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Environmental Law

: ESA Blawg

Federal Circuit refuses request for en banc hearing on Casitas case, and battle of Western water law vs. ESA may head to SCOTUS

By Keith Rizzardi

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Previously, ESA blawg readers have learned about the enormous implications of the ongoing Casitas water district litigation. See prior ESA blawg postings on the original Federal Circuit decision and the request for en banc review. In a nutshell, the property rights concepts embodied in western water law are in serious conflict with the Endangered Species Act. According to the prior three-judge panel opinion, an attempt by government to require water to be left in a river to benefit fish -- even fish on the brink of extinction due to human excess -- constitutes use of private property for public benefit and thus triggers a taking of some property that must be justly compensated. This week, the Federal Circuit denied rehearing en banc, and the case may soon be headed for the U.S. Supreme Court. See also PatentyO.com

KEITHINKING: The opinion has four significant problems. As a factual matter, (1) the fish came first, and (2) humanity redistributed and overallocated the available supplies. As a legal matter, (3) the opinion confuses physical and regulatory takings, and (4) the government can only "take" something that people already had a right to, but under California law, water rights cannot be physically appropriated, occupied, or invaded by a mere restriction on the exercise of such rights.

Photo of the U.S. Court of Appeals for the Federal Circuit at Lafayette Square from the court's website, courtesy of the historical society.

Full post as published by ESA Blawg on February 20, 2009 (boomark / email).