Michigan v. U.S. Army Corps of Eng’rs, 758 F.3d 892 (7th Cir. 2014) (holding: (i) federal agencies are subject to public nuisance claims for their choice of policy implementation options; (ii) appellee agencies were not authorized by statute to operate waterways in the interest of navigation to the exclusion of potential environmental harms; (iii) appellants had not alleged sufficient facts to show appellees’ operation of the waterway constituted a public nuisance).

In the early twentieth century, a series of canals were constructed to connect Lake Michigan to the Mississippi River—two of the country’s most crucial navigable waterways. Near the same time, the Chicago Area Waterway System (“CAWS”) was constructed and the flow of the Chicago River was reversed to carry Chicago’s wastewater away from Lake Michigan. In the 1970s, further down the Mississippi River, aquatic farmers introduced bighead and silver Asian carp into their facilities to mitigate unwanted plant growth. Flooding in the area eventually allowed the Asian carp to navigate into open freshwater systems and ultimately within six miles of Lake Michigan and subsequently all of the Great Lakes.

As a species, Asian carp present potential harm both to the ecosystems they occupy and to individuals in their vicinity. Asian carp are insatiable eaters that consume food in such amounts that they crowd out other species of fish by eliminating their food supply. In addition, Asian carp present dangers to individuals in their vicinity by leaping out of the water when agitated and causing damage to watercraft and injury to individuals on board.

To address the growing concern of Asian carp advancement, the Army Corps of Engineers (“Corps”) and the Metropolitan Water Reclamation District of Greater Chicago (“District”) have attempted preventative measures for more than a decade. In 2002, the Corps introduced the Dispersal Barrier System to kill or shock fish that passed by. By 2011, a total of three barriers had been constructed in the CAWS. After a spotting of Asian carp near one of the barriers in 2009, the Corps introduced fish poison—rotenone—near the barrier twice. By 2010, the Asian Carp Regional Coordinating Committee—a group including federal, state, and Canadian authorities lead by the White House Council on Environmental Quality—began monitoring Asian carp in the CAWS. Through April 2014, none of the Committee’s tests indicated the presence of Asian carp beyond the barriers.

Nevertheless believing that the Asian carp presented an imminent and serious threat, five states (Michigan, Wisconsin, Minnesota, Ohio, and Pennsylvania), joined by the Grande Traverse Band of Ottawa and Chippewa Indian tribe, (collectively, “States”) brought suit against the Corps and District. The States claimed that the Asian carp would either soon or already had invaded the Great Lakes, which would result in billions of dollars of damage. Specifically, the States claimed that the Corps and District had failed to act according to their responsibility of preventing the potential Asian carp damage and sought a permanent injunction under the federal common law of public nuisance. The injunction required the Corps and District to expeditiously develop and implement measures to create a complete hydrological separation between Lake Michigan and the Mississippi River Basin. The States also demanded an expedited completion of a congressionally mandated report on the options of measures available to prevent aquatic nuisance species between the Great Lakes and the Mississippi River (“the Report”).

At trial, the States sought a preliminary injunction requiring the Corps and District to take aggressive interim steps to stop the advancement of the Asian carp. The United States District Court for the Northern District of Illinois (“district court”) denied the preliminary injunction, stating that the States had failed to prove that irreparable injury would occur before resolution of the underlying litigation. On appeal, the United States Court of Appeals for the Seventh Circuit (“court”) affirmed the denial of preliminary injunctive relief. The district court ultimately dismissed the States’ suit for failure to state a claim. In so holding, it reasoned that the operation of the CAWS and Lake Michigan-Mississippi River connection did not constitute a public nuisance because such operation was both lawful and required under the law.

Between the district court’s decision and the States’ appeal, the Corps completed the Report, which proposed eight alternative plans to prevent aquatic nuisance in the area. However, the Corps declined to make a recommendation in the Report due to the need for further technical and policy evaluations. The proposed options ranged in cost between $7.8 billion to upwards of $18.3 billion for lakefront hydrological separation. In addition to being among the most expensive options, the Corps stated that a hydrological separation would also have significant negative effects in the waterways in terms of navigability, water quality, and ecology.

On appeal, the court first indicated an appreciation for the potential dangers at stake regarding the advancement of Asian carp for the States, noting that the risk of danger had increased since the start of litigation. First, the court held that agencies of the federal government are subject to federal public nuisance actions. The court explained that, when federal agencies act according to their enabling statutes, their activity represents a balancing of interests undertaken by Congress, which therefore reflects the public interest and precludes public nuisance claims. However, an agency’s choice among options to implement a policy is not subject to such rigorous interest balancing and may not categorically represent the underlying public interest. Accordingly, these actions may be subject to public nuisance claims. The court emphasized that the agencies were authorized by statute to operate the CAWS in a manner conducive to facilitating navigation but, contrary to the district court’s conclusion, were not authorized to execute these duties while disregarding the potential environmental impacts of doing so, including the advancement of potentially hazardous fish species. However, the court also held that the Corps and District had been dutiful in their efforts to accomplish both of their responsibilities: to operate the CAWS waterways in such a way that would prevent the advancement of Asian carp into Lake Michigan while facilitating navigation. The court indicated that, even in a light most favorable to the States, there were insufficient facts to suggest the Asian carp would advance beyond the Corps’ and District’s current prevention attempts, nor that the Corps and District would fail to adjust their efforts should the current attempts fail. Accordingly, the States had not alleged sufficient facts for the court to hold that the Corps’ or District’s current actions constituted a public nuisance.

The court also held that it would be inappropriate for the federal judiciary to grant the States’ request for an injunction requiring the construction a hydrological separation under the Rivers and Harbors Act. That Act precludes the court from ordering an injunction requiring the Corps to construct a separation of the waterways, in light of concerns regarding impediments to navigation of crucial interstate or international waterways. Instead, the court indicated that other remedies should be considered in this case, including judicial review of the recommendation chosen by the Corps and District to solve the Asian carp problem and a claim for review of agency action, should the Corps or District halt their preventative measures unlawfully. Finally, the court held that the States were not precluded from bringing suit in the future, should the advancement of Asian carp be imminent and occur as a result of the Corps’ or District’s negligence in operating the waterways.

Accordingly, the court affirmed the judgment of the district court’s dismissal of the State’s suit against the Corps and District for failure to state a claim.


The title image features an Asian Carp leaping out of the water. This file is licensed under the Creative Commons Attribution 2.0 Generic license.

