[00:00:00] Speaker 01: Good morning. [00:00:02] Speaker 01: It may please the court. [00:00:03] Speaker 01: My name is John Bloomquist. [00:00:04] Speaker 01: I'm an attorney from Helena, Montana. [00:00:06] Speaker 01: Here on behalf of the state of Montana, I would like to, on my primary argument, to go for about 20 minutes and try to reserve five for response. [00:00:15] Speaker 01: Okay. [00:00:15] Speaker 01: Thank you. [00:00:17] Speaker 01: It's important to remember in this case that we're talking about the Daniel Ball test. [00:00:22] Speaker 01: The Daniel Ball test is a rule to allocate riverbed title. [00:00:28] Speaker 01: The test [00:00:29] Speaker 01: is the standard by which public rivers are determined in the law. [00:00:37] Speaker 01: And of course, those rivers under the test are public rivers when they are used or susceptible to use as highways of commerce in the customary mode of trade and travel on water. [00:00:50] Speaker 01: Now that's important to remember is that what we're doing here in this case is determining or allocating riverbed tidal. [00:00:58] Speaker 01: So the test that's being applied here is a federal question. [00:01:02] Speaker 01: It's a federal test and The elements of it are have been frequently stated by the United States Supreme Court Where that test applies counsel if I may interrupt? [00:01:16] Speaker 03: What is your position on the standard of review and how does fee our FRCP 52? [00:01:22] Speaker 01: affect your argument Thank You Your Honor [00:01:26] Speaker 01: The questions that Montana raises in this case are legal questions. [00:01:30] Speaker 01: The application of the Daniel Ball test, the application of the components of the test, those are legal questions, as this court has reviewed in Riverfront Protection, for instance, de novo review. [00:01:44] Speaker 01: The state is, the errors the state assigns in this case are in the district court's failure to apply the actual use test, the prong one of the Daniel Ball test. [00:01:55] Speaker 01: The state also alleges error in the application of Prong 2, the susceptibility to use test. [00:02:01] Speaker 01: The state further alleges error in the application of the required segment by segment test. [00:02:07] Speaker 01: These are all legal questions that this Court should review de novo. [00:02:11] Speaker 01: We are not asking the Court to review or get engaged in factual questions, questions such as the relevant segments that the Court determined and modified [00:02:24] Speaker 05: in the court's order we're not I guess I guess that's what I'm I'm a little bit confused about the some of the arguments that I that I that I understood you all raising because I just want to be clear the you the the district court found that the Big Belt Mountain segment of the Missouri River was not actually used in commerce in 1889 that's a fact correct the underlying [00:02:49] Speaker 01: evidence are factual questions that are presented to the court. [00:02:53] Speaker 01: However, the application of whether there was actual use. [00:02:57] Speaker 05: So wait, are you saying that the district court made a legal error or a factual error? [00:03:01] Speaker 05: I need to be clear on that. [00:03:03] Speaker 01: The district court made a legal error in the evidence that was presented and interpreting the evidence that was presented on the question of actual use. [00:03:14] Speaker 01: The standards of actual use have been explained in many cases. [00:03:19] Speaker 01: and the evidence that was presented met those standards. [00:03:23] Speaker 01: So our assertion is that the district court erred in applying the test, the actual use test, by ignoring what was presented to the court in terms of actual navigation. [00:03:36] Speaker 05: It sounds like you're challenging the facts, though. [00:03:38] Speaker 05: I mean, I guess the factual conclusion that the district court made. [00:03:41] Speaker 01: Well, I think it arises, Your Honor, in what we're determining here is [00:03:48] Speaker 01: A legal question, are these rivers navigable under the Daniel Ball test? [00:03:54] Speaker 01: That is a legal determination. [00:03:56] Speaker 04: What's the evidence of actual navigation that the district court ignored? [00:04:01] Speaker 01: And thank you, Your Honor. [00:04:03] Speaker 01: On the Big Belt Mountain segment for the Hauser and Holter reach, the evidence began, of course, with Lewis and Clark navigating up the river. [00:04:12] Speaker 01: However, as you get closer to statehood in 1872, [00:04:16] Speaker 01: Thomas Roberts navigated from Three Forks, Montana to Great Falls, Montana in a skiff with gear and an assistant to survey the river. [00:04:27] Speaker 01: In 1879, Captain McGuire navigated from Stubbs Ferry down to Great Falls with a crew of 15 to 17 and a Mackinac, a 50-foot Mackinac. [00:04:41] Speaker 01: In 1880, the Army Corps surveyed the river [00:04:45] Speaker 01: In 1890, the Army Corps again surveyed the river in two quarter boats, 14 foot wide, with a crew of approximately 28 people. [00:04:56] Speaker 05: Did the district court ignore those facts? [00:04:58] Speaker 05: Did they disregard them? [00:05:01] Speaker 05: Did they consider them and found other evidence to be more? [00:05:05] Speaker 05: I guess that's, I just want to understand that. [00:05:09] Speaker 01: And I think that's a very important point here. [00:05:11] Speaker 01: The district court acknowledged at least some of these activities. [00:05:15] Speaker 01: And the other one I don't want to forget is the Rose of Helena, a steamboat that went from Townsend to halfway to the gates of the mountains, which is all the way through the Houser Disputed Reach, and later navigated down to Great Falls and back, and then for years navigated within the Big Belt segment. [00:05:37] Speaker 01: The district court acknowledged some of those activities. [00:05:41] Speaker 01: discounted those on a couple reasons. [00:05:45] Speaker 01: One, in terms of the Roberts expedition, the district court discounted that evidence by quibbling with Roberts' conclusion that the Upper Missouri was navigable by light drafting steam bubs. [00:05:56] Speaker 01: That doesn't apply that evidence of actual use. [00:06:01] Speaker 01: He's just quibbling with Roberts' conclusion. [00:06:03] Speaker 01: The error there is not by recognizing Roberts demonstrated actual use through the entirety of the Big Belt Mountain segment. [00:06:11] Speaker 04: And that you're arguing is something like a legal error that we need to review de novo versus an error in the weighing of the facts. [00:06:24] Speaker 01: Yes, and the reason I say that is because the courts have recognized these types of uses qualify as evidence of actual use, qualify to [00:06:36] Speaker 01: characterize the river as navigable for title. [00:06:39] Speaker 01: That's the type of use the courts have specifically applied. [00:06:43] Speaker 01: We raised the same question on the Clark Fork with evidence of indigenous use. [00:06:47] Speaker 05: But it sounds like they just credited other evidence. [00:06:49] Speaker 05: I guess it sounds like the district court just credited other evidence, not this particular evidence. [00:06:56] Speaker 01: I don't know that the district court credited other evidence because the district court doesn't tell us. [00:07:00] Speaker 01: Quibbling with Robert's conclusion does not tell us that there's other evidence. [00:07:05] Speaker 01: ignoring the evidence of Maguire's