State of Montana v. Talen Montana, LLC et al

Filing 191

ORDER GRANTING IN PART 173 Motion to Dismiss for Failure to State a Claim; and 174 Motion to Dismiss for Failure to State a Claim. Counts I, II, and III of Plaintiffs Complaint on Remand (Doc. 1-1) are DISMISSED to the extent that they pertai n to approximately 8.2 miles of the riverbed of the Missouri River between Black Eagle Falls and the Great Falls for failure to state a claim upon which relief can be granted. IT IS FURTHER ORDERED that Defendants shall file their answers by August 22, 2018. Thereafter, the Court will set a preliminary pretrial conference. Signed by Judge Dana L. Christensen on 8/1/2018. (HEG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION

STATE OF MONTANA,
CV 16-35-H-DLC
Plaintiff,
ORDER

vs.
TALEN MONTANA, LLC, f/k/a PPL
MONTANA, LLC, and
NORTHWESTERN CORPORATION,
d/b/a NorthWestern Energy, a
Delaware Corporation,
Defendants.

This case has followed a long course from its inception in 2003 to
Defendants' pending motions to dismiss. On October 10, 2017, this Court
determined that it has federal question jurisdiction under 28 U.S.C. § 1331. (Doc.
171 at 14.) Promptly following this decision, Defendants Talen Montana, LLC
("Talen") and NorthWestern Corporation ("NorthWestern") renewed their
respective motions to dismiss, which had previously been denied as moot on
January 24, 2017. At this juncture, Defendants contend that in PPL Montana v.

Montana, 565 U.S. 576 (2012) (hereinafter "PPL"), the Supreme Court of the
United States settled the issue of navigability for title of the Great Falls reach,
effectively barring Plaintiff, the State of Montana ("Montana" or "the State"), from

-1-

seeking recovery for that section of the Missouri River. Montana opposes
Defendants' motions, arguing that the Supreme Court issued an "open mandate"
which merely established a new legal rule to be applied afresh in this case upon a
more thoroughly developed factual record. Consequently, the Court must now
determine whether the navigability of the entire Great Falls reach has been fully
resolved. For the following reasons, the Court accepts as established that one
section of the Great Falls reach, "from the head of the first waterfall to the foot of
the last, is not navigable for purposes of riverbed title under the equal footing
doctrine" and will dismiss Montana's claims as to rents owing from dams within
that stretch. PPL, 565 U.S. at 599.
BACKGROUND

In 2003, PPL Montana, LLC ("PPL"), was sued by parents of Montana
schoolchildren in the Missoula division of this Court based upon diversity
jurisdiction. The plaintiffs alleged that PPL was operating hydroelectric facilities
on state-owned riverbeds and that the riverbeds were part of Montana's school
trust lands which entitled plaintiffs to compensation for PPL's use of the property.
The parents were dismissed for lack of standing after the State intervened as a
party plaintiff. PPL then moved to dismiss the case for lack of subject matter

-2-

jurisdiction asserting that the State is not a citizen for purposes of diversity
jurisdiction. The Court granted PPL's motion and dismissed the case.
In 2004, PPL filed suit in state court seeking a declaration that the State was
not entitled to compensation for PPL' s use of the riverbeds. The State
counterclaimed seeking a declaration that it owned the riverbeds and was entitled
to collect rent from PPL for their use. The trial court granted summary judgment
to the State and ordered PPL to pay Montana $41 million in rent for its riverbed
use between 2000 and 2007. The trial court found that the riverbeds of the Clark
Fork, Missouri, and Madison rivers were navigable and accordingly held that the
State owned the riverbeds through navigability for title under the Equal Footing
Doctrine. The Montana Supreme Court affirmed the state district court in PPL
Montana, LLC v. State ofMontana, 229 P.3d 421, 443 (Mont. 2010), concluding
the rivers were navigable as a matter of law at the time of statehood in 1889,
meaning the State acquired title to the riverbeds at that time under the Equal
Footing Doctrine.
PPL petitioned the United States Supreme Court for a writ of certiorari,
which was granted on the issue of whether the Montana Supreme Court erred in its
application of the navigability for title doctrine by applying a whole-river analysis.
The Supreme Court reversed, holding, in relevant part, that the Montana Supreme

