Casitas Seeks Appeal to Confirm Water Rights Protection

Washington, DC—On May 14, 2007, Casitas Municipal Water District filed a motion asking the trial judge to approve an immediate appeal of his decision holding that water rights are subject to the same takings test that applies in regulatory takings test. Casitas Municipal Water District v. United States, No. [ ]. If granted, the March 29, 2007 takings decision rendered by the U.S. Court of Federal Claims would be immediately appealed to the United States Court of Appeals for the Federal Circuit.



“We are flabbergasted that the judge in this case could have rendered the decision that he did,” explained Casitas’ attorney, Nancie Marzulla. She further stated that “That the government must pay just compensation for every acre-foot of water that it takes through its eminent domain power is well-established. For the court to inexplicably reverse itself on this issue and throw the security of a municipal and agricultural community’s water supply into question is extremely distressing.” Ms. Marzulla added, “We are eager for appellate review so that we can get this issue resolved and get this case back on track.”



In its takings lawsuit, Casitas has asserted that its municipal and agricultural water users should not have to bear the cost of the loss to its water supply. Rather, Casitas has argued that the Fifth Amendment requires that the public as a whole, which now enjoys (for free) the benefit of fish protection, should help bear the cost of providing this water for steelhead trout protection.



In the Court of Federal Claims’ March 29, 2007 decision, the court issued an unprecedented holding that the federal government could potentially take up to 95 percent of Casitas’ water supply without incurring any obligation to pay for the water. The court’s decision flatly contradicts an earlier decision in a similar case, Tulare Lake Basin Water Storage District v. United States, 49 Fed. Cl. 313 (2001).

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