Federal Water Rights Cases in the News
January 26, 2005
Roger W. Sims- Orlando
Water supply in the U.S. historically has been considered a matter of “right” by many landowners, particularly in the western regions. Fortunately, problems were typically tied to distribution – getting the water from areas of surplus to areas of need. However, reservation of quantity for ecosystem preservation across the country is fast becoming a priority and the legal implications are enormous.
In 2001, Court of Federal Claims Judge John Wiese found in Tulare Lake Basin Water Storage District v. U.S. 49 Fed. Cl. 313 (2001) that the withholding of water from California farmers in order to protect the delta smelt and winter-run chinook salmon constituted a physical taking. He determined that the federal government “is free to preserve the fish; it must simply pay for the water it takes to do so.” In February 2004, Wiese ordered the government to pay $23.7 million in damages and interest. It recently agreed to pay California farmers $16.7 million to settle the case (settlement dated 12/20/04). The government did not appeal the ruling, despite substantial political pressure to do so.
Although decisions of an individual Claims Court judge may not be considered binding, even within the Claims Court, the Tulare precedent constitutes a touchstone for future decisions by way of establishing a rationale “of record.” Other water rights cases are currently pending, such as Orff v US. 358 F. 3d 1137; cert. granted 125 S. Ct. 309 (Oct. 12, 2004). (No. 031566). Orff involves diversion of water by the federal government for endangered species protection to the detriment of farmers in California. While Tulare
may or may not be significant legal precedent in such cases, the Tulare
reasoning will likely be argued vigorously by plaintiffs. Furthermore,
parties considering water takings litigation may be encouraged by Judge
Wiese’s decision and the number of new cases may increase.
For more information, e-mail Roger Sims at
roger.sims@hklaw.com or call toll free, 1-888-688-8500.