State of Montana v. Talen Montana, LLC et al
Filing
330
ORDERED: Defendants Motions for Partial Summary Judgment (Docs. 255, 260) are DENIED. IT IS FURTHER ORDERED that the Court RESERVES RULING on the parties Motions in Limine (Docs. 276, 279, 282, 287, 290, 291) until trial. Signed by Judge Dana L. Christensen on 12/7/2021. (HEG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
STATE OF MONTANA,
CV 16–35–H–DLC
Plaintiff,
vs.
ORDER
TALEN MONTANA, LLC, f/k/a PPL
Montana, LLC, and NORTHWESTERN
CORPORATION, d/b/a NorthWestern
Energy, a Delaware corporation, and
UNITED STATES OF AMERICA,
United States Forest Service, United
States Bureau of Reclamation, and United
States Bureau of Land Management,
Defendants.
Before the Court are two motions for partial summary judgment and several
motions in limine. (Docs. 255, 260, 276, 279, 282, 287, 290, 291.) The Court will
address each motion in turn.
FACTUAL AND PROCEDURAL BACKGROUND
The long procedural history of this case is summarized in this Court’s order
granting in part Defendants’ motions to dismiss. Montana v. Talen Montana, LLC,
No. CV 16-35-H-DLC, 2018 WL 3649606, at *1–3 (D. Mont. Aug. 1, 2018). The
operative complaint alleges that Defendants Talen Montana, LLC (“Talen”) and
NorthWestern Corporation (“NorthWestern”) occupy land owned by the State of
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Montana, and Talen and NorthWestern owe the state compensation for their past
and current occupation of that land. (Doc. 221.) The United States was joined as a
necessary party because it asserts ownership of the land in question and charges
rent to NorthWestern for its use. (Doc. 216.) Montana alleges ownership of
submerged lands underlying certain segments of the Madison, Missouri, and Clark
Fork Rivers under the Equal-Footing Doctrine. (Doc. 221 at ¶¶ 40–41, 63–81.)
Montana seeks declaratory judgment that it owns the land in question,
compensation or restitution for Talen and NorthWestern’s past and present
occupation and use of the land, and an order quieting title to the land. (Id. ¶¶ 94–
114.)
LEGAL STANDARD
Under the Equal-Footing Doctrine, “[u]pon statehood, the State gains title
within its borders to the beds of waters then navigable[.]” PPL Montana, LLC v.
Montana, 565 U.S. 576, 591 (2012). Rivers are navigable if they “are navigable in
fact. And they are navigable in fact when they are used, or are susceptible of being
used, in their ordinary condition, as highways for commerce, over which trade and
travel are or may be conducted in the customary modes of trade and travel on
water.” Id. at 592 (quoting The Daniel Ball, 77 U.S. (10 Wall.) 557, 563 (1871)).
The navigability of waters for purposes of state title “is determined at the time of
statehood . . . and based on the natural and ordinary condition of the water[.]” Id.
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at 592 (internal quotation omitted). Navigability for title is distinct from
navigability determinations in the context of admiralty jurisdiction (which extends
to water routes made navigable even if not formerly so), federal regulatory
authority (which extends to newly navigable waters, formerly navigable waters,
and waters that may become navigable with reasonable improvements), and the
federal commerce power (which focuses on navigation involving interstate
commerce). Id. at 592–93.
“To determine title to a riverbed under the equal-footing doctrine,” the Court
“considers the river on a segment-by-segment basis to assess whether the segment
of the river, under which the riverbed in dispute lies, is navigable or not.” Id. at
593. The Supreme Court has “noted the importance of determining ‘the exact
point at which navigability may be deemed to end.’” Id. at 594 (quoting United
States v. Utah, 283 U.S. 64, 77 (1931)). A segment should be “discrete, as defined
by physical features characteristic of navigability or nonnavigability, and
substantial, as a matter of administrability for title purposes.” Id. at 597. “[S]hifts
in physical conditions” of a river “provide a means to determine appropriate start
points and end points for the segment in question,” and “[t]opographical and
geographical indicators” such as gradient changes or the location of a tributary
providing additional flow “may assist.” Id. at 595. Substantiality requires
consideration of factors “related to principles of ownership and title, such as
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inadministrability of parcels of exceedingly small size, or worthlessness of the
parcels due to overdivision.” Id. at 596.
In determining navigability for title, “the evidence must be confined to that
which shows the river could sustain the kinds of commercial use that, as a realistic
matter, might have occurred at the time of statehood.” Id. at 600. “The evidence
of the actual use of streams, and especially of extensive and continued use for
commercial purposes may be most persuasive,” but actual use is not the only
permissible evidence. Utah, 283 U.S. at 82. “[W]here conditions of exploration
and settlement explain the infrequency or limited nature” of actual commercial use
of a body of water, “the susceptibility to use as a highway of commerce may still
be satisfactorily proved.” Id. Relevant evidence may include “physical
characteristics and experimentation as well as by the uses to which streams have
been put.” Id. at 83. However, “[m]ere use by initial explorers or trappers, who
may have dragged their boats in or alongside the river despite its nonnavigability in
order to avoid getting lost, or to provide water for their horses and themselves, is
not itself enough” to prove navigability. PPL, 565 U.S. at 600. Likewise,
recreational use of a river and “poststatehood evidence, depending on its nature,
may show susceptibility of use at the time of statehood.” Id. at 600–01. But a
party “seeking to use present-day evidence for title purposes must show: (1) the
watercraft are meaningfully similar to those in customary use for trade and travel at
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the time of statehood; and (2) the river’s poststatehood condition is not materially
different from its physical condition at statehood.” Id. at 601. Evidence that a
river segment required a portage may be sufficient to defeat a finding of
navigability because “[i]t demonstrates the need to bypass the river segment, all
because that part of the river is nonnavigable.” Id. at 597.
I.
Motions for Summary Judgment
A party is entitled to summary judgment if it can demonstrate that “there is
no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). In other words, summary judgment is
warranted where the documentary evidence produced by the parties permits only
one conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986).
Accordingly, only disputes over facts that might affect the outcome of the lawsuit
will preclude entry of summary judgment; factual disputes that are irrelevant or
unnecessary to the outcome are not considered. Id. at 247–48.
Summary judgment is inappropriate where the parties genuinely dispute a
material fact: “that is, if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id. at 248. The court must view the evidence
“in the light most favorable to the opposing party.” Tolan v. Cotton, 572 U.S. 650,
657 (2014) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)).
However, a party opposing a “properly supported motion for summary judgment
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may not rest upon the mere allegations or denials of his pleading, but . . . must set
forth specific facts showing that there is a genuine issue for trial.” Anderson, 477
U.S. at 248.
a. Talen’s Motion for Partial Summary Judgment Regarding Bear
Trap Canyon
Talen moves for partial summary judgment on Montana’s claims concerning
the Bear Trap Canyon, which it describes as a “sub-segment” of the Madison
River. (Doc. 255; Doc. 256 at 2.)1 Montana claims that the “segments of the
Madison River on which the Madison Hydropower Developments are located . . .
were navigable for title at the time of statehood.” (Doc. 221 at ¶ 78.) Although the
parties appear to disagree about the precise river mile boundaries of the land
surrounding the Madison Hydropower Developments to which Montana is
asserting title, they do not dispute that part of Bear Trap Canyon lies within those
boundaries. Talen contends that there is no genuine dispute of material fact
concerning the non-navigability of Bear Trap Canyon, which the parties agree runs
from River Mile 33 to 42.5. (Doc. 256 at 4–5; Doc. 271 at 3.) Talen argues that
none of Montana’s expert witnesses opined that Bear Trap Canyon is navigable for
title, while Talen’s experts have opined that it was non-navigable based on its
Although Montana’s expert geomorphologist testified that Bear Trap Canyon is more properly
considered a separate segment, the Court agrees with the parties that this distinction need not be
resolved for purposes of this motion for partial summary judgment. (Doc. 270 at 7 n.1.)
