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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 BY STATE DISTRICT COURT AGAINST PPL MONTANA.

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Montana Riverbed Litigation Update February 2014

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  1. Montana Riverbed Litigation Update February 2014

  2. 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

  3. 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.

  4. 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

  5. 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

  6. 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 Kinnard Associate General Counsel PPL Montana, LLC 303 North Broadway, Suite 400 Billings, MT 59101 (406) 237-6903 dbkinnard@pplweb.com

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