navigation or the types of boats that were engaged in the navigation and what they did. [00:07:17] Speaker 01: I mean, these weren't simple canoes going down the river and some sort of pleasure exercise. [00:07:23] Speaker 01: This was actual engagement in surveying and commerce through the entirety of the Big Belt Mountain segment. [00:07:30] Speaker 03: Council, let me ask this. [00:07:32] Speaker 03: Is it your position that any evidence of any use of a given river is dispositive on the issue of whether a river could be navigated at statehood? [00:07:42] Speaker 01: No, any use is not sufficient necessarily to establish navigability. [00:07:47] Speaker 01: That use must be of the type that is sufficient for purposes of demonstrating the river could is used for trade or commerce, and that could be traveled. [00:08:00] Speaker 01: That could be transportation of supplies. [00:08:03] Speaker 01: That could be transportation of gear. [00:08:05] Speaker 01: The mere walking up of the river by trappers or settlers, dragging their boats up the river, watering their horses, watering themselves, does not qualify as evidence of actual use. [00:08:17] Speaker 01: So it's not any type of use. [00:08:19] Speaker 03: And so the argument, at least my understanding, reviewing all the documentation that was provided to the court, my understanding was that what we were looking at for Montana was the smaller kinds of boats. [00:08:33] Speaker 03: Is that, am I correct? [00:08:34] Speaker 01: Yes, and that gets to another area that we allege the district court engaged in, which is the application of the second test, the susceptibility to use test. [00:08:44] Speaker 01: And the crux of that test is what were the customary modes of trade and travel at statehood. [00:08:51] Speaker 01: And in this particular instance, the district court recognized, and correctly recognized, smaller watercraft were customary modes at the time of statehood. [00:09:01] Speaker 01: And the district court recognized Montana's evidence and testimony that smaller boats, such as canoes, bateaus, peros, and bateaus in particular, and mackinaws, were customary modes. [00:09:14] Speaker 01: At that point in time, under the Navability for Title Test, the Daniel Ball test, it was incumbent upon the district court to apply smaller watercraft to the question of, could those craft, customary modes, navigate the conditions of the rivers that were described at statehood? [00:09:36] Speaker 01: We're not quibbling with the district court's description of the conditions of the rivers it stated. [00:09:44] Speaker 01: There were rapids. [00:09:45] Speaker 01: There were shallow waters. [00:09:46] Speaker 01: What we're quibbling with is the test that the standard that should have been applied on susceptibility was related to smaller watercraft. [00:09:57] Speaker 01: That the district court did not do. [00:09:59] Speaker 04: And the only evidence before the court. [00:10:01] Speaker 04: The court did consider the smaller watercraft. [00:10:03] Speaker 04: I mean, the district court explicitly said that it [00:10:06] Speaker 04: it would be inappropriate to exclude those smaller watercraft. [00:10:11] Speaker 04: So I guess back to the question that Judge Mendoza asked earlier, is the problem here, in your view, how the district court weighed the evidence, or is it illegal? [00:10:25] Speaker 01: I think it's a legal question. [00:10:26] Speaker 01: I'll explain why. [00:10:27] Speaker 01: The district court did acknowledge those smaller watercraft. [00:10:30] Speaker 01: Importantly, the district court acknowledged the capabilities of those watercraft, light draft, two to eight inches of water, could navigate class two, three, and four rapids. [00:10:41] Speaker 01: That's what the district court found is the capability of those smaller watercraft. [00:10:45] Speaker 01: The district court then pivoted and stated in finding of fact number 19 that Montana, the court does not agree that an expert such as [00:10:59] Speaker 01: Jason K. June Montana's expert witness or somebody of comparable skills Could could navigate those craft and and that doesn't establish Navigability because we're the court construed our evidence is suggesting. [00:11:16] Speaker 01: Mr. K. June as an expert Our evidence went to the craft itself and I think we as we briefed at that point in time the district court committed error by inserting into [00:11:29] Speaker 01: The susceptibility test, an element of the skill of the operator. [00:11:34] Speaker 05: Can I draw your attention to something else? [00:11:37] Speaker 05: Can I draw your attention to the log drives in the Clark River? [00:11:42] Speaker 05: As I understand, two of our cases from the 1980s, Oregon and Puget Sound, suggest that log drives can support navigability. [00:11:51] Speaker 05: But they need to be joined with other facts to really support that. [00:11:55] Speaker 05: I guess those cases suggest that the quality of the log drives actually matters. [00:12:01] Speaker 05: Do you have any evidence as part of the record as how those log drives turned out other than that they just happened? [00:12:10] Speaker 05: In other words, what other evidence in the record suggests that not that they just occurred, but something more substantive? [00:12:21] Speaker 01: Your Honor, the evidence on the Clark fork as even our own expert [00:12:29] Speaker 01: historian recognizes is fairly scattered. [00:12:32] Speaker 01: We have newspaper accounts and some of those types of things. [00:12:35] Speaker 01: What we did have evidence of on the ground was at the Eddy sawmill within the Eddy segment. [00:12:43] Speaker 01: We had evidence that that sawmill situated along the banks of the Clark Fork River within the Eddy segment had at least some newspaper accounts of log drives to [00:12:56] Speaker 01: The district court dismissed that evidence. [00:13:02] Speaker 05: So they occurred that there were some log drives, but the quality of them we don't know, correct? [00:13:08] Speaker 01: That's correct. [00:13:08] Speaker 01: I would agree with that. [00:13:10] Speaker 01: Other than that they were reported to be 2 million board feet to the Eddie Sawmill, I do not know the quality of those. [00:13:16] Speaker 01: All right. [00:13:16] Speaker 01: Thank you. [00:13:18] Speaker 04: I want to go back to a point you were making a moment ago that it was a mistake for the district court to insert into the analysis the skill of the operator. [00:13:29] Speaker 04: If you could just explain why you think that's the case, because I guess it seems to me that if you had craft, you know, at the time of statehood, but no one could operate them, that that, I mean, that seems like it would be relevant. [00:13:45] Speaker 01: Well, the district court did two things with the skill of the operator. [00:13:50] Speaker 01: One, it seemed to reject Montana's evidence because it was presented by an expert on how these boats would operate. [00:13:59] Speaker 01: or the ability to operate the craft coming from an expert who could do so. [00:14:05] Speaker 01: The district court then, and I think where the district court articulated this error was in finding 127, where the court stated that it's not sufficient, it disputed that the average statehood-era Montana could navigate these crafts in class three, four, and five waters. [00:14:28] Speaker 01: That's inserting into the test the standard of the average everyday Montanan being able to operate the craft. [00:14:36] Speaker 01: No court has ever inserted that element into the question of susceptibility or customary modes. [00:14:43] Speaker 01: To the extent a court has ever discussed or addressed the question of the skill of the operator, it was in the master's report in the Utah case, which we reference, and there the court [00:14:57] Speaker 01: And the master recognized experienced boat persons operating these craft, the so-called, quote, river rats who lived on the rivers. [00:15:08] Speaker 01: And so to the extent skill of operator have ever been addressed in Utah, it was certainly discussing experts where the court did not dismiss the evidence. [00:15:18] Speaker 01: The court accepted the evidence of customary craft. [00:15:22] Speaker 01: And so the skill of the operator tests. [00:15:25] Speaker 01: And this is an important point in this circuit. [00:15:27] Speaker 01: Because this circuit has many rivers which are public rivers. [00:15:35] Speaker 01: And this question arises in this circuit. [00:15:38] Speaker 01: And so to insert into the customary mode test an element that has never been articulated and quite frankly is wholly subjective, we believe is error in application of the susceptibility test. [00:15:53] Speaker 01: And if I might add, that error infects the district court's determination of non-navigability on each of the disputed reaches that we appeal. [00:16:10] Speaker 01: So, susceptibility, and the test is either or, actual use or susceptibility. [00:16:16] Speaker 01: If Montana demonstrates either, [00:16:19] Speaker 01: It is entitled to a title under the Equal Footing Doctrine and an availability for title test. [00:16:26] Speaker 01: One point that I think is very important is where the test applies. [00:16:32] Speaker 01: The parties here have briefed two divergent positions for the court on where the test applies. [00:16:38] Speaker 01: And I think the PPL court was very specific on where the segment by segment test applies. [00:16:45] Speaker 01: It applies to determine whether the disputed river [00:16:49] Speaker 01: rivers and the disputed reaches are navigable or not. [00:16:54] Speaker 01: That is an important issue to understand in terms of our argument that district court misapplied the segment by segment test. [00:17:05] Speaker 01: It applies to whether disputed reaches are navigable, not whether the entire [00:17:11] Speaker 01: relevant segments are navigable. [00:17:14] Speaker 03: Council might correct that the disputed region reaches are defined by the FERC boundaries. [00:17:20] Speaker 01: That's correct, your honor. [00:17:21] Speaker 03: And wasn't those or weren't those FERC boundaries made long after Montana statehood? [00:17:27] Speaker 01: Those FERC boundaries are, yes, the projects came along later. [00:17:32] Speaker 01: So the boundaries between the river mile X and river mile Y were determined late after stated. [00:17:38] Speaker 01: That's correct. [00:17:39] Speaker 03: OK. [00:17:39] Speaker 03: And they're not based on any physical qualities of the rivers, correct? [00:17:44] Speaker 01: No. [00:17:44] Speaker 01: They are points in the rivers that the state has claimed riverbed ownership. [00:17:52] Speaker 01: The disputed rivers are related to those boundaries, yes. [00:17:55] Speaker 03: So then how does that fit within PPL's requirement for physical-based segments? [00:18:02] Speaker 01: PPL discussed segmentation and said one of the reasons for segmentation is you need to determine [00:18:08] Speaker 01: As I mentioned, the court expressly said to determine title, riverbed title, under the equal footing doctrine. [00:18:16] Speaker 01: So it's connecting riverbed title to the doctrine. [00:18:19] Speaker 01: 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. [00:18:29] Speaker 01: The court then went on to say, practical considerations also support segmentation, physical features which affect [00:18:38] Speaker 01: Navigability, topographic or geographic attributes also assist. [00:18:46] Speaker 01: However, those considerations are important in determining the physical setting that the disputed reaches are situated in. [00:18:58] Speaker 01: And this is important when you go to the consideration of susceptibility. [00:19:03] Speaker 01: When you're trying to describe and define the conditions of the river at statehood, [00:19:08] Speaker 01: Those physical features, those characteristics of the river, the flow, all those factor into what was the natural and ordinary condition of the river at statehood. [00:19:19] Speaker 01: As the district court properly recognized, in the end, the ultimate inquiry comes down to navigability, not a determination of physical attributes, geographic attributes. [00:19:33] Speaker 01: In the end, the inquiry comes down to are the disputed riverbeds navigable or not? [00:19:40] Speaker 05: Well, Counsel, you said you said to look at the finding 127 finding that the district court made and I have [00:19:49] Speaker 05: There, the district court just assigned minimal weight to the opinion that was provided because of the concession that the expert made about even someone as experienced, as the individual mentioned, would have a hard time navigating that river. [00:20:05] Speaker 05: I guess my point is where I started, which is it appears that the court considered those things, assigned a weight to it, and then said, I'm going to assign X amount of weight, and then I'm going to consider and provide [00:20:18] Speaker 05: other things with greater weight. [00:20:20] Speaker 05: It appears at least from the findings, my reading of it, that's maybe what they did. [00:20:25] Speaker 01: Well, in the question of susceptibility, it would be the first time that a court determined susceptibility based on the skill of an operator. [00:20:37] Speaker 01: The test has always been applied to the craft itself and whether the craft is capable of navigating the conditions of the river at [00:20:47] Speaker 01: statehood, the natural and ordinary conditions. [00:20:50] Speaker 01: That evidence, which I just discussed, was presented by Montana and was uncontroverted. [00:20:56] Speaker 01: The defendants had no expert testimony, no evidence that the smaller watercraft could not navigate the conditions described at statehood. [00:21:05] Speaker 01: The entire evidence from the defendants was based upon the Upland steamboat being the customary craft and only that craft. [00:21:14] Speaker 01: And all their evidence was applied [00:21:16] Speaker 01: when you take the upland steamboat for susceptibility on a criteria of at least 40 to 60 inches of water depth and no more gradient than four to five feet per second. [00:21:28] Speaker 01: That was every one of their expert's opinion on all of these segments is if it didn't meet those, if the river didn't meet those standards, then the upland steamboat could not navigate on it. [00:21:40] Speaker 01: They did not consider and there's no evidence in the record from the other side. [00:21:45] Speaker 01: that smaller watercraft were considered for purposes of susceptibility. [00:21:50] Speaker 01: So it would be the first time, Your Honor, that a court inserted into susceptibility and inserted into customary modes a standard of whether the average everyday Montana could operate the boat or you cannot present evidence that an expert could operate the boat. [00:22:10] Speaker 01: Those are entirely subjective. [00:22:12] Speaker 04: Do either of you have any other questions right now? [00:22:14] Speaker 04: Okay. [00:22:15] Speaker 04: Thank you very much. [00:22:15] Speaker 04: I know we have cross appeals. [00:22:16] Speaker 04: We'll make sure to get you back up for enough, enough time. [00:22:19] Speaker 00: I appreciate it. [00:22:19] Speaker 04: Certainly more than three minutes. [00:22:20] Speaker 04: Thank you. [00:22:20] Speaker 04: Thank you very much. [00:22:24] Speaker 04: Mr. Stirrup. [00:22:25] Speaker 00: I'm getting that right. [00:22:29] Speaker 00: Good morning. [00:22:30] Speaker 00: May it please the court, Rob Stirrup, Brown Law Firm for Talon Montana, formerly PPL Montana. [00:22:37] Speaker 00: The interests of Talon and Northwestern Energy are aligned. [00:22:41] Speaker 00: So Northwestern Council has ceded his time to me. [00:22:44] Speaker 00: I am one of the relatively few who has been involved in this case since its inception in 2003, 21 years ago. [00:22:54] Speaker 00: That long and winding road, or perhaps torturous mountain stream, includes a trial in the state court to appeal to the state court, appeal to the US Supreme Court, which primarily was handled by my colleague Kyle Gray and Dave Kennard, [00:23:10] Speaker 00: and then a retrial in federal district court. [00:23:13] Speaker 00: As the panel has heard, that retrial took 10 days, 15 experts, some 1400 exhibits, and it resulted in a district court order that is 78 pages long. [00:23:27] Speaker 00: We submit respectfully that time has come for this case to come to an end. [00:23:33] Speaker 00: Montana's argument on appeal distills to this. [00:23:36] Speaker 00: Our experts are better than your experts. [00:23:39] Speaker 00: Our facts are better than your facts. [00:23:41] Speaker 00: The district court got it wrong on the facts. [00:23:45] Speaker 00: For example, Montana claims the district court failed to consider evidence of indigenous use. [00:23:51] Speaker 00: That's not true. [00:23:53] Speaker 00: That evidence was submitted. [00:23:54] Speaker 00: The court considered it. [00:23:56] Speaker 00: It found it insufficient. [00:23:58] Speaker 00: Montana contends that the district court failed to consider smaller watercraft. [00:24:03] Speaker 00: That's not true. [00:24:05] Speaker 00: All of Montana's evidence was admitted. [00:24:08] Speaker 00: None of it was excluded. [00:24:09] Speaker 00: The district court considered it and found it insufficient. [00:24:13] Speaker 00: Montana contends the district court failed to consider whether a disputed reach was navigable, even if the entire segment was not. [00:24:24] Speaker 00: That's not true either. [00:24:25] Speaker 00: Montana never asked the district court to do that, nor could it under PPL. [00:24:31] Speaker 00: The district court did consider whether an entire segment would be navigable for title, even though there were barriers within the segment. [00:24:40] Speaker 00: That's what PPL commands. [00:24:42] Speaker 00: That's what the district court did. [00:24:44] Speaker 00: The district court simply found the evidence insufficient. [00:24:48] Speaker 00: These are factual issues. [00:24:50] Speaker 00: They are subject to the Rule 52A standard, the clear error standard. [00:24:56] Speaker 04: I want to let you get on, but since we're [00:24:59] Speaker 04: On cross appeal, did you want to have any time for rebuttal or you want to make all your argument now? [00:25:03] Speaker 04: I will do all of my argument now. [00:25:05] Speaker 04: Okay. [00:25:05] Speaker 04: Thank you. [00:25:06] Speaker 04: Okay. [00:25:07] Speaker 00: Go ahead. [00:25:08] Speaker 00: The clearly erroneous standard is a plausibility standard as this court held in Chaudry. [00:25:14] Speaker 00: If the district court's account of the evidence is plausible in light of the record, we may not reverse it. [00:25:21] Speaker 00: This case has been characterized as a battle of experts. [00:25:25] Speaker 00: This court has held that reversal [00:25:27] Speaker 00: is almost impossible where the court credits some experts over others. [00:25:32] Speaker 00: In Alcoa, the Fourth Circuit addressed the title navigability issue. [00:25:35] Speaker 00: Some of the same experts in our case testified in Alcoa, Drs. [00:25:40] Speaker 00: Newell and Harvey. [00:25:42] Speaker 00: The Fourth Circuit correctly applied the clearly erroneous standard. [00:25:46] Speaker 00: Montana points out there is a discussion of de novo review in Alcoa, but that's for a subsidiary issue under North Carolina law that was decided on summary judgment, not title navigability. [00:25:58] Speaker 00: At most, we have here a mixed question of law and fact. [00:26:01] Speaker 00: In Boone, a title navigability case, this court held those are subject to the clear error standard of review. [00:26:07] Speaker 00: In Lakeridge, the 2018 decision, the US Supreme Court held. [00:26:12] Speaker 00: that in mixed questions, if factual issues predominate, then the clear error standard applies. [00:26:20] Speaker 00: Montana's relied on Puget. [00:26:22] Speaker 00: However, that was a regulatory case, not a title navigability case. [00:26:26] Speaker 00: And the court applied the substantial evidence standard. [00:26:29] Speaker 00: That's the same as clear error. [00:26:31] Speaker 00: Montana relies on Aetna. [00:26:33] Speaker 00: However, Aetna, the facts were not in dispute. [00:26:36] Speaker 00: It was decided on summary judgment, which, of course, is a different standard. [00:26:41] Speaker 00: And finally, Montana relies on Riverfront Protective. [00:26:45] Speaker 00: In Riverfront Protective, this court made clear that the facts were not in dispute. [00:26:50] Speaker 00: In fact, the opinion says that twice. [00:26:52] Speaker 00: In that case, the parties stipulated that log drives had been conducted on the river in question over an uninterrupted 17-year period with millions of board feet. [00:27:05] Speaker 00: was whether enhancements to the river to facilitate the log drives were improvements to the river, such that the river was not in its natural and ordinary condition. [00:27:16] Speaker 00: That was the issue that the court resolved as a legal matter. [00:27:21] Speaker 00: We don't have anything like that in this case. [00:27:23] Speaker 00: In this case, [00:27:25] Speaker 00: Dr. David Emmons, a historian, testified that he had scoured the records of the University of Montana, of Western Montana logging companies. [00:27:33] Speaker 00: There's no evidence of log drives on the Clark Fork. [00:27:36] Speaker 00: The logs went east to Butte and to Anaconda for the mines. [00:27:41] Speaker 00: Dr. Littlefield, for the state, testified there had been log drives, but he admitted that those ended at Nine Mile Creek. [00:27:49] Speaker 00: That's outside the relevant segment. [00:27:53] Speaker 00: There was evidence of a 1905 log drive that was won and done at a time of high water after the river had been approved by the Thompson Falls Dam. [00:28:01] Speaker 00: There was another log drive that ended in disaster. [00:28:05] Speaker 00: The logs went over the falls, as did the log rafts, and one man lost his life. [00:28:12] Speaker 00: Montana fared no better on the Missouri. [00:28:15] Speaker 00: The records of the Meyer Log Company, the Holter and Lumber Company established that those log drives began and ended outside the relevant segments. [00:28:25] Speaker 00: One of Montana's historians testified that there were press accounts of log drives, but as the evidence established and our experts established, those were