Montana Riverbed Litigation Update February 2014.

Montana Riverbed Litigation Update

February 2014

PPL MONTANA, LLC v. MONTANA

• Setting the Stage

• Scope of Damages

• Difficult Cert Process

• Whole World’s Watching

• Brief Summary of Decision

• The “R” Word

SCOPE OF DAMAGES AWARDED BYSTATE DISTRICT COURT AGAINST PPL MONTANA

Damages for 2000* - 2006: $34,748,261

Damages for 2007: 6,207,919

Stipulated cost bill: 20,000

TOTAL UNDER DECISION $40,976,180

STATUTORY INTEREST @ 10% 14,830,009

TOTAL PLUS INTEREST $55,806,189

Does not include damages from 2008 going forward, which deferred to State Land Board – estimated to be $6.0M to $10.0M per year.

THE WHOLE WORLD’S WATCHINGStates Supporting State of Montana as Amici

Alabama Louisiana Oregon

Alaska Maryland Pennsylvania

Arkansas Minnesota South Dakota

California Mississippi Tennessee

Florida Nevada Vermont

Georgia New Hampshire West Virginia

Hawaii New Mexico Washington

Idaho North Dakota Wisconsin

Illinois Ohio

Brief Summary of Decision

• Feb. 22, 2012 – Unanimous decision of the U.S. Supreme Court reversing decision of Montana Supreme Court, and remanding with instructions

• Rejected Montana courts’ “infirm legal understanding” of long established federal rules of navigability for title purposes; contrasted different tests for regulatory jurisdiction and admiralty

• Stressed navigability as of date of statehood (1889), in their natural and unimproved condition

• Must look at particular stretch or segment / not river as whole• Portaging evidence of non-navigability / ? about current recreational

use being valid evidence of navigability• Held Missouri River at 5 dams at Great Falls was not navigable• As to other 5 PPL dams at issue, noted “significant likelihood” those

stretches would fail federal test of navigability for purpose of title• Public Trust Doctrine and public access to rivers not impacted

Questions?NOTE:

A complete copy of the PPL Montana cert petition to the U.S. Supreme Court and copies of all related briefs may be found at:http://www.scotusblog.com/case-files/cases/ppl-montana-llc-v-montana/

The complete transcript of the December 7, 2011 oral argument may be found at:http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-218.pdf

The February 22, 2012 Opinion of the U.S. Supreme Court may be accessed at: http://www.supremecourt.gov/opinions/11pdf/10-218.pdf

Dave KinnardAssociate General Counsel

PPL Montana, LLC303 North Broadway, Suite 400

Billings, MT 59101(406) 237-6903

[email protected]