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physical characteristics. (Doc. 256 at 6–8.) NorthWestern and the United States
joined in Talen’s motion. (Docs. 259, 266.)
Montana responds by arguing that it has produced “ample evidence” that
Bear Trap Canyon was navigable at statehood because it was “susceptible of being
used” as a highway of commerce. (Doc. 270 at 13.) In particular, Montana argues
that numerous factual disputes—including the customary modes of trade and travel
on water at the time of Montana’s statehood, the natural condition of the Madison
River at or near statehood, and whether watercraft smaller than steamboats could
navigate the canyon—underlie the ultimate question of Bear Trap Canyon’s
navigability for title. (Id. at 14–25.)
In reply, Talen contends that the factual disputes raised in Montana’s reply
brief are immaterial to the question of Bear Trap Canyon’s navigability for title.
(Doc. 296 at 8–16.)
Viewing the evidence in the light most favorable to Montana as the nonmoving party, the Court concludes that Montana has set forth sufficient facts to
demonstrate that there is a genuine dispute of material fact concerning the
navigability for title of Bear Trap Canyon. Specifically, Montana has produced
evidence to support a finding that Bear Trap Canyon was susceptible of being used
as a highway for commerce at statehood. The following discussion of particular
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factual disputes is exemplary only and not intended to convey that other issues of
fact are not in dispute.
First, there is a material factual dispute concerning the customary mode of
trade and travel on rivers at the time of Montana’s statehood. Defendants have
presented evidence that the upland steamboat was the customary mode of trade and
travel at the time of Montana’s statehood, and Bear Trap Canyon’s “steep, fast,
bouldery reaches” were “complete obstructions to commercial navigation.” (Doc.
258-7 at 8–10.) Jason Cajune, Montana’s expert on watercraft, reported that “[i]t
is unlikely any steamboat was ever used on the Madison river[,]” but bateaus—
flat-bottomed vessels between 12 and 50 feet long and “close kin to a dory”—were
used on the east coast by traders, trappers, and for transportation before 1889 and
were used as utility boats for log drives in the west, and “would be expected to
navigate up to Class IV rapids if present on the . . . Madison[.]” (Doc. 273-1 at
15–17.) He explained that bateaus’ flat-bottomed design gives them higher weight
capacities than round-bilged boats and allows them to “float higher, avoiding rocks
and making them very maneuverable.” (Id. at 16.) Another expert historian,
Theodore Karamanski, provided a rebuttal report that recounted historical reports
of bateaus being used to transport goods and people on western rivers during a
gold rush in Idaho in 1884; he also described the use of bateaus to transport people
and rafts to transport supplies during log drives near the time of Montana’s
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statehood. (Doc. 273-5 at 9, 11–15.) Viewed in the light most favorable to
Montana, the evidence before the Court is sufficient for a reasonable factfinder to
conclude that bateaus were a customary mode of trade and travel on rivers at the
time of Montana’s statehood.
Second, there is a material factual dispute whether boats constituting the
customary mode of trade and travel could have navigated Bear Trap Canyon at
statehood. As discussed above, relevant evidence may include physical
characteristics of the waterway, experimentation, the uses to which the waterway
has been put, and post-statehood evidence of use (so long as the watercraft are not
meaningfully different from those in use at statehood and the waterway has not
materially changed since statehood). PPL, 565 U.S. at 601; Utah, 283 U.S. at 82–
83. Montana has introduced sufficient evidence in these categories to survive a
motion for summary judgment.
Defendants’ experts contend that construction and operation of the Madison
Dam since 1906 has materially altered the flows within Bear Trap Canyon, and
flows have increased during the “navigation season” of July to October, “which
would tend to make the canyon segment more navigable than at the time of
statehood.” (Doc. 258-7 at 28–30; see also id. at 34–35 (explaining that the
Madison Project reduced peak flows and increased flows over the navigation and
winter seasons).) These experts opine that prior conditions, including significant
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talus and rockfall in the channel, likely would have required a portage of about 15
miles. (Id. at 30.) They report that Bear Trap Canyon had a gradient of 20.6 feet
per mile and “contains a number of Class III, IV, and V rapids” according to
American Whitewater, but they later clarify that American Whitewater “rates the
canyon as boatable with Class 1-IV/V rapids (depending on the flow)[.]” (Id. at
13–14, 30.) They emphasize that eight rafters have died in Bear Trap Canyon, and
commercial rafters do not run the river when its flows are higher than 3200 cfs,
“which is about half the 2-yr peak flow that has a 50% probability of occurring in
any given year.” (Id. at 27.) They do not, however, contend that this occurs with
such frequency that this fact alone renders the river reach non-navigable. See PPL,
565 U.S. at 602–03 (“[A] river need not be susceptible of navigation at every point
during the year, [but] neither can that susceptibility be so brief that it is not a
commercial reality.”).
By contrast, Montana’s geomorphology experts, Andrew Wilcox and John
Schmidt, stated that “[t]he bouldery channel in Bear Trap Canyon is successfully
navigated by modern boats” and opined that “[t]he channel in the Lower
Canyons[,]” in which Bear Trap Canyon lies, “has changed little since statehood.”
(Doc. 273-2 at 3, 5.) They further assessed data relating to the flow of the Madison
River, opining that “[t]oday, the magnitude of typical flows of the Madison River
downstream from Ennis Lake that occur ~9 mths/yr are approximately the same as
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at the turn of the 20th century[.]” (Id. at 7.) Jason Cajune reported that there is
“only one Class V+ rapid in Montana[,] which is called Jaws on the Middle Fork
of the Flathead River[,]” which, viewed in the light most favorable to Montana,
supports an inference that bateaus, which he opined could navigate up to Class IV
rapids, could navigate the rapids in Bear Trap Canyon. (Doc. 273-1 at 9, 17.) He
further opined that dories are modern watercraft that “are in use on all three of the
rivers in question” including the Madison, they “regularly descend up to Class IV
rapids[,]” and they are similar in several respects to bateaus in existence at the time
of statehood. (Id. at 18–20.) A reasonable factfinder could conclude based on this
evidence, viewed in the light most favorable to Montana, that Bear Trap Canyon
was navigable by bateaus at the time of statehood; together with a finding that
bateaus were a customary mode of trade and travel at the time of statehood, these
would be sufficient to support a finding that Bear Trap Canyon was susceptible of
navigation at statehood.
These factual disputes concerning the customary mode of trade and travel
and the ability of particular watercraft to navigate the Bear Trap Canyon at the
time of Montana’s statehood are essential to the ultimate navigability
determination, and they preclude partial summary judgment concerning the
navigability of Bear Trap Canyon. Accordingly, Defendants’ motion for partial
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summary judgment concerning the navigability of Bear Trap Canyon (Doc. 255)
will be denied.
b. Talen’s Motion for Partial Summary Judgment Regarding Clark
Fork River Segments
Talen moves for partial summary judgment in its favor on Montana’s claims
seeking recovery for the disputed reach on the Clark Fork River, which includes
the Thompson Falls and Eddy Segments. (Doc. 260.) The parties agree that the
Thompson Falls Segment runs from River Mile 207.1 to 208.1. (Doc. 274 at 2.)
The parties dispute the precise boundaries of the Eddy Segment; Montana’s experts
assert that it runs from River Mile 208.1 to 232, while Talen’s experts assert that it
runs from River Mile 208.1 to River Mile 235.5. (Id. at 2–3.) Montana’s claim of
title extends from River Mile 207.4 to 220.1. (Id. at 2.)
