both cases, and that's the test that the nation has understood for more than 50 years.

Chief Justice Roberts: No, but I'm not sure it has the same consequences. It seems to me that regardless of who prevails in this case, the State will be able to exercise regulatory jurisdiction over the waters. You know, you can't fish during these seasons, or there are different limits on how many fish you can take. And so will the Federal Government. It will be Alderson Reporting Company Official 1 able to apply Federal law to the river regardless of who owns parts of the river, regardless of who owns the land underneath.

Gregory G. Garre: And so, this Court has always recognized the States' authority to make those decisions as an essential attribute of their sovereignty. And that's why the States --

Chief Justice Roberts: Without regard -- but I would say without regard to whether they happened to own the land under the -- under the river or not.

Gregory G. Garre: No, when they -- when they own the land under the river, that -- the ability to control access along those rivers -- river and fishing and the like is an essential attribute of State sovereignty. So, just saying that, well, the Federal Government and the State can regulate together is, I think, an important intrusion on State sovereignty as this Court has always understood under the equal footing doctrine and the public trust doctrine. And you also have the problem of competing regulation of these rivers when you go from mile to mile, interruption to interruption, potentially thousands along rivers. And that's laid out in the brief by the environmental groups here, the National Wildlife Foundation and Trout Unlimited and other Alderson Reporting Company Official 1 groups, that talk about the problems with fragmented regulatory jurisdiction. And you also get into the question of public access for fishing, too. The rivers are used for commerce, but the public trust doctrine was always used to protect access to rivers for fishing, too. And so, if you look at a place like the Great Falls or the Thompson Falls, these are among the most sought-after fishing rivers in the world.

Justice Scalia: You're willing to concede on behalf of the State that if we find that the State does not have ownership of the bed, the State does not have regulatory jurisdiction for all of these purposes that you're now describing?

Gregory G. Garre: Absolutely not, Justice Scalia.

Justice Scalia: Well, then your argument doesn't carry much weight.

Gregory G. Garre: Well --

Justice Alito: The State can continue to regulate all those things whether or not it owns the bed.

Gregory G. Garre: And so, every time this Court has said that the ability to do that is an essential attribute of sovereignty, it must not have meant it because the United States could do it, too. I mean, it Alderson Reporting Company Official 1 is important to the States because having the sovereign capacity over those riverbeds as navigable waters under the public trust doctrine is critical to the States' authority.

Justice Scalia: Well, you have sovereignty over the land owned, owned by other private persons.

Gregory G. Garre: And -- and I think it gets back to the public trust doctrine, the equal footing doctrine, what this Court has said in the Utah case and other cases about the role of States in regulating navigable rivers and owning title to the riverbeds underlying those rivers.

Chief Justice Roberts: We haven't talked much about the Madison. What -- what is your best piece of evidence with respect to the Madison for the proposition that it was navigable at statehood?

Gregory G. Garre: Well, there was some evidence of use by fur trappers and the like. It was not extensive because this area was relatively sparse. I think --

Chief Justice Roberts: Well, fur trappers are going to go -- they don't need a lot of -- a lot of water to ply their canoes up the river.

Gregory G. Garre: Well, and this Court has recognized that things like pirogues and bateaux were sufficient to establish the continuous highway of Alderson Reporting Company Official 1 commerce. I think the point on the Madison is the susceptibility for use as a navigable river. And the main point that we made below is that where their own expert recognized that PPL's dams had impeded the flow of water over of the river, that if those dams impede the flow of water over the river but yet today there are thousands of drift boats similar to the boats that would have used it at the time of statehood, then it's good evidence that it was susceptible for use. But I think the Madison is in a different category than the Missouri and the Clark Fork. I do want to answer the question about the 17 miles. The Desplaines River in the Economy Light case, there was an 18-mile portage. That's made clear at page 18a of our addendum, where the Government recognized that. In Montello, it was a 5-mile portage. In -- there are other examples of portages.

Justice Sotomayor: Five miles, was that -- was that the canal? What subsequently became the canal area?

Gregory G. Garre: I -- I think that's right. It's in the testimony in that decision. But, certainly, 17 miles -- and the other thing is, is that in the amicus brief, on page 27 of the Tubbs brief, she Alderson Reporting Company Official 1 suggests that the actual portage before statehood was only 8 miles. I don't think you could draw a constitutional line between 5, 7, or even 10 miles and 17 miles. We think the line the Constitution draws is whether -- asks whether the river was -- served as a continuous highway of commerce, notwithstanding any interruption along that way.

Justice Sotomayor: I think that then the simplest rule is, is the river from shore to opposite shore -- any portion of it -- did boats traverse it? That would be I think what Justice Alito was asking.

Gregory G. Garre: But it's not even the rule that PPL was asking for, because they acknowledge that some interruptions would be navigable. They call it "non-de minimis." It's not clear how you get there. If you go between the low-water marks, there's only a part of the way that you could actually bring a boat up, but, yet, it's established that the State owns the entire riverbeds between low-water mark to low-water mark. After traversing the Missouri and the very falls at issue in this case, Meriwether Lewis described that he didn't think the world could furnish a finer example of a navigable river through a mountainous Alderson Reporting Company Official 1 country than the Missouri. That assessment made by the President's own agent, charged with assessing the suitability of the Missouri for commerce, was consistent with more than 140 years of this precedent --

Justice Kennedy: Did he write that during his 30-day -- 32-day portage? (Laughter.)

