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The Tulare case: water rights, the Endangered Species Act, and the Fifth Amendment.

The Article discusses the recent United States Court of Federal Claims' decision in Tulare Lake Basin Water Storage District v. United States. Tulare is the first published court decision holding that efforts to protect species under the Endangered Species Act constitute a taking of property in violation of the Fifth Amendment. The Article critiques the court's holding and concludes that the Tulare decision was fundamentally flawed in at least two respects. First, the court erred in finding that the Tulare plaintiffs' water contracts constituted protectable property interests given the limited, contextual nature of such rights under California water law. Second, the court improperly applied a physical--as opposed to regulatory--takings analysis, which led the court to find a taking per se. Had the court conducted the more appropriate takings analysis, it would have found that the de minimis actual impact on the plaintiffs' rights, as well as the limited nature of the plaintiffs' reasonable expectations to exercise those water rights in a manner that harmed threatened species, combine to prevent any successful compensation claim under the Fifth Amendment. For these and other reasons discussed in the Article, the Tulare decision will be of lasting significance only if the federal government falls, for political reasons, to appeal the decision.

I. INTRODUCTION

It finally happened. For the first time, a court has held that restrictions imposed under the Endangered Species Act (ESA) (1) constituted a Fifth Amendment (2) taking of property. In Tulare Lake Basin Water Storage District v. United States (Tulare), (3) the United States Court of Federal Claims held that water users in central California suffered a physical taking of property when wildlife agencies restricted water use to protect threatened winter-run chinook salmon (Oncorhynchus tshawytsha) and delta smelt (Hyponesus transpacificous) from extinction. The restrictions took place during the 1992-1994 irrigation seasons, when the National Marine Fisheries Service (NMFS) and the United States Fish and Wildlife Service (FWS) (collectively, the Services) determined that a number of measures, including limits on the amount and rate of irrigation use, were necessary to protect the fish and their critical habitat. (4)

The question of whether ESA restrictions might effect a Fifth Amendment taking has been the subject of intense speculation and anticipation. (5) Up to this point, such claims have been rejected based on a number of grounds, including ripeness, (6) failure to demonstrate a cognizable property interest, (7) barred by contractual agreement, (8) or simply rejected outright. (9) There is little doubt that the Tulare holding will generate an increased number of takings claims. Already, water users in the conflict-ridden Klamath Basin of southern Oregon / northern California have filed a similar lawsuit. (10)

However, the ramifications of the Tulare decision are yet to be seen, and those seeking government compensation in exchange for species protection should not take comfort in the Tulare decision for several reasons. First and foremost, the case is not over yet. The court ruled on cross-motions for summary judgment on the issue of liability; the case is still pending on the issue of damages. Upon final judgment, the government will have the option of taking the issue before the Court of Appeals for the Federal Circuit. Whether to appeal poses a political question as much as a legal one. It was the Clinton administration that implemented the ESA protections giving rise to the facts of Tulare. (11) Whether the current administration, which has been openly hostile to the ESA, will appeal the Tulare decision remains unclear. (12)

Next, the facts that gave rise to the Fifth Amendment taking in Tulare will be hard to replicate. The Tulare plaintiffs are state water contractors with the California Department of Water Resources (DWR). (13) For reasons that will be explained in some detail, the overwhelming majority of large water projects are federal. (14) Most federal water contracts contain provisions that anticipate the need to restrict water deliveries to protect fish and wildlife and therefore protect the federal government from constitutional takings claims. (15) For this reason, the Tulare decision is unlikely to have much influence in the federal water project context. Conversely, state water contracts and water rights such as those at issue in Tulare rarely have the level of federal involvement necessary to make a Fifth Amendment takings claim ripe for adjudication. (16) The California State Water Project (SWP) is operated in coordination with the federal Bureau of Reclamation's (BOR) Central Valley Project (CVP), and in most respects the two projects operate in concert. (17) It is this unique relationship that created the ESA restrictions at issue in Tulare. (18)

Finally, and most importantly, the Tulare decision is fundamentally flawed in at least two respects. First, the Tulare court abdicated its judicial responsibility by failing to determine the nature of the property interest at issue in the case. This led the court, to assume wrongly that the plaintiffs' water contracts were compensable property interests under the Fifth Amendment. The Tulare decision involves the issue of water as property. Unlike land, which can be privately owned, water is a public resource. And while private property rights in water have long been recognized (including for takings purposes), (19) water rights are subject to special limitations based on their quasi-public status. These limitations include the rule of reasonable use and the public trust doctrine, which under California law have had a large role in reallocating water for the protection of fish and wildlife. For these reasons, water rights are fragile; they exist only insofar as the water user exercises them in accordance with the doctrine of reasonable use, which in turn requires a comparative assessment of the value of competing demands for the water. (20) In short, there is a far broader authority to alter water rights than to adjust rights in other types of property under the Fifth Amendment. (21) The Tulare court's refusal to address these intricacies caused it to conclude erroneously that the Tulare plaintiffs had a protectable property interest.

Second, the Tulare court erred in its constitutional analysis. The court held that the government's actions constituted a physical taking of property, as opposed to a regulatory taking, a determination that led the court to conclude there was a per se or categorical taking. By defining the restrictions as physical in nature, the Tulare court erroneously focused on the result of the government action rather than the character of the action itself. (22) This approach ignores the purpose of, and the reason for, regulatory takings jurisprudence. The government effects a physical taking only where it requires landowners to submit to some type of permanent physical occupation or acquisition of their land. (23) Regulatory takings, on the other hand, occur when the government prevents a property owner from making a particular use of his or her property. (24) Because the government action in Tulare involved a restriction of the plaintiffs' use rather than an acquisition or occupation of property, it was a regulatory action, not a physical one. (25)

Had the court conducted the more appropriate regulatory takings analysis, it would have been forced to address the fact that, despite all the rhetoric, the actual impacts on the Tulare plaintiffs resulting from the water restrictions were minimal. On average, water supplies were reduced by less than three percent. (26) This de minimis impact, when combined with the plaintiffs' lack of reasonable expectations of a specific quantity of water under California water law, prevents a successful regulatory takings claim.

This Article will explore each of these areas of law in some detail. Part II begins with an account of the underlying facts of the Tulare decision and the court's reasoning in the case. Part III outlines the basic tenets of California water law, including the role of the courts in defining the principles of reasonable use and public trust, and concludes that the Tulare court failed to acknowledge its proper role in addressing these issues. It then goes on to address the nature and scope of the reasonable use and public trust doctrines and argues that, had the court applied state law, it would have found that the plaintiffs had no constitutional right to water deliveries that threatened listed fish species.

Part IV focuses on the constitutional question and the physical versus regulatory character of the taking found in Tulare. After providing a brief history of the Takings Clause and the distinction courts have drawn between physical and regulatory takings, it discusses the current legal tests established by the United States Supreme Court for each type of taking. Part IV then applies this law to the facts of Tulare and explains why a physical takings analysis is inappropriate. Finally, Part IV argues that, even applying a regulatory takings analysis, the facts of Tulare do not support a conclusion that a Fifth Amendment taking occurred.

II. THE FEDERAL CLAIMS COURT'S DECISION IN TULARE

A. The Facts

The Tulare Lake Basin is located in California's Central Valley, the most agriculturally productive region in the world. (27) The Central Valley is the source of forty-five percent of the nation's fruit and vegetables. (28) Its warm, dry summers and mild winters create an ideal climate for agriculture --except for the absence of water. This arid region receives almost no precipitation in the summer months, and some areas receive as little as six inches of rainfall per year. (29) It comes as no surprise, therefore, that the Central Valley is also home to the nation's largest and most elaborate water supply system. (30) While little rain falls in the Central Valley, the nearby Coastal and Sierra Nevada mountain ranges collect upwards of 100 inches of precipitation per year, mostly in the form of snow. (31) Left unimpeded, this water flows down the Sacramento and San Joaquin Rivers and their tributaries to the Sacramento-San Joaquin Delta, eventually making its way to San Francisco Bay. (32)

As much as fifty percent of this water, however, no longer makes it to the ocean. (33) The federal Bureau of Reclamation's CVP and California's SWP together comprise a system of dams, reservoirs, canals, and pumping systems designed to capture the spring and summer runoff from the nearby mountains. (34) This system redirects water for irrigation purposes throughout the Central Valley--and even as far south as Los Angeles. (35) Combined, the CVP and SWP divert more than ten million acre-feet of water per year to provide for the water needs of two-thirds of California's population and millions of acres of arid land. (36) This drastic manipulation of the ecosystem has a tremendous environmental impact. Aquatic species in particular have suffered setbacks resulting from this dramatic alteration of the natural system. (37)

Two of these species, the delta smelt and the winter-run chinook salmon, are at the heart of the Tulare litigation. Both fish are listed under the ESA, and thus are afforded certain regulatory protections. (38) Among those protections is ESA section 7. Section 7 requires that federal agencies consult with the Services before authorizing, funding, or carrying out agency activities to ensure that their actions are "not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification" of the species' critical habitat. (39)

To fulfill this requirement, in 1992 BOR initiated consultation with NMFS regarding its operation of the CVP and the CVP's effects on salmon. (40) Because California's DWR operates the SWP in coordination with the CVP, DWR also participated in the consultation process. (41)

This first consultation resulted in a biological opinion issued by NMFS in February of 1992. (42) The 1992 biological opinion identified a number of threats to winter-run chinook salmon resulting from the operation of both projects. Problems such as increased water temperature, decreased spawning and rearing habitat, and impaired fish passage were largely attributed to lack of adequate instream flows. (43) The 1992 biological opinion also identified problems associated with entrainment--fish were caught up by the projects' pumping systems and consequently removed from their habitat. (44) The 1992 biological opinion concluded that the proposed operation of the CVP and SWP was likely to jeopardize the continued existence of the salmon population, and therefore included a set of "reasonable and prudent alternatives" (RPAs) (45) that would allow the operation to continue while still protecting the listed fish. The RPAs included restrictions on the time and manner of water diversions from the projects to provide the necessary water for instream flow and water-quality requirements. (46) Both the CVP and SWP adopted the RPAs; as a result, less water was made available for irrigation purposes.

The following year, NMFS issued a second biological opinion, again determining that the listed salmon population was in jeopardy, and again including RPAs for the projects' annual operations. (47) FWS followed with its own biological opinion and RPAs for the two projects' impacts on the listed delta smelt. (48) Again, water deliveries were curtailed as BOR and DWR implemented the RPAs to protect the fish. (49) In 1994, FWS issued yet another biological opinion, leading to another imposition of water restrictions. (50)

As a result of these decreased water deliveries, the plaintiffs brought suit in the Court of Federal Claims. The Tulare plaintiffs are two water distribution organizations, Tulare Lake Basin Water Storage District and Kern County Water Agency (including individual members of those districts), whose water use was restricted during the 1992-94 irrigation seasons as a result of modifications made by DWR in its operation of the SWP. The plaintiffs are not water permit holders themselves but instead have contractual agreements with DWR, which is the actual permit holder. (51)

Alleging that the federal government had imposed restrictions on their contractually conferred right in a manner that constituted a physical taking of property, the plaintiffs argued that the water restrictions constituted a taking per se under the Takings Clause of the Fifth Amendment. (52) In reality, however, the imposed water restrictions had minimal actual impacts on overall water withdrawals--the Tulare Lake Basin Water Storage District use was reduced by approximately 9770 acre-feet of water in 1992, 26,000 acre-feet of water in 1993, and 23,050 acre-feet of water in 1994. (53) Kern County Water Agency is alleged to have lost approximately 319,420 acre-feet over that same period. (54) While this may sound like a lot of water, it pales in comparison to total use. The restrictions resulted in an overall reduction in water availability of approximately 0.11% and 2.92% for Tulare and Kern County, respectively. (55)

B. Legal Analysis

The Court of Federal Claims first considered whether a Fifth Amendment taking occurred and then considered whether the plaintiffs had a protectable property interest. (56)

1. Held: Physical Takings

The court began by outlining the distinction between physical and regulatory takings claims. (57) A physical taking, the court explained, occurs when the government's action amounts to a physical occupation or invasion of the property, including when the government's action operates as "the functional equivalent" of a "practical ouster of the owner's possession." (58) Regulatory takings, by contrast, "[arise] when the government's regulation restricts the use to which an owner may put his property." (59)

Having outlined the general rules for each possible takings analysis, the court quickly adopted the plaintiffs' position that the restriction of water at issue in Tulare constituted a physical taking. (60) The court readily acknowledged that the plaintiffs' water right was essentially a "right to use." (61) However, the court determined that it was precisely because the right was so limited that it was particularly susceptible to a taking:
 Unlike other species of property where use restrictions limit some, but not
 all of the incidents of ownership, the denial of a right to use the water
 accomplishes a complete extinction of all value. Thus, by limiting
 plaintiffs' ability to use an amount of water to which they would otherwise
 be entitled, the government has essentially substituted itself as the
 beneficiary of the contract rights with regard to that water and totally
 displaced the contract holder. (62)


The court characterized the government's action as "an exclusive possession of plaintiffs' water-use rights for preservation of fish" and concluded that, to the extent that the plaintiffs were prevented from using water to which they would otherwise have been entitled, the government rendered the usufructuary right to that water valueless, and thus effected a physical taking. (63) Having reached the conclusion that a physical taking had occurred, the court never reached the question of whether the government action could be characterized as a regulatory taking. (64)

To support its physical takings holding, the court relied primarily on United States v. Causby. (65) At issue in Causby were frequent and regular flights of military aircraft over the Causbys' 2.8-acre home and chicken farm. (66) The Supreme Court held that the government's use of the airspace immediately above the plaintiffs' property was analogous to a physical taking in that it was "as complete as if the United States had entered upon the surface of the land and taken exclusive possession of it." (67) The Tulare court compared the invasion of airspace in Causby to restrictions on water. Water rights, the court held, were similarly subject to a physical taking because the value is extinguished if the right of use is denied. (68)

The court also cited and discussed two additional the United States Supreme Court cases that addressed--or at least referenced--the issue of water rights as subject to Fifth Amendment takings. The first of these was International Paper Co. v. United States. (69) International Paper concerned the government's seizure of all of the water-generated electricity from the Niagara Falls Power project during World War I. (70) A lease existed between the power company, the owner of the water right, and lessee International Paper, allowing International Paper to use a portion of the power company's water for paper production. (71) Reversing the claims court, the Supreme Court held that a taking had occurred. (72)

Second, the Tulare court cited Dugan v. Rank, (73) a case that did not squarely address the issue of Fifth Amendment takings, but did make "approving reference" to cases treating water rights as subject to physical seizure. (74) The petitioners in Dugan held riparian rights to continued water flow from the San Joaquin River for use along the landowner's property, which was downstream from the CVP's Friant Dam. (75) The issue before the Court was whether BOR or its officials were immune from a suit seeking to enjoin them from impounding water in contravention of petitioner's riparian rights downriver. Finding no waiver of sovereign immunity, the Court nevertheless reasoned that the United States actually "acquired" the water rights in question, and that the proper action was a takings claim. (76)

In Tulare, the government attempted to distinguish International Paper and Dugan by arguing that those cases involved actual diversions of water by the government for its own use, in contrast to the regulation of water at issue in Tulare. (77) The Tulare court disagreed, holding that because the ultimate result of the restrictions on water was that less water was made available to the plaintiffs, the question of "whether the government decreased the water to which plaintiffs had access by means of a dam or by means of pumping restrictions amounts to a distinction without a difference." (78)

2. Limits on the Ownership of the Water: Contract, Public Trust, Reasonable Use, and Nuisance Considerations

Having concluded that a taking occurred, the court turned to the question of whether the plaintiffs actually owned the property for which they sought compensation. (79) The government put forth the two main arguments regarding why the restrictions on the plaintiffs' water use were not compensable.

First, the government argued that the plaintiffs' rights were limited by language in their water contracts with DWR. Paragraph 18(f) of their contracts contained a disclaimer of liability resulting from "any damage, direct or indirect, arising from shortages in the amount of water to be made available for delivery to the Agency ... caused by drought, operation of area of origin statutes, or any other cause beyond its control." (80) The government contended that tiffs contractual provision precluded the plaintiffs from seeking compensation, citing O'Neil v. United States. (81) In O'Neil, the Court of Appeals for the Ninth Circuit held that language similar to paragraph 18(f) precluded federal water contractors from bringing a breach of contract suit against BOR. BOR had restricted water use in the federally owned CVP to comply with ESA mandates to protect delta smelt and winter-run chinook salmon. (82) The Ninth Circuit held that the contract unambiguously relieved the government of liability in connection with unavailability of water resulting from ESA mandates. (83)

The Tulare court distinguished O'Neil, stating that in Tulare, the federal government was not a party to the contract. Thus, while paragraph 18(f) might provide contractual immunity for DWR, those protections did not extend to the federal government: "Paragraph 18(f) in the contract ... does not render plaintiffs' interest in the water contingent; it merely provides DWR with a defense against a breach of contract action in certain specified circumstances." (84) In short, as a "third party" to the contract, the government had no contractual defense to a takings claim. (85)

Next, the government argued that the plaintiffs' water rights were inherently limited by the common law principles of reasonable use, the public trust doctrine, and nuisance law. Without disagreeing that these doctrines imposed limits on the water rights at issue, the court sidestepped any analysis regarding the scope of these limitations. (86) Instead, the court held that the state administrative body, the State Water Resources Control Board (SWRCB), had already determined that the water rights at issue did not violate the reasonable use or public trust requirements, and that this determination precluded further judicial inquiry. (87) SWRCB issued an administrative decision in 1978 amending the water rights permits of both the SWP and the CVP to address the need for salinity control and protection of fish and wildlife. (88) The court held that because this decision specifically authorized the use allocations at issue, SWRCB effectively had determined that the water withdrawals were both reasonable and in accordance with public trust principles. (89)

While the court acknowledged that the state agency and the courts had shared roles in defining the scope of the public trust and reasonable use, it viewed that situation as unworkable and refused to consider whether changed circumstances warranted a judicial interpretation of the reasonable use and the public trust requirements. (90) In doing so, the court emphasized the contractual nature of the plaintiffs' rights with the state:
 [T]he responsibility for water allocation is vested in the [SWRCB]. Once an
 allocation has been made--as was done in [SWRCB's decision in 1978]
 D1485--that determination defines the scope of the plaintiffs' property
 rights, pronouncements of other agencies notwithstanding. While we accept
 the principle that California water policy may be ever-evolving, rights
 based on contracts with the state are not correspondingly self-adjusting.
 Rather, the promissory assurances they recite remain fixed until formally
 changed. In the absence of a reallocation by the [SWRCB], or a
 determination of illegality by the California courts, the allocation scheme
 imposed by D-1485 defines the scope of the plaintiffs' property rights.
 None of the doctrines to which the defendants resort--the doctrine of
 reasonable use, the public trust doctrine, or state nuisance law--are
 therefore availing. (91)


Thus, despite its earlier recognition of the shared role of courts and the state in defining the scope of the public trust and reasonable use doctrines, the court abdicated its authority over these matters: "It is the [SWRCB] that must provide the necessary weighing of interests to determine the appropriate balance under California law between the cost and benefit of species preservation." (92) The court concluded that "[t]he federal government is certainly free to preserve the fish; it must simply pay for the water it takes to do so." (93)

III. DEFINING THE PROPERTY INTEREST: CALIFORNIA WATER LAW

From a practical point of view, the first inquiry in a Fifth Amendment takings analysis should be whether there is a cognizable property interest at issue in the case. While purportingly unwilling to interpret some provisions of California law, the Tulare court actually engaged in judicial activism by eliminating the proper role of the courts in making reasonable use and public trust determinations. The Fifth Amendment protects, but does not create, property rights. (94) Courts must look to state law to determine whether a protectable property interest exists. (95) Before reaching the constitutional question, the court must first assure itself that there is a property interest asserted that is capable of being taken. (96)

The Tulare court avoided this analysis when it held that the SWRCB's administrative decision D-1485 constituted a fixed determination of the water rights at issue. Specifically, the court held that the issuance of the water rights in 1978 constituted an administrative determination that plaintiffs' permitted use was both reasonable and within the parameters of the public trust doctrine. (97) It held that these administrative allocations, when combined with the language of plaintiffs' contracts with DWR for specific amounts of water, defined the plaintiffs' rights. (98)

Unfortunately, this holding ignores two basic tenets of California water law that recognize a strong role for the courts in determining the state's reasonable use and public trust requirements. This Part first discusses the basics of California water law and California's rule of reasonable use and the public trust doctrine, and then explains why the court should have squarely addressed the legal question involving state law rather than deferring to SWRCB's prior administrative decision. This Part then goes on to explain that had the Tulare court applied California law, it would have found that California is unique among Western states in its application of the rule of reasonable use and the public trust doctrine to reallocate water rights to address environmental concerns. Finally, this Part asserts that California courts have construed public trust and reasonable use limitations to condition water rights themselves; the limitations therefore do not constitute a Fifth Amendment taking of property.

A. California Water Law

1. The Basics

Water is a public resource. (99) As such, a water "right" does not convey an actual interest in water itself. Instead, "[t]he right of property in water is usufructuary, and consists not so much of the fluid itself as the advantage of its use." (100) A water right is a right to use the water--to divert water from its natural course and apply it to a beneficial use. (101) Water rights are by nature more contingent than interests in land. (102)

In California, there are basically two ways to acquire water rights: riparian ownership and prior appropriation. (103) This dual system makes California unusual among Western states in recognizing two separate types of water rights. (104) The riparian system of water rights has its origins in English common law. (105) It confers upon the landowner the right to divert the water flowing along his or her property for use upon that land, without regard to the extent of such use or priority in time. (106) All riparians on a stream have correlative use rights. In times of shortage, riparians share the burden by reducing their usage proportionally. (107) This water-use system is based on an assumption that there is usually enough water to go around and is the predominant method of water distribution in eastern states. (108)

The prior appropriation doctrine, by contrast, is predicated on the notion that, at times, there will not be enough water to meet all of the potential uses. Found mostly in the western states, prior appropriation allocates water based on seniority. Prior to 1914, a water right was obtained once an appropriator diverted water and applied it to a beneficial use. (109) The appropriator received a priority date relating to the initial date of diversion for the amount diverted, so long as the amount was not wasteful or unreasonable. (110) California then adopted to a permit system as the exclusive method of acquiring prior appropriation rights based on the same basic "first in time, first in right" principle but requiring administrative approval of the right. (111) Prior appropriation rights not correlative; in times of shortage, those with seniority have their rights fulfilled first.

An important defining characteristic of the prior appropriation doctrine is that, unlike the riparian doctrine, diverters are not required to own the land contiguous to the watercourse. (112) This system became essential to California during the gold rush era, when the miners adopted the doctrine as a means of diverting streams passing through government lands for mining excavation purposes on nonriparian lands. (113) Where conflicts arise between the two systems, prior appropriation rights are subordinate to riparian owners' rights. (114)

2. Era of Reallocation

It is somewhat ironic that California's dual system--and in particular the need to address the inherent conflicts associated with it--has resulted in the highly flexible water allocation system that exists today. Early on, it was thought that California, like other Western states, would eventually address these tensions by abrogating riparian rights and moving to a pure prior appropriation system. But in 1886, a divided California Supreme Court confirmed the role of the riparian doctrine and its superiority over prior appropriation rights. (115)

Conflicts continued and increased as the state sought to develop its water resources rapidly. These tensions finally culminated several decades later in Herminghaus v. Southern California Edison Co. (116) This decision gave rise to the strong reasonable use requirements now found in California water law. Herminghaus involved a proposal by Southern California Edison to impound water on the San Joaquin River for hydropower generation. (117) Herminghaus sought an injunction, claiming that the impoundment would interfere with the seasonal flooding of riparian lands below the proposed dam. us Edison argued that Herminghaus's inefficient technique of irrigating her lands by taking advantage of natural flooding was unreasonable, and that she therefore had no right to enjoin the project. The court held that the superiority of the riparian right blocked the impoundment project. Because Herminghaus's use was beneficial, she was, as a riparian owner, under no obligation to use artificial means of irrigation. According to the court, to hold otherwise would "impose a radical, and, in its outworking, utterly impracticable, limitation upon the doctrine of riparian rights." (119)

The reaction to Herminghaus was "swift and pointed." (120) The California legislature quickly proposed a constitutional amendment, which was ultimately adopted in 1928. The amendment declared that water rights, including riparian rights, do not include the right to the unreasonable use or waste of water. (121) Known as the "rule of reasonable use," this provision is now considered the cardinal principle of California water law. (122) The amendment forever changed the law, not only by requiring reasonable use of water, but also and perhaps more significantly, by declaring that there is no water right--and therefore no protectable property interest--where water is used unreasonably. This provision thereby eliminated the need to compensate water users if denied such use. (123)

When the amendment was adopted in 1928, reasonable use of water was equated with development. Conservation meant "putting rivers, and eventually their entire watersheds, to work in the most efficient way possible for the purpose of maximizing production and wealth." (124) The amendment was designed to prevent the outcome in Herminghaus, where outmoded riparian uses prevented the development of a larger irrigation enterprise. By declaring that the right to use water did not extend to unreasonable use, water development was made less expensive. (125) Not surprisingly, early cases interpreting the amendment favored water development. (126)

However, as California and its needs have changed, so has its definition of reasonable use. During the last two decades, environmental concerns have reconfigured California water policy. This new era, sometimes referred to as the "Era of Reallocation," is redefining the state's water priorities by leaving water instream to protect fisheries and water quality. (127) For this reason, some have proclaimed that "[w]ater law in California today is primarily environmental law." (128)

The two major vehicles by which this change has occurred are the rule of reasonable use and the public trust doctrine. In terms of the rule of reasonable use, the seminal case that distinguished this new era is United States v. State Water Resources Control Board, also known as "the Delta Decisions." (129) The Delta Decisions are a set of eight consolidated cases challenging SWRCB's authority to modify water permits in order to address environmental concerns in the Sacramento San Joaquin Delta. (130) SWRCB modified water permits associated with both the SWP and the CVP to address the water quality problems by increasing instream flows. The court of appeals held that SWRCB had this authority, based both on the agency's explicit reservation of jurisdiction contained in the permits, and on SWRCB's continuing authority to enforce the constitutional limitation on unreasonable use. (131) Noting that the definition of "reasonable use" changes over time and depends on the circumstances of each case, the court upheld SWRCB's authority to modify the permits when changed circumstances revealed "new information of the adverse effects of the projects upon the Delta [that] necessitated revised water quality standards." (132) In short, what was reasonable had changed, and the water right changed along with it. (133)

