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Federal circuit court finds that the federal government must pay Casitas Muncipal Water District to divert surface water to benefit endangered fish

Posted by: Maven on March 11, 2009 at 9:28 pm

From Somach, Simmons, & Dunn:

On February 17, 2009, a per curiam order of the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that requiring a water district to divert some water under its appropriative water right to benefit the endangered steelhead trout warrants just compensation under the United States Constitution. This decision in Casitas Municipal Water District v. United States, Case No. 2007-5153, may establish important precedent affecting the ability of federal agencies to force water users to sacrifice water supplies under their established water rights, without any compensation for their loss, to meet requirements imposed under the Endangered Species Act, 16 U.S.C. § 1531 et seq.

The Casitas Municipal Water District (Casitas) operates the Ventura River Project in southern California and has state licensed rights to annually divert 107,800 acre-feet of water from the Ventura River and to put 28,500 acre-feet to beneficial use each year. In 2007, Casitas sought compensation in the United States Court of Federal Claims (Trial Court) after receiving a biological opinion from the National Marine Fisheries Service that required installation of a fish ladder and diversion of its appropriated water supply to protect endangered steelhead. The Trial Court denied the claim. On September 25, 2008, the Federal Circuit overturned the Trial Court decision and held the requirement to divert water for the protection of endangered steelhead trout amounted to a physical taking requiring just compensation.

The government requested a rehearing en banc (consideration by all of the Federal Circuit judges) of the panel’s decision. On February 17, 2009, the Federal Circuit refused to reconsider the panel’s decision and, through a per curiam order, affirmed the panel’s conclusion that the Trial Court must consider the physical takings claim. The majority of the Federal Circuit found that the requirement in the biological opinion amounted to a physical diversion of water for a public use.

Read more from Somach, Simmons & Dunn by clicking here.

March 11, 2009 · Filed Under Southern California

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