Talen argues that the State has conceded that the Thompson Falls Segment
fails the navigability for title test, and a 1910 district court decree holding that the
river section in which the Thompson Falls Project would be constructed was not
navigable for title has preclusive effect as to the Eddy Segment (hereinafter the
“1910 Decree”). (Doc. 261 at 1–2.) NorthWestern joined in the motion (Doc.
263), and the United States adopted the motion, concurred in its arguments, and
adopted its accompanying statement of undisputed facts (Doc. 266). Montana
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responds that it has introduced evidence that the Thompson Falls and Eddy
Segments are navigable, and the 1910 Decree has no preclusive effect. (Doc. 272.)
1.
Navigability of the Thompson Falls and Eddy Segments
Talen contends that the Supreme Court “took the Montana state courts to
task for dismissing” the 1910 Decree as conclusory and ruled that the federal
judgment and the 1891 Army Corps of Engineers Report on which it relied were
relevant evidence that the Thompson Falls reach was non-navigable for title. (Doc.
261 at 12 (citing PPL, 565 U.S. at 599–600, 602).) Talen argues that Montana’s
expert historian, Dr. Douglas Littlefield, repeated that error and did not consider
the decision or report, and Montana provided no evidence of actual navigation of
the Eddy Segment. (Id. at 12–13.)
Montana responds that Dr. Littlefield concluded that the Eddy Segment was
actually navigated and was susceptible of navigation based on historical
photographs and the opinions of land surveyors; small watercraft navigated the
Clark Fork River upstream from Thompson Falls; and log drives were conducted
on the Clark Fork River near the time of statehood, beginning above Thompson
Falls and continuing downriver. (Doc. 272 at 15–16.) Montana further cites
federal regulatory proceedings in which the Federal Power Commission concluded
that the Clark Fork River was navigable based on findings that the river was used
for transportation of people and property in Oregon, Idaho, and Montana. (Id. at
13
16–18.) The State concedes that Thompson Falls “constituted an obstacle to some
forms of navigation[,]” but log floats occurred within the Thompson Falls
Segment, and only approximately 1100 feet of the Segment would have a steep
gradient, followed by approximately 3800 feet of potentially navigable river. (Id.
at 18–19.) Montana also takes issue with Talen’s approach to the segment-bysegment analysis, arguing that the parties dispute the precise segment boundaries
in this case and that the Court has the discretion to determine “the demarcation of
segments” as well as their navigability for title. (Id. at 19–22.)
In reply, Talen asserts that Dr. Littlefield conceded that Thompson Falls was
non-navigable and routinely portaged, and, based on that concession, it is entitled
to summary judgment concerning the Thompson Falls Segment. (Doc. 297 at 8–
9.) Talen argues that the log floats Montana cites took place after the Thompson
Falls Dam was completed, and Montana has not shown (and cannot show) that the
river’s condition at that time was not materially different from its condition at
statehood. (Id. at 10–11.) Talen argues that Montana’s arguments concerning
segmentation are contrary to PPL “and the segmentation opinions of [Montana’s]
experts,” and the State should not now be permitted to assert that navigability
should be determined individually for sub-portions of broader segments identified
by its experts. (Id. at 11–13.) Talen further asserts that the State’s evidence is
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insufficient to create a genuine dispute of material fact concerning the Thompson
Falls Segment’s susceptibility to navigation at statehood. (Id. at 13–14.)
To the extent Talen moves for partial summary judgment in its favor on the
navigability in fact of the Eddy Segment, such motion will be denied because
Montana has introduced evidence sufficient to establish a genuine dispute of
material fact concerning the navigability of the Eddy Segment, including actual use
by boats of part of the segment and log drives throughout the segment, physical
characteristics suggesting susceptibility of steamboat navigation, and historical
evidence of significant interest in establishing steamboat navigation of the
Segment near the time of statehood, although those aspirations apparently were not
realized (Doc. 275-3 at 4–5, 8; Doc. 275-15 at 2–3).
The Thompson Falls Segment presents a closer question. Dr. Littlefield,
Montana’s historical expert, opined that Thompson Falls “was neither navigated
nor susceptible of navigation for trade and travel” and was “routinely portaged by a
relatively short distance of about two miles.” (Doc. 275-13 at 2.) There is some
evidence of at least one pre-statehood log raft from Weeksville (which another
expert, Dr. Jay Brigham, opined was in the Eddy Segment) over Thompson Falls,
although it ended in tragedy when it was caught in the rapids at Thompson Falls
and resulted in one person’s death. (Doc. 275-3 at 3–4.) Dr. Brigham concluded
that “Thompson Falls was not navigable and portages around the falls were
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necessary.” (Id. at 8.) Talen is correct to observe that much of the evidence of log
drives over Thompson Falls post-dates statehood and completion of the Thompson
Falls Dam, which Talen asserts made the river more susceptible to navigation, and
Montana presented no evidence to show that the Thompson Falls Segment’s poststatehood conditions were not materially different from the conditions at statehood.
(Id.; Doc. 275-5 at 2–3.) There is some evidence that, by the time of statehood,
interest in navigating the portions of the Clark Fork River including Thompson
Falls had waned following the arrival of railroad transportation in the surrounding
areas, which could explain the dearth of evidence of actual use. (Doc. 275-9 at 7–
8; see also Doc. 275-11 at 4 (opining that availability of rail travel coincided with
less use of rivers for travel more broadly).)
The only evidence of navigability of the Thompson Falls themselves
presented at this summary judgment stage appears to be a log drive that ended in
disaster. (Doc. 275-3 at 3–4.) Moreover, some of Montana’s experts have
conceded that the Falls required a portage (e.g., Doc. 275-13 at 2), which
ordinarily is fatal to a claim of navigability. PPL, 565 U.S. at 597. However, the
Falls themselves do not comprise the entire Thompson Falls Segment as delineated
by the parties; Montana has introduced evidence that 3800 feet of the Segment
have a much lower gradient than the Falls. (Doc. 275-6 at 3.) Thus, assuming
without deciding that there is no material dispute that the Thompson Falls
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themselves were not navigable for title, the question becomes whether the Court
should determine at this stage that the Thompson Falls Segment as delineated by
the parties’ experts is non-navigable in its entirety as a matter of law, or whether
disputed contentions of navigability of other portions of the Segment will require
the Court to engage in its own segmentation based on the evidence presented at
trial. On this question, the State has the better argument, and the Court declines to
determine navigability of the entire Thompson Falls Segment (as it has been
delineated by the parties’ experts) as a matter of law at this time.
Talen is correct that PPL requires the Court to determine navigability on a
segment-by-segment basis. PPL, 565 U.S. at 593. But the Court has repeatedly
emphasized “the importance of determining ‘the exact point at which navigability
may be deemed to end.’” PPL, 565 U.S. at 594 (quoting Utah, 283 U.S. at 90).
