Texas: "The requirement of compensation may make the regulatory scheme more expensive, but it does not affect the regulations themselves or their goals for groundwater production."

This just arrived: in Edwards Aquifer Auth. v. Day, No. 08-0964 (Feb. 24, 2012), the Texas Supreme Court, applying the Penn Central test, held that the government is not entitled to summary judgment because "the three Penn Central factors do not support summary judgment for the Authority and the State. A full development of the record may demonstrate that ... regulation is too restrictive of Day's groundwater right and without justification in the overall regulatory scheme." Slip op. at 45. The court began the unanimous opinion with this summary:

We decide in this case whether land ownership includes an interest in groundwater in place that cannot be taken for public use without adequate compensation guaranteed by article I, section 17(a) of the Texas Constitution. We hold that it does.

I'm liking the Texas Supreme Court these days.

We're getting a brief ready for filing today, so I haven't had the time to digest the entire 49 page opinion. But more to come after I do. In the meantime, here are the briefs of the parties and amici in the case, and you may want to watch the archived oral argument video (via St. Mary's Law School).

Edwards Aquifer Auth. v. Day, No 08-0964 (Tex. Feb. 24, 2012)