Trout of Bounds: The Effects of the Federal Circuit Court of Appeals’ Incorrect Fifth Amendment Takings Analysis in Casitas Municipal Water District v. United States

Raymond Dake

Abstract

Abstract:

The Federal Circuit Court of Appeals decision in Castias Municipal Water District v. United States to apply a physical takings analysis to the partial interference of the water district’s water rights by the government in order to protect the steelhead trout through enforcement of the Endanger Species Act (“ESA”) is incorrect, plain and simple. Instead, I argue for the use of a regulatory takings analysis for partial takings of rights to use water under the Penn Central Test.

The Casitas Court’s ruling misapplies California water law, disregards U.S. Supreme Court precedent from Tahoe-Sierra, ignores underlying theory and policy to justify vague case analogies to reach its desired result, and applies a takings analysis inconsistent with the history of the Takings Clause. The majority’s opinion will have great policy implications for water takings under the ESA, interstate water compact disputes, ground water consumption regulations, and general state water law. Post-Casitas, water regulations may amount to a physical taking and the government must pay for all of the water “taken.” The extreme cost of compensation will place great strains on federal and state treasuries, thwarting the incentive for governments to protect endangered species and their habitat under the ESA, reduce alarming groundwater consumption rates, and apply state water laws aimed at promoting a balance between human and ecological interests in waterways. In addition, the outcome favors states resorting to litigation and dispensing with attempts to settle water disputes amicably under interstate water compacts.

Essentially, the Casitas holding may place years of aquatic species protection and water conservation regulation on hold; resulting in endangered species like the steelhead trout going unprotected and facing extinction. Thus, applying a regulatory takings analysis to partial water use restrictions is not only consistent with years of takings jurisprudence, but in society’s best interest.