ESA Protections for Endangered Steelhead Not a 5th Amendment Taking

December 27, 2011, by Dawn McIntosh

The Court of Federal Claims’ recent opinion in Casitas Municipal Water District v. the United States, Court of Federal Claims No. 05-168L (Dec. 5, 2011) is the latest chapter in a legal battle between water diverters and fish in California.  Water users competing with endangered fish species for limited water resources have taken the fight to the courts in recent years (Tulare Lake, Klamath and now Casitas) with mixed results, claiming restrictions under the Endangered Species Act (“ESA”) requiring water to remain in streams for fish passage is a taking of their water rights.  Casitas operates a water project in Ventura County that provides water to residential, industrial and agricultural users.  In  2005, Casitas sued the U.S. for a 5thAmendment taking after the National Marine Fisheries Service issued a biological opinion that required Casitas to provide fish passage over a diversion dam which blocked the fishes’ access to upstream habitat.  The government argued that no taking occurred because background principles of state law limited plaintiff’s water right to beneficial use of water in a manner that did not harm trust resources such as fish and wildlife. 

In concluding that no taking had occurred, the court clarified that the only compensable water right that can be obtained under California law is the right to beneficial use and that such water rights are limited by background principles of state law.  To the extent restrictions imposed under the ESA are no greater than the restrictions imposed under state law (i.e., the public trust doctrine, the reasonable use doctrine and the California Fish and Game Code), there is no taking under Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992).  The court found insufficient evidence to conclude that the ESA restrictions were duplicative of state background principles limiting the plaintiff’s water right, but then held the takings claim was not ripe because the restrictions imposed by the biological opinion had not interfered with the plaintiff’s beneficial use of water.  The court further held that if the State Water Resources Control Board were to act in the future to revise Casitas’ license and impose equal or greater restrictions to protect the fish than those imposed in the biological opinion, this would satisfy the Lucas standard and would eliminate any possible takings claim against the federal government.

This decision clarifies the limitations on California water rights from background principles of state law and the import of those limitations on the compensability for water lost due to ESA and other environmental protections.

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