-3-

Court erred in disregarding the segment-by-segment approach to navigability for
title. PPL, 565 U.S. at 593. The Montana Supreme Court erroneously found the
"segment-by-segment approach ... inapplicable [to the Great Falls reach] because
it does not apply to 'short interruptions of navigability in a stream otherwise
navigable." Id. at 596 (internal quotation marks and citations omitted). The
United States Supreme Court explained that this was a mistake because the Court
had not yet established that short interruptions should "merit treatment as part of a
longer, navigable reach for purposes of title under the equal-footing doctrine," and,
even if it had, the Great Falls reach "certainly would not" qualify as a "short
interruption." Id. Further, the Court clarified that the Montana Supreme Court
erred in its finding that portages are insufficient to defeat a finding of
navigability-"[i]n most cases," portages logically defeat navigability because a
portage, by necessity, requires "transportation over land rather than over the
water." Id. at 597.
In the process of clarifying these principles, the Court applied them to the
Great Falls reach, finding "no evidence" that this reach was navigable, stating that
the need for a portage of this reach defeats a finding of navigability, and
concluding that "the 17-mile Great Falls reach, at least from the head of the first
waterfall to the foot of the last, is not navigable for purposes of riverbed title under

-4-

the equal-footing doctrine." Id. at 597-99. Thereafter, the Court remanded the
case for the "ultimate decision" on the navigability of "the other disputed river
stretches" to be "assessed in light of the principles discussed in [their] opinion."

Id. at 600. It is the Supreme Court's analysis of the Great Falls reach which
spurred the present controversy. Within the Great Falls reach are five
hydroelectric facilities. Beginning upstream at Black Eagle Falls and continuing
downstream, these dams are the Black Eagle Dam, the Rainbow Dam, the
Cochrane Dam, the Ryan Dam (situated on the eponymous Great Falls), and the
MoronyDam.
This case reached an eddy after the United States Supreme Court rendered
its decision, during which time NorthWestern entered into a purchase and sale
agreement for the acquisition of PPL's hydroelectric facilities in Montana,
including the facilities at issue here. (Doc. 1-1 at 4.) The acquisition was
approved by the Montana Public Service Commission in September 2014. (Id.) In
June 2015, PPL Montana, LLC changed its legal name to Talen Montana, LLC.
(Docs. 1-1 at 4; 13-3 at 2-3.)
The State and Talen stipulated in late March of 2016 that the State would be
realigned as the Plaintiff and Talen would be realigned as the Defendant. (Doc.
13-3 at 3.) The parties also stipulated to bifurcate the issues of liability and

-5-

damages, with all claims or defenses relating to navigability at the time of
statehood to be adjudicated first. (Id.) Six days later, on March 31, 2016, the State
filed its complaint on remand in state court, naming both Talen and NorthWestern
as Defendants. (Doc. 13-4.) The State asks for a declaration that it owns the land
occupied by Defendants' hydroelectric facilities and seeks to recover rental
payments for these lands, including a claim for the five dams along the Great Falls
reach.
On April 20, 2016, NorthWestern filed a notice of removal invoking this
Court's federal question jurisdiction. (Doc. 1.) Talen consented in writing to the
removal. (Doc. 1-3.) The State moved to remand the case back to state court,
arguing that mere application of federal law did not mean that the case arose under
federal law for purposes of federal question jurisdiction and that state law
governed "equal footing lands." (Doc. 160 at 11 (internal quotation marks
omitted).) As previously mentioned, this Court determined that federal question
jurisdiction existed because the vindication of the State's claims necessarily turned
upon the construction of federal law. (Doc. 171at14.) Accordingly, the State's
request for remand was denied.
On October 16, 2017, Defendants renewed their motions to dismiss,
asserting that the decision of the Supreme Court precludes relitigation of the
-6-

