Here are some thoughts about the Federal Circuit's recent opinion in Casitas Municipal Water District v. United States, No. 2012-5033 (Feb. 27, 2013). It's a long opinion, and we haven't had a chance to digest it in detail, so these thoughts are not ours but are informative nonetheless. We offer this link to "The US wins the latest round in the Casitas saga" form environmental lawprof Holly Doremus at Legal Planet. She writes:
The Court of Claims ruled for the government, dismissing Casitas’s claim as not ripe on the grounds that the District had not shown any such interference [with Casitas' water rights], at least not yet....
In one sense this latest decision leaves the dispute hanging. The case was dismissed without prejudice, meaning that Casitas is free to file again if and when it can prove that the fish ladder has actually prevented it from using its water rights.
But that isn’t going to be an easy showing for Casitas to make, because the court soundly rejected Casitas’s extremely broad characterization of its property rights. ... Unless and until Casitas can show that mandated fish ladder flows have actually reduced deliveries for those uses, it won’t have a takings claim. So far, the trial court found, Casitas has not made that showing.
This decision strikes me as correct, both in its reading of California water law, and in its outcome. Ultimately, the touchstone for takings cases is whether the property owner is being treated unfairly. Casitas wants the U.S. to pay for water that has to flow through the fish ladder. That would give Casitas a windfall. If there were no fish ladder, Casitas could not have sold that water to its customers; it was already selling them as much as it had the right to sell. If required fish flows ever do actually reduce Casitas’s delivery, then it will be time to raise a takings claim. That sounds fair to me.
More to follow.