Gregory G. Garre: Your Honor, it was an 11-day portage. At the time of statehood, it was a 1-day portage. I think what's significant is he wrote it after that portage. And yet, he recognized there was not a finer example of a navigable river through mountainous country. That assessment was consistent with this Court's precedents for more than 140 years. It's consistent with the actual use of the Missouri as a continuous highway of commerce along the very stretch at issue here. We don't believe that PPL or the United States has provided a legal reason for this Court to overturn the judgment of the Montana Supreme Court that the Missouri or the other rivers at issue in this case are navigable.

Chief Justice Roberts: Thank you, counsel. Mr. Clement, you have 4 minutes remaining. REBUTTAL ARGUMENT OF PAUL D. CLEMENT Alderson Reporting Company Official 1 ON BEHALF OF THE PETITIONER

Paul D. Clement: Thank you, Mr. Chief Justice. A few points in rebuttal: First, it's --

Justice Sotomayor: Can you point to some portages that are de minimis? Point me -- I don't care where they are in the United States. Give me a list of some that are de minimis.

Paul D. Clement: I mean, I don't have any de minimis portages for you. The portages he's talking about, as far as I can tell, the 5-mile and the 8-mile, are portages between rivers, and that has nothing to do with whether the bypassed stretch of a river would be nonnavigable because it's de minimis, because if you portage between two rivers, you're not bypassing anything. Where I can talk about sort of portages being de minimis, if you look at the special master's report in the Utah case, there are a few places in the Cataract Canyon where he talks about portages, and he talks -- you know, in parts where they got boats to. But the key point is, whenever the Court has talked about portages in the context of navigability, they've pointed to them as suggesting non-navigability, and in certain circumstances said, well, you had to portage a little bit, but that's not enough to make the stretch Alderson Reporting Company Official 1 nonnavigable.

Justice Kennedy: And what were your -- what were your other four points you were going to give us?

Paul D. Clement: Well, I was going to give you a couple, Your Honor. I'd start with the deeds. You know, the State wants to make something of the fact that the deeds stop at the river. But that's true throughout the State. And the question then becomes, what rule governs the ownership of the riverbeds? And that's where navigability versus non-navigability. So, the deeds don't prove anything. That's just the way the deeds were written. The next point: Justice Kagan, you asked about, you know, do the other owner -- other people on the river have anything to fear. And the answer as far as I heard was, well, these are different. They sit on the riverbed. Well, two things, Your Honor: So do some of the piers, and that's why people have filed amicus briefs and are very concerned. But more to the point, these things have not moved under the riverbed recently. They've been sitting there for a hundred years, and the State lent its eminent domain power to us to help us build these dams. These dams were critical to developing energy and development in this area. And now a hundred years Alderson Reporting Company Official 1 later, they want compensation for the little river strip under that.

Justice Scalia: Could the United States demand compensation?

Paul D. Clement: We pay the United States compensation right now. The difference is the United States isn't going in afterwards and trying to put a hold-up to us and saying they want $50 million for this. We pay rents to FERC for some of these lands. Actually, the State gets 37.5 percent of that back.

Justice Scalia: For the riverbed? For the riverbed land --

Paul D. Clement: Well, look at footnote 3 of the Government's brief. I mean, again, the problem here is if you want people to have deeds that really parse out whether it's riverbed or upland, they don't because everybody defaults to the bottom line -- the background rule. The background rule is if it's a nonnavigable river, the riparian owners, whether it be the United States or private property owners, get to midway, or if they own both on both sides, they get the whole thing. I think on "de minimis," we talk about it a lot, but I would point out that the one thing we know that's not de minimis from Utah is 4.35 miles, because that's what the Court analyzes separately in the portion Alderson Reporting Company Official 1 of Cataract Canyon. Every stretch at issue here, every dam at issue here, is more than 4.35 miles. Fully five of the dams are on the 17-mile Great Falls stretch, which they agree is impassable. The other five are reservoir dams that create reservoirs that extend over 4.35 miles. So, there's nothing de minimis in the best evidence that is the $50 million in compensation. I think the $50 million in back rent also shows that although this is a dispute between Montana and the United States, my client is caught in the middle of it, and they're obviously concerned about it, too. I want to talk about what's disputed and what's undisputed. What is undisputed is the 17 miles is impassable. That's enough, as I say, to give us judgment as a matter of law for the five dams on that stretch. What is hotly disputed, despite my friend's representation, is whether or not there was through commerce through this bypass route. He suggests it's undisputed that gold went from Helena down to Fort Benton down to St. Louis. And that, of course, is not disputed, but it went on roads. It didn't go on the upper -- on the upper Missouri. And if you want to know who's got the better of this argument, I ask you to think about this Alderson Reporting Company Official 1 question: The United States Army built a 600-mile overland road from Fort Benton, the traditional head of navigation on the Missouri, to Walla Walla, Washington. Now, if the State is right and the upper Missouri and the Clark Fork were navigable, all they had to do is -- is have a 60-mile road to connect the two. They were never navigable. Thank you, Your Honor.

Chief Justice Roberts: Thank you, counsel, counsel. The case is submitted. (Whereupon, at 12:09 p.m., the case in the above-entitled matter was submitted.)