aspirational frontier press boosterism. [00:28:37] Speaker 00: The frontier press was notorious [00:28:40] Speaker 00: for reporting things that hadn't happened, but that they hoped would happen. [00:28:45] Speaker 00: And the district court did consider the use of bateaux and rafts in connection with log drives, for example. [00:28:54] Speaker 00: Montana put in evidence of Bateaux shepherding the logs, but that was near the Idaho border while outside the relevant segments. [00:29:03] Speaker 00: In sum, there simply was not credible evidence of log drives in any of the relevant segments. [00:29:11] Speaker 04: Could you spend a moment now talking about this issue of the skill of the navigator and why it would not be an error, assuming this is your view, [00:29:23] Speaker 04: or why it was not an error for the court to consider whether the average Montanan could... Yeah, absolutely. [00:29:28] Speaker 04: Thank you. [00:29:29] Speaker 00: Absolutely. [00:29:30] Speaker 00: In PPL, the court articulated a standard that has existed from the time of Daniel Ball, and I will characterize that as a commercial reality standard. [00:29:42] Speaker 00: As the court stated in PPL, [00:29:45] Speaker 00: The river in question must have been able to sustain the kinds of commercial use that, as a realistic matter, might have occurred at time of statehood. [00:29:55] Speaker 00: The court in PPL used that phrase again in connection with seasonality, saying, the river must be susceptible to navigation for a long enough period during the year that is commercially realistic. [00:30:07] Speaker 00: That dates to the Daniel Ball test itself, Highway of Commerce. [00:30:12] Speaker 00: Commerce is the key. [00:30:14] Speaker 00: And as elsewhere pointed out in PPL, the test concerns the river's usefulness for trade and travel rather than other purposes. [00:30:22] Speaker 00: Expert Boatsman Cajune, a daredevil whitewater enthusiast using modern watercraft, is not transporting valuable goods in commerce as frontier Montanans were in 1889. [00:30:36] Speaker 00: Frontier Montanans in 1889, who needed to transport their goods in commerce, had to [00:30:44] Speaker 00: had to address commercial realities. [00:30:46] Speaker 00: Was it reasonable? [00:30:47] Speaker 00: Was it commercially realistic to use that? [00:30:50] Speaker 00: And the evidence that a man like Kajun can do it in modern watercraft simply does not address that test. [00:30:57] Speaker 05: And I would- I take their argument to be that here the district court committed a legal error in assigning or looking at the skill level of the individual. [00:31:10] Speaker 05: And they point to that particular [00:31:12] Speaker 05: finding that the district court made, I believe it was finding 127. [00:31:17] Speaker 05: Can you just specifically address that? [00:31:20] Speaker 00: Yeah, and what I think the panel must understand is Mr. Cajune testified that he could traverse any river in Montana, even Class 5 rapids. [00:31:32] Speaker 00: So if that were the test, then any river segment anywhere would be navigable for title. [00:31:39] Speaker 00: The test demands something more. [00:31:42] Speaker 00: The test demands that the court look to what was susceptible as a matter of commercial reality in 1889. [00:31:51] Speaker 00: The boats that Kajum were using were not similar to the watercraft in question. [00:31:56] Speaker 00: The district court correctly so found based on the factual record, and that is not challenged. [00:32:03] Speaker 00: And an example illustrates the point. [00:32:05] Speaker 00: On the Yeti segment of the Clark Fork River, there are three major impediments to navigation. [00:32:12] Speaker 00: We've got the Yeti Islands, a narrow, twisting two-mile stretch that is shallow. [00:32:18] Speaker 00: We've got the Plains Rapids, a section of three rapids that are very narrow, very fast river. [00:32:25] Speaker 00: The gradient is up to 22 feet per mile in that section. [00:32:29] Speaker 00: And then we've got the mid-channel bars and riffles, also narrow, also twisting. [00:32:35] Speaker 00: Montanans at time of statehood had a crying need to transport their goods in commerce. [00:32:42] Speaker 00: The commercial demand was high. [00:32:45] Speaker 00: Montanans wanted to use the rivers to transport their goods in commerce. [00:32:50] Speaker 00: Transport on the waters was exponentially more economical than on the roads. [00:32:55] Speaker 00: Dr. Attak testified up to 90 times more expensive to transport on the roads. [00:33:01] Speaker 00: Montanans, at time of statehood, did not put their boats, their smaller watercraft, in the Clark Fork River in the eddy segment to get to the markets. [00:33:11] Speaker 00: They used a road. [00:33:12] Speaker 00: The road paralleled the river, and that was strongest evidence and a question, frankly, Montana has never been able to answer. [00:33:21] Speaker 00: If this river were susceptible to navigation in 1889, if Mr. Cajune was correct that anybody could reasonably transport their goods on the Yeti segment, why didn't frontier Montanans do it? [00:33:39] Speaker 00: Occam's razor, the simplest answer is the best answer. [00:33:42] Speaker 00: They didn't because the river was not susceptible. [00:33:48] Speaker 00: credit the testimony of a modern daredevil Whitewater enthusiast over that historical record, we think would have been certainly an error, but fundamentally, it's a factual issue. [00:34:01] Speaker 00: Montana says the court applied the facts to the law. [00:34:04] Speaker 00: Well, the courts do that in every case. [00:34:06] Speaker 00: That doesn't mean it's a legal issue. [00:34:09] Speaker 00: The factual issues predominate. [00:34:13] Speaker 00: And I have to [00:34:14] Speaker 00: talk for a moment about this disputed reach issue that council raised. [00:34:20] Speaker 00: My notes indicate that my first job is to make sure this panel understands, as the district court understood, the difference between a disputed reach and a segment. [00:34:31] Speaker 00: The disputed reach is the FERC project boundary. [00:34:33] Speaker 00: That's the footprint, it's the spillway, it's the reservoir. [00:34:37] Speaker 00: Created by FERC as a matter of administrative convenience after the dams were constructed decades after statehood. [00:34:43] Speaker 00: Conversely, [00:34:45] Speaker 00: The segments are a function of the physical properties of the river at time of statehood. [00:34:51] Speaker 00: And as those physical conditions of the river bear on navigability. [00:34:58] Speaker 00: When Montana says, as they did in their briefing, we only wanted title to the disputed reaches, what they're really saying is we only wanted damages for the disputed reaches. [00:35:11] Speaker 00: The only part the disputed reaches play in this case is [00:35:15] Speaker 00: damages, if we ever get to that phase of this case. [00:35:19] Speaker 00: Under Montana's damages methodology, the shared net benefits methodology, there is a comparison of riverbed acreages owned by Montana and not owned by Montana in the FERC project boundary. [00:35:31] Speaker 00: That's the only part that it plays. [00:35:33] Speaker 00: Title navigability turns on river segments, not the FERC project boundaries. [00:35:41] Speaker 00: And in this case, we had four world-class [00:35:44] Speaker 00: fluvial geomorphologists. [00:35:47] Speaker 00: Montana's experts submitted their reports first. [00:35:50] Speaker 00: Dr. Schmidt and Wilcox provided