Attorneys and legal scholars; hydropower producers; decision makers in the public lands, natural resources, and land title arenas; environmental consultants; and water recreation advocates.
The U.S. Supreme Court's recent decision in PPL Montana v. State of Montana, issued on February 22, 2012, marks the Court's first navigability-for-title decision since 1971, and its first in-depth analysis of the federal test for title navigability in more than 75 years. The navigability-for-title doctrine determines whether the beds and banks of waterways -- rivers and lakes -- are held in public or private ownership.
The decision clarified how navigability determinations should proceed on a river, in which the navigable capacity of one segment may differ significantly from another segment. The Court also clarified the limitations of using modern recreational boating as evidence of use at statehood, which is the point in time that title to the riverbed passed to each state on navigable waterways. Finally, the Court distinguished between the public trust doctrine, a creature of state law, and the federal test for title navigability.
In this one-hour TeleBriefing, the moderator and two attorneys active in the area of title navigability will discuss the significance of the decision for understanding the law in this area and for informing public policy in individual states.
Introduction & Overview
Jennie L. Bricker, Esq., Partner, Moderator
Stoel Rives LLP / Portland, OR
Evaluating the navigability-for-title test from a private riparian landowner's perspective
L. William Staudenmaier, Esq., Partner
Snell & Wilmer L.L.P. / Phoenix, AZ
The perspective of the states on the impact of the decision on trial and appellate litigation strategy
Denise Fjordbeck, Esq., Attorney-in-Charge, Civil and Administrative Appeals
Oregon Department of Justice / Salem, OR
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Jennie L. Bricker, partner at Stoel Rives LLP, practices natural resources law, with a focus on water law, waterways, and wetlands. Recognized as one of the Oregon's experts on navigability for title, Ms. Bricker advises riparian property owners about their rights to submerged and submersible lands on Oregon waterways. She also assists clients in obtaining permits under Clean Water Act Section 404 and the Oregon Removal-Fill Law.
Denise Fjordbeck is the Attorney-in-Charge, Civil and Administrative Appeals, in the Oregon Department of Justice. After a stint in private practice, she joined the Trial Division of the Oregon Department of Justice in 1990, specializing in environmental, natural resource, and land use litigation. She was lead counsel for the state in State v. Tidewater Contractors, concerning the navigability of the Chetco River. In 1997, she transferred to the Appellate Division of the Oregon DOJ, and continued to represent the state in environmental cases in the Oregon Supreme Court and Court of Appeals, the U.S. Court of Appeals for the Ninth Circuit, and other federal circuit courts. She represented the state in proving the navigability of the John Day River, and is currently involved in litigation concerning the Rogue River. She was a co-author of the amicus brief filed by Oregon, Washington, and 24 other states in PPL Montana v. Montana.
L. William Staudenmaier, partner at Snell & Wilmer L.L.P., focuses on water law and environmental law. His water law practice involves representation of clients in general stream adjudications, participation in negotiations for settlement of Indian water right claims, negotiation of contracts and leases for transfer of water rights, obtaining permits and approvals from state and federal regulatory agencies, and drafting, negotiating and lobbying concerning state and federal water resources legislation. He represents large water users in both pending general stream adjudications in Arizona (Gila River and Little Colorado River), including appellate representation on issues relating to the rights of groundwater users and tribal water rights.