navigability of the Great Falls reach. Talen argues that the mandate rule allows
this Court to dismiss the State's claims regarding the Great Falls reach because
navigability of this segment of the river should be considered as disposed of and
finally settled by the Supreme Court. (Doc. 5 at 10.) NorthWestern joins in
Talen's argument and further asserts that, as a nonparty in a subsequent suit,
North Western is entitled to invoke the Supreme Court's decision to dismiss
Montana's claims against it. (Doc. 7 at 5.) A hearing on Defendants' motions was
held on May 25, 2018.
DISCUSSION

Defendants have moved for dismissal of the State's claim pertaining to the
Great Falls reach pursuant to Federal Rule of Civil Procedure 12(b)(6) and the
mandate rule. (Docs. 4 at 1; 6 at 2.) Dismissal under Rule 12(b)(6) is "proper only
when the complaint either (1) lacks a cognizable legal theory or (2) fails to allege
sufficient facts to support a cognizable legal theory." Zixiang Liv. Kerry, 710 F.3d
995, 999 (9th Cir. 2013). Unfortunately, Defendants have not explained how Rule
12(b)(6) relates to the mandate rule. Despite invoking Rule 12(b)(6), Defendants
proceed to assert their case for dismissal upon a theory that the mandate rule
deprives this Court of the authority to render a decision regarding the Great Falls
reach-implying that this Court lacks subject-matter jurisdiction, a contention

-7-

which has already been litigated in this case (as condensed above) and which
would be appropriately filed as a Rule 12(b)(1) motion. Nonetheless, the Court
proceeds with the analysis satisfied that dismissal under Rule 12(b)(6) is
appropriate where "the plaintiff' cannot possibly win relief."' Reed v. Lieurance,
863 F.3d 1196, 1207 (9th Cir. 2017) (quoting Lee v. City ofLos Angeles, 250 F.3d
668, 683 n. 7 (2001)). If the mandate rule supports the contention that this Court
cannot consider the navigability for title of the Great Falls reach, then Montana
"cannot possibly win relief' on its claims to that stretch of the river and those
claims will be dismissed.
A. The mandate rule
The law of the case doctrine, which includes the mandate rule, has
"developed to maintain consistency and avoid reconsideration of matters once
decided during the course of a single continuing lawsuit." Casey v. Planned

Parenthood ofSe. Pa., 14 F.3d 848, 856 (3d Cir. 1994). "At an early date (1838)
the Supreme Court announced [the mandate] rule which has never been
abandoned." Fed. Home Loan Bank of San Francisco v. Hall, 225 F.2d 349, 394
n. 10 (9th Cir. 1955); see also Casey 14 F.3d at 857 ("A recent statement of the
rule by this court shows that the rule has remained essentially unchanged in nearly
one hundred fifty years."). As originally enunciated, the mandate rule established:

-8-

Whatever was before the court, and is disposed of, is considered as
finally settled. The inferior court is bound by the decree as the law of
the case; and must carry it into execution, according to the mandate.
They cannot vary it, or examine it for any other purpose than
execution; nor give any other or further relief; nor review it upon any
matter decided on appeal, for error apparent; nor intermeddle with it,
further than to settle so much as has been remanded.