The public trust doctrine is the other primary means by which California has entered into the Era of Reallocation. The public trust doctrine is also a remnant of English common law and the Roman legal concept of common ownership of the rivers, harbors, sea, and seashore. (134) The basic notion behind the public trust doctrine is that navigable waterways and the lands beneath them are owned by the sovereign, who in turn holds them in trust for the benefit of all people. (135) Much like the rule of reasonable use, California courts' interpretations of the public trust doctrine have evolved over time. (136) Initially, the courts kept a narrow focus on navigation, commerce, and fisheries. (137) Eventually, the doctrine's scope broadened into recognition of the protection of aquatic ecosystems and the intrinsic value of habitat. (138)

The California Supreme Court's decision in National Audubon Society v. Alpine Superior Court (National Audubon) (139) is the landmark case that brought water rights within the realm of the public trust. National Audubon involved a challenge by environmental groups to protect Mono Lake following SWRCB's issuance of water permits to Los Angeles. The city had diverted nearly the entire flow of four out of five of the lake's tributary streams for its municipal water supply. (140) The plaintiffs argued that the beds and waters of the lake were protected by the public trust and that the proposed diversions violated that trust by damaging public trust resources, including recreational and ecological values. (141)

The court agreed, holding that the protection of these values is a purpose of the public trust and that the public trust doctrine protects navigable waters from harm caused by water diversions, including diversions from nonnavigable tributaries. (142) The court noted that much like the definition of reasonable use, the notion of public trust changes over time and that "[t]he public uses ... are sufficiently flexible to encompass changing public needs." (143) For this reason, the court held that the state has a continuing responsibility to protect trust uses and has the power to reconsider previous water allocation decisions. (144) While the court recognized that the state had the authority to grant water rights, it emphasized that before doing so, the state must first consider the impact of such allocation on the public trust. (145) Furthermore, the court reaffirmed that where the public trust is established to protect resources, no Fifth Amendment taking of property exists. (146) Any rights associated with the water are held subject to the trust. (147) Moreover, "the state, acting either through the courts or the State Water Resources Control Board, may modify existing water rights to ensure that the uses of water authorized by the state keep pace with contemporary economic needs and public values." (148)

B. The Role of Courts in Defining California Water Law

The Tulare court avoided any substantive consideration of the reasonable use and public trust issues, and instead held that the "public trust and reasonable use doctrines each require a complex balancing of interests--an exercise of discretion for which this court is not suited and with which it is not charged." (149) An examination of California law, however, reveals that the courts are in fact charged with precisely this responsibility, at least with regard to reasonable use determinations. (150)

The seminal case in this area is the California Supreme Court's decision Environmental Defense Fund, Inc. v. East Bay Municipal Utility District. (151) In Environmental Defense Fund, environmentalists challenged a proposal to construct a dam on the American River as violating California's rule of reasonable use. (152) A key jurisdictional issue in the case was whether the plaintiffs were required to exhaust administrative remedies by first bringing the reasonable use challenge before SWRCB. (153) Citing other instances in which the courts have adjudicated reasonable use questions, the supreme court held that administrative exhaustion was not required, stating that "[t]he courts have concurrent jurisdiction with the legislatively established administrative agencies to enforce the self-executing provisions of [California's reasonable use requirement]. Private parties thus may seek court aid in the first instance to prevent unreasonable water use or unreasonable method of diversion." (154) In so ruling, the court explicitly rejected the notion that by retaining jurisdiction over water determinations SWRCB's deprived the court of jurisdiction. (155)

In fact, in California, the determination of reasonable use is ultimately a judicial question. (156) In People ex rel. State Water Resources Control Board v. Forni, (157) the court of appeals considered whether SWRCB could promulgate a regulation limiting diversions of water from the Napa River for frost protection during certain times of year to prevent the unreasonable use of water. (158) The court upheld the regulation, noting that:
 Properly construed, [23 Cal. Admin. Code [section] 659] amounts to no more
 than a policy statement which leaves the ultimate adjudication of
 reasonableness to the judiciary. Indeed, the initiation of the present
 action furnishes the best proof that [SWRCB] did not consider the
 regulation and the policy declaration therein binding as to respondent
 riparian owners, and submitted the issue for judicial determination. (159)


Under California law, it is the courts, not SWRCB, that ultimately determine whether the reasonable use requirement is met.

California courts have concurrent jurisdiction for an important reason--what is reasonable changes over time. (160) As discussed below, what is reasonable under California water law has changed dramatically over the last several decades, evolving from a defense of water development to a tool for environmental protection. (161) In fact, the water rights at issue in Tulare provide an excellent example of how the nature and extent of California water rights change over time. The initial 1978 administrative determination of the plaintiffs' water rights, so heavily relied upon by the Tulare court to prove the plaintiffs' rights, was reversed by the Court of Appeals decision in United States v. State Water Resources Control Board. (161) While the court held that SWRCB had the authority to modify the permits to address water quality concerns, it also set aside the permit modifications because SWRCB did not go far enough in addressing water quality concerns. The court remanded the case to SWRCB for further reallocation in accordance with its opinion. (163) In 1995, SWRCB issued its reallocation of water rights for the CVP and SWP permits. (164) Because this most recent permit decision adopted the salmon and delta smelt protections outlined in the biological opinions, the plaintiffs' takings claims are for the 1992-1995 irrigation seasons only. (165)

Had the Tulare court made the requisite effort to examine the plaintiffs' water use in light of the rule of reasonable use and the public trust doctrine, it would have found that in recent decades, California has taken a bold approach to protecting its water resources. Water use that adversely impacts fisheries, water quality, and other environmental values can, at any time, be reallocated to protect those resources. "In California, a property right in the state's water resources is good only so long as the water is used relatively efficiently in light of the competing demands and the holder of the right exercises it in a mariner that comports with present societal values." (166) For this reason, application of reasonable use and public trust doctrine rules would almost certainly have resulted in a conclusion that the Tulare plaintiffs had no right to use the contracted water in a manner that endangered the continued existence and water-dependent habitat of two federally protected species.

The Tulare court attempted to avoid this conclusion by making much of the fact that the plaintiffs were not the permit holders, but instead had contracts with DWR--the actual permit holder--for specific amounts of water. The court stated that "[w]hile we accept the principle that California water policy may be ever-evolving, rights based on contracts are not correspondingly self-adjusting. Rather, the promissory assurances they recite remain fixed until changed." (167) While that may be the case, an examination of the contracts reveals that DWR carefully worded the contracts to ensure that they did not commit to delivering more water than was available under the permits. (168) Far from having a right to a fixed amount, the contracts explicitly recognize that DWR cannot deliver more water than it receives in a given year. (169) This term is more than a contractual immunity provision, as the Tulare court suggested; it is a recognition of the uncertain nature of water availability under California law. The water permits themselves clearly state that the rights issued therein are subject to change and are not, as the Tulare court suggests, somehow fixed in time or amount. The permits specifically state that SWRCB retained jurisdiction over the water rights issued to prevent waste or unreasonable use. (170) In this way, the permits were never fixed but were always subject to further modification.

In short, contrary to the Tulare court's assumption, the plaintiffs did not have a right to a specific amount of water. In California, no one does. Water rights in California are highly qualified by their very nature. Subsequent contracts cannot convey more than DWR held in the first instance. Nor can those contracts obviate the judiciary's responsibility to determine the nature and extent of the property right at issue. To hold otherwise would produce the absurd result of providing greater water rights to contactors than to the water permit holders themselves. (171)

While the Tulare plaintiffs had contract rights to water, those rights extended only to reasonable uses of that water. Reallocations based on the rule of reasonable use and the public trust doctrine are not Fifth Amendment takings because these legal requirements define the nature and extent of the water rights themselves. In fact, California carefully crafted its laws in such a manner to allow the reallocation decisions necessary to protect reasonable and public trust uses without having to compensate water users. (172)

By ruling otherwise, the Tulare court effectively turned California water law on its head. As will be evident from the following examination of Fifth Amendment takings jurisprudence, the Tulare decision provides water rights with greater Fifth Amendment protection than real property interests in land, an absurd result given the highly qualified and contingent nature of the rights associated with this public resource.

IV. THE TAKINGS CLAUSE OF THE FIFTH AMENDMENT

The Takings Clause of the Fifth Amendment provides a simple mandate--if the government takes your property, it has to pay you for it. (173) But while the mandate is simple, its application has been complicated. As one the United States Supreme Court Justice acknowledged, "Even the wisest lawyers would have to acknowledge great uncertainty about the scope of this Court's takings jurisprudence." (174) For this reason, the Takings Clause is perhaps best understood in light of its guiding principle, which is "to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." (176)

This Part begins with a brief history of the Takings Clause and the distinction that has evolved between physical and regulatory takings. It then provides the current legal tests for each type of taking and demonstrates how the Tulare court erred in applying a physical takings analysis. Had the court properly construed the government action as regulatory in nature, it would have found no taking. As will be explained in some detail, regulatory takings are hard to come by. In this case, both the de minimis economic impact of the regulation and the inherent limits on the plaintiffs' reasonable expectations for use of their water right place the government restriction on the Tulare plaintiffs' water outside the realm of a compensable taking.