Eldorado Co-op Canal Co. v. Lower Teton Joint Objectors, 337 P.3d 74 (Mont. 2014) (holding: (i) use of a ditch to divert water from river to a property was a management tool, not a right personal to the diverter; and (ii) the Water Court acted properly in listing the water rights that could be diverted through the ditch).

The Ninth Judicial District Court (“district court”) appointed Water Commissioners to administer certain water rights diverted from the Teton River pursuant to a 1908 water rights decree in Perry v. Beattie. That case determined the priority date and flow rate of dozens of Upper Teton water right claims, claims located upstream of the Plaintiffs in this case. The Plaintiffs held priority dates senior to or contemporary with the upstream users.

Around 1950, the Water Commissioner appointed to administer the Perry decrees, began diverting most of the Teton’s flow into the Bateman Ditch. The ditch runs parallel to the Teton River’s natural channel, bypassing a several-mile-long section of gravel riverbed. The gravel riverbed soaks up a significant amount of water. The Water Commissioner did not establish this practice in accordance with an express order or written agreement among appropriators. Choteau Cattle had the most senior right in the Perry decree, with a priority date of 1876. In exercising its water right, Choteau Cattle diverted water through the Bateman Ditch, returning it to the natural channel during times of low flow. If the Bateman Ditch were not utilized in this manner, upstream junior right holders (including Saylor and Eldorado) would have to substantially restrict their water use. The Lower Teton Joint Objectors (“Lower Users”) challenged this practice.

In 2011, the Lower Users commenced an action claiming that the Water Commissioners’ diversion of water out of the Teton River and into the Bateman Ditch harmed their appropriation rights by depriving the Teton River aquifer of recharge water. The Water Court found that Saylor had a protectable right to divert Teton River water through the Bateman Ditch downstream. The Lower Users and Saylor appealed.

The Supreme Court of Montana (Court”) addressed two predominant issues on appeal. It first considered whether the Water Court erred in establishing the Bateman Ditch diversion as a right belonging to Saylor. Subsequently, the Court considered whether the Water Court erred by including Choteau Cattle on the tabulation of water rights holders authorized to divert water from the Teton River into the Bateman Ditch.

In addressing the first issue, the Court reiterated portions of the Water Court’s opinion, emphasizing two main points. First, water law recognizes “historic patterns of water use.” Therefore, the fact that this particular use of the Bateman Ditch was no longer part of any claim in the water adjudication process did not preclude recognition of the practice. Additionally, the Court noted that while the Bateman Ditch diversion was not an exchange plan, it was “typical of historic arrangements” made throughout the area in order to obtain maximum benefit from a limited resource. The Bateman Ditch was a typical tool used by administrators as a conservation measure. The Court disagreed, however, with the Water Court’s conclusion that the Bateman Ditch diversion was a private right held by Saylor. In so concluding, the Court explained that Saylor did not possess a right or duty to administer the water rights of others. Rather, the administration of these rights was a management tool available only to the District Court and its Water Commissioner.

Subsequently, the Court concluded that the Water Court acted properly in listing the water rights that could be diverted through the Bateman Ditch. The Lower Users objected, arguing that Choteau Cattle’s right was improperly listed because Choteau Cattle had specifically removed the Bateman Ditch as a point of diversion for its right. Additionally, the Lower Users argued that during the water adjudication process, Saylor failed to claim the right to use Bateman Ditch to supply Choteau Cattle’s right. The Court explained that because the use of Bateman Ditch to deliver water to Choteau Cattle was a management tool and not a right personal to Saylor, it was unnecessary for Saylor to have claimed the right in the adjudication process. It therefore concluded that the Water Court properly listed Choteau Cattle’s right as one diverted from the Bateman Ditch.

Accordingly, the Court affirmed the Water Court’s decision in part, reversed in part, and remanded to the Water Court for further proceedings.


The title image features the Teton River and is licensed under the Creative Commons Attribution 3.0 Unported license. The owner of this image does not endorse this blog.


American Whitewater v. Tidwell, 770 F.3d 1108 (4th Cir. 2014) (holding that: (i) the U.S. Forest Service’s revised wild and scenic river management and oversight plan allowing restricted floating on the northernmost section of the Chattooga River was supported by the record and not arbitrary and capricious; (ii) floating is not an outstandingly remarkable value (“ORV”) of the Chattooga requiring protection under the Wild and Scenic Rivers Act (“WSRA”); and (iii) claims that the revised management plan may lead to additional trespassing and environmental impact were not reasonably foreseeable and did not require analysis under the National Environmental Protection Act (“NEPA”)).

In 1974, Congress designated fifty-seven miles of the Chattooga River (“Chattooga”) for preservation under the WSRA. The U.S. Forest Service is responsible for managing the Chattooga under the WSRA. The WSRA requires the Forest Service to “protect and enhance” the “outstandingly remarkable values . . . that led Congress to designate the river” and to limit other uses that “substantially interfere with the public’s use of these ORVs.” Prior to 2012, Forest Service policy permitted non-motorized rafting on the lower portions of the Chattooga, but prohibited the practice on the twenty-one-mile northernmost section of the Chattooga (“Headwaters”). In 2005, after American Whitewater and several other non-motorized watercraft associations (collectively “American Whitewater”) challenged the floating ban, the Forest Service began studying whether floating could be expanded beyond the lower portions of the Chattooga.

Over the course of seven years, the Forest Service “measure[d] the expected impact of allowing Headwaters floating on the Chattooga’s ORVs.” The Forest Service concluded that expanded floating made sense so long as it imposed certain limitations to ensure the upper Chattooga still offered opportunities for remoteness and solitude to all users, and to limit potential conflicts with other recreational users. These limitations included restricting floating on the Headwaters to the winter months when water flows were highest and prohibiting floating in areas that offered prime fishing but marginal floating potential. In 2012, the Forest Service revised its management plan for the Chattooga to allow floating on most of the Headwaters between December 1 and April 30 or when flows exceeded 350 cubic feet per second. The Forest Service determined that the revised plan would have no significant effect on the environment and did not require preparation of an Environmental Impact Statement.

American Whitewater filed suit in the United States District Court for the District of South Carolina (“district court”) challenging the Forest Service’s revised plan. American Whitewater argued that the revised plan did not go far enough, and that the remaining limits on floating were both inconsistent with WSRA and arbitrary and capricious in violation of the APA.

Two parties, Georgia ForestWatch (“ForestWatch”), a not-for-profit environmental group, and the Rust family, who own approximately 1.7 miles of the Headwaters’ shoreline, moved to intervene in this suit. ForestWatch asserted that the Forest Service’s decision to allow any floating on the Headwaters violated the Forest Service’s mandate under the WSRA. The district court, however, limited the scope of ForestWatch’s intervention to defending the remaining limits on Headwater floating. The Rust family sought a declaratory judgment from the district court that the Headwaters running through their property were non-navigable and outside Forest Service control. The Rust’s also filed a cross-claim asserting that the Forest Service’s analysis violated NEPA. All parties moved for judgment on the administrative record. The district court upheld the Forest Service’s decision, rejected all of American Whitewater’s claims and the Rust’s NEPA claim, and dismissed the Rust’s request for a declaratory judgment as premature. The parties appealed to the United States Court of Appeals for the Fourth Circuit (“Court”).

According to the Court “the crux of American Whitewater’s claim [was] that the Forest Service struck the wrong balance when it opened the Headwaters to floating partially but not entirely [by] maintaining some restrictions on floating in order to avoid conflicts with other recreational users.” American Whitewater argued that the Forest Service’s concern about potential conflicts was unsupported by the record and therefore arbitrary and capricious, and that the remaining restrictions violated the WSRA.

The Court first addressed American Whitewater’s argument that that no basis existed in the record for the Forest Service’s concern about potential conflicts among recreational users. The Forest Service relied on a history of user conflicts on the Headwaters prior to the original floating ban as well as evidence from the lower Chattooga and other rivers where floating has always been permitted. In the Court’s words, the Forest Service “assembled significant data pointing to the potential for future conflicts, counting cars to estimate usage, developing expected encounter estimates, and analyzing a wealth of public comments including many from current users who expressed a preference for solitude and an isolated experience.” American Whitewater argued that the Forest Service was required to allow floating on the Headwaters as a part of the study to identify actual conflicts between recreational users. The Court disagreed, holding that “[w]here the agency’s conclusion otherwise rests on a firm factual basis, nothing in the APA requires it to experiment with a practice before continuing preexisting policies.”

The Court next addressed American Whitewater’s argument that the remaining restrictions on the Chattooga violated section 1281 of the WSRA, “which requires the Forest Service to ‘protect and enhance the values which caused’ the Chattooga to be designated for preservation ‘without . . . limiting other uses that do not substantially interfere with public use and enjoyment of these values.’” American Whitewater argued that floating on the Chattooga was one of the values that led Congress to designate the Chattooga for protection under the WSRA; therefore, the Forest Service had to “protect and enhance” that value by lifting all floating restrictions on the Chattooga. In the alternative, American Whitewater argued that the Forest Service could not limit floating on the Chattooga because the Forest Service did not show that floating substantially interfered with any protected recreational use of the Headwaters. The Court rejected each of these claims in turn.

First, the Court noted that neither the 1971 Forest Service report that led to the Chattooga’s protective designation nor the Senate and House Reports accompanying this designation specifically mentioned floating in contrast with all other forms of recreational activities on the Chattooga. Rather, because these reports all made mention of a wide variety of recreational activities on the Chattooga, the Court declined to find Congress had intended to give special status to floating, let alone any one recreational use, when it designated the Chattooga under the WSRA. Accordingly, the Court rejected American Whitewater’s argument that the Forest Service had no choice but to lift all restrictions on floating on the Chattooga.

Second, not only did the Court agree with the district court’s assessment that the record supported a finding of substantial interference with other protected recreational uses of the Chattooga, the Court took the analysis one step further and found American Whitewater’s argument to be “flawed in its premise.” Under section 1281(a) there are only two categories of “uses” of designated rivers: (i) public uses of ORVs; and (ii) other uses “to be limited when they interfere substantially with public use and enjoyment of an ORV.” The Court stated that floating is more akin to hiking and other recreational activities and thus more accurately characterized as “a ‘public use’ of the recreational value, not an ‘other use’ subject to the substantial interference standard.”

The Court next addressed the Rust family’s claims against the Forest Service. The Rust family had sought a declaratory judgment designating as non-navigable the 1.7-mile stretch of the Headwaters running through their land. The effect of such a designation would make this stretch of water private property, which in turn would prohibit the Forest Service from taking any action that would provide public access to this stretch of water. However, because the Forest Service’s 2012 decision neither authorized floating on the Rusts’ property nor covered any portion of the Headwaters that concerned the Rust family’s property, the Court found that the Forest Service had not taken any action to exercise regulatory authority over the Rust’s property. Accordingly, the Court dismissed the Rust family’s request for declaratory judgment because it failed to present a justiciable controversy in the absence of such action.

The Court then addressed the Rust family’s claim that “the Forest Service violated NEPA by failing to analyze the risk that opening portions of the Headwaters to floating could lead to trespass on the Rust’s property.” The Rust family argued that floaters will illegally cross the Rust’s property on their way to the Chattooga. However, the Court noted that the Forest Service’s 2012 decision only authorized floating on portions of the river that are downstream from the Rust family’s property. Accordingly, the Court characterized this concern, and any associated environmental impact, as too speculative to require NEPA analysis.

Last, the Court quickly addressed whether the district court had erred in limiting the scope of ForestWatch’s intervention. On appeal, ForestWatch attempted to depart from its assigned role of defending the Forest Service’s remaining restrictions and instead challenge the Forest Service’s decision to permit any floating at all under NEPA and the WSRA. The Court declined to address these new arguments on appeal, and found that the only issue ForestWatch could properly raise on appeal was the district court’s decision to limit its scope of intervention. The parties disputed the proper standard of review, but the Court determined, and ForestWatch’s counsel admitted at oral argument, that a review of the district court’s decision to limit ForestWatch’s intervention ultimately hinged on whether the decision was fundamentally unfair. Because the district court preserved ForestWatch’s opportunity to raise its NEPA and WSRA claims in a pending lawsuit related to the matter, and carefully limited its decision to insulate ForestWatch’s claims against the Forest Service, the Court found no evidence of fundamental unfairness.

Accordingly, the Court dismissed all challenges brought against the Forest Service by American Whitewater, the Rust family, and ForestWatch, and held that the Forest Service’s WSR management and oversight plan for the Chattooga River was not arbitrary and capricious under the APA, that the Forest Service’s WSR management and oversight plan complied with the WSRA, and that the Forest Service’s analysis satisfied NEPA.


The title image features the East Fork of the Chatooga River and has been released to the public domain.

Weber v. N. Loup River Pub. Power & Irrigation Dist., 854 N.W.2d 263 (Neb. 2014) (holding that the district court properly granted the defendant’s motion for summary judgment because (i) the plaintiff’s failure to pay irrigation charges was a condition precedent to the defendant’s contractual duty to deliver water to the plaintiffs’ land; (ii) the defendant did not waive the condition precedent when it waived the irrigation fees for one newly contracted tract of land; (iii) the defendant did not anticipatorily breach the contracts because the plaintiffs had already materially breached the contract through nonpayment; and (iv) the defendant was not negligent in its delivery of the water to the plaintiffs because the plaintiffs’ prior breach of the contracts relieved the defendant of any preexisting duty).

North Loup River Public Power and Irrigation District (“North Loup”) manages an irrigation system with many diversion dams and canals, including the Taylor-Ord Canal (“Canal”), which originates at the Taylor Diversion Dam (“Dam”). William and Dixie Weber (“the Webers”) had eight contracts with North Loup to irrigate their farmland from the Canal. The contracts stated that North Loup would provide water during the irrigation season to the Webers’ land in exchange for $2.50 per acre. The money was to be paid by the first day of December the year preceding the irrigation season. The contracts also stated that North Loup would withhold delivery of the water if the Webers failed to pay within four months of that date.

In June of 2010, the North Loup River experienced an uncommon amount of rainfall and flooding. On June 11, 2010, the flood completely destroyed the Dam and severely damaged the Canal. North Loup determined that the Dam was “beyond repair” and decided to rebuild a permanent dam. The landowners with contracts for irrigation water received no water that year due to the damage.

The Webers’ bill for the 2010 irrigation season was due December 1, 2009. At the time of the flood in June 2010, the Webers still had not paid their bill. The Webers finally paid their bill on April 13, 2011, but they did so “under protest.” In December of 2011, the Webers filed a complaint against North Loup alleging that North Loup had breached its contracts with them and negligently failed to provide water during the 2010 irrigation season. North Loup denied the allegations and asserted that the Webers had failed to fulfill a condition precedent of the contracts when they failed to pay the 2010 irrigation charges until April 13, 2011. After an evidentiary hearing, the District Court for Loup County (“district court”) granted North Loup’s motion for summary judgment, concluding that the Webers breached a condition precedent, thereby relieving North Loup of its duty to deliver water. The Webers appealed directly to the Supreme Court of Nebraska (“Court”).

On appeal, the Webers claimed that the district court erred in granting summary judgment to North Loup because issues of material fact existed regarding the Webers’ obligation to make an advanced payment for the 2010 irrigation season. Accordingly, the Webers claimed, North Loup anticipatorily breached its contract. The Court clarified that the “meaning of an unambiguous contract is a question of law.”

The Court applied the same general rules regarding contracts to the Webers’ contract. In doing so, the Court first considered whether the Webers’ payment of irrigation charges was a condition precedent to North Loup’s contractual duty to deliver water. Holding that it was, the Court found a condition in the terms of the contract that stated, “[North Loup] shall withhold and stop the delivery of water to the landowner in the event a default of payments herein required occurs and such default continues for a period of four months following the due date.” The Webers did not deny that they failed to pay their bill when due on December 1, 2009. Further, the Webers admitted that their bill continued to be in default for much longer than four months after the due date. Therefore, the Court reasoned that North Loup’s duty to provide water “never came to fruition,” negating the possibility of breach.

The Court further held that North Loup did not waive the condition precedent. The Webers argued that North Loup never decided whether it would waive the landowners’ 2010 irrigation charges due to the flood. Finding that waiver of a condition precedent requires a clear, unequivocal, and decisive action, the Court held that North Loup did not waive the condition precedent to the Webers’ contract. Although North Loup waived a different landowner’s irrigation charges in the 2010 year, the Court found that North Loup did so because the contract was only formed two months prior to the flood. The Court concluded that North Loup’s isolated wavier of the other landowner’s irrigation fees did not waive the condition precedent in its contract with the Webers.

The Court next considered whether North Loup anticipatorily breached the contracts. The Webers argued that North Loup anticipatorily breached the contracts when it decided to build a new dam rather than a temporary one, without an assessment of damages two months before the irrigation season. The Court disagreed and held that North Loup did not anticipatorily breach the contracts. The Court reasoned that the Webers breached the contracts before North Loup’s alleged breach. Because payment of the 2010 irrigation fees was both the Webers’ duty to perform and a condition precedent to North Loup’s duty to provide water, North Loup could not anticipatorily breach the contracts when the Webers had already materially breached them. The Court emphasized that the term was material because the Webers’ payment was one of their only obligations under the contracts.

Finally, the Court found that North Loup did not act negligently by failing to deliver water to the Webers, even though non-delivery of the water might have been a statutory violation. Neb. Rev. Stat. section 46-263 makes it a misdemeanor for a person in charge “of a ditch or canal used for irrigation purposes . . . to prevent or interfere with the proper delivery of water to the person or persons having the right thereto.” North Loup argued that the statute was inapplicable because it applied to “persons” and not to “public entities.” The Court did not address whether the statute applied to “public entities,” instead finding that the statute did not require North Loup to deliver water to “those having no right to the water.” The Court held that the Webers’ nonpayment of the irrigation fees relieved North Loup of its duty to deliver water. Because North Loup had no duty to deliver the water at all, the Court found that North Loup’s failure to deliver the water was not negligent.

Accordingly, the Court affirmed the district court’s grant of North Loup’s motion for summary judgment.


The title image features the Loup River in Nebraska. This file has been released to the public domain.

San Luis & Delta-Mendota Water Auth. v. Locke, No. 12–15144, 2014 WL 7240003 (9th Cir. Dec. 22, 2014) (holding that (i) the district court abused its discretion by improperly admitting extra-record declarations and substituting its own analysis for the Agency’s opinion; (ii) National Marine Fisheries Service (“NMFS”) acted within its discretion by using a non-scaled data model to set river flows where it adequately explained its decision and used additional studies to validate its decision; (iii) NMFS did not act arbitrarily or capriciously when determining the State Water Project’s and the Central Valley Project’s (“the Projects”) continued operations were likely to jeopardize viability and essential habitat of species because it demonstrated sufficient research to support its conclusions; and (iv) NMFS’s various reasonable and prudent alternative (“RPA”) recommendations and requirements were not arbitrary or capricious).

Over twenty-five million agricultural and domestic users in California’s arid Central Valley rely on the government’s extraction of water from its rivers. However, this extraction dramatically alters the rivers’ natural states and threatens the viability of the species that depend on the water. To resolve this conflict, the U.S. Department of the Interior’s Bureau of Reclamation (“Reclamation”) ordered the NMFS to evaluate under the Endangered Species Act (“ESA”) how the Projects’ continuing water extraction would impact certain endangered Salmonid species in the rivers.