the beginning and end points of the river segments. [00:35:56] Speaker 00: Our experts, Drs. [00:35:57] Speaker 00: Messiter and Harvey, agreed with them, with only minor exceptions that are not implicated on appeal. [00:36:04] Speaker 00: Montana invited the district court to make an entire segment determination, not a disputed reach determination. [00:36:13] Speaker 00: and nor could Montana do that. [00:36:16] Speaker 00: And proof positive is found in the Sun River to Black Eagle segment. [00:36:20] Speaker 00: That's the one segment that the court found in favor of Montana. [00:36:25] Speaker 00: When it did that, the court granted title to the entire Sun River to Black Eagle segment to Montana. [00:36:34] Speaker 00: It's at pages 77 and 78 of the decision. [00:36:37] Speaker 00: It did not grant title to Montana of only [00:36:41] Speaker 00: the disputed reach. [00:36:42] Speaker 00: And that's because the district court recognized that the disputed reach had nothing to do with title navigability. [00:36:50] Speaker 00: Now Montana could and did argue, listen, even though there are some barriers within a given segment, we think the segment itself is still navigable. [00:37:02] Speaker 00: The PPL decision acknowledges that that's a possibility. [00:37:06] Speaker 00: In PPL, the Supreme Court said that these disruptions, these rapids, these riffles, might be so minor that the segment nonetheless is navigable. [00:37:17] Speaker 00: Montana made that argument to Judge Christensen. [00:37:22] Speaker 00: Judge Christensen rejected it on the facts. [00:37:26] Speaker 00: On the Big Belt Mountain segment, for example, while there's a six or seven mile reach that was piloted by steamboats on pleasure trips, picnic trips, not a commercial venture, [00:37:36] Speaker 00: And this was after the river had been improved, by the way. [00:37:40] Speaker 00: But that was a six or seven mile segment within the larger 45 mile Big Belt Mountain segment. [00:37:46] Speaker 00: Well, also included in that segment are the fearsome Beartooth Rapids, the White Rock Rapids, the Reef of Rocks, and the Rock Rapids. [00:37:55] Speaker 00: As the district court correctly found, these are not minor interruptions. [00:38:00] Speaker 00: They make the entire segment non-navigable. [00:38:04] Speaker 00: And Montana's argument today for the disputed reaches is an attempt to minimize or ignore those disruptions. [00:38:11] Speaker 00: That was the error of the Montana courts in 2010 when they adopted a whole rivers approach that allowed them to ignore or minimize the 17 mile Great Falls reach. [00:38:22] Speaker 00: If you're looking at the entire 200 plus mile upper Missouri, then a 17 mile reach maybe isn't a big deal. [00:38:30] Speaker 00: You can ignore it. [00:38:31] Speaker 00: The U.S. [00:38:31] Speaker 00: Supreme Court said that was the primary flaw in the reasoning of the Montana courts. [00:38:36] Speaker 00: While Montana's doing the same thing now, they're asking the court to ignore or minimize significant barriers to navigation. [00:38:44] Speaker 00: The district court correctly interpreted the test, correctly applied the test. [00:38:49] Speaker 00: Montana is, to borrow a phrase from able counsel from Montana, quibbling with the district court's factual findings. [00:38:57] Speaker 00: Clear error is the standard. [00:38:59] Speaker 00: And while I'm on the 17-mile Great Falls reach, the Supreme Court did determine as a matter of law that that reach is not navigable for title. [00:39:11] Speaker 00: We brought that to the attention of the district court. [00:39:14] Speaker 00: The district court granted our motion to dismiss for three of the five dams in the 17-mile Great Falls reach. [00:39:21] Speaker 00: The court, however, truncated that 17-mile reach into an eight-mile reach, so it encompassed only three of the five dams. [00:39:29] Speaker 00: In so doing, the court seized upon two words in the opinion, at least, at least from the head of the first falls to the foot of the last. [00:39:41] Speaker 00: We submit those two words cannot bear the weight assigned to it. [00:39:45] Speaker 00: What the Supreme Court meant was the Great Falls reaches 17 miles at least [00:39:51] Speaker 00: It might be longer, but it's at least 17 miles. [00:39:56] Speaker 00: We believe that was a contravention of the mandate rule and that that order should be dismissed as a legal matter, not a factual matter, under the mandate rule. [00:40:05] Speaker 00: Okay, thank you. [00:40:06] Speaker 00: Do either of you have any questions? [00:40:08] Speaker 04: Thank you very much. [00:40:09] Speaker 04: Thank you. [00:40:10] Speaker 04: Okay. [00:40:11] Speaker 04: Mr. Anderson. [00:40:20] Speaker 02: Good morning, Your Honors, and may it please the Court, Christopher Anderson from the United States. [00:40:24] Speaker 02: I'd like to begin, if I can, by backing us out a little bit and going back to what the basic question was that was before the district court. [00:40:31] Speaker 02: And that, as we've all heard, is the Daniel Ball test. [00:40:34] Speaker 02: But I particularly like the Supreme Court's restatement of that test in the Montello, in which the court said that to give a river the character of a navigable stream, it must be generally and commonly useful to some purpose of trade and agriculture. [00:40:48] Speaker 02: Yes. [00:40:49] Speaker 02: And so the question, the factual question that was before the district court is whether the rivers in question were actually used or were capable of being used at the time of statehood. [00:41:01] Speaker 02: for some generally and commonly useful purpose of trade or travel. [00:41:04] Speaker 02: That is the ultimate factual question. [00:41:06] Speaker 02: Now, that's a complex factual question that required the district court to look at a lot of different things. [00:41:11] Speaker 02: It had to look at the characteristics of the rivers. [00:41:13] Speaker 02: It had to look at the characteristics of the watercraft that were available at the time. [00:41:17] Speaker 02: It had to look at the characteristics of commerce that were prevalent in Montana in 1889, in and around 1889. [00:41:23] Speaker 02: But the ultimate factual question, the ultimate factual question that this court should review for clear error is whether those segments were capable, as a practical matter, of being used as highways for commerce. [00:41:34] Speaker 04: In the United States view, is there anything that Montana has argued in its briefs or here today that is really a legal issue that we should be reviewing de novo, or is your view that? [00:41:44] Speaker 02: No, it's our view, Your Honor, and I apologize for cutting you off, that these are all factual questions. [00:41:50] Speaker 02: But it's important, I think, to focus on the arguments that Montana makes are about different facts than the ultimate factual questions. [00:41:58] Speaker 02: When Montana argues, well, you could have piloted this type of boat down this segment, that may or may not be true. [00:42:06] Speaker 02: But that's not the factual finding, the ultimate factual finding that the district court made. [00:42:10] Speaker 02: The ultimate factual finding that the district court made was you could not pilot those smaller watercrafts down these segments in a way that was useful for trade or agriculture, that was useful [00:42:19] Speaker 02: as a practical matter for commerce, and we would submit that that is a factual finding that's reviewed