Real Estate & Property Law

Federal Circuit: Government Diversion of Water For Fish Ladder is Per Se Taking

By Robert Thomas (inversecondemnation.com)

A very important decision today from the US Court of Appeals for the Federal Circuit.  In Casitas Municipal Water District v. United States, No. 2007-5153 (Sep. 25, 2008), the court held that contractual water rights were taken when the federal government required the landowner to contruct a fish ladder and divert water in order to protect endangered steelhead trout.  The court held that the requirement resulted in a physical diversion of water for public use, and that "Casitas will never, at the end of any period of time, be able to get the water back.  The character of the government action was a physical diversion for public use -- the protection of an endangered species." Slip op. at 30. 

More to follow after a chance to review the opinion in more detail. 

Full post as published by inversecondemnation on September 25, 2008 (boomark / email).