In Casitas Municipal Water District v. United States, the Federal Circuit recently decided that the United States physically may have taken Plaintiff's water rights without just compensation by requiring the Water District to re-route water for an endangered species of trout. This decision may significantly affect the outcome of other Fifth Amendment takings cases as well as future implementation of the Endangered Species Act.This Fifth Amendment private property rights claim in Federal Claims Court against the U.S. Government for allegedly physically taking water asserted to be the private property of Casitas Municipal Water District (Ventura River) will have broad water and private property policy implications, no matter which way it eventually is decided.
The suit was engendered as a result of the National Marine Fisheries Service (and CalTrout) interest in providing for fish passage across the Robles Diversion Structure (a dam, essentially) that blocked endangered southern steelhead migration upstream to spawning and rearing habitat. When the water district built a fish ladder to accommodate the anadromous steelhead, they also filed for compensation for the taking of water required to operate the fish ladder. Upon appeal to a 3-judge review panel from the original Claims Court decision, the panel majority ruled (2-1) that because water used to operate the fish ladder came from a canal labelled "Robles - Casitas Canal," the Federal Government has "taken" physical property belonging to the water district. A subsequent request to the Federal Claims Court for review en banc was rejected. The State of California holds that the water rights diversion permit issued to the water district does not confer title to the water, instead the permit gives the district simply the right to divert a specified volume of water annually.
VC Star article: http://www.venturacountystar.com/news/2009/feb/18/casistas-water-district-closer-to-being-for-fish/
The Federal Circuit's Decision in Casitas Municipal Water District:
Battle of Western water law vs. ESA may head to Supreme Court: