In Cappel v. Nebraska Dep't of Natural Resources, No. S-16-1037 (Dec. 22, 2017), the Nebraska Supreme Court concluded the Department's notices to Cappel pursuant to an interstate water compact which closed off his land's ability to draw surface water from the Republican River for irrigating his crops was neither a physical nor regulatory taking.
As you might expect, the central takings question which the court addressed was whether Cappel's water allocations were "property." The court held that because the closing notice was made pursuant to the Department's obligations under the compact, "the water rights at issue were not a compensable property interest and the Cappels' physical taking argument must fail." Slip op. at 454. The court also dispensed with the regulatory takings claim by applying the Penn Central test. And you know what that means.
Here's the money quote, which reveals the court's essential problem with the takings claims: "the regulation in the instant case did not directly affect private property, but, rather, the use of a public resource. Water in Nebraska is a public resource dedicated for certain uses." Slip op. at 456. In other words, the ability to take and use water is not a private right, but a burden on a public resource.
Cappel v. Nebraska Dep't of Natural Resources, No. S-16-1037 (Neb. Dec. 22, 2017)