Sibbaldv. United States, 37 U.S. 488, 492 (1838). The mandate rule has been
described as "similar to, but broader than, the law of the case doctrine." United

States v. Cote, 51 F.3d 178, 181 (9th Cir. 1995). Although the two doctrines
overlap, "they are not identical," while both "serve an interest in consistency,
finality and efficiency, the mandate rule also serves an interest in preserving the
hierarchical structure of the court system." United States v. Thrasher, 483 F .3d
977, 982 (9th Cir. 2007).
The "fundamental" mandate rule "binds every court to honor the rulings in
the case by superior courts," ensuring "careful observation of the allocation of
authority established by the three-tier system of federal courts which is necessary
for a properly functioning judiciary." Casey, 14 F.3d at 856-57 (internal quotation
marks omitted). This limit of authority is reflected by the Ninth Circuit's finding
that "if a district court errs by violating the rule of mandate, the error is a
jurisdictional one." Thrasher, 483 F.3d at 982. On remand, a district court is
"without power to do anything ... contrary to either the letter or spirit of the
mandate construed in the light of the opinion of[the superior] court deciding the

-9-

case." Colville Corifederated Tribes v. Walton, 752 F.2d 397, 400 (9th Cir. 1985)

(quoting Firth v. United States, 554 F.2d 990, 994 n. 3 (9th Cir. 1977)) (emphasis
in original). Because a lower court is limited to considering only those issues "not
expressly or impliedly disposed of on appeal," Vizcaino v. US. Dist. Ct., 173 F.3d
713, 719 (9th Cir. 1999) (quoting Firth, 554 F.2d at 993), it is necessary to "look to
the language of the Supreme Court's opinion to see what it intended in this case,"
Casey, 14 F.3d at 857.

B. The Supreme Court's decision in PPL
The Supreme Court in PPL determined that the "primary flaw in the
reasoning of the Montana Supreme Court lies in its treatment of the question of
river segments and overland portage." PPL, 565 U.S. at 593. In discussing the
errors attributable to the Montana Supreme Court on both of these questions, the
Court found that application of the correct principles to the Missouri River
"provides an excellent example." Id. at 595.
Turning first to the application of segmentation, the Court explained that the
"segment-by-segment approach to navigability for title is well settled" and "must
be sensibly applied." PPL, 565 U.S. at 594, 596. The Court reasoned that, even if
the law did recognize that some segments of unnavigable river warranted treatment
as part of a longer, navigable reach, "the kinds of considerations that would define
-10-

a de minimis exception to the segment-by-segment approach would be those
related to principles of ownership and title, such as inadministrability of parcels of
exceedingly small size, or worthlessness of the parcels due to overdivision." Id. at
596. The Court then stated that these considerations are "best illustrated by the
Great Falls reach, which is 17 miles long and has distinct drops including five
waterfalls and continuous rapids in between." Id. at 597. The Court explained that
the falls made navigability doubtful but, nonetheless, the segment was not so small
as to render title worthless or inadministrable. Indeed, the segment could not be
ignored when the $41 million award represented rents owed for facilities of which
half "are along the Great Falls reach." Id.
Next, the Court elucidated why portages were particularly capable of
defeating a finding of navigability, relying predominantly upon the recorded
portage of the Great Falls reach by Meriwether Lewis and William Clark during
their "remarkable expedition through the American West in 1805." Id. at 583,
597-99. Noting the Lewis and Clark portage and "applying its 'short
interruptions' approach," the Montana Supreme Court had erroneously "decided
that the Great Falls reach was navigable because it could be managed by way of
land route portage." Id. (quoting PPL Montana, LLC v. Montana, 229 P.3d 421,
447, 449 (Mont. 2010)). Yet the Lewis and Clark portage of the Great Falls reach
-11-