The PPL Court further tied segmentation to “[p]hysical conditions that affect
navigability[.]” Id. at 595 (emphasis added). The PPL Court did not prescribe a
rigid approach of determining segmentation based on physical conditions without
reaching the ultimate issue of navigability, as Talen proposes. Likewise, in Utah,
the Court sustained the State’s exception to a determination of non-navigability
where a 4.35 mile section of a 40.5 mile segment identified by the master “d[id]
not differ in its characteristics, with respect to navigability, . . . save that there is
more water and a slightly increased gradient” from other river segments deemed
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navigable, and a government engineer described 4.2 miles of the 4.35 as “quiet
water[.]” 283 U.S. at 80, 89. The Court stated that “the exact point at which
navigability may be deemed to end . . . should be determined precisely[,]” either by
agreement of the parties or further factfinding. 283 U.S. at 80, 89–90. The
gravamen of these decisions is that the final determination of segmentation is tied
to navigability, rather than solely based on physical conditions or topographical or
geographical indicators that are relevant to, but not necessarily dispositive of,
determining where navigability begins or ends. See PPL, 565 U.S. at 595. Talen’s
approach would have the Court conduct the analysis backwards by determining
that an entire mile of river is not navigable for title based on the non-navigability
of 1100 feet of that mile because the parties’ expert witnesses agree—but have not
stipulated—that the river mile is a “segment.”
Defendants raise in a related motion in limine an argument that this
approach to segmentation is foreclosed by the PPL Court’s ruling concerning the
Great Falls Segment, arguing that “Montana’s attempt to carve up the Great Falls
reach . . . into smaller bits in hopes of salvaging some riverbed for its title grab
expressly was rejected by the Supreme Court.” (Doc. 283 at 9–11.) But that
characterization of PPL is not quite accurate. The PPL Court rejected the Montana
Supreme Court’s determination that the Great Falls reach was a “short
interruption” in a river otherwise navigable despite the uncontroverted evidence
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that portage was required around the entire reach of “five waterfalls and
continuous rapids in between” because the entire reach was “nonnavigable.” 565
U.S. at 597–99. If the evidence at trial demonstrates that portage was required
around the entire river mile identified by the parties as the Thompson Falls
Segment, PPL will require the Court to conclude that the river mile was nonnavigable. Or it could be shown at trial that smaller subdivisions of this river mile
cannot satisfy PPL’s requirement that a segment be “substantial.” PPL, 565 U.S.
at 596–97; see also Utah, 283 U.S. at 77 (“The question here is not with respect to
. . . a negligible part, which boats may use, of a stream otherwise nonnavigable.
We are concerned with long reaches with particular characteristics of navigability
or nonnavigability . . . .”). Or proper segmentation may instead require
identification of the precise start and end points of the two-mile portage described
by Dr. Littlefield. (Doc. 275-13 at 2.) These remaining questions concerning
proper segmentation demonstrate that the evidence is not so conclusive as to justify
judgment as a matter of law as to the Thompson Falls Segment as delineated by the
parties’ experts at this time.
To be sure, an opinion from the Fourth Circuit suggests in dicta that “any
non-navigable portion” of a segment “would prevent the segment from satisfying
the PPL Montana test[,]” North Carolina v. Alcoa Power Generating, Inc., 853
F.3d 140, 153 (4th Cir. 2017), but in that case, the State did not contest treatment
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of the 45 miles of river at issue as a single segment before the district court, and it
did not propose any alternative segmentation, id. at 150; see also North Carolina v.
Alcoa Power Generating, Inc., No. 5:13-CV-633-BO, 2015 WL 2131089, at *1
(E.D.N.C. May 6, 2015) (“The parties stipulated that the relevant segment for
purposes of navigability is the 45-river-mile segment . . . .”). By contrast, the
parties here have not stipulated to segmentation, the trial in this case has not yet
begun, and the Court must make its determinations of segmentation and
navigability based on the evidence ultimately presented. See PPL, 565 U.S. at
593–94. The Court may ultimately agree with the experts’ consensus opinions
concerning segmentation of the disputed river reaches at issue, but even consensus
expert opinions are not dispositive evidence of a fact in issue sufficient to grant
partial summary judgment in this case. See Fed. R. Evid. 702(a). The weight to be
assigned to those opinions is an issue for trial. At this stage, genuine disputes of
material fact concerning both navigability and proper segmentation of the Clark
Fork River surrounding Thompson Falls preclude partial summary judgment.
2.
The Preclusive Effect of the 1910 Decree
The 1910 Decree stemmed from a declaratory action in this Court (Steele v.
Donlan) in which private parties disputed the superiority of water rights in the
Clark Fork River. (Doc. 261 at 13–14.) One of the defendants—Northwestern
Development Company (“NDC”), Talen’s predecessor—alleged in support of its
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counterclaims that “on and prior to February 16, 1905 . . . , the Clark’s Fork of the
Columbia, was [and] ever since been and now is, a non-navigable stream.” (Doc.
261 at 14.) The federal declaratory plaintiff then filed a lawsuit against Montana in
state court (Steele v. State) in which he alleged that the river was navigable and its
riverbeds were subject to condemnation from the State by a private party. (Id.)
The State filed demurrers to the complaint but did not raise any issues as to the
navigability of the river. (Id. at 15.)
Meanwhile, the federal court held a trial on the merits in which the federal
plaintiff introduced no evidence, but the defendants did, including evidence of the
non-navigability of the Clark Fork River. (Id.) The court entered Findings of the
Court and a Decree the next day, which concluded that “Clark’s Fork of the
Columbia River at all points in Sanders County, Montana, always was and is a
non-navigable, torrential, mountain stream, full of rapids and falls and incapable of
being used to transport the products of the country in the usual manner of water
transportation.” (Id. at 15–16.) The Decree ordered that title would be quieted in
the defendant for six miles above Thompson Falls, including the river bed. (Id. at
16.) Montana never attempted to intervene in the action. (Id. at 17.)
In state court, the trial court overruled Montana’s demurrers, but Montana
obtained a writ of prohibition from the Montana Supreme Court and ended the
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lawsuit before the State had to file an answer to the plaintiff’s allegations,
including the allegation of the Clark Fork River’s navigability. (Id. at 16.)
Talen argues that Montana acquiesced in the determination of nonnavigability because the State wanted to facilitate hydropower development like
the Thompson Falls Project proposed and ultimately completed by the defendants
in the federal declaratory action, and Montana later participated in licensing for the
Thompson Falls Project without raising any issues as to navigability. (Id. at 17–
19.)
Talen argues that the 1910 Decree precludes Montana from asserting title to
the disputed reach of the Clark Fork River on several grounds. (Doc. 261 at 20–
32.) First, Talen asserts that issue preclusion bars Montana from relitigating the
issue of navigability at statehood of the first six miles of the Eddy Segment, and
because the non-navigability of part of a segment renders its entirety nonnavigable, Montana cannot relitigate navigability of any of the Eddy Segment. (Id.
at 21–24 (citing PPL, 565 U.S. at 594–95).)
Next, Talen argues that claim preclusion bars Montana’s claim to the
Thompson Falls Segment (River Mile 207.1 to 208.1) and the first six miles of the
Eddy Segment (River Mile 208.1 to 214.1) because that land was awarded to NDC
in the 1910 Decree. (Doc. 261 at 23–24.)
22
Talen acknowledges that Montana was not a party to the litigation leading to
the 1910 Decree, but it argues that Montana’s failure to assert ownership of the
Clark Fork River in Steele v. State and failure to intervene in Steele v. Donlan
induced Talen’s predecessor, NDC, “to believe Montana would not make a claim
of ownership of the riverbeds and interfere with its hydroelectric project[,]” and
thereby created reliance interests that Montana should not now be allowed to
destroy. (Doc. 261 at 24–29.) Talen further argues that the Supreme Court’s PPL
opinion invited consideration of agreement or acquiescence principles by
specifically citing the 1910 Decree and reliance by PPL and its predecessors on the
State’s “long failure to assert title” as “some evidence to support the conclusion
that the river segments were nonnavigable for purposes of the equal-footing
doctrine.” (Doc. 261 at 29–30 (quoting PPL, 565 U.S. at 604).)
