Casitas Wins Water Rights Takings Challenge in Federal Circuit

Washington, DC—Today the U.S. Court of Appeals for the Federal Circuit issued a decision in Casitas Municipal Water District v. United States, Case No. 2007-5153, holding that the taking of Casitas’s water to protect endangered fish is to be analyzed as a physical, not a regulatory, taking: “[T]he water from the Robles-Diverson Canal is permanently gone. Casitas will never, at the end of any period of time, be able to get that water back . . . The government requirement that Casitas build the fish ladder and divert water to it should be analyzed under the physical takings rubric.”

“The Federal Circuit reached the right decision in this case,” said Casitas’s attorney, Nancie Marzulla. Ms. Marzulla further stated that “the government’s argument that it can take the municipal water district’s water for any reason, without paying for the water it takes, is a breathtaking proposition. We are extremely pleased that the Federal Circuit has ruled in favor of municipal water users and the water rights holder, Casitas, on the property rights issue.”

The Federal Circuit today reversed an earlier decision rendered by the Court of Federal Claims on March 29, 2007, holding that the federal government’s appropriation of Casitas’s water to fish protection was not a physical taking under the Fifth Amendment. Instead, the court held that if a Fifth Amendment taking occurred it was regulatory in nature.

The Casitas case arises out of a 2003 Biological Opinion issued by the National Marine Fisheries Service that required approximately 3,500 acre-feet of Casitas’s water to be diverted downstream for the steelhead trout. In the lawsuit, Casitas asserted that it should not have to bear the cost of the loss to its water supply. Rather, Casitas argued that the Fifth Amendment requires that the cost of the loss to its water supply be borne by the federal government, which took water belonging to Casitas for a public use.

A copy of the opinion can be downloaded here.

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