A. A Brief History of the Takings Clause

Prior to the Bill of Rights, state governments took property for roads and other public projects without compensating the owners. (176) While there had been some movement toward establishing the just compensation principle during the 18th century, "there continued to be a strong current in American legal thought that regarded compensation simply as a `bounty given ... by the State' out of `kindness' and not out of justice." (177) Only the constitutions of Vermont and Massachusetts required that compensation be paid when private property was taken for public use. (178)

As originally proposed, James Madison's version of the Takings Clause prescribed that a property owner shall not be "obligated to relinquish his property, where it may be necessary for public use, without a just compensation." (179) The First Congress changed this language during its consideration to its current form: "nor shall private property be taken for public use, without just compensation." (180) Some have argued that the Takings Clause was originally intended to apply only to direct, physical takings. (181) Others think that the broader language as ultimately adopted meant that the framers "embrace[d] direct physical takings as well as other types of Government authorized intrusions." (182)

Whatever the original intent, the issue was settled with the United States Supreme Court's first regulatory takings case, Pennsylvania Coal Co. v. Mahon. (183) Mahon involved a compensation claim brought by the Pennsylvania Coal Company when a newly enacted federal mining law prevented the mining of coal underneath Mahon's property. The coal company sold the Mahons their property in 1878, but reserved the right to remove all of the coal underneath it. Then in 1921, Congress passed the Kohler Act, which forbade mining in a manner causing subsidence of houses on the surface. (184) The Court held that this constituted a Fifth Amendment taking. (185) Prior to Mahon, Court interpretations of the Takings Clause reached only physical takings or their "functional equivalent"; that is, where there was a "practical ouster of the owner's possession." (186) In Mahon, the Court extended takings jurisprudence into the regulatory realm with the oft-quoted maxim, "while property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking." (187)

Much of modern takings law since Mahon has been an ever-evolving attempt to determine when a regulation goes "too far." The physical-takings doctrine has also evolved, as has the interplay between these two types of takings. It is this interplay that is at issue in Tulare.

B. Physical v. Regulatory Takings--a Distinction with a Difference

The difference between regulatory and physical takings is--despite what the Tulare court held--a distinction with a difference. (188) Indeed, it was a distinction that made the crucial difference in Tulare. To understand why, one must first understand the current legal tests for each type of taking, as well as the differences between regulatory and physical takings. (189)

A physical taking occurs where the government authorizes a physical occupation of private property. (190) When such an invasion occurs, the Constitution requires compensation. The leading case in this area is Lorreto v. Telepropter Manhattan CATV Corp. (191) In Lorretto, the city of New York passed a law requiring landlords to accommodate the installation of cables on their private property so that cable companies could provide cable services to tenants. (192) The Supreme Court held that even though the physical invasion was a small one (consisting of two cable boxes and some wire on the rooftop of the petitioner's apartment building), a taking had nevertheless occurred because of the "traditional rule that a permanent physical occupation of property is a taking." (193) It was here that the Court created a per se rule that a permanent physical occupation of property is a taking. (194)

There is, however, an important qualification to the per se rule outlined in Lorretto. The Court was careful to apply its per se rule only to permanent physical occupations of property. "The permanence and absolute exclusivity of a physical occupation distinguish it from temporary limitations on the right to exclude. Not every physical invasion is a taking." (195) The Court emphasized that takings jurisprudence has always made a distinction between temporary physical invasions and permanent physical occupations of property, particularly in the flooding context. (196) Temporary physical invasions are--at least for now--subject to "a more complex balancing process" (197) to determine whether a taking has occurred.

A regulatory taking occurs, of course, when the government goes "too far." (198) For several decades following Mahon, however, there was no set formula for determining how fax was too far. Instead, the courts engaged in ad hoc factual inquiries to determine whether a taking had occurred. (199) In recent years, the Court has developed a two-tiered regulatory takings test to inform the process. (200)

The first tier was articulated in Lucas v. South Carolina Coastal Council. (201) Lucas essentially created a per se rule for regulatory takings where the regulation at issue deprives the owner's property of all use or value. (202) This per se rule is based on the theory that total deprivation of beneficial use is equivalent to a physical appropriation and that, where all use or value has been taken, the land has essentially been "pressed into some form of public service" for which compensation is due. (203)

The Lucas categorical rule applies only in the relatively rare situations where a regulation results in the loss of all economically beneficial use of the property. (204) This rule also contains an important exception. Even if a regulation deprives a property of all use or value, there is no taking where the regulation itself is grounded in a state's "background principles of ... property and nuisance already in place upon land ownership." (205) The reasoning behind this exception is that where the regulation merely articulates rules that applied to the land prior to ownership, the land owner never really had the right to use his or her property in such a manner, so there is no taking. (206)

The second tier of the regulatory takings test is applicable when the property retains some use or value. The Court first articulated this balancing approach in Penn Central Transportation Co. v. City of New York (Penn Central) (207) as a way of adding some formalized predictability to the fact-bound, ad hoc approach spawned by Mahon. Penn Central identified several factors of "particular significance" in the ad hoc factual inquiries of earlier takings cases. (208) The three primary factors to balance are: 1) "the economic impact of the regulation on the claimant," 2) "the extent to which the regulation has interfered with distinct investment-backed expectations," and 3) "the character of the governmental action." (209) As the Court recently stated, "Penn Central does not supply mathematically precise variables, but instead provides important guideposts that lead to the ultimate determination whether just compensation is required." (210)

The Penn Central balancing test is a tough one for property owners to pass. To date, the Supreme Court has never found a taking using the Penn Central factors. The "distinct investment backed expectations" factor has proven to be a particularly difficult hurdle for many regulatory takings claims. Over time, this factor has evolved to include a reasonableness requirement that is more than just the investor's "unilateral expectation or abstract need." (211) The Court looks not only to the specific regulatory regime in place at the time, but also to the general regulatory climate to determine whether the plaintiff's investment in purchase and development are objectively reasonable in light of that climate. (212)

To summarize, while physical takings involve some form of acquisition, regulatory takings involve some type of restriction. A physical taking occurs when the government itself permanently occupies the property or requires the property owner to submit to physical occupation, whether by the government or a third party. (213) The government effects a physical taking only where it requires the landowner to submit to the physical occupation of his land. (214) Regulatory takings, by contrast, may occur when the government prevents the property owner from making a particular use of the property that otherwise would be permissible. (215) The regulatory taking applies to the property but does not physically invade it. (216)

C. As Applied: A Proper Takings Analysis

Applying the physical and regulatory takings tests to the facts of Tulare, the first inquiry must be into the nature of the government action. In this case, the government action restricted the plaintiffs' water use. (217) Specifically, the biological opinions issued by the Services for the operation of the CVP and SWP identified winter-run chinook salmon and delta smelt in jeopardy of extinction. The Services recommended water flow regimes and temperature requirements that, if implemented, would prevent jeopardy. As a result, the government limited date, time and manner of water use, the methods of diversion from the SWP. (218) The government placed limits on how the plaintiffs could legally exercise their water rights.

However, it is equally important to note what the government did not do. The government did not seize the water or divert it for government purposes, as it did in International Paper. (219) The government did not extinguish the plaintiffs' water rights to create its own, as it did in Dugan. (220) Nor did it acquire the property through physical invasion, as occurred in Causby. (221) In short, the government did not divert the water for its own use, but instead regulated how the plaintiffs could apply it to their uses, leaving the overwhelming majority of water available for the plaintiffs' diversion.

The Tulare court viewed this as a distinction without a difference because the result was the same--water was left in the stream for fish. (222) But the nature of the government action makes all the difference in the Fifth Amendment context because the action forms the very basis of the reasoned distinction between regulatory and physical takings cases. When the government acts as regulator, it recognizes the individual's property right but places limits on how that right can be exercised to protect the common good (in this case, species protection). When the government acts as a physical taker, it substitutes itself as the property's beneficiary and acquires what the plaintiff once had. Takings jurisprudence recognizes that, even when acting as a regulator/protector, the government can go "too far" and effect a compensable taking, as was the case in Mahon and Lucas. (223) However, it also accepts that "[g]overnment could hardly go on if to some extent values incident to property could not be diminished without paying for every such change in the general law." (224)

The Tulare court seemed confused by the physical outcome of the government's action. However, it is not uncommon for regulatory actions to have physical results. In fact, Mahon is a case in point. As explained above, the property interests at issue in Mahon were subsurface rights to coal. (225) The Court held that the regulation, which essentially eliminated the coal company's ability to extract the coal, constituted a regulatory taking precisely because it was so like a physical taking. (226) The Court stated that "[w]hat makes the right to mine coal valuable is that it can be exercised with profit. To make it commercially impracticable to mine certain coal has very nearly the same effect for constitutional purposes as appropriating or destroying it." (227) In essence, the facts in Mahon presented what is today considered a Lucas taking--a regulatory action that eliminates all use or value of the property at issue.