Montana responds that it is not precluded from asserting title to the riverbeds
at issue in Donlan on several grounds. Montana pushes back against Talen’s nonparty preclusion arguments by arguing that Montana was never in privity with any
party in Donlan and had no substantive legal relationship with any of the parties to
the case. (Doc. 272 at 27–30.) The State also argues that the doctrine of
acquiescence does not foreclose its claims because it has a fiduciary obligation to
seek rents on trust lands it owns, and the acquiescence doctrine applies to boundary
23
disputes between states, in contrast to the water rights dispute between private
parties in Donlan. (Id. at 30–32.)
“The preclusive effect of a federal-court judgment is determined by federal
common law.” Taylor v. Sturgell, 553 U.S. 880, 891 (2008). A party asserting
claim or issue preclusion bears the burden of establishing all necessary elements.
Id. at 907. “Under the doctrine of claim preclusion, a final judgment forecloses
‘successive litigation of the very same claim, whether or not relitigation of the
claim raises the same issues as the earlier suit.’ . . . Issue preclusion, in contrast,
bars ‘successive litigation of an issue of fact or law actually litigated and resolved
in a valid court determination essential to the prior judgment,’ even if the issue
recurs in the context of a different claim.” Id. at 892 (quoting New Hampshire v.
Maine, 532 U.S. 742, 748–49 (2001)).
Generally, claim preclusion and issue preclusion do not apply to a person
(or, here, a state) who was not a party to the previous litigation. Id. at 892–93.
Talen has not shown that Montana falls into any of the six expressly recognized
categories of exceptions to this general rule with respect to the 1910 Decree; for
example, Talen has not shown that Montana expressly agreed with any of the
parties to Steele v. Donlan that it would be bound by the court’s determination of
navigability. See id. at 893–95. Rather, Talen relies on an exception to the
nonparty preclusion rule that the Supreme Court expressly declined to consider,
24
which expands the agreement exception to include nonparties whose conduct
reasonably induces a party to believe that the nonparty would make no claim
against him or that the nonparty would govern its conduct by the judgment in the
original action. Id. at 894 n.7; Restatement (Second) of Judgments § 62 (1982).
Talen cites no authority in which courts within this Circuit or District have
applied that exception, and the Court has found none. Instead, Talen analogizes to
the doctrine of acquiescence, which the Supreme Court has applied in original
jurisdiction cases involving boundary disputes between states. Ohio v. Kentucky,
410 U.S. 641, 648–51 (1973). The Court is not persuaded that this doctrine arising
from such a unique category of cases provides a standalone basis to preclude
Montana’s claims or support for expanding the recognized exceptions to the rule
against nonparty preclusion. To be sure, the Supreme Court in PPL acknowledged
the findings of the 1910 Decree and “the reliance [by Defendants] upon the State’s
long failure to assert title,” but it cited them as “evidence to support the conclusion
that the river segments were nonnavigable[,]” not as legal bases for entirely
precluding Montana’s claims. PPL, 565 U.S. at 600, 604. In sum, Talen has not
met its burden of proving an essential element of both issue preclusion and claim
preclusion: that Montana was a party to the earlier adjudication or that one of the
exceptions to the rule against nonparty preclusion applies. Taylor, 553 U.S. at
892–93. Accordingly, the Court need not address whether Talen has satisfied the
25
other elements of issue preclusion or claim preclusion, and Talen’s motion for
partial summary judgment as to the Clark Fork River Segments (Doc. 260) will be
denied.
II.
Motions In Limine
“A motion in limine is a procedural mechanism to limit in advance
testimony or evidence in a particular area.” United States v. Heller, 551 F.3d 1108,
1111 (9th Cir. 2009). Although the Federal Rules of Evidence do not explicitly
prescribe it, the Supreme Court authorizes trial judges to rule on motions in limine
pursuant to their authority to manage trials. Luce v. United States, 469 U.S. 38, 41
n.4 (1984). By ruling in limine, the court “gives counsel advance notice of the
scope of certain evidence so that admissibility is settled before attempted use of the
evidence before the jury.” Heller, 551 F.3d at 1111–12.
“A district court is accorded a wide discretion in determining the
admissibility of evidence under the Federal Rules.” Sprint/United Mgm’t Co. v.
Mendelsohn, 552 U.S. 379, 384 (2008) (internal quotation omitted). Still, a motion
in limine should not be used to resolve factual disputes or weigh evidence. See C
& E Servs., Inc. v. Ashland, Inc., 539 F. Supp. 2d 316, 323 (D.D.C. 2008). Instead,
the evidence must be “clearly inadmissible on all potential grounds” to exclude it
on a motion in limine. See, e.g., Ind. Ins. Co. v. Gen. Elec. Co., 326 F. Supp. 2d
844, 846 (N.D. Ohio 2004). “Unless evidence meets this high standard,
26
evidentiary rulings should be deferred until trial so that questions of foundation,
relevancy and potential prejudice may be resolved in the proper context.”
Hawthorne Partners v. AT&T Tech., Inc., 831 F. Supp. 1398, 1400 (N.D. Ill.
1993).
The parties’ evidentiary objections largely fall into two categories: relevance
and the admissibility of expert testimony.
Evidence is relevant if: “(a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of consequence
in determining the action.” Fed. R. Evid. 401. Relevant evidence generally is
admissible. Fed. R. Evid. 402. “Rule 401’s ‘basic standard of relevance . . . is a
liberal one.’” Crawford v. City of Bakersfield, 944 F.3d 1070, 1077 (9th Cir. 2019)
(quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587
(1993)). “Evidence may be relevant even if it is redundant or cumulative, or if it
relates to undisputed facts.” Boyd v. City & Cty. of San Francisco, 576 F.3d 938,
943 (9th Cir. 2009).
Federal Rule of Evidence 702 governs the introduction of expert opinion
testimony. Plainly stated, “[t]estimony is admissible under Rule 702, if the subject
matter at issue is beyond the common knowledge of the average layman, the
witness has sufficient expertise, and the state of the pertinent art or scientific
knowledge permits the assertion of a reasonable opinion.” United States v.
27
Winters, 729 F.2d 602, 605 (9th Cir. 1984). Under Rule 702, the district judge
must perform a gatekeeping function to ensure that the evidence is “not only
relevant, but reliable.” Daubert, 509 U.S. at 589. The test of reliability is a
“flexible” one, and Daubert’s list of specific factors neither necessarily nor
exclusively applies to all experts or in every case. Kumho Tire Co. v. Carmichael,
526 U.S. 137, 141 (1999). As a result, Rule 702 leaves a trial judge “considerable
leeway in deciding . . . how to go about determining whether particular expert
testimony is reliable,” and whether a Daubert hearing is even required. Id. at
152; see also United States v. Alatorre, 222 F.3d 1098, 1100–02 (9th Cir. 2000)
(holding that trial courts are not compelled to conduct pretrial hearings to
discharge the gatekeeping function under Daubert as to expert testimony). This
flexibility is at its apex in a bench trial because “Daubert is meant to protect juries
from being swayed by dubious scientific testimony. When the district court sits as
the finder of fact, there is less need for the gatekeeper to keep the gate when the
gatekeeper is keeping the gate only for himself.” United States v. Flores, 901 F.3d
1150, 1165 (9th Cir. 2018) (quoting David E. Watson, P.C. v. United States, 668
F.3d 1008, 1015 (8th Cir. 2012)). “In bench trials, the district court is able to
‘make its reliability determination during, rather than in advance of, trial. Thus,
where the factfinder and the gatekeeper are the same, the court does not err in
admitting the evidence subject to the ability later to exclude it or disregard it if it
28
turns out not to meet the standard of reliability established by Rule 702.’” Id.
(quoting In re Salem, 465 F.3d 767, 777 (7th Cir. 2006)).
