Here's the latest in the Casitas case from the U.S. Court of Federal Claims. Casitas Municipal Water Dist. v. United States, No 05-168L (Dec. 5, 2011). This case highlights the importance of identifying the "property" right alleged to have been taken in these type of cases:
This case is before the court following a trial held to determine the compensation, if any, owed to plaintiff under the Fifth Amendment to the United States Constitution for the taking of its property. In an earlier round of litigation in this case, the Court of Appeals for the Federal Circuit ruled that operating restrictions on plaintiff’s water project imposed by the National Marine Fisheries Service "NMFS") pursuant to the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531–44 (2006), should be analyzed as a physical taking where plaintiff was required to reroute a portion of the water it had diverted for its own use through a fish passageway and thus return the water to the river channel. Casitas Mun. Water Dist. v. United States, 543 F.3d 1276, 1295 (Fed. Cir. 2008), reh’g and reh’g en banc denied, 556 F.3d 1329 (Fed. Cir. 2009). In so holding, the Federal Circuit reversed a decision by this court in which we had ruled that such a restriction on water use constituted a regulatory taking of plaintiff’s property. Casitas Mun. Water Dist. v. United States, 76 Fed. Cl. 100 (2007).The court must now address two issues: first, the nature of plaintiff’s property right and the extent to which background principles of state law impose limitations on that right, and second, the appropriate method for calculating potential damages, in particular by determining the quantity and value of the water lost.
Slip op. at 1-2. The court concluded that the only property right possessed by the plaintiff is the right to beneficial use of water, because under California water law, water rights only encompass the right to use water, not actually own it. Thus, "[a]lthough it is true that Casitas's license clearly permits the district to divert water (up to 107,800 acre-feet annually) and that safe operation of the water project requires that more water be diverted annually that can be put to beneficial use, we do not read California law as recognizing a separate, independently compensable right to divert water." Slip op. at 14 (footnote omitted). The court also rejected the government's Lucas "background principles" defense. See slip op. at .
However, the court's ultimate conclusion was that the takings claims are not ripe because the government has not interfered with the plaintiff's rights to deliver water to its customers:
Because the relevant property interest is plaintiff’s right to beneficial use, that right cannot be taken until defendant’s action encroaches on plaintiff’s ability to deliver water to its customers. Since that condition has not occurred, plaintiff’s cause of action is not ripe.
Slip op. at 42. This reminds us of the infamous Hawaii water law litigation that we've discussed a few times, where a 30-plus year case was dismissed for not being ripe because the State had taken no action to actually interefere with existing water useage, even though the Hawaii Supreme Court sua sponte gave the State ownership of water rights. Robinson v. Ariyoshi, 887 F.2d 215 (9th Cir. 1990).
Today is a travel day and we're currently at the airport writing this, so haven't had a chance to read this 53-page single-spaced opinion in detail. More to come once we do.
Casitas Municipal Water Dist. v. United States, No. 05-168L (CFC Dec 5 2011)