for clear error. [00:42:26] Speaker 02: But even if the court were to decide that, no, it's actually a mixed question, and I point out, I couldn't help but notice that a counsel from Montana kept talking about the application of the test, and the court's reviewing the application of the test to the facts of this case. [00:42:39] Speaker 02: That sounds a little bit like a mixed question, but even if the court were to review it as a mixed question, the Supreme Court has said when factual issues predominate, [00:42:46] Speaker 02: an appellate court should be very deferential to this to court's findings on that mixed question. [00:42:51] Speaker 02: And this is a case in which the factual issues heavily predominate. [00:42:55] Speaker 02: There are questions of geomorphology, there are questions of historical commerce and historical craft usage. [00:43:01] Speaker 02: These are things that don't, questions the answers to which are not derived from legal standards, they're derived from evidence and expert testimony. [00:43:09] Speaker 02: So for that reason, we think the appropriate standard review is for clear error and that [00:43:14] Speaker 02: Montana's various arguments that maybe the district court didn't fairly assess the evidence in some specific point are A, review for thorough, but even if the court were to disagree with some specific issue, don't call into question the larger factual, the ultimate factual conclusion that these segments were not susceptible to use, practically speaking, for commerce. [00:43:42] Speaker 02: The other thing I want to talk about is this question of segmentation. [00:43:45] Speaker 02: And in particular, I want to address our position that Montana has waived this argument. [00:43:52] Speaker 02: So this case, as my colleagues have recounted, has been litigated extensively. [00:43:58] Speaker 02: And in the district court, in the pretrial filings and at trial, the whole case was litigated on the premise that the question before the district court [00:44:08] Speaker 02: was whether these river segments were navigable, not whether the disputed reaches were navigable. [00:44:14] Speaker 02: Montana contests that. [00:44:15] Speaker 02: It cites its complaint. [00:44:17] Speaker 02: It cites portions of the [00:44:19] Speaker 02: its proposed findings of fact and conclusions of law in which it describes the disputed reaches. [00:44:24] Speaker 02: But those same proposed findings and fact and conclusions of law said things like, the question to be answered is whether the segments containing the disputed reaches of the river at issue are navigable. [00:44:34] Speaker 02: That's at Further Excerpts of Record 27. [00:44:37] Speaker 02: That's Montana's proposed findings of fact and conclusions of law. [00:44:40] Speaker 02: Montana said that the question is whether the segments as defined by the physical feature is characteristic [00:44:46] Speaker 02: of those segments are navigable. [00:44:48] Speaker 02: That's at Further Excerpts of Record 150. [00:44:50] Speaker 02: And then at Further Excerpts of Record 157, Montana said, Montana claims that the navigability, in fact, of particular river segments in order to establish its title to particular riverbed reaches contained in those segments. [00:45:03] Speaker 02: So we submit that it was very clear that all parties understood that the question before the court [00:45:08] Speaker 02: was whether the relevant segments were navigable in fact. [00:45:12] Speaker 02: And in fact, if that weren't the question, why were the parties litigating the boundaries of the relevant segments? [00:45:17] Speaker 02: What purpose did that have? [00:45:19] Speaker 02: So our view is the court doesn't need to weigh into what the United States thinks a complicated question of the correct test for defining segments. [00:45:30] Speaker 02: We think that that question has been entirely at least forfeited, if not waived, and that the court should decide [00:45:39] Speaker 02: decide the case on the basis of the relevant segments as the district court did. [00:45:43] Speaker 02: But if the court were to reach the question of the proper segmentation, we agree fully with Montana that PPL requires the court to look at physical aspects of the segments. [00:45:54] Speaker 02: And that makes sense because navigability at the end of the day is a question of the physical aspects of the river. [00:45:59] Speaker 02: And the last thing I'll say on this point, Your Honors, is even if Montana hadn't [00:46:06] Speaker 02: purposefully litigated this case on the basis of the relevant segments. [00:46:09] Speaker 02: Montana, even now, has not pointed anywhere where it argued to the district court that the disputed reaches are appropriate units for assessing navigability, where it introduced evidence that those would be appropriate boundaries for assessing navigability, [00:46:25] Speaker 02: or where it even introduced evidence that those disputed breaches themselves are navigable. [00:46:30] Speaker 02: Montana says, well, it's error because the district court looked at obstructions outside of the disputed breaches. [00:46:36] Speaker 02: But let's assume that's right. [00:46:39] Speaker 02: That doesn't establish that the disputed breaches themselves were navigable. [00:46:41] Speaker 02: And so again, it just underscores the fact that this case has been litigated on different premises, and it's too late in the day now to go back and re-examine those. [00:46:52] Speaker 02: The last point I wanted to make, Your Honors, is that tidal navigability is different. [00:46:58] Speaker 02: The Daniel Ball test applies in a variety of contexts, but tidal navigability is probably the most restrictive context and the context in which it is hardest to establish navigability, and that's because tidal navigability looks at a very specific time and space. [00:47:15] Speaker 02: It requires that the river have been navigable or susceptible to navigability at the time of statehood, [00:47:21] Speaker 02: and in the context of the commerce that was taking place in that state at that time. [00:47:25] Speaker 02: And that way, it's very different from assessing navigability for regulatory purposes, commerce clause purposes, et cetera. [00:47:32] Speaker 02: If the court has no further questions, we would ask that the court be affirmed. [00:47:40] Speaker 04: Thank you very much. [00:47:42] Speaker 04: OK, Mr. Blomquist, we'll give you five minutes for rebuttal. [00:47:45] Speaker 04: Thank you. [00:47:50] Speaker 01: Thank you, Your Honor. [00:47:51] Speaker 01: I want to start with the argument of the United States as far as susceptibility and linkage, if you will, of the smaller watercraft to commerce. [00:48:03] Speaker 01: The district court expressly did that in finding the facts 16 and 17, where the court found that the customary modes, these smaller watercraft, were in fact used for transportation and commerce at or near the time it's stated. [00:48:16] Speaker 01: So this argument that these craft must be used in commerce, the district court already found they did. [00:48:24] Speaker 01: I want to make sure for Justice Mendoza, when I was referring to the everyday Montana, if you will, or that element, I was referring to paragraph 127. [00:48:37] Speaker 01: I hope you understood that rather than paragraph 27. [00:48:41] Speaker 01: That's where I see that. [00:48:44] Speaker 01: The question of segmentation and whether Montana's position was that the question of navigability is applied to