In fact, Lucas provides another example of a regulatory action with very physical results. Under the South Carolina law giving rise to Lucas's claim, the land was required to be left essentially in its natural state, resulting in a total loss in economic value. (228) The numerous Clean Water Act (229) cases in which property owners are required to leave land undeveloped to protect wetlands also involve physical consequences caused by government regulation. (230) However, these are all regulatory takings cases, even though the ultimate result was coal left in the ground, or land left undeveloped. (231) Similarly, while the Tulare plaintiffs were required to leave some water instream, this requirement did not render the taking itself physical. It is the government action, and not the ultimate result, that characterizes the taking.

The regulatory action at issue in Tulare is much less dramatic than the regulatory actions at issue in Mahon or Lucas. Far from being deprived of all use or value, the Tulare plaintiffs suffered a less than three percent decrease in water availability. (232) The plaintiffs presented absolutely no evidence that they suffered any economic damages resulting from the reduced water deliveries. Far from being deprived of all economic or beneficial use to qualify for a per se regulatory taking, the Tulare plaintiffs did not even argue that they suffered any economic injury, which is no doubt why they were so eager to fall into a per se category rather than face the Penn Central balancing test. (233)

Had the Tulare court applied the Penn Central test, it would have likely held that the lack of economic impact precluded a successful regulatory takings claim. Absent any actual injury, there is nothing for which to compensate. (234) The "reasonable, investment-backed expectation" factor would also have weighed heavily against the plaintiffs. As discussed extensively in Part III, California's rule of reasonable use and public trust doctrine place significant constraints on plaintiffs' water rights to protect fish and wildlife. These inherent limitations, when combined with the contractual language limiting liability, would severely weaken any argument that the Tulare plaintiffs had a realistic expectation to a certain amount of water.

In addition, a regulatory takings analysis would have required the Tulare plaintiffs to face yet another obstacle--the prohibition against so-called partial takings. The regulation at issue in the case impacted only a small part of the plaintiffs' water right, less than three percent. (235) And while the Tulare court made much of this restriction, stating that "the denial of a right to use the water accomplishes a complete extinction of all its value" (236) and that the government somehow took "exclusive possession of plaintiffs' water-use rights for preservation of fish," (237) in fact, nothing could be further from the truth. The plaintiffs continued to enjoy their water rights almost in their entirety. In the regulatory takings context, this is essentially a partial takings argument.

The doctrine of partial takings, however, has not been recognized by the Supreme Court. Though Federal Circuit decisions are conflicting, (238) and takings proponents make much of footnote 7 of Lucas in which Justice Scalia raised the specter of partial takings, (239) the Supreme Court has steadfastly maintained that one must look at the "parcel as a whole" (240) to determine whether a regulatory taking has occurred. Looking at the parcel as a whole in Tulare means looking at the whole water right. The less than three percent deprivation is both outside a Lucas-type taking and unlikely to survive a Penn Central analysis.

The hurdles involved in a successful regulatory takings claim are so obvious that the Tulare plaintiffs did not try to argue a regulatory taking theory but instead relied entirely on a physical takings argument. However, the court should never have embraced that argument. The distinction between physical and regulatory takings is an important one. It is the difference between government acquisition and government control. When the Tulare court ignored this distinction and instead looked at the result of the government's action rather than the character of the action itself, it wrongly determined that a physical taking had occurred. Had the court appropriately viewed the government's role as regulatory in nature, it would have found that both the de minimis economic impact and the plaintiffs' lack of reasonable expectations prohibited a successful takings claim. In short, there was no taking, physical or otherwise, and therefore no compensation due.

V. CONCLUSION

While the Tulare decision may go down in history as the first case in which an ESA restriction was held to constitute a Fifth Amendment taking of property, it is unlikely to be of further significance. From a practical standpoint, the facts and circumstances will be difficult to replicate. More importantly, from a legal standpoint, the Tulare court made two major mistakes. First, it erroneously concluded that the plaintiffs had a protectable property interest in a specified amount of water. Had the court examined state law and applied California's rule of reasonable use and the public trust doctrine, it would have found that the Tulare plaintiffs lacked the necessary cognizable property interests for their Fifth Amendment takings claim.

Second, the court applied the wrong takings analysis. The government's restriction of the plaintiffs' water supply was regulatory in nature--not physical. Under a regulatory takings analysis, the water restrictions at issue in Tulare were a legitimate exercise of government power that did not deprive the plaintiffs of their property.

For these reasons, the Tulare court's holding may be of lasting importance only if the federal government fails to appeal the decision. Failure to do so will say less about the strength of the court's decision than about the willingness of the current administration to protect species and take ESA implementation seriously.

(1) Endangered Species Act of 1973, 16 U.S.C. [subsection] 1531-1544 (2000).

(2) U.S. CONST. amend. V; see infra discussion Part IV.

(3) 49 Fed. Cl. 313 (Fed. Cl. 2001).

(4) Id.. at 381; see infra discussion and accompanying footnotes Part III.A for details regarding the restrictions.

(5) See, e.g., Jennie L. Bricker & David E. Filippi, Endangered Species Act Enforcement and Western Water Law, 30 ENVTL. L. 735 (2000); Frona M. Powell, Property Rights, Federalism, and the Endangered Species Act, 29 REAL EST. L.J. 13 (2000); Blaine I. Green, The Endangered Species Act and Fifth Amendment Takings: Constitutional Limits on Species Protection, 15 YALE J. ON REG. 329 (1998); Andrew G. Frank, Reforming the Endangered Species Act: Voluntary Conservation Agreements, Government Compensation, and Incentives for Private Action, 22 COLUM. J. ENVTL. L. 137 (1997); Srinath Jay Govindan, "Taking" Steps to Protect Private Property and Endangered Species: Constitutional Implications of Habitat Conservation Planning After Dolan v. Tigard, 47 EMORY L.J. 311 (1998); Mark Sagoff, Muddle or Muddle Through? Takings Jurisprudence Meets the Endangered Species Act, 38 WM. & MARY L. REV. 825 (1997); Barton H. Thompson, Jr., The Endangered Species Act: A Case Study in Takings and Incentives, 49 STAN. L. REV. 305 (1997); Murray D. Feldman & Michael J. Brennan, Judicial Application of the Endangered Species Act and the Implications for Takings of Protected Species and Private Property, 32 LAND & WATER L. REV. 509 (1997); Stephen P. Foley, Does Preventing "Take" Constitute an Unconstitutional Taking? An Analysis of Possible Defenses to Fifth Amendment Takings Claims Based on the Endangered Species Act, 14 UCLA J. ENVTL. L. & POL'Y 327 (1995-96); Albert Gidari, The Economy of Nature, Private Property, and the Endangered Species Act, 6 FORDHAM ENVTL. L.J. 661 (1995); Patricia A. Hageman, Fifth Amendment Takings Issues Raised by Section 9 of the Endangered Species Act, 9 J. LAND USE & ENVTL. L. 375 (1994); Robert Meltz, Where the Wild Things Are: The Endangered Species Act and Private Property, 24 ENVTL. L. 369 (1994); Paula C. Murray, Private Takings of Endangered Species as Public Nuisance: Lucas v. South Carolina Coastal Council and the Endangered Species Act, 12 UCLA J. ENVTL. L. & POL'Y 119 (1993); Michael A. Yuffee, Prior Appropriations Water Rights: Does Lucas Provide a Takings Action Under the Endangered Species Act? 71 WASH. U. L.Q. 1217 (1993); Geoffrey L. Harrison, The Endangered Species Act and Ursine Usurpations: A Grizzly Tale of Two Takings, 58 U. CHI. L. REV. 1101 (1991).

(6) See Boise Cascade Corp. v. Oregon State Bd. of Forestry, 991 P.2d 563, 573-74 (Or. Ct. App. 1999) (claim not ripe until incidental take permit denied by FWS); Sierra Club v. Dep't of Forestry and Fire Prot., 26 Cal. Rptr. 2d 338, 348 (Cal. Ct. App. 1993) (takings claim not ripe until final administrative determination of required mitigation measures).

(7) See Conti v. United States, 48 Fed. Cl. 532 (2001) (no property right to use gillnets to harvest swordfish); New England Naturists Ass'n v. Larsen, 692 F. Supp. 75, 79-80 (D.R.I. 1988) (nude bathing not a vested property interest).

(8) See Buse Timber & Sales, Inc. v. United States, 45 Fed. Cl. 258, 263 (1999) (indefinitely suspended contract does not give rise to takings claim); Croman Corp. v. United States, 49 Fed. Cl. 776, 788-89 (2001) (suspension of contract is not a taking; breach of contract is appropriate claim).

