Federal Circuit Denies Governments Request for En Banc Review of Casitas
Washington, DC—Today the U.S. Court of Appeals for the Federal Circuit issued a decision denying the Government’s petition to rehear or rehear en banc the panel decision in Casitas Municipal Water District v. United States, Case No. 2007-5153. The Government had argued that Tahoe-Sierra, a case involved the imposition of the 32-month building moratorium required a different outcome in the Casitas case, and that the taking of Casitas’s water to protect endangered fish is to be analyzed as a physical, not a regulatory, taking. The majority of active judges on the Federal Circuit disagree and denied the Government’s petition for review, explaining:
Tahoe-Sierra does not answer the questions posed by this case. It did not involve a physical taking claim, and it did not address or purport to cut back on the Court’s water rights cases. In Tahoe-Sierra, the temporary moratorium at issue preserved the status quo for 32 months, and then returned the land to its owner. In our case, the government diverts the water out of the Robles-Casitas Canal and sends it down the fish ladder to the Ventura River below the Robles Dam. That water will never flow to Lake Casitas, and it is permanently taken from Casitas.
“We are again pleased that the Federal Circuit reached the right decision in this case,” said Casitas’s attorney, Nancie Marzulla. Ms. Marzulla further stated that “the idea that anyone, could suggest that it could take water without paying for it is staggering, especially in this era of such severe water shortages.”
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’ water to be diverted downstream for the steelhead trout, leaving the municipal water users in Ventura County with no water and no payment of just compensation. 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.
Click here to read the Decision.
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