demonstrated the problem with the Montana Supreme Court's analysis. Watching
buffalo "in considerable quantities" being swept over the falls and "instantly
crushed," Lewis could see that "their steep cliffs and swift waters would impede
progress on the river" and opted for an 18-mile portage which took roughly 11
days to complete. Id. at 583, 585, 597 (internal quotation marks and citations
omitted). The Court explained that "[e]ven if portage were to take travelers only
one day, its significance is the same: it demonstrates the need to bypass the river
segment, all because that part of the river is nonnavigable." Id. at 597. Finally,
[h]aving clarified that portages may defeat navigability for title
purposes, and do so with respect to the Great Falls reach, the Court
sees no evidence in the record that could demonstrate that the Great
Falls reach was navigable. Montana does not dispute that overland
portage was necessary to traverse that reach. Indeed, the State admits
"the falls themselves were not passable by boat at statehood." And
the trial court noted the falls had never been navigated. Based on
these statements, this Court now concludes, contrary to the Montana
Supreme Court's decision, that the 17-mile Great Falls reach, at least
from the head of the first waterfall to the foot of the last, is not
navigable for purposes of riverbed title under the equal-footing
doctrine.
Id. at 599 (internal citations omitted).

After making this conclusion regarding the Great Falls reach, the Court
discussed the evidence regarding PPL's Thompson Falls facility on the Clark Fork
River, from which Montana also seeks rents, and determined "that there is a
significant likelihood" that this section of the river would "also fail the federal test

-12-

of navigability for the purposes of determining title." Id. Nonetheless, the Court
refrained from making a specific finding as to the Thompson Falls, instead stating
that "[w ]hile the ultimate decision as to this and the other disputed river stretches is
to be determined, in the first instance, by the Montana courts upon remand, the
relevant evidence should be assessed in light of the principles discussed in this
opinion." Id. at 600.
C. The Scope of the Mandate
The opinion of the Supreme Court makes clear its intent. In some cases,
when the Supreme Court "adopts a new legal standard," it will explicitly remand
the case "for the courts below to apply the new standard in the first instance," but
in other cases, "it applies the new standard itself and decides the merits." Casey,
14 F.3d at 857 (internal citations omitted). Here, the Court appears to have taken a
combined approach. Although the Court was not adopting a "new legal standard,"
the Court certainly deemed thorough clarification of an existing legal standard
necessary and applied the standard itself to a segment of river in dispute that was
both indisputably portaged and admittedly not passable by boat at statehood. The
Court then passed on the application of the articulated principles to the remaining
segments in dispute for application "upon remand." With such a clear directive,

-13-

this Court is wary of allowing this litigation to proceed on a course seeming both
unanticipated and opposite to that intended by the Supreme Court.
The State contends that the mandate rule does not dictate dismissal of its
claims for the Great Falls reach-arguing that the applicability of the mandate in
this case directed only to reversal of the grant of summary judgment on
navigability and nothing more. (Doc. 177 at 20-25.) Montana puts much
emphasis on the mandate being "open" rather than "limited," asserting that when a
mandate is open, it allows courts "to consider or reconsider all issues consistent
with the general mandate affirming, reversing, or vacating the judgment below."
(Id. at 17.) Montana stresses that, in this case, because the mandate is open, the

Court may reconsider the navigability of the entire Great Falls reach because that is
consistent with the general mandate of reversal of summary judgment.
Montana's argument is unconvincing. It is true that the Ninth Circuit has
established that "a district court is limited by this court's remand in situations
where the scope of the remand is clear." Mendez-Gutierrez v. Gonzales, 444 F.3d
1168, 1172 (9th Cir. 2006). In such cases, where the mandate remands the case for
specific proceedings or compliance with a specific instruction, the Court is
obligated to "faithfully carry out [the] command and go no further." Planned
Parenthood of Columbia/Willamette Inc. v. American Coalition ofLife Activities,

-14-

518 F.3d 1013, 1018 (9th Cir. 2008). However, merely because "additional issues
[are] not open for review" when there is a limited mandate, Thrasher, 483 F.3d at
983 (internal quotation marks and citation omitted), does not mean that when a
mandate is open, the Court may reanalyze issues decided on appeal so long as the
issue does not erode the "general mandate affirming, reversing, or vacating the
judgment below," as the State suggests, (Doc. 177 at 17).
The Court is free to "make any order or direction in further progress of the
case, not inconsistent with the decision of the appellate court," and "may consider,

as a matter offirst impression, those issues not expressly or implicitly disposed of
by the appellate decision." Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d
943, 950 (3d Cir. 1985) (citing Quern v. Jordan, 440 U.S. 332, 347 n. 18 (1979),
and compiling cases). "There is ample precedent" to sustain the principle that the
opinion of the appellate court "is to be consulted to ascertain what was intended by
its mandate and that questions considered and decided in the opinion of the court
are not to be reexamined in any subsequent stage of the same case." Fed. Home

Loan, 225 F .2d at 3 70 n. 10 (compiling cases). Here, it is beyond dispute that the
Supreme Court analyzed the navigability of the Great Falls reach and made a
conclusive decision as to that issue. It would be inappropriate for this Court to
decry the nonnavigability of the Great Falls reach in the wake of the Supreme
-15-

Court's disposition of the issue. Accordingly, the Court is convinced that the
mandate is not "open" as regards reanalysis of the Great Falls reach, "at least from
the head of the first waterfall to the foot of the last." 1 PPL, 565 U.S. at 599.
The State next argues that the Supreme Court could not have decided that
the Great Falls reach was nonnavigable for purposes of title because the State was
not faced with a cross-motion for summary judgment on the issue. (Doc. 177 at
20-25.) The State contends that it "'would be inappropriate for [the court] to
reverse the trial court on the basis of facts not incorporated in the record which the
trial court considered at the time of its decision."' (Id. at 24 (quoting Creamette

Company v. Merlino, 289 F.2d 569, 570 (9th Cir. 1961)).) However, it must be
remembered that the Supreme Court was faced with a state court decision granting
Montana summary judgment regarding navigability for title to the Great Falls
reach. There were facts incorporated in the record which made the navigability of
the Great Falls reach undisputed. Based upon Montana's concessions that "a
portage was necessary," and "the falls themselves were not passable by boat at
statehood," as well as the trial court's statement that "the falls had never been
navigated," the Court concluded, "contrary to the Montana Supreme Court's
1

Having so concluded, the Court will not address the State's argument that this portion of the
PPL decision was mere dicta. As Talen points out, "statements 'made casually and without
analysis"' are considered dicta. (Doc. 181 at 11 (quoting United States v. Johnson, 256 F.3d
895, 914 (9th Cir. 2001)).) Assuredly, the discussion of the Great Falls reach in PPL cannot be
defined as such.

-16-

decision, that the 17-mile Great Falls reach, at least from the head of the first
waterfall to the foot of the last, is not navigable for purposes of riverbed title under
the equal-footing doctrine." PPL, 565 U.S. at 599 (internal quotation marks and
citations omitted) (emphasis added). The Court's conclusion is consistent with its
statutory power to enter "such appropriate judgment, decree, or order, or require
such further proceedings to be had as may be just under the circumstances." 28
U.S.C. § 2106. The Court is satisfied that the United States Supreme Court had the
authority to decide the navigability of the Great Falls reach.
D. The Extent of the Great Falls Reach

Montana's most persuasive argument is that the conclusion of the Supreme
Court is ambiguous because it contains the statement "at least from the head of the
first waterfall to the foot of the last." (Doc. 177 at 13-15.) Despite this Court's
conclusions that the mandate is not open regarding the Great Falls reach and that
the Supreme Court had the authority to decide the issue, the opinion does not
precisely define the Great Falls reach. To be sure, the language emphasized by the
State makes it apparent that the Court hedged its definition of the Great Falls reach.
At most, the entire 17-mile stretch is included. At least, the section
beginning at the head of Black Eagle Falls to the foot of the Great Falls is not
navigable. This ambiguity is concerning to the Court. Particularly in light of the
-17-