(9) See Christy v. Hodel, 857 F.2d 1324, 1334-35 (9th Cir. 1988) (bears are not federal government agents causing take under the ESA); Florida Game and Fresh Water Fish Comm'n v. Flotilla, Inc., 636 So.2d 761, 763-64 (Fla. Dist. Ct. App. 1994) (restriction on development of 48 acres of a 173-acre parcel to protect bald eagles not a taking); Moerman v. California, 21 Cal. Rptr. 2d 329, 333-34 (Cal. Ct. App. 1993) (endangered Tule elk are not instrumentalities of the state causing a physical taking). Historically, the government has not been held liable for property damage suffered by landowners caused by wildlife. See Andrus v. Allard, 444 U.S. 51, 64 (1979) (Eagle Protection Act and Migratory Bird Act prohibition on commercial transactions of avian artifacts not a taking); Mountain States Legal Found. v. Hodel, 799 F.2d 1423, 1430-31 (10th Cir. 1986) (damage caused by wildlife protected by the Wild Free-Roaming Horses and Burros Act not a taking, even though value of property was diminished). Perhaps the closest a court came to addressing this issue in the water rights context before Tulare was United States v. Gleam Colusa Irrigation District, 788 F. Supp. 1126, 1134 (E.D. Cal. 1992). There, the court, rejected defendant's argument that state water rights were somehow exempt from federal laws and that to hold otherwise would threaten the water rights themselves. "[T]he [ESA] does not affect the District's water rights but only the manner in which it exercises those rights." Id.

(10) Klamath Irrigation Dist. v. United States, No. 01-591L (Fed. Cl. Oct. 11, 2001) (on file with the author); see also Farmers Sue U.S. Over Irrigation Losses, THE OREGONIAN, Oct. 2, 2001, at C5 (detailing the suit by individual farmers, businesses, and Tulelake Irrigation District claiming compensation for the Bureau of Reclamation's April 6, 2001 decision to shut off water to protect fish under the ESA). Nancie and Roger Marzulla, the attorneys who represented the plaintiffs in Tulare, also represent the Klamath petitioners. The Marzullas are some of the most forceful advocates for the so-called "property rights movement." Together, they wrote a book theorizing a number of possible Fifth Amendment takings cases concerning environmental protection statutes, including the ESA. NANCIE G. MARZULLA & ROGER G. MARZULLA, PROPERTY RIGHTS: UNDERSTANDING GOVERNMENT TAKINGS AND ENVIRONMENTAL LEGISLATION (1997). They are cofounders of Defenders of Property Rights, a non-profit organization that refers to itself as "the only National Public Interest Legal Foundation Dedicated Exclusively to Private Property Protection." For more information on this organization, as well as a detailed overview of the Marzullas' legal careers, see http://www.defendersproprights.org.

(11) See infra notes 40-49 and accompanying text.

(12) Michael Grunwald, Bush Seeks to Curb Endangered Species Suits, WASHINGTON POST, Apr. 12, 2001, at A2; Zachary Collie, Farmers Hurt by Species Act, Norton Agrees; Interior Chief Looks at Klamath, S.F. CHRONICLE, Apr. 6, 2001, at A3.

(13) Tulare, 49 Fed. Cl. at 315.

(14) See infra notes 29, 33-36 and accompanying text. The Klamath project, for example, is a federal water project operated by the Bureau of Reclamation. Farmers Sue U.S. Over Irrigation Losses, supra note 10.

(15) See infra notes 39-50, 83 and accompanying text for a discussion of federal water contracts.

(16) In fact, one could argue that the Tulare case itself was not ripe because there was no actual government restriction or acquisition of the plaintiffs' property. As will be discussed later, the government action at issue is a section 7 consultation regarding the Bureau of Reclamation's operation of the Central Valley Project. Yet the consultation process has no binding authority on private parties like the state, including DWR as operator of the State Water Project. DWR's participation in the consultation process, including its implementation of the restrictions at issue in the case, was completely voluntary.

In the Fifth Amendment context, a takings claim is not ripe until "the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue." Palazzolo v. Rhode Island, 533 U.S. 606, 618 (2001) (quoting Williamson County Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186 (1985)). The SWP's voluntary participation in the consultation process did not provide a final decision because the ESA provision directly applicable to private parties is section 10. Endangered Species Act of 1973, 16 U.S.C. [section] 1539 (2000). ESA section 10 allows private parties to seek an incidental take permit, accompanied by a conservation plan. Id. Interestingly, neither the parties nor the amicus raised this issue. However, as this is essentially an issue of ripeness, it is both a jurisdictional and a prudential requirement that can be raised by any party--or the court--at any time. For further discussion of the ripeness challenges facing ESA takings claims, see James Rosen, Private Property and the Endangered Species Act: Has the Doctrine of Ripeness Stymied Legitimate Takings Claims, 6 HASTINGS W.-NW. J. ENVTL. L. & POL'Y 31 (1999).

(17) Tulare, 49 Fed. Cl. at 314.

(18) See infra Part III.B (discussing the coordination between these two projects).

(19) See, e.g., United States v. Gerlach Live Stock, 339 U.S. 725 (1950) (holding that landowners were due compensation for property inundated behind Friant Dam); Dugan v. Rank, 372 U.S. 609 (1963) (riparian and overlying owners sued to enjoin BOR from impounding water at a federal dam on the San Joaquin River); Ball v. United States, 1 Cl. Ct. 180 (1982) (recognizing existence of property rights in water).

(20) Brian E. Gray, The Modern Era in California Water Law, 45 HASTINGS L.J. 249, 271 (1994); see also Roderick E. Walston, The Public Trust Doctrine in the Water Rights Context: The Wrong Environmental Remedy, 22 SANTA CLARA L. REV. 63, 88 (1982) (promoting the usufructuary principle and arguing that the usufructuary nature of water rights alone makes water rights contingent such that the public trust principles are unnecessary).

(21) Gray, supra note 20, at 271.

(22) See infra notes 56-67 and accompanying text.

(23) See infra note 194 and accompanying text.

(24) Id.

(25) The United States Supreme Court's decision in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency recently reaffirmed the importance of the distinction between physical and regulatory takings. 2002 U.S. LEXIS 3028 (U.S. 2002). See infra note 194 and accompanying text.

(26) Declaration of David Purkey, Declaration submitted by Amicus Curiae in Support of Defendants' Motion for Summary Judgment on Liability at 3, Tulare (No. 98-101L) (on file with the author).

(27) ROGER GOTTLIEB, A LIFE OF ITS OWN 86 (1988).

(28) Paul A. Sabatier & Matthew A. Zafonte, The Views of Bay/Delta Water Policy Activists on Endangered Species Issues, 2 HASTINGS W.-NW. J. ENVTL. L. & POL'Y 131, 131 (1995).

(29) William Joe Simonds, The Central Valley Project: The Central Valley Geography and Climate, at http://dataweb.usbr.gov/html/cvpgeog.html (last visited Mar. 12, 2002).

(30) California's Department of Water Resources has an extensive overview of the Central Valley projects available at http://www.dwr.water.ca.gov (last visited Mar. 12, 2002); see also MARC REISNER, CADILLAC DESERT: THE AMERICAN WEST AND ITS DISAPPEARING WATER 348-54 (1986) (providing an extensive history of water development not only in California but throughout the American West).

(31) Simonds, supra note 29.

(32) Tulare, 49 Fed. Cl. 313, 315 (2001).

(33) Gregory Thomas, Conserving Aquatic Biodiversity: A Critical Comparison of Legal Tools for Augmenting Streamflows in California, 15 STAN. ENVTL. L. J. 3, 9 (1996).

(34) The Central Valley is characteristic of much of the West, which is known for its arid open landscapes and little water. This fact led many to label early attempts at western expansion as foolhardy. For example, Senator Daniel Webster, in addressing Congress on the issue of whether to provide money to buy land beyond the Mississippi, expounded,
 What do you want of that vast and worthless area, that region of savages,
 wild beasts, of deserts, of shifting sands and whirling wind, of dust, of
 cactus and prairie dog? To what use could we ever hope to put those great
 deserts and those endless mountain ranges, impenetrable and covered to
 their very base with eternal snow? What can we ever do with the Western
 coast, a coast of 3,000 miles, rockbound, cheerless, and uninviting?


ARTHUR L. LITTLEWORTH & ERIC L. GARNER, CALIFORNIA WATER 1 (1995); see also United States v. State Water Resources Control Bd., 182 Cal. App. 3d 82, 97-100 (Cal. Ct. App. 1986) (providing a detailed history of the CVP and SWP).

(35) Id.

(36) CALIFORNIA DEP'T OF WATER RES., BULLETIN 160-93, THE CALIFORNIA WATER PLAN UPDATE, OCTOBER 1994 ch. 1 (1994), available at http://rubicon.water.ca.gov/v1cwp/ch1ndx.html; see also Thomas, supra note 33, at 5. Thomas explains that:
 [u]ntil recently, California's legacy of native fishes included 116
 species. Eight are already extinct and extinctions continue at the rate of
 one every six years. Fifteen species are currently listed as threatened or
 endangered under either or both the California and federal endangered
 species acts, and another twenty-eight may qualify for listing. Twenty-one
 additional species will require special management to arrest their decline.
 All told, sixty-two percent of the state's native fish species have become
 extinct or will require intervention to preserve them. These impacts are
 nowhere more evident than in California's Bay/Delta region, where the
 Sacramento and San Joaquin Rivers converge as they drain the state's
 Central Valley.