In a 2009 Biological Opinion (“BiOp”), NMFS found that continuing extraction threatens species and proposed a solution. In response to the proposed remedies, San Luis & Delta–Mendota Water Authority and Westlands Water District (“the Water Districts”) filed suit against the Department of Commerce, the National Oceanic and Atmospheric Administration and NMFS (collectively, “the Federal Defendants”), to challenge whether the 2009 BiOp was developed arbitrarily or capriciously. On summary judgment, the United States District Court for the Eastern District of California (“district court”) found that NMFS violated the Administrative Procedure Act’s (“APA”) arbitrary or capricious standard when developing the BiOp and granted in part and denied in part the claims of both parties. The United States Court of Appeals for the Ninth Circuit (“court”) reviewed this case on appeal.

On appeal, the Federal Defendants asked the court to overturn the components of the BiOp that the district court struck down, and the Water Districts asked the court to overturn the district court’s holdings that were favorable to the BiOp. Before reviewing the 2009 BiOp, the court resolved the initial question of whether the district court erred in its own record review by supplementing the administrative record with extra-record declarations. The court noted that in making its determinations, a district court may only admit extra-record evidence to further understand whether an agency complied with the APA’s arbitrary or capricious standard. However, the district court heavily relied on extra-record scientific opinion to evaluate and question the 2009 BiOp. The court found the district court violated the general rule limiting a court’s review of agency action to the administrative record. Specifically, the court reasoned that the district court erroneously substituted the extra-record declarations for NMFS’s own analysis.

The court next determined whether NMFS complied with the procedural requirements of the APA. Because the ESA does not have its own standard of judicial review, the court evaluated the BiOp under the APA’s deferential arbitrary and capricious standard wherein a court will sustain an agency’s actions if there is a rational connection between the facts and conclusions. In determining the best method to prevent endangered fish species from being caught in a negative flow resulting from pumping the rivers, NMFS used raw salvage data from fish salvage facilities to provide a reasonable and prudent alternative (“RPA”) in its BiOp. The Water Districts challenged the use of raw salvage data instead of data scaled to fish populations and the district court held that using raw salvage data went against the grain of traditional science. Referencing its decision in San Luis & Mendota Water Authority v. Jewell (“Delta Smelt”), where the consulting agency also used raw salvage data, the court held that NMFS’s choice to use raw salvage data was within its substantial discretion. In Delta Smelt, the court determined an agency has substantial discretion to choose whichever available scientific model it wants to use. The court noted that NMFS adequately explained why the loss data usefully assisted it in identifying whether and how fish loss relates to negative flow velocity. Also, NMFS did not base maximum negative flow prescriptions on raw data alone, using other studies to help decide the specific flow requirements imposed. Finally, similar to the Delta Smelt BiOp, the incidental take statement (“ITS”) in this case used population data to scale incidental take, and the RPA used that information to create its flow restrictions. For these reasons, the court held that NMFS acted within its discretion in using non-scaled data models to restrict flows.

Next, the court considered whether NMFS arbitrarily or capriciously determined that the Projects’ continuing activity on the river would jeopardize the viability and the essential habitat of the species. First, the district court determined that NMFS’s designation of the winter-run Chinook as a species at a “high risk” of extinction was unsupported by the record. The court held that NMFS’s explanation of how a 2007 study of the winter-run Chinook influenced its opinion was sufficient to satisfy the requirement that an agency consider all relevant factors and offer an explanation for its conclusions. Second, the district court held that NMFS did not consider all of the relevant factors when it determined the Projects jeopardized orca viability because it failed to address a 2009 Orca BiOp’s contrary finding. The court found that NMFS did in fact discuss the 2009 Orca BiOp and distinguished the two different outcomes as dealing with different time frames and yielding different results. This was sufficient to show that NMFS considered the 2009 Orca BiOp when developing the 2009 Salmonid BiOp. Third, the district court found that NMFS’s conclusions that the Projects’ deviations from CV steelhead preferred spawning water levels significantly reduced spawnable habitat were arbitrary and capricious. The district court stated that NMFS’s use of “maximum habitat” as a benchmark for spawnable area was not a goal of the ESA. However, the record showed that NMFS looked to several studies to determine the point at which the Projects’ restriction of flows on the river would appreciably reduce habitat. The court found that NMFS explained why the studies provided an adequate baseline for developing minimum flows in the river and thus satisfied its obligations under the ESA. Additionally, the record adequately cited studies supporting NMFS’s conclusion that the Projects’ operations negatively impacted spawning gravel quality and quantity. Accordingly, the court held that these findings were not arbitrary or capricious.

Next, the district court held that NMFS failed to articulate the connection between the Projects’ operations, invasive species, and harm to the endangered species. However, the 2009 BiOp found: (i) the Projects’ operations were degrading the environment in the interior delta, making it ill-suited to many native species; (ii) continued Projects operations would cause fish outmigration through the main channels of the delta to divert into intersecting channels that split off from the main rivers; and (iii) fish that are drawn through intersecting channels and into the inner Delta have a lower survival rate than fish that remain in the main delta. Noting that NMFS’s analysis was not perfect, the court held that evidence to support NMFS’s conclusions could be reasonably discerned and that its analysis was therefore not arbitrary or capricious.

Finally, the court determined whether the challenged RPA actions were arbitrary or capricious. The district court reversed and remanded several of the BiOp’s RPA actions because NMFS did not explain how each RPA action was essential to avoiding jeopardy or how each action complied with the ESA’s non-jeopardy factors. Specifically, the district court found that NMFS failed to explain how each RPA action could be implemented in a manner consistent with the intended purpose of the action, consistent with the scope of the Agency’s authority and jurisdiction, and in an economically and technologically feasible way. The court noted that the district court’s analysis was erroneous. In so concluding, the court relied on the holding in Delta Smelt, which explained that the ESA only requires that an agency impose RPAs that are “not likely to jeopardize” the species or its habitat, rather than those that are “essential to avoiding jeopardy.” Applying that standard here, the court found that NMFS was not required to meet all of the non-jeopardy factors but only to conclude that the proposed RPA would not further jeopardize the listed species.

