Thursday, February 23, 2012
Earlier this week, the U.S. Supreme Court issued its opinion in the first of two important environmental cases on its docket this term: PPL Montana v. State of Montana. (The Court has yet to issue its decision in the other, Sackett v. EPA.)
In a unanimous opinion authored by Justice Kennedy, the Court declared in PPL Montana that the Montana Supreme Court erred in finding three rivers navigable for title purposes. Sifting through Justice Kennedy’s citations to the journals of Lewis and Clark, centuries-old newspaper reports, and countless other obscure secondary sources (many of which were not even in the record), the opinion can be summarized so: If commercial travelers had to portage around a segment of a river at the time of statehood, title to that segment is not held by the state unless the segment was so short that it lacked commercial value. The likes of Rick Frank at Legal Planet and Tom Merrill at SCOTUSblog already have provided thought-provoking analysis of this conclusion by the Court.
There is at least one noteworthy (though not necessarily surprising) omission in Justice Kennedy’s opinion: despite the pleadings of PPL Montana and several amici, the Court did not use the case to expound upon its musings on judicial takings theory set out in its splintered 2010 Stop the Beach Renourishment v. Florida Department of Environmental Protection decision. Readers may recall that in Stop the Beach, a 4-2-2 split (with Justice Stevens recused) left open the question of whether judicial interpretations of property law can, like actions of the political branches, amount to unconstitutional takings of property. In short, Justice Scalia’s plurality opinion said “yes” (if a court declares that an “established” property right “no longer exists”); Justice Kennedy, joined by Justice Sotomayor, said “probably not” since the Due Process Clause is well-equipped to address rogue judicial interpretations; and Justice Breyer, joined by Justice Ginsburg, said “very likely not” but the question need not be decided here. However, these ruminations on judicial takings theory proved completely irrelevant in the case at hand, for the Court unanimously affirmed the Florida Supreme Court’s opinion that no taking had occurred.
Taking a cue from the Stop the Beach plurality, PPL Montana had suggested that the Montana Supreme Court was the “operative force” behind a “land grab” of privately-owned riverbeds, such that the decision itself could be violative of the Takings Clause. Yet the U.S. Supreme Court ultimately did not address this assertion. Still, Justice Kennedy’s opinion in PPL Montana could be viewed as the continuation of a disturbing trend promoted by the Court in Stop the Beach: it represents an implicit, wide-ranging distrust of state courts and a disregard for the principle that property rights are generally determined with reference to state law.
Since its release in June of 2010, it appears that at least six lower federal courts have cited Stop the Beach for the principle that property interests are defined by state law for federal takings purposes. This is somewhat ironic, for all eight participating Justices in Stop the Beach arguably can be criticized for conducting an independent review of Florida state law. They all said property rights are defined by state law, yet showed no level of deference to the Florida Supreme Court’s decision doing just that—defining state property rights. Instead, the U.S. Supreme Court unanimously upheld the Florida Supreme Court’s decision only on reasoning set forth in a 1927 Florida case to which the Florida Supreme Court had not even cited. This approach, however, did not come as a total surprise—as Laura Underkuffler has noted, in the fifteen important U.S. Supreme Court takings opinions since 1987, only three actually interpreted property rights in terms of state law.
The PPL Montana Court arguably can be criticized in the same way. For instance, while the Court stressed that the “public trust doctrine remains a matter of state law,” it offered its own, very narrow explanation of the doctrine: “the public trust doctrine…concerns public access to the waters above [the relevant riverbeds] for purposes of navigation, fishing, and other recreational uses.” The lack of deference to the Montana courts was also evident in Justice Kennedy’s assertion that, “contrary to the Montana Supreme Court’s decision,” at least one specific stretch of one of the Montana rivers at issue—the 17-mile Great Falls stretch—“is not navigable for purposes of riverbed title.” As Tom Merrill notes, “Ordinarily, when the Court reviews a decision of a state supreme court, it will correct errors in federal law, and remand for application of the correct legal principles [here, application of the correct navigability-for-title test] by the state courts. … But the statement about Great Falls admits only one action on remand.”
Stop the Beach is arguably a poor case for lower federal courts to cite as demonstrative of deference to state courts or for the principle that property interests are determined with reference to state law, though PPL Montana does not seem far behind.