expert reports which are contained in the record and which clearly raise some
issues of fact regarding the navigability of certain sections contained within the
broadest reading of the 17-mile reach. Nonetheless, the ambiguity does not render
the mandate entirely impotent in regards to the Great Falls reach. The Supreme
Court's caveat within its conclusion denotes the low-water mark going forward.
The Court is confident that the section demarcated by the head of Black Eagle
Falls and the foot of the Great Falls has been definitively excepted from any
further analysis of navigability for title. 2
Additionally, it is worth noting that not even the matter of what constitutes
the 17-mile stretch is beyond dispute. Talen presently asserts that the 17-mile
stretch extends from Broadwater Bay at river-mile 534 to the "last rapid just past
Belt Creek at river-mile 517." (Doc. 181at15.) But Belt Creek (formerly known
as "Portage Creek") is at river-mile 517.7; 534 less 517. 7 is 16.3 miles, not 17
miles. (Doc. 181-8 at 2.) Interestingly, when before the Supreme Court, Montana
asserted that the "17 miles that has been used in this case to refer to the Great Falls
is generally demarked by the confluence with Belt (Portage) Creek, several miles
below Great Falls, and Sun (Medicine) River, several miles above Black Eagle

2

It would defy common sense, and the mandate rule, to entertain argument regarding the
navigability of rapids between the falls since many "difficult, shelf-like rapids formed at
horizontal ledges of sandstone lay in the channel between the falls, and on below [Great] Falls,
making a single portage more desirable." (Doc. 106-14 at 46; 188.)

-18-

Falls." Brief for Respondent, PPL Montana, LLC v. Montana, 2011 WL 5126226,
at *10 (Oct. 27, 2011). However, the confluence of the Missouri River and Sun
River is at river-mile 535; 535 less 517.7 is 17.3 miles. (Doc. 181-8 at 2.) To
complicate this issue, the Supreme Court did not specifically define the 17-mile
stretch to which it referred. Instead, the Court vaguely stated that the "17-mile
stretch ... begins somewhat above the head of Black Eagle Falls," and does not
provide a definitive end point. PPL, 565 U.S. at 584. This ambiguity serves to
bolster the Court's determination that the mandate should only pertain to the caveat
explicitly carved into the Supreme Court's conclusion regarding the Great Falls
reach.
Based on the foregoing, the Court finds that the Supreme Court's mandate
bars litigation of the navigability for title of the roughly 8.2 river-mile stretch
demarcated as the head of the Black Eagle Falls to the foot of the Great Falls.
(Doc. 181-8 at 2.) Consequently, Plaintiff"lack[] a cognizable legal theory,"
Zixiang Li, 710 F.3d at 999, and "cannot possibly win relief' with regard to their

claims pertaining to the riverbed between Black Eagle Falls and the Great Falls,
Reed, 863 F.3d at 1207. Accordingly, the Court will dismiss Plaintiffs claims

pertaining to this section of the Missouri River.

-19-

Lastly, the Court is satisfied that the effect of the mandate applies with equal
force to the State's claims against NorthWestern. As NorthWestern notes, the
"Equal Footing Doctrine applies to all parties equally." (Doc. 182 at 5.) Because
the State did not acquire title to the riverbed between Black Eagle Falls and the
Great Falls, the State cannot possibly win relief on its claims for rent derived from
use of that specific section of the Missouri River riverbed.
IT IS ORDERED that the Defendants' Motions (Docs. 173; 174) are
GRANTED IN PART. Counts I, II, and III of Plaintiffs Complaint on Remand
(Doc. 1-1) are DISMISSED to the extent that they pertain to approximately 8.2
miles of the riverbed of the Missouri River between Black Eagle Falls and the
Great Falls for failure to state a claim upon which relief can be granted.
IT IS FURTHER ORDERED that Defendants shall file their answers by
August 22, 2018. Thereafter, the Court will set a preliminary pretrial conference.
DATED this 1st day of August, 2018.

Dana L. Christensen, Chief istrict Judge
United States District Court

-20-