In testing reliability, the court must “make certain that an expert, whether
basing testimony upon professional studies or personal experience, employs in the
courtroom the same level of intellectual rigor that characterizes the practice of an
expert in the relevant field.” Kumho Tire Co., 526 U.S. at 152. The trial court
must avoid excluding opinions “merely because they are impeachable,” as the
basic objective is simply to “screen the [factfinder] from unreliable nonsense
opinions.” Alaska Rent–A–Car, Inc. v. Avis Budget Group, Inc., 738 F.3d 960, 969
(9th Cir. 2013).
a. Relevance-Based Motions
1. Defendants’ Motion to Exclude Evidence of Non-Commercial Use
and/or Pre-Statehood Use by Watercraft Not Customarily Used in
Trade and Travel at Time of Montana Statehood
Defendants move to exclude as irrelevant two related categories of evidence:
non-commercial use of the rivers at issue before statehood, and use of the rivers by
watercraft that Defendants assert were not customarily used in commerce at the
time of statehood. (Doc. 279.)2 Although Defendants appear to concede that the
Talen and NorthWestern filed the motion, and the United States filed an “Omnibus Motion in
Limine” concurring with the arguments in each of Talen and NorthWestern’s motions in limine
(Docs. 279, 282, 287). (Doc. 293.)
2
29
challenged evidence is relevant in their reply brief (Doc. 318 at 2–3), the Court
will address the motion.
As to the first category of evidence, Defendants rely heavily on the PPL
Court’s statement that “[m]ere use by initial explorers or trappers, who may have
dragged their boats in or alongside the river despite its nonnavigability in order to
avoid getting lost, or to provide water for their horses and themselves, is not itself
enough” to establish navigability for title, and that “evidence must be confined to
that which shows the river could sustain the kinds of commercial use” that might
have occurred at statehood. (Doc 280 at 11–13 (quoting PPL, 565 U.S. at 600).)
The Court’s warning that evidence that explorers or trappers utilized rivers to
avoid getting lost or as water resources would not be sufficient in itself to prove
navigability is easily understood as a warning against relying exclusively on
evidence that rivers were used as tools or resources by humans, rather than
navigated by watercraft, to award title to a state. The Court did not hold that
evidence of non-commercial use of a river is entirely irrelevant to determining
navigability for title. Rather, PPL expressly approved considering noncommercial use, including “[e]vidence of recreational use, depending on its
nature” as potentially probative of navigability. 565 U.S. at 600–01. Defendants
have not established that all evidence of pre-statehood non-commercial use of the
rivers at issue fails to meet the low bar for relevance.
30
As to the second category, Defendants’ arguments are similarly flawed.
Defendants assert that evidence of certain historical watercraft using Montana’s
rivers is irrelevant because one of Montana’s expert historians testified at his
deposition that he was not aware of anyone using watercraft other than a steamboat
as the customary mode of trade and travel in commerce on one section of the Clark
Fork River at the time of statehood. (Doc. 280 at 14.) But Defendants cite no
authority for the proposition that a particular watercraft must have been the
customary mode of trade or travel in commerce on a particular stretch of river at
the time of statehood to be relevant to determining whether that river was
navigable for title. Nor could they. If that were the test, a party could only
demonstrate navigability for title through proof of actual use, and the “susceptible
of use” test would have no effect. PPL, 565 U.S. at 600–01. Defendants’ other
citation to deposition testimony fares no better; Montana’s expert historian testified
that some boats listed by counsel were not typical means of commercial trade in
the 1880s (Doc. 280 at 14–15), but that list of boats was not exhaustive (see Doc.
318-1 at 4), and that testimony does not establish that evidence of use of those
boats on the rivers at issue is entirely irrelevant to demonstrating the rivers’
susceptibility of commercial navigation. See PPL, 565 U.S. at 600–01.
Defendants have not established at this stage that the evidence described in their
motion is inadmissible on all potential grounds, and the Court therefore cannot
31
exclude this evidence as irrelevant outside of the context in which it may be
introduced at trial. Accordingly, the Court reserves ruling on Defendants’ motion
(Doc. 279) until trial.
2. Defendants’ Motion in Limine Regarding Entire Segments and
FERC Project Boundaries
Defendants move to exclude “evidence that reaches within a segment may
be adjudicated separately from the entire segment to determine navigability-fortitle” (Doc. 282), and evidence of Federal Energy Regulatory Commission
(“FERC”) project boundaries as irrelevant to determining navigability for title
(Doc. 283 at 2). Defendants argue that the FERC project boundaries “have no
evidentiary value in this phase” of the trial and that “Montana’s attempt to carve up
a single segment into navigable and non-navigable reaches is directly contrary to
the law as articulated by the U.S. Supreme Court in this case and should be
excluded.” (Doc. 283 at 5.)
For the reasons discussed supra, Defendants’ approach to segmentation as
an issue that must be decidedly separately from, and prior to, the issue of
navigability is inconsistent with Supreme Court precedent. Utah, 283 U.S. at 80,
89–90. Thus, the Court will not issue an order requiring blanket exclusion of
evidence or argument concerning “adjudication of title navigability of smaller
reaches within a larger segment.” (Doc. 283 at 12.) Defendants’ concerns about
32
“trial-by-ambush” (id. at 18) may be appropriately addressed at trial; in particular,
Rule 37(c)(1) of the Federal Rules of Civil Procedure forbids a party from using
information or a witness that the party fails to disclose as required by Rule 26(a) or
(e) “unless the failure was substantially justified or is harmless.” The Court’s
conclusion that segmentation is tied to navigability should not be read as an
invitation to the parties to attempt to introduce evidence—especially expert
opinions, see Fed. R. Civ. P. 26(a)(2)(B)(i)—that were not disclosed as required by
Rule 26(a) or (e).
As to the relevance of FERC project boundaries, Defendants assert that they
“have nothing to do with title navigability” and that the Court “should exclude
extended evidence or argument regarding the FERC Project boundaries as
irrelevant” at this stage of the litigation because the Court must determine
navigability by river segment, not merely within the boundaries of Montana’s
asserted ownership. (Id. at 13.) In response, Montana explains that the FERC
boundaries are “plainly relevant to the navigability phase of this case as that
evidence will guide the navigability inquiry” by showing the precise boundaries of
Montana’s claims of ownership, and that the Court is “require[d]” to “assess
whether those portions Montana has claimed are navigable or not.” (Doc. 202 at
14–15.)
33
Supreme Court precedent does not provide a clear indication of whether this
Court must, or must not, make any findings of navigability concerning river
reaches outside of the boundaries of Montana’s claims of ownership. In Utah, the
Court noted the obvious “propriety” of the special master’s decision to limit his
findings and conclusions as to navigability to only the sections of rivers described
in the complaint. 283 U.S. at 77. But in Brewer-Elliott Oil & Gas Co. v. United
States, 260 U.S. 77, 86 (1922), in affirming a finding of non-navigability, the Court
relied in part on a finding by the District Court that “the head of navigation” on the
river in question was well outside the area in controversy. In this absence of any
precedent mandating or forbidding consideration of the navigability of river
stretches beyond the State’s claimed riverbeds, the Court cannot conclude that
evidence relating to the FERC project boundaries is irrelevant or inadmissible for
all purposes. The Court therefore reserves ruling on Defendants’ motion (Doc.
282) until trial.
3. Defendants’ Motion to Exclude Regulatory Navigability Findings
The United States moves to exclude decisions by the Federal Power
Commission concerning regulatory navigability based on the legal distinctions
between regulatory navigability analysis and navigability for title analysis. (Doc.
