Murtha Means More

CBA Joint Meeting: Environmental Law Section and Planning & Zoning Section

January 13, 2012

CBA Joint Meeting: Environmental Law Section and Planning & Zoning Section

Date: Wednesday, January 25, 2012

Time: 6:15 p.m.

Place: Yale Law School, 127 Wall Street, New Haven, Room 127 

The CBA Joint Section Meeting between the Environmental Law Section, Planning & Zoning Section, and law students on January 25, 2012 will discuss PPL Montana, LLC v. Montana, before the Supreme Court this term. At issue in PPL Montana, LLC is ownership of the riverbeds along three Montana rivers, where PPL Montana has operated hydroelectric dams, but has never paid for its use. This issue largely turns on whether the river is “navigable” and, consequently, which test should be used for determining navigability. PPL Montana argues that navigability for title purposes depends on individual segments of the rivers and the actual commercial use of the rivers when Montana became a state. Montana argues that navigability should be determined by looking at whether longer stretches of the river are susceptible to commercial use, which can be informed by current uses. Montana contends that natural obstacles should not render rivers non-navigable if people can portage around them. The U.S. Supreme Court’s decision could affect public benefits and the reliance interests of riverbed owners. A distinguished panel featuring attorneys from both sections and professors from Yale Law School will explore the issues raised in this intriguing case and possible implications for the public trust and riparian ownership including:

·         How sharp is the distinction between navigability for purposes of title and navigability for purposes of state regulation? PPL Montana argues that the Property Clause applies to the former, while the Commerce Clause applies to the latter and may allow a state to impose regulations on newly navigable waters.
·         Should the factual inquiry be limited to navigability at the time of statehood, or should the inquiry be influenced by evidence of present-day activities?
·         How would a decision for the state disrupt riparian landowners’ private expectations?
·         How would a decision for PPL Montana impact the public trust? Would it result in increased litigation over ownership of segments of rivers, as Montana claims?
Gregory Sharp is a partner in the Environmental Practice Department at Murtha Cullina. He has experience working in matters arising under the Clean Water Act, Resource Conservation and Recovery Act, and Comprehensive Environmental Response Compensation and Liability Act. Greg also has extensive knowledge of wetlands and diversion permitting as well as the public trust doctrine. He received his bachelor’s from Dartmouth College, a M.F.S. from Yale University, and his J.D. from UConn Law School.
Brian Smith is a partner at Robinson & Cole LLP, where he is chair of the Land Use Group. He has experience representing municipalities, developers and neighbors in land use, planning, wetland and coastal resources issues. Brian is knowledgeable in a wide variety of land use issues including takings. He graduated from Colgate University, with a B.A., and from Cornell Law School.
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