Id. Nor is this problem unique to California. The Nature Conservancy estimates that nationwide, the "four leading groups in terms of proportion of species at risk--freshwater mussels, crayfish, amphibians, and freshwater fish--all depend on rivers, streams, or lakes." THE NATURE CONSERVANCY, 1997 SPECIES REPORT CARD: THE STATE OF U.S. PLANTS AND ANIMALS 8 (1997).

(37) Thomas, supra note 33, at 5-6.

(38) See Endangered and Threatened Wildlife, 50 C.F.R. [section] 17.11 (2001), for a list of listed species. Delta Smelt are listed as threatened under the ESA; winter-run chinook salmon are listed as endangered. Id. Even though the delta smelt is listed only as threatened, the fish still enjoys the full protections under the ESA because the FWS has adopted a blanket regulation automatically extending the prohibition against "take" to threatened species unless otherwise provided by special rule. Id. [section] 17.31(a); see Endangered Species Act of 1973, 16 U.S.C. [section] 1533(d) (2000) (allowing the Services to extend full ESA protections to threatened species).

(39) 16 U.S.C. [section] 1536(a)(2) (2000). Both the delta smelt and winter-run chinook salmon have designated critical habitat that includes the Sacramento-San Joaquin Delta. Critical Habitat--Fish and Wildlife, 50 C.F.R. [section] 17.95(e) (2001).

(40) Tulare, 49 Fed. Cl. 313, 315 (2001).

(41) Id. at 314. The two projects are operated in concert pursuant to a coordinated operating agreement between BOR and DWR. This agreement was formalized in the Agreement Between the United States of America and The State of California for Coordinated Operation of the Central Valley Project and the State Water Project (on file with the author) [hereinafter Agreement]. Congress authorized the Agreement in 1986. An Act to Implement the Coordinated Operations Agreement, the Suisun Marsh Preservation Agreement, and to Amend the Small Reclamation Projects Act of 1956, as Amended, and for Other Purposes, Pub. L. No. 99-546, 100 Stat. 3050 (Oct. 27, 1986). While the two projects are operated in concert, they are under separate ownership and control, and the Agreement specifically provides that "[n]othing in this agreement shall constrain either party from moving forward with full utilization of its facilities at any time." Agreement, supra, at 8.

(42) Tulare, 49 Fed. Cl. at 315.

(43) NATIONAL MARINE FISHERIES SERVICE, BIOLOGICAL OPINION: CENTRAL VALLEY PROJECT, 1992 OPERATION 31-32 (1992) [hereinafter 1992 BIOLOGICAL OPINION] (on file with the author).

(44) Id.

(45) Where the activities of a federal agency are seen to jeopardize the continued existence of listed species or cause the destruction or adverse modification of critical habitats, the Endangered Species Act directs the Secretary to suggest "reasonable and prudent alternatives" to avoid such harms. Endangered Species Act of 1973, 16 U.S.C. [section] 1536(b)(3)(A) (2000).

(46) Tulare, 49 Fed. Cl. at 315; 1992 BIOLOGICAL OPINION, supra note 43, at 32.

(47) Tulare, 49 Fed. Cl. at 315; NATIONAL MARINE FISHERIES SERVICE, BIOLOGICAL OPINION FOR THE OPERATION OF THE FEDERAL CENTRAL VALLEY PROJECT AND THE CALIFORNIA STATE WATER PROJECT (1993) (on file with the author).

(48) Tulare, 49 Fed. Cl. at 315-16 (NMFS is generally responsible for marine species, including anadromous species such as chinook salmon. FWS is generally responsible for all other listings, including delta smelt).

(49) Id. at 316.

(50) U.S. FISH AND WILDLIFE SERVICE, FORMAL CONSULTATION ON THE 1994 OPERATION OF THE CENTRAL VALLEY PROJECT AND STATE WATER PROJECT: EFFECTS ON DELTA SMELT (1993) (on file with the author). After 1994, the State Water Resources Control Board modified DWR water permits, adopting the Services' water restriction and thus eliminating any basis for a "take" claim by the plaintiffs. See infra note 90 and accompanying text.

(51) Tulare, 49 Fed. Cl. at 315.

(52) Id. at 318.

(53) Id.

(54) Id. at 316.

(55) Declaration of David Purkey, supra note 26, at 3.

(56) This Article does not include a discussion of the first legal hurdle the court addressed--the question of whether the United States Supreme Court's ruling in Omnia Commercial Co. v. United States, 261 U.S. 502 (1923), barred a takings claim. Omnia Commercial stands for the proposition that no Fifth Amendment taking occurs where the government merely frustrates a contract's purpose. Onmia Commercial involved the government requisition of Allegheny Steel Company's entire production of steel plate during World War I. Id. at 507. Petitioners brought suit, arguing that this action constituted a taking of their contract rights for the steel. The Court held that there was no taking because "the Fifth Amendment has always been understood as referring only to a direct appropriation, and not to consequential injuries arising from the exercise of lawful power." Id. at 510. The Tulare court distinguished Omnia Commercial, concluding that the water users had more than just an enforceable contract and instead had a property interest in the water at issue that had sufficiently matured so as to place it outside the rule of Onmia Commercial. Tulare, 49 Fed. Cl. at 318. The real question, however, is what the contracts actually promised. As discussed in Part III, the plaintiffs in Tulare are not entitled to specific amounts of water under their contracts, so there is no compensable property interest to be "frustrated" under Onmia Commercial. See also Joseph L. Sax, The Constitution, Property Rights, and the Future of Water Law, 61 U. COLO. L. REV. 257 (1990) (providing a general outline of the inherent limits on water rights as constitutionally protected property).

(57) Tulare, 49 Fed. Cl. at 318.

(58) Id. (quoting Transp. Co. v. City of Chicago, 99 U.S. 635, 642 (1878)).

(59) Id.

(60) Id. at 319.

(61) See id. (quoting Eddy v. Simpson, 3 Cal. 249, 252-53 (1853); "the right of property in water is usufructuary, and consists not so much of the fluid itself as the advantage of its use.").

(62) Id. The court's view that the government had somehow re-appropriated the plaintiffs' rights for its own use was evident at oral argument. The excerpt below demonstrates how the government tried--unsuccessfully--to convince the court otherwise.
 Government Counsel: "This is not an appropriation of water ..."

 The Court: "But don't the biological opinions require the retention of
 water in the system[?]"

 Government Counsel: "The reasonable and prudent alternatives suggest,
 statutory word, suggest, that water be retained in the system from Lake
 Shasta in order to enable what, temperature and flow augmentation."

 The Court: "But isn't that the equivalent of directing the use of water to
 a particular constituency in this particular case, the constituency being
 the fish?"

 Transcript of Oral Argument at 36, Tulare (No. 98-101L) (on file with the
 author).


(63) Tulare, 49 Fed. Cl. at 319.

(64) See infra Part IV.B (this Article's regulatory takings analysis).

(65) 328 U.S. 256 (1946).

(66) Id. at 258.

(67) Id. at 261. The airplanes passed over the property at 83 feet, only 63 feet above the house and just 18 feet above the highest tree. Id. at 258. The petitioners were forced to give up their chicken business and their residence as a result of disturbances to the birds caused by the planes. Id.

(68) Tulare, 49 Fed. Cl. at 319.

(69) 282 U.S. 399 (1931).

(70) Id. at 404.

(71) Id. at 405-06. While the government promised the power company it would be compensated for any losses, this promise did not extend to International Paper. Id. at 407.

(72) Id. According to the Court,
 There is no room for quibbling distinctions between taking of power and
 taking of water rights. The petitioner's right was to use the water; and
 when all the water that it used was withdrawn from the petitioner's mill
 and turned elsewhere by government requisition for the production of power
 it is hard to see what more the Government could do to take the use. Id.


(73) 372 U.S. 609 (1963).

(74) Tulare, 49 Fed. Cl. 313, 319 (2001).

(75) Dugan, 372 U.S. at 610. Riparian rights differ significantly from the appropriation rights at issue in Tulare. See infra notes 119-130 and accompanying text regarding riparian water rights.

(76) Id. at 611.

(77) Tulare, 49 Fed. Cl. at 319.

(78) Id. at 320.

(79) Id.

(80) Id.

(81) 50 F.3d 677 (9th Cir. 1995).

(82) Id. at 681. O'Neil was essentially the federal water contractors' response to the same facts that gave rise to the plaintiffs' suit in Tulare. The O'Neil plaintiffs had contracts with BOR for CVP water, while the Tulare plaintiffs held contracts with DWR for SWP water. Id. at 683.

(83) Id. The language at issue in O'Neil was virtually identical to paragraph 18(f). "Article 11(a) of the water service contract provides that the government shall not be held liable for `any damage, direct or indirect, arising from a shortage on account of errors in operation, drought, or any other causes.'" Id. at 682. The Ninth Circuit relied on the contract's "or any other causes" language. "`[A]ny other causes' is a catchall phrase that does not `explicitly' include any particular causes.... `[A]ny other causes' broadly and unambiguously contemplates the effects of subsequent Congressional mandates." Id