290.) The United States specifically seeks exclusion of two FPC decisions: In re
Montana Power Co., 7 F.P.C. 163 (1948), aff’d in part and remanded in part by
34
185 F.2d 491 (D.C. Cir. 1950), and Montana Power Co., 8 F.P.C. 751, 753 (1949),
order modified in part by 10 F.P.C. 1015 (1951). (Doc. 290-1 at 2.) The United
States does not seek to exclude “the historical evidence presented to the FPC in the
process of making its findings,” conceding that such evidence “is clearly
admissible.” (Id. at 2–3.) The United States explains that regulatory navigability,
unlike navigability for title, does not require that a river have been navigable at
statehood or navigable in its ordinary condition, and may not be defeated by
obstructions that can be avoided by portaging. (Id. at 5–8 (citing PPL, 565 U.S. at
592, 598, 600).) As a result, the United States argues, these regulatory navigability
decisions are entirely irrelevant to this case. Id. at 8.3
In response, Montana stops just short of conceding that the FPC’s legal
conclusions of regulatory navigability are irrelevant, but it argues that the factual
findings on which those conclusions are based are relevant to determining
navigability for title in this case, and it “intends to rely only upon historical facts
set forth in the Federal Power Commission decisions regarding the Missouri and
Clark Fork Rivers.” (Doc. 309 at 2–3.) In particular, Montana contends that
Talen and NorthWestern filed a joinder in the United States’ motion, which echoes the
motion’s arguments and argues that the historical findings in the FPC’s decisions are irrelevant
to navigability for title. (Doc. 292.) Talen and NorthWestern’s objections concerning the
particular uses of the rivers at issue, the watercraft used, and the timing of such use do not
establish that the historical findings are irrelevant for all purposes for the reasons discussed supra
in relation to Defendants’ motion concerning evidence of non-commercial use and pre-statehood
use by watercraft purportedly not customarily used in commerce (Doc. 279).
3
35
“when historical findings of navigability-in-fact apply the Daniel Ball test for use
or susceptibility of use, and do not rely on the more permissive temporal elements
of federal regulatory authority, but are consistent with the ‘time of statehood’ and
‘natural and ordinary condition’ elements of the equal-footing doctrine, those
findings are relevant” to navigability for title. (Id. at 6–7; see also id. at 7–8
(quoting particular findings).)
The United States argues in reply that the factual findings in the FPC’s
decisions are not historical evidence, but rather “an administrative agency’s
interpretation of historical evidence that was placed before it, considered under
evidentiary and legal standards different from those here, and for different
purposes.” (Doc. 321 at 2.) The government asserts that courts have properly
excluded evidence of administrative agencies’ findings of fact where the factfinder
has before it the same evidence the agency relied upon. (Id. at 2–3.) The United
States observes that the PPL Court recounted a significant amount of record
evidence in its opinion, but it cited the FPC proceedings only for the proposition
that Montana was aware of the facilities on its claimed riverbeds. (Id. at 4.)
Finally, the United States argues that Defendants contest the FPC’s interpretation
of the historical evidence, such as Thomas Roberts’ report concerning part of the
Missouri River, and the Court will be able to review the underlying evidence itself
rather than through the FPC’s interpretation. (Id. at 4–5.)
36
All parties appear to agree that the FPC’s legal conclusions concerning
regulatory navigability are irrelevant to this case, and the Court agrees as well.
Defendants have not shown, however, that the factual findings underlying the
FPC’s decisions are inadmissible for any purpose. The cases the United States
relies on, in which courts excluded agency decisions. did not base their decisions
solely on relevance but instead considered whether such decisions fell within the
hearsay exception for public records (Fed. R. Evid. 803(8)(C)) and whether their
probative value was substantially outweighed by the danger of unfair prejudice.
Hall v. W. Prod. Co., 988 F.2d 1050, 1057–58 (10th Cir. 1993); Paolitto v. John
Brown E. & C., Inc., 151 F.3d 60, 64 (2d Cir. 1998). At this pretrial stage, the
Court cannot know whether the FPC’s factual findings will be duplicative of
original evidence introduced at trial (and therefore carry lower probative value) or
whether they may be the only source of a particular piece of information otherwise
lost to time. To the extent Defendants take issue with the FPC’s interpretation of
evidence, those concerns relate to the credibility or weight to be assigned to the
FPC’s findings, not their admissibility. The Court therefore reserves ruling on the
United States’ motion (Doc. 290) until trial.
b. Daubert Motions
1. Montana’s Motion to Limit Expert Testimony by Joshua
Alexander
37
Montana moves for an order limiting the subject matters upon which the
United States’ expert witness, Joshua Alexander, may testify at trial. (Doc. 276.)
Montana contends that Mr. Alexander is a surveyor, and his testimony therefore
“should be limited to explaining how the [United States Bureau of Land
Management] identifies federal properties.” (Doc. 277 at 3.) Montana wishes to
exclude any expert testimony by Mr. Alexander concerning other subjects in his
expert disclosure, including the similarity of modern-day and statehood-era
watercraft, historical matters, hydrology or geomorphology of the rivers at issue,
and the ultimate question of navigability, because Mr. Alexander’s education is
limited to “surveying and mapping[,]” he testified at his deposition “that he has no
independent opinions about historical watercraft” and “would defer to the
historians to interpret the historical records[,]” and he improperly “criticized the
opinions of the State’s experts and he offers legal opinions.” (Id. at 3–6.)
The United States responds that “Mr. Alexander is one of a handful of
people in the United States who is charged by the federal government with
administratively determining whether a river is navigable for title.” (Doc. 299 at
3–4.) It asserts that the means by which he performs this job “is by determining
whether particular river segments were navigable in fact or susceptible to being
navigated[,]” and “by training and experience Mr. Alexander is an expert on
surveying and river navigability.” (Id. at 5.) The BLM’s Manual of Surveying
38
Instructions requires him to follow nine steps in his surveying work, which include
considering the physical description of the water body, a description of the water
body at the date of statehood, historical evidence of use of the water body as a
highway of commerce, the water body’s susceptibility of use as a highway of
commerce at statehood, and present-day recreational or commercial uses;
comparison to similar water bodies that have been declared navigable or nonnavigable; and analysis of previous determinations of navigability, among others.
(Id. at 6.) The United States asserts that Mr. Alexander’s job training and
experience qualifies him to consider these factors, and he therefore “has
specialized knowledge beyond that of a layman” in the subjects of historic facts,
geomorphological data, and various types of watercraft. (Id. at 7.) The United
States further argues that Mr. Alexander has properly considered the opinions of
other experts in this case and the facts underlying those opinions. (Id. at 7–9.) The
United States argues that Montana has not met its burden to show a threshold level
of unreliability to trigger the Court’s Daubert gatekeeping function, and the motion
therefore should be denied. (Id. at 9.) The United States also disputes Montana’s
assertion that Mr. Alexander is offering a legal opinion on the navigability of the
rivers at issue, arguing that he is opining on the factual issue of navigability for
title based on his application of BLM’s methodology, and that some of Montana’s
experts offer opinions on the same issue. (Id. at 10–12.)
39
Montana has not provided a sufficient basis to limit Mr. Alexander’s
testimony before trial. The grounds the State raises—Mr. Alexander’s education,
deference to other experts on particular issues, and criticism of some experts—
largely go to the weight of Mr. Alexander’s testimony on particular issues rather
than its admissibility. At this stage, the United States has presented sufficient
evidence that Mr. Alexander possesses the requisite knowledge and expertise to
offer his proposed testimony concerning surveying and river navigability based on
application of BLM’s methodology. As with all expert testimony, at trial, the
proponent will be required to lay an adequate foundation and move to qualify the
witness as an expert, any party may have the opportunity to object, and the Court
must make a reliability determination on the record. See United States v. ValenciaLopez, 971 F.3d 891, 899 (9th Cir. 2020). To the extent Defendants wish to elicit
expert testimony from Mr. Alexander on subjects beyond surveying and river
navigability, they will be required to lay appropriate foundation. Accordingly, the
Court reserves ruling on Montana’s motion (Doc. 276) until trial.
