Real Estate & Property Law

Federal Circuit: Water Rights, Once Proven, Are Fifth Amendment "Property"

By Robert Thomas (inversecondemnation.com)

This just in: the U.S. Court of Appeals for the Federal Circuit has issued an opinion in Klamath Irrigation District v. United States, No. 2007-5115 (Feb. 17, 2010), a case we've been watching.

I'm at the ALI-ABA conference on eminent domain in Coral Gables, Florida, so won't have the chance to digest and summarize the rather longish opinions (34 page majority, 8 page concurring) for a few days, but I wanted to get it out so blog readers could review it while I'm tied up teaching at the conference.

The Federal Circuit vacated the Court of Federal Claims' dismissal of the plaintiffs' takings and breach of contract claims. It sent the case back to the CFC to allow the plaintiffs the opportunity to prove they possess water rights under Oregon law. The CFC had concluded that they did not, but on appeal, since whether an owner possesses Fifth Amendment "property" is generally an issue of state law, the Federal Circuit had asked the Oregon Supreme Court to clarify whether it was possible under Oregon law for the plaintiffs to even possess such rights, and if so, how they would go about establishing them. Having received the Oregon court's affimative answers (published at 227 P.3d 1145 (Or. 2010)), the Federal Circuit held that the plaintiffs are entitled to prove up their case. If they do, they possess a "property" interest and the feds may be liable for taking them.

Not a final win for the plaintiffs, but any day that a property owner gets a dismissal vacated and lives to fight another day must be considered a victory. More to follow after we wrap up the conference (which, by the way, is very good and you really should attend).

Full post as published by inversecondemnation on February 18, 2011 (boomark / email).