Mulvaney's take on PPL Montana

Prof. Tim Mulvaney has a thoughtful and original analysis of this week's Supreme Court decision in PPL Montana v. Montana, over at the Environmental Law Prof Blog.  From Tim's Post:

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.

So the Court neglected to use the opportunity to expand on the judicial takings theory espoused in Stop the Beach, and seems to potentially add confusion to the question of federal judicial deference to state-law interpretations of property rights.  I'll add one other preliminary observation about the opinion: by framing the case around the fact question of whether certain riverbeds were navigable or required portage at the time of statehood, the decision highlights the importance of history and historical interpretation to issues of property law.

Matt Festa