2. Defendants’ Motion to Limit Testimony of Jason Cajune
Defendants move in limine to exclude Mr. Jason Cajune “from testifying at
trial on the historical use or condition of waterways in the western United States
and the customary mode of trade and travel on water at the time of Montana’s
statehood.” (Doc. 287.) Defendants argue that Mr. Cajune “lacks the specialized
40
knowledge and experience” to opine on these topics because he has no direct
knowledge of those facts and would have to rely on the historical and archeological
record, and he “lacks expertise in reviewing and assessing primary and secondary
historical sources for accuracy.” (Doc. 288 at 9.)
Montana responds that Mr. Cajune “will inform the Court on historic
watercraft, modern day watercraft, and the handling characteristics of each.” (Doc.
307 at 3.) Specifically, based on his knowledge and experience as a professional
builder of traditional wooden boats, he “has identified craft that were in use in
Montana in 1889 and before” and “provides his opinions as to whether modern day
watercraft which operate on each of the rivers at issue[] are meaningfully similar to
the historic watercraft in use at statehood and before.” (Id. at 5.) He also has
provided opinions about whether it was likely that statehood watercraft could
safely and effectively navigate the disputed river reaches based on his review of
expert witnesses’ analysis of the river segments at issue at statehood, his
knowledge of boat operation, design, and handling characteristics, and his
experience as a professional river guide handling boats on the rivers at issue or
rivers with similar water conditions. (Id. at 6.) Montana argues that Mr. Cajune
has not opined and will not opine on the conditions of the rivers at issue at
statehood; rather, his testimony will assist the Court in assessing the susceptibility
of the rivers to navigation by applying his “knowledge and experience with
41
tradition and modern watercraft on Montana’s rivers, as well as his knowledge of
the characteristics of the same or similar boats in existence at statehood, and how
such boats would handle the river conditions described by the expert
geomorphologists.” (Id. at 20–25.)
In reply, Defendants clarify that they do not object to Mr. Cajune providing
expert testimony “relating to the design, construction and operation of
contemporary watercraft[.]” (Doc. 323 at 2 n.1.) Defendants argue that Montana
cannot show that it is reasonable for Mr. Cajune to rely on the opinions of
geomorphologists in forming his own expert opinions, but they do not explain why
that is the case. (Id. at 5 n.2.) Defendants collect numerous cases in which courts
concluded that proposed experts whose expertise was drawn primarily from work
experience failed to establish that they had the necessary knowledge, skill, and
experience to provide an expert opinion. (Id. at 5–10.)
The Court concludes that Defendants have not shown that a pretrial order
limiting Mr. Cajune’s testimony in the manner they request is warranted. The
cases on which Defendants rely do not compel the conclusion that Mr. Cajune, as a
witness whose expertise is drawn mostly from experience, cannot establish that his
proposed testimony is reliable. At this stage, Montana has established that Mr.
Cajune has sufficient knowledge and experience to offer his proposed testimony
concerning watercraft and their handling characteristics. As with Mr. Alexander’s
42
testimony, Mr. Cajune must establish a sufficient foundation for his testimony at
trial, including any expert opinions, and Defendants may make appropriate
objections at trial. But at this stage, Defendants’ objections to Mr. Cajune’s
testimony—namely, his educational background and experience evaluating
primary and secondary historical sources—go to its weight rather than its
admissibility. The Court will reserve ruling on Defendants’ motion (Doc. 287)
until trial.
3. United States’ Motion to Preclude Testimony Regarding
Surveyors’ Decision to Meander River
The United States moved to exclude testimony and argument “that a [United
States General Land Office (“GLO”)] field surveyor’s decision to meander a river
after 1884 creates any inference of navigability” and to preclude Montana’s expert
historian, Dr. Littlefield, from testifying about surveying requirements, which the
United States asserts is beyond the scope of his expertise. (Doc. 291.)4 The United
States argues that Dr. Littlefield’s interpretation of land surveyors’ duties at the
time of Montana’s statehood is incorrect and beyond the scope of his expertise as a
historian, and he therefore should be precluded from testifying about those topics
under Daubert. (Doc. 291-1 at 6–7.) The United States asserts that Dr. Littlefield
erred in concluding that a GLO surveyor who meandered a portion of the Clark
4
NorthWestern filed a joinder in this motion. (Doc. 294.)
43
Fork River in 1889 must have determined that that portion of the river was
navigable because Dr. Littlefield did not recognize a change to GLO’s surveying
instructions that instructed surveyors to meander navigable rivers or rivers that
were greater than three chains (or 198 feet) wide. (Id. at 3–4, 5 n.5, 6–9.) The
United States further argues that GLO survey notes do not establish navigability
for title because GLO surveyors do not have the power to settle questions of
navigability, and Dr. Littlefield’s “conclusion to the contrary goes against wellestablished law” and should be excluded. (Id. at 9–10.)
Montana responds that Dr. Littlefield has extensive experience as an expert
historian in matters relating to navigability of rivers and water rights, and he
routinely reviews surveyors’ notes as part of his research. (Doc. 310 at 4–5.) The
State argues that Dr. Littlefield’s conclusions concerning navigability of the Clark
Fork River is not based solely on GLO surveys or the surveyors’ notes, but rather
considers them alongside other historical information. (Id. at 6–7.) Montana
asserts that neither it nor Dr. Littlefield takes the position that GLO surveys or the
surveyors’ notes are determinative of title navigability as a matter of law; instead,
they take the position that the surveys and surveyors’ notes are relevant evidence.
(Id. at 7–8.)
In reply, the United States does not dispute that the surveys and surveyors’
notes can be relevant evidence to determining navigability for title, but asserts that
44
Dr. Littlefield’s inferences drawn from those materials, specifically, should be
excluded. (Doc. 320 at 2.) Specifically, the United States contends that Dr.
Littlefield lacked any factual basis for concluding that a GLO surveyor was
required to, and did, determine that the Clark Fork River was navigable, and that
opinion should be excluded. (Id. at 2–4.)
The United States has not provided a sufficient basis to limit Dr. Littlefield’s
testimony in the manner it requests before trial. Even assuming that the United
States is correct that Dr. Littlefield erred in interpreting the GLO surveying
instructions, surveys, and surveyors’ notes, a factual error does not establish that
Dr. Littlefield is categorically unqualified to opine on those matters when Montana
has presented sufficient evidence that he possesses the requisite knowledge and
expertise to testify as a historian. Rather, the United States’ disagreement with Dr.
Littlefield’s conclusions and bases for that disagreement are quintessential
examples of issues going to the weight, rather than the admissibility, of Dr.
Littlefield’s testimony. Messick v. Novartis Pharms. Corp., 747 F.3d 1193, 1199
(9th Cir. 2014) (“[I]ssues regarding the correctness of his opinion . . . are a matter
of weight, not admissibility.”). Accordingly, the Court reserves ruling on the
United States’ motion (Doc. 291) until trial.
45
CONCLUSION
IT IS ORDERED that Defendants’ Motions for Partial Summary Judgment
(Docs. 255, 260) are DENIED.
IT IS FURTHER ORDERED that the Court RESERVES RULING on the
parties’ Motions in Limine (Docs. 276, 279, 282, 287, 290, 291) until trial.
DATED this 7th day of December, 2021.
46
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