The Endangered Species Act (ESA) and Claims of Property Rights “Takings”

Congressional Research Service (CRS) | January 7th, 2013

The federal Endangered Species Act (ESA) has long been one of the major flash points in debates over government interference with property rights. This report outlines th

The federal Endangered Species Act (ESA) has long been one of the major flash points in debates over government interference with property rights. This report outlines the ESA provisions most relevant to the act’s impacts on private property and surveys the major ESA-relevant principles of Fifth Amendment takings law. The Takings Clause of the Fifth Amendment promises “just compensation” when government actions “take” property. The report then summarizes the court decisions on whether particular government actions (or inaction) based on the ESA “take” private property under the Fifth Amendment. The cases to date address several kinds of ESA impacts on private property: (1) restrictions on land uses that might adversely affect species listed as endangered or threatened, and mitigation conditions to offset the impacts of development; (2) administrative delays; (3) reductions in water delivery or allowable water diversion to preserve lake levels or instream flows needed by listed fish (currently the most active area of ESA takings litigation); (4) restrictions on the defensive measures a property owner may take to protect his/her property from listed animals; and (5) restrictions on commercial dealings in listed species. To date, only one of the 18 ESA-based takings cases disclosed by research, Tulare Lake Basin Water Storage District v. United States, has found a taking. However, two cases, Casitas Municipal Water District v. United States and Klamath Irrigation District v. United States, have yet to be finally resolved and may or may not result in holdings that takings occurred.

The Enduring Role of Tribes in the Colorado River Basin

Water and Tribes Initiative | July 1st, 2019

The purpose of this policy brief is to explain the origin, rationale, and purpose of the Water & Tribes Initiative in the Colorado River Basin. As explained more fully be

The purpose of this policy brief is to explain the origin, rationale, and purpose of the Water & Tribes Initiative in the Colorado River Basin. As explained more fully below, the long-term objectives of this Initiative are to: • Enhance the capacity of tribes to advance their needs and interests with respect to water management in the basin; and • Advance sustainable water management through collaborative decision-making.

The Federal-Tribal Trust Relationship: Its origin, nature, and scope

California Department of Water Resources (DWR) | January 1st, 2009

The Pine Flat Project on Kings River, California

Kings River Water Users Committee | December 1st, 1979

The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention

Berkeley Law Scholarship Repository | January 1st, 1969

Public concern about environmental quality is beginning to be felt in the courtroom. Private citizens, no longer willing to accede to the efforts of administrative agenci

Public concern about environmental quality is beginning to be felt in the courtroom. Private citizens, no longer willing to accede to the efforts of administrative agencies to protect the public interest, have begun to take the initiative themselves. One dramatic result is a proliferation of lawsuits in which citizens, demanding judicial recognition of their rights as members of the public, sue the very governmental agencies which are supposed to be protecting the public interest. While this Article was being written, several dozen such suits were initiated-to enforce air and water pollution laws in states where public agencies have been created for that purpose; to challenge decisions of the Forest Service about the use of public land under its control; to question the Secretary of the Interior's regulation of federal offshore oil leases; and, in a myriad of cases against state and local officials, to examine airport extensions, highway locations, the destruction of parklands,  dredging and filling, oil dumping, and innumerable other governmental decisions dealing with resource use and management.  

The Public Trust Doctrine: Assessing Its Recent Past & Charting Its Future

University of California, Davis (UC Davis) | January 1st, 2012

For over four decades, the public trust doctrine has served as a foundational principle of modern environmental and natural resources law. This issue of the UC Davis Law

For over four decades, the public trust doctrine has served as a foundational principle of modern environmental and natural resources law. This issue of the UC Davis Law Review , and the related, major symposium that drew a standing-room-only audience to King Hall in March 2011, demonstrate the continuing vitality of the public trust. The scholarship featured in these pages continues the UC Davis Law School’s leadership role concerning the doctrine, examines its recent development, and poses key questions regarding its future course. Much has been written about the public trust doctrine, and the articles in this volume explore many of its nuances and implications. Simply stated, however, the doctrine provides that certain natural resources are held by the government in a special status — in “trust” — for current and future generations. Government officials may neither alienate those resources in to private ownership nor permit their injury or destruction. To the contrary, those officials have an affirmative, ongoing duty to safeguard the long-term preservation of those resources for the benefit of the general public.