disputed reaches has been Montana's position since the start of this case. [00:48:59] Speaker 01: That has never changed, never wavered. [00:49:01] Speaker 01: We pled the disputed reaches because this was a federal quiet title act. [00:49:06] Speaker 01: Once the case, once the United States was inserted into the case, we had to plead with particularity the lands that we claimed to own [00:49:15] Speaker 01: Those have always been the disputed reaches on the hydroelectric projects. [00:49:19] Speaker 01: And that, as PPL articulates, the test for navigability is whether those disputed reaches are navigable. [00:49:32] Speaker 01: That is the exact test that Utah described, as well as Brewer Elliott. [00:49:37] Speaker 01: So it's never been our position any different that that's where the navigability test should apply. [00:49:44] Speaker 01: The court recognized this in finding a fact number four. [00:49:47] Speaker 01: The district court specifically understood the difference between the relevant segments, the geomorphic channel segments, the physical segment versus the disputed reaches. [00:49:59] Speaker 01: And the court recognized that the test for navigability was not governed by the physical and geomorphic segments. [00:50:10] Speaker 01: It was governed by the question [00:50:12] Speaker 01: the specific question of whether those disputed reaches were navigable or not. [00:50:18] Speaker 01: And that is where we allege the error of the district court in applying the segment by segment test is by not applying it to the disputed reaches, which is another directive under Utah and PPL. [00:50:36] Speaker 01: Segmentation not only applies to [00:50:40] Speaker 01: the disputed reaches as whether they are navigable or not. [00:50:43] Speaker 01: But it is incumbent upon the court to determine precisely where navigability begins and ends. [00:50:51] Speaker 01: And the reason for that is we're talking again about riverbed tidal, allocating riverbed tidal. [00:50:58] Speaker 01: And this is best illustrated in the Big Belt Mountain segment. [00:51:02] Speaker 01: where the rapids that the defendants allege were barriers to navigation, and the district court found were barriers to navigation, are nowhere in the Hauser disputed reach. [00:51:14] Speaker 01: They are wholly downstream. [00:51:17] Speaker 01: And in terms of precision that the PPL directs and Utah directs the court engage in, on the Eddy segment on the Clark Fork River, the disputed reach [00:51:32] Speaker 01: The barriers the court found to lead to non-navigability of the Eddy segment in the Thompson Falls disputed reach are situated upstream outside of the boundary of the disputed reach. [00:51:46] Speaker 01: The only one that arguably would exist within the reach is the Eddy Islands. [00:51:51] Speaker 01: And in those circumstances, assuming the Eddy Islands was in fact a barrier, which again we say it was not for smaller craft, [00:52:01] Speaker 01: And the evidence showed that smaller craft could navigate easily through the Eddie Island segment, or Eddie Island portion. [00:52:09] Speaker 05: Under... But we can't just look at smaller craft, Council. [00:52:13] Speaker 05: Pardon me? [00:52:14] Speaker 05: We can't just look at smaller craft. [00:52:17] Speaker 01: Smaller craft are the customary mode. [00:52:21] Speaker 01: Smaller craft, as found by the district court, these smaller watercraft [00:52:25] Speaker 01: were customary modes of trade and travel. [00:52:27] Speaker 05: Oh, I agree with you that that's what the district court said. [00:52:31] Speaker 05: And I agree with you that that was the practice. [00:52:32] Speaker 05: But to limit it to only smaller craft, I think, is a mistake. [00:52:37] Speaker 01: Well, and I would disagree there, Your Honor, because the courts have said customary modes of trade. [00:52:45] Speaker 01: Navigability is not dependent upon the mode, if you will, of what the customary mode is. [00:52:51] Speaker 01: It's not limited to large freight bearing craft. [00:52:55] Speaker 01: It could be smaller craft, which are capable of engaging in the simpler types of commerce. [00:53:02] Speaker 01: Commerce is not solely determined by the size of the craft, the size of the cargo. [00:53:11] Speaker 01: Customary modes and commerce and transportation, as the courts have reiterated repeatedly, can be with smaller craft. [00:53:19] Speaker 01: And so the directive is, [00:53:22] Speaker 01: the determination of navigability cannot be limited to just those craft which would be cargo carrying or large aspects of commerce. [00:53:36] Speaker 01: The courts recognize simpler commerce as qualifying for purposes of the navigability test. [00:53:44] Speaker 01: Do either of you have any other questions? [00:53:45] Speaker 01: OK, you can take a moment to finish up. [00:53:47] Speaker 01: Thank you. [00:53:49] Speaker 01: All right. [00:53:50] Speaker 01: I just want to make a couple of comments on the cross field so I don't just ignore that. [00:53:55] Speaker 01: The PPL court did not mandate the entire 17-mile Great Falls reach is non-navigable. [00:54:03] Speaker 01: The court in the opinion specifically recognized that the 17-mile Great Fall reach, and this is an important qualifier, at least from the head of the first waterfall to the foot of the last is non-navigable, and the court [00:54:19] Speaker 01: The district court recognized that PPL opinion carved out a portion of what they were referring to as this great false reach as not subject to the opinion or the holding of PPL, which Northwestern degrees the holding of PPL said that. [00:54:39] Speaker 01: So this idea that the holding and the mandate were for this entire 17-mile reach is not what the language of the opinion states. [00:54:48] Speaker 01: And it's important when considering the mandate that the district court look at the opinion. [00:54:53] Speaker 01: And here the district court did look at the opinion in addition to the substantive law that underlies the opinion, which is what this court has indicated is worthy of mention. [00:55:06] Speaker 01: And in this instance, the district, or excuse me, the PPL court is expressly stating segment by segment is the way to determine riverbed tidal. [00:55:17] Speaker 01: And in addition, it is important to determine where navigability begins, where it ends, and with precision. [00:55:26] Speaker 01: The district court properly looked at the language of the PPL regarding the Great Falls reach and found ambiguities. [00:55:34] Speaker 01: And whether it's 10 miles, 17 miles, whatever it might be. [00:55:38] Speaker 01: So without the substantive law should also be reviewed and looking at what the opinion was, what the mandate of the Supreme Court was. [00:55:48] Speaker 01: And if the court does that, the court will see that the district court was correct in dismissing or, excuse me, denying the motion as to [00:55:58] Speaker 01: the river above the head of the first waterfall, and below the foot of the last, which is exactly what we did. [00:56:04] Speaker 01: Thank you very much. [00:56:05] Speaker 01: Thank you. [00:56:06] Speaker 04: Mr. Blumquist, Mr. Stirrup, Mr. Anderson, we thank each of you for your very helpful arguments today, and we thank all counsel on this case for the very helpful briefing in this case. [00:56:14] Speaker 04: It was of great assistance to us. [00:56:17] Speaker 04: This matter is now submitted, and our court is in recess until tomorrow morning. [00:56:21] Speaker 04: Thank you.