Real Estate & Property Law

Feds Likely To Seek Cert In Casitas (Water Rights Taking Case)

By Robert Thomas (inversecondemnation.com)

It looks like the federal government will likely seek U.S. Supreme Court review of Casitas Municipal Water District v. United States, 543 F.3d 1276 (Fed. Cir. 2008). As noted here, the SG's office has sought and received two extensions of time and the cert petition is now due by July 17, 2009.

In Casitas, the Federal Circuit held that contractual water rights were taken when the federal government required the landowner to construct 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." The Federal Circuit's opinion is posted here, and the court's denial of rehearing and rehearing en banc -- which generated concurring and dissenting opinions, see 556 F.3d 1329 (Fed. Cir. 2009) -- is available here.

The briefs in the court of appeals are not available via PACER, unfortunately, but the mp3 of the oral arguments is posted here. More background from the local paper.

Thanks to New Jersey Eminent Domain Law blog for reminding us of this case.

We predicted this was a case to watch, and we will be following any developments.

Full post as published by inversecondemnation on June 23, 2009 (boomark / email).