The district court invalidated several RPA actions on the grounds that they were not supported by scientific evidence, were not economically or technologically feasible, or were made arbitrarily or capriciously. Finding that the record showed sufficient evidence or reasonable support for all of the actions, the court reversed all of the district court’s holdings. In so doing, the court reasoned that Action IV.2.1, requiring Reclamation and DWR to implement specific flows on the San Joaquin River to a higher rate to increase survival and abundance, was traceable to the record even if also maximally protective of fish. The court found that Actions IV.2.3 and IV.3, reducing exports from two pumping plants from January through June and November through December, respectively, to mitigate the adverse effects of the negative flows on the Salmonid fish species migrating during those time frames, were also supported by data cited in the record. It upheld Action IV.4.2, requiring the California Department of Water Resources to implement specific measures to reduce pre-salvage fish loss and improve salvage efficiency, because contrary to the district court’s analysis, the ESA did not require NMFS to cite record evidence showing economic and technological feasibility. The court further upheld Action III.1.2, requiring Reclamation to make cold water releases from the New Melones Reservoir to provide more suitable temperatures for the CV steelhead to spawn, as supported by the record. Here, the court noted that Action III.1.2’s exception for when the projected temperatures could not be achieved was sufficiently limited in application because Reclamation must satisfy several procedural requirements before NMFS would grant an exception. The court found that NMFS’s decision to recommend Action III.1.3, requiring Reclamation to operate releases from the East Side Division reservoir to achieve a minimum flow schedule to help sustain the CV steelhead habitat, was properly documented. It reasoned here that the district court erred by failing to defer to the Agency’s interpretation of a scientific study. Finally, the court upheld Action III.2.2, requiring Reclamation to collaboratively develop an operational strategy to achieve floodplain inundation flows that would help restore floodplains and CV steelhead habitat in the Stanislaus River, as within NMFS’s discretion. The court emphasized again that the Agency was not required to explain the Action’s feasibility.

Finally, the court affirmed the portions of the district court’s holdings that upheld the 2009 BiOp. In so doing, the court echoed its holding in Delta Smelt that an agency need not distinguish between discretionary and non-discretionary actions. In holding that the BiOp’s indirect effects on fish mortality were actually direct effects requiring no further elaboration, the court noted that the effects occurred concurrently with the Projects and were therefore direct effects. Finally, the court held that Reclamation was not independently liable under the ESA because the BiOp was legally sound.

The court reversed the district court’s holdings that invalidated the BiOp and affirmed the district court with regard to the issues on cross-appeal. Accordingly, the court remanded for entry of summary judgment in favor of the Federal Defendants.


The title image features an aerial view of the Sacramento Valley in northern Central Valley of California. This image is licensed under the Creative Commons Attribution Share-Alike 2.0 Generic license and the owner does not endorse this blog.

Stockton E. Water Dist. v. United States, 761 F.3d 1344 (Fed. Cir. 2014) (holding that (i) the plain language of a Bureau of Reclamation contract required it only to make available the contractual amounts of water, not to deliver it; (ii) the trial court improperly focused its damages determination on the amounts of water the appellant actually requested under this contract, as compared to the amounts it would have requested but for the Bureau of Reclamation’s initial repudiations; and (iii) the United States waived its right to dispute the trial court’s award of cost of cover damages by failing to properly cross-appeal the issue).

In 1983, Central San Joaquin Water Conservation District (“Central”) and Stockton East Water District (“Stockton”) (collectively “the Districts”) contracted with the United States Bureau of Reclamation (“Reclamation”) for appropriations of water from the New Melones Reservoir (“Reservoir”) in California’s San Joaquin Valley. Central’s contract called for Reclamation to make available, after a ten-year buildup period, between fifty-six thousand and eighty thousand acre-feet of water annually.

To determine the type and location of the conveyance systems needed to distribute the anticipated water, Central retained an engineering firm, CH2M Hill, to help determine projected demand. After meeting with the area’s agricultural community, surveying their lands, and obtaining letters of intent, CH2M Hill concluded that Central would need at least seventy thousand acre-feet of water annually from the Reservoir. The conveyance system was completed in 1993 at a cost of $7.4 million.

The year before, in 1992, Congress enacted the Central Valley Project Improvement Act (“CVPIA”), requiring Reclamation to dedicate eight hundred thousand acre-feet of water to fish, wildlife, and habitat development. As a result, Reclamation informed the Districts that it would likely only be able to provide them with water in the wettest of years. Central brought suit against Reclamation for breach of contract and a takings claim, seeking injunctive and declaratory relief and damages. In 2006, the United States Court of Federal Claims (“trial court”) held a trial on liability. The trial court found for Reclamation on the breach of contract claims and dismissed a related takings claim. The Districts appealed, challenging the trial court’s judgment of non-liability for the years 1994, 1995, and 1999–2004. The United States Court of Appeals for the Federal Circuit (“Court”) affirmed the trial court’s judgment for the years 1994 and 1995, but reversed its finding of non-liability for the years 1999–2004 and remanded with instructions to determine damages. On remand, the trial court awarded Central $149,950 in cover damages but denied Central any expectancy damages.

On appeal, Central argued that the trial court misinterpreted the nature of the breach and therefore failed to consider all evidence relevant to damages. The trial court had found that Reclamation was obligated only to make available the specified quantities of water, and that “Central did not set forth persuasive evidence demonstrating how much New Melones water its farmers plausibly might have requested in the 1999–2004 non-breach world, one in which Reclamation made full allocations under the 1983 contract.” Central argued, on the other hand, that beginning in the eleventh year, “Reclamation was obligated to provide, and Central was obligated to pay, for at least 56,000 acre-feet of water per year regardless of whether Central actually requested that quantity or not.” Therefore, Central argued, the trial court should have considered evidence, such as the initial CH2M Hill demand estimates, to properly determine expectancy damages.

The Court disagreed with Central’s assertion that the trial court erroneously interpreted the nature of Reclamation’s breach, but agreed that the trial court erred in failing to award expectancy damages and in how to analyze those damages based on the facts of the case. Specifically, the trial court improperly “focused its damages analysis on Central’s failure to request at least the minimum amount of water specified in the contract in the years following Reclamation’s non-performance announcements.” Because the trial court failed to consider these years in the context of Reclamation’s repeated announcements from 1993–1999 that it would be unable to provide the minimum contractual amounts of water, the trial court assumed that Central’s requests for less than the minimum amount of water was due to a lack of demand by Central’s customers. This interpretation implied that Central did not have actual economic loss attributable to Reclamation’s contractual breach during those years.

Instead, to properly analyze expectancy damages, the Court held that the trial court needed to focus on what would have happened but for Reclamation’s initial repudiation in 1993. In other words, the trial court should have taken into account testimony and other data from the year 1993 onward that could have revealed the amount of water the farmers might have requested from Central if Reclamation had complied with the contract. The Court stated that, by 1994, Central was on notice that “Reclamation was not going to supply the contractual quantities of water,” and that “[a]t some point most people stop asking for what they have been told they are not going to get, and they make other plans to meet their needs.”