The Reasonable Use Doctrine and Water Use Efficiency Report

Publisher not available | April 5th, 2011

The purpose of the report is to review the breadth of the Reasonable Use Doctrine, which can affect all water uses, including urban, hydropower, recreation, environment,

The purpose of the report is to review the breadth of the Reasonable Use Doctrine, which can affect all water uses, including urban, hydropower, recreation, environment, and agriculture, and then to focus on how the Reasonable Use Doctrine can be used promote efficient use of water in the agricultural sector. The underlying premise of this report is that the inefficient use of water is an unreasonable use of water. Accordingly, the Reasonable Use Doctrine is available prospectively to prevent general practices of inefficient water use. Indeed, the Reasonable Use Doctrine, as set forth in the State Constitution and California Statutes is broad and inviolate in scope. As interpreted by case law and administrative decisions and used to its full potential, it can comprehensively address the inefficient use of water in California.

The Rebirth of California Fish & Game Code Section 5937: Water for Fish

University of California, Davis (UC Davis) | July 1st, 2012

Swarms of living creatures will live wherever the river flows. There will be large numbers of fish, because this water flows there and makes the salt water fresh; so wh

Swarms of living creatures will live wherever the river flows. There will be large numbers of fish, because this water flows there and makes the salt water fresh; so where the river flows everything will live. Fishermen will stand along the shore; from En Gedi to En Eglaim there will be places for spreading nets. In an average year, California receives inflows and imports of water totaling around 200 million acre-feet,2 enough water to cover the entire state twenty-three inches deep. But California is a state of spatial and temporal water extremes. Spatially, precipitation varies wildly: Death Valley in the Southeast averages less than three inches per year, yet the northwestern corner of the state averages over 140 inches per year. More than 70% of California’s stream flow originates north of Sacramento, but more than 80% of the water is used south of Sacramento. Temporally, precipitation varies both seasonally and annually. California’s wet season typically runs from October or November to April or May, with little or no precipitation during the growing season, from May to September.7 Annual rainfalls of 40% or more below average and 36% or more above average each typically occur once every six to seven years.  To balance these extremes, over 1,300 dams store water across the state, supplying water for urban, industrial, and agricultural uses. While these uses sustain a tremendous part of California’s economy, they also come at high, often unappreciated costs. Fish also need water, so dams that alter water flows for human benefits may also have marked negative impacts on fish.

The Role of Permitting Regimes in Western United States Groundwater Management

National Groundwater Association (NGWA) | October 12th, 2016

The Scientist and Engineer in Court

American Geophysical Union (AGU) | January 1st, 1983

Published by the American Geophysical Union as part of the Water Resources Monograph Series, Volume 8. The gavel goes down, the witness is called and sworn in: "Will y

Published by the American Geophysical Union as part of the Water Resources Monograph Series, Volume 8. The gavel goes down, the witness is called and sworn in: "Will you tell the truth, the whole truth, and nothing but the truth, so help you God?" Every court day scientists and engineers take this oath, yet few know the duties of an expert witness and fewer still know the procedures in a lawsuit. Unprepared for the courtroom, they watch a drama unfold without benefit of the plot (Ball, 1975). Courtrooms swirl with costume and ceremony. Jury, judge, and spectators assume roles: audience, director, trier of the facts. And the lawyers! Lawyers are the key dramatis personae. Protagonist and antagonist confront one another as lawyers argue their clients cases in the courtroom. They object endlessly. They cross-examine opposing witnesses mercilessly. They speak an opaque jargon of "laches," "remittitur" and "stare decisis." They speak Latin: "ab initio," "in pari causa," "lex loci actus." They speak old French: "estoppel," "fee simple," "voire dire." And they speak law-speak: "abuse of discretion," "clearly erroneous," "malice aforethought" (Mellinkoff, 1963). They call contrary versions of the same story true. They plead for understanding and compassion. They mix independent variables called "facts" and a dependent variable called "law" into an argumentative gruel for court consumption. Then it's over, and the judge delivers his or her opinion. One lawyer calls it the decision of the decade, a magnificent example of benign, reasoned law. The other darkly threatens to appeal all the way to the Supreme Court, if necessary, to relieve an onerous and oppressive injustice. All of this is fascinating theatre, but to the unprepared scientist or engineer, the drama has none of the charm and all of the clarity of a Japanese "Noh" play.