In Reclamation’s brief to the Court, it raised for the first time the argument that the cost of cover damages the trial court awarded to Central was incorrect. Reclamation claimed that the trial court erred by including the excess costs that Central paid South San Joaquin Irrigation District for water during certain breach years, because Central failed to take all the water made available by Reclamation during those years. Central argued that Reclamation waived its right to challenge the awarded amount by not properly filing a cross-appeal on the issue. The Court agreed.

Accordingly, the Court vacated the trial court’s judgment not to award expectancy damages and remanded with orders to make a damages determination consistent with the Court’s opinion


The title image features the New Melones Reservoir and is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported License. The owner of this image does not endorse the DU Water Law Review.

Lacano Invs., LLC v. Balash, 765 F.3d 1068 (9th Cir. 2014) (holding that the Eleventh Amendment barred patent owners’ action for declaratory judgment against Alaska state officials for the ownership of streambeds because it was the functional equivalent of an action to quiet title).

The federal government issued land patents to Lacano Investments, LLC, Nowell Avenue Development, and Ava L. Eads (collectively, “Patent Owners”) before Alaska joined the Union in 1959. Patent Owners alleged that the land patents gave them ownership of particular streambeds in Alaska. However, the Alaska Department of Natural Resources (“the Department”) contended that the streambeds were “state-owned.” The Department based this contention on its determinations in 2010 and 2011 that the waterways above the relevant streambeds were first navigable in 1959 and continued to be navigable. Further, the Submerged Lands Act of 1953 grants the state title and ownership of lands beneath navigable waters.

After the Department notified Patent Owners of its determination, Patent Owners argued that their title was unaffected by the navigability determination. Patent Owners relied on a different section of the Submerged Lands Act, under which streambeds granted by federal patents prior to statehood do not transfer to the state upon joining the Union. Patent Owners subsequently sued the Department, seeking a declaratory judgment that the navigability determinations violated the Submerged Lands Act and an injunction barring the Department from claiming title to the lands beneath the waterways. The United States District Court for the District of Alaska (“district court”) dismissed the complaint for lack of subject matter jurisdiction. Patent Owners appealed to the United States Court of Appeals for the Ninth Circuit (“court”).

The court first examined whether the district court’s dismissal for lack of subject matter jurisdiction was appropriate. On a motion to dismiss for lack of subject matter jurisdiction, courts must accept all factual allegations in the complaint as true. Patent Owners alleged in their complaint that the streambeds were not submerged or state-owned and argued that the court was required to accept this allegation as true. The court held this was not a factual allegation but a legal conclusion, and thus did not accept it as true. The court then looked beyond the complaint to extrinsic evidence of the Department’s claim to the streambeds. Specifically, it examined letters attached to the complaint in which the Department demonstrated Alaska’s claim of ownership to the lands in dispute. Accordingly, the court held that the district court’s dismissal for lack of subject matter jurisdiction was appropriate.

The court then considered whether the Eleventh Amendment’s provision of sovereign immunity barred Patent Owners’ action, and found in the affirmative. The Eleventh Amendment prohibits certain suits brought against a state by an individual without the state’s consent. However, the Ex parte Young doctrine allows actions where an individual seeks prospective or injunctive relief against state officials who would have to implement a state law that is inconsistent with federal law.

The court held that Patent Owners’ action did not fall within the Ex parte Young exception and was therefore barred by the Eleventh Amendment. Binding on this issue was Idaho v. Coeur d’Alene Tribe of Idaho, in which the Coeur d’Alene Tribe (“Tribe”) sued the State of Idaho for ownership and use of land under navigable riverbeds within the boundaries of the Tribe’s reservation. The Supreme Court (“Court”) in Coeur d’Alene held that the Eleventh Amendment barred the suit because the Tribe was seeking close to the functional equivalent of an action to quiet title, and because the Tribe’s identity as a sovereign nation further implicated Idaho’s sovereign interests. The Court held that federal courts lack jurisdiction over all actions where a plaintiff seeks relief that is close to the functional equivalent of a quiet title and dismissed the Tribe’s claim.

The court in this case found that, like the Tribe in Coeur d’Alene, Patent Owners’ claim was the functional equivalent of a quiet title because they wanted full enjoyment and use of the streambeds. Finding that this case presented the same issues as Coeur d’Alene, the court affirmed the district court’s judgment, but did not affirm its reasoning. Specifically, it determined that the district court’s attempt to assess the State of Alaska’s interest in the streambeds was not necessary, and that Patent Owners’ claim should be dismissed simply because it was “close to the functional equivalent” of a quiet title action.

The court turned next to Patent Owners’ three counterarguments. Patent Owners first alleged that Coeur d’Alene was no longer good law, and that the court should have applied the Supreme Court’s recent “straightforward inquiry” analysis in Verizon Md., Inc. v. Pub. Serv. Comm’n of Md. to determine whether the Ex parte Young doctrine exempted their action from the Eleventh Amendment prohibition. In Verizon, the Court directed lower courts to conduct a direct assessment of whether a complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective. While the court acknowledged the tension between the “straightforward inquiry” and the holding in Coeur d’Alene, it held that Coeur d’Alene remained binding. In so concluding, the court noted that Verizon did not overturn Coeur d’Alene and that a more recent Supreme Court decision affirmed Coeur d’Alene’s core holding on the issue.

Patent Owners next alleged that their case was the exact opposite factual situation of Coeur d’Alene. Patent Owners argued that the Tribe in Coeur d’Alene sought to divest Idaho’s longstanding title, whereas Alaska sought to divest the Patent Owners’ alleged longstanding title in this case. The court rejected Patent Owners’ argument, and held that the Coeur d’Alene decision relied on the principle that submerged lands beneath navigable waters are tied in a unique way to sovereignty, regardless of the length of the state’s claim to title.

Lastly, Patent Owners alleged that their case differed from Coeur d’Alene because the Tribe had independent sovereign authority such that its ownership of the land would effectively diminish Idaho’s regulatory authority. Patent Owners argued that, because they lacked independent sovereign authority, their ownership of the streambeds in question would not threaten Alaska’s regulatory power. However, the court held that the identity of the Tribe was not dispositive in Coeur d’Alene, as the Supreme Court in that case had already made its decision when it raised the further impacts to state sovereignty. In so concluding, the court noted that, like the land in Coeur d’Alene, the streambeds in this case had a unique legal status and that state ownership of them was necessary for sovereignty.

Accordingly, the court affirmed the district court’s dismissal of Patent Owners’ claim.


The title image features the streambed of Gold Creek in Alaska. This file is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license.

Pub. Lands Access Ass’n v. Bd. of Cnty. Comm’rs of Madison Cnty., 321 P.3d 38 (Mont. 2014) (holding that: (i) a public road right-of-way includes the land reasonably necessary for maintenance, repair, and enjoyment; (ii) remand was necessary to determine the width of the public right-of-way established by prescriptive use; (iii) public use of the right-of-way to access the Ruby River for recreational purposes was permissible; and (iv) access to the river through the public road right-of-way did not constitute an unconstitutional taking of the landowner’s property).

In Madison County, Montana, (“County”), Seyler Lane, Lewis Lane, and the Duncan District Road cross the Ruby River by way of bridges. The County built and maintains the three bridges, and all three roads are public. The public acquired use of Lewis Lane and the Duncan District Road through deed and statutory petition, respectively. The public acquired a right-of-way to Seyler Lane and Seyler Bridge through prescriptive use. Defendant James C. Kennedy (“Kennedy”) owns land that abuts Seyler Lane and Seyler Bridge. In 2004, with the County’s permission, Kennedy built a private fence along the public right-of-way.

In 2004, the Public Lands Access Association, Inc. (“PLAA”) sued the County, asserting that the fences intruded on the public’s right-of-way and prevented the public from accessing the river. The trial court determined that the Seyler Lane public right-of-way, acquired by prescriptive use, included only the paved and traveled portion of the road, and did not include the land beyond Kennedy’s fences. The trial court granted the County a separate secondary prescriptive right for any use reasonable and necessary for maintenance and repair. PLAA appealed the decision.

On appeal, the Montana Supreme Court (“Court”) determined that all four issues raised by PLAA boiled down to one question: whether the public had a right to use the Seyler Lane right-of-way to access the Ruby River? To answer this inquiry, the Court had to determine (i) the ultimate width of the Seyler Lane right-of-way established by prescriptive use; and (ii) the purpose for which the right-of-way may be used.

In deciding to grant the County a secondary easement, the trial court relied on Montana case law stating that secondary easement rights may be granted to owners of canal or ditch easements for the purpose of reasonable maintenance. However, the Court noted that what was at issue in this case, as compared to a private easement, was a county road right-of-way established by prescriptive use, and that when a county road is established, the public acquires the right-of-way “and the incidents necessary to enjoying and maintaining it.” Montana case law further prescribes, that when a public road, as opposed to a private easement, is established by prescriptive use, the public right-of-way includes areas necessary to maintain it and allow for safe and convenient use. Accordingly, since land for maintenance and repair was already included in the public right-of-way, the Court held that the trial court erred by granting the County a secondary easement for that specific purpose. And that by doing so, it essentially split and narrowed the public right-of-way, which already existed beyond the portion of the road actually traveled.

Having found that the public could use the Seyler Lane right-of-way beyond the traveled path, the Court remanded the issue back to the lower court to determine the exact width of the public’s easement. However, the Court first had to determine whether the trial court could consider evidence of past recreational use when making that determination. PLAA argued that in the original proceeding, the trial court erred by excluding evidence of historical recreational use. The Court held that while recreational use alone is not sufficient to establish prescriptive use, it may be considered as part of “the nature of the enjoyment by which the public road right-of-way was acquired and, thus, may be considered in determining the width of the public road right-of-way.” However, the Court stated that recreational uses that extended beyond the width necessary for maintenance and repair would have to be established by clear and convincing evidence through the statutory period. The Court also noted that a party seeking to admit evidence of recreational use could only admit use that pre-dated Montana’s 1985 statute, which prohibits establishment of a prescriptive easement if acquired by entering private property to reach surface waters.

The Court then turned to the issue of scope, and held that public use of the Seyler Lane right-of-way may include purposes outside those established during the adverse period. The trial court had determined that the public could not travel from the road to the water because the areas were designated only for maintenance and repairs by the County, and, in the alternative, the PLAA had failed to submit evidence of recreational use occurring during the original prescriptive period. Having already determined that the public’s right-of-way included those areas needed for maintenance and repair, the Court held that the use of a public road right-of-way established by prescriptive use was not limited to “the adverse usage through which the road was acquired.” The Court held that, as compared to private prescriptive use, the scope of a public road right-of-way is broader and is not limited to the adverse uses by which the public acquired it. It also includes uses that are reasonably incident to the historical uses, and uses that are reasonably foreseeable. In other words, PLAA was not required to show particular recreational uses of the right-of-way in order for the public to use it for that purpose now; it needed only to show that recreational use was incidental or reasonably foreseeable. The Court concluded that use of the Seyler Lane right-of-way to access the Ruby River was a “reasonably foreseeable use of a public road right-of-way that crosses a river.”

Finally, the Court addressed Kennedy’s cross-appeal of the trial court’s finding that the public could use the Lewis Lane and Lewis Bridge right-of-way, acquired through an express grant contained in the original deed, to access the Ruby River. The public acquired use of the Lewis Lane roadway and bridge after the County purchased the right-of-way from Kennedy’s predecessor-in-interest in 1910. Although the grant of the right-of-way was contained in the deed, Kennedy argued that the trial court erred in allowing the public to use the sixty-foot wide right-of-way to access the river for two reasons: (i) his predecessor never intended the right-of-way to be used for recreational purposes, such as fishing and wading; and (ii) granting public access to the Ruby River amounted to an unconstitutional taking of property because Kennedy owned the riverbed beneath the right-of-way.

The Court rejected Kennedy’s first argument because the Lewis Lane deed expressly granted a public easement without limitation as to its uses. Without clear intent otherwise, the court presumes that a dedicator intended the public to use the right-of-way “in such a way that is most convenient and comfortable for usage known at the time of dedication and to those justified by lapse of time and change of conditions.” Accordingly, the Court held that public access to the river was a convenient and comfortable public use justified by the lapse in time and change in the public’s use over that time.

The Court also rejected Kennedy’s second argument. Kennedy claimed that as the owner of the riverbed underlying a non-navigable stream, he had the right to exclude the public from accessing that section of the river. The Court, however, noted that it “is settled law in Montana” that the owner of a riverbed does not have the right to exclude the public from utilizing the riverbed of non-navigable waters and banks up to the high water mark. Therefore, the Court held that since Kennedy never had the right to control access to the water he had “no compensable interest” in the property he claims was taken.

Accordingly, the Court affirmed the trial court’s finding that allowing public access to the Ruby River did not constitute an unconstitutional taking. The Court, however, reversed the trial court on all other issues and remanded the case to the trial court to determine the definite singular width of the Seyler Lane public right-of-way.


The title image features the Upper Ruby River in Montana. This image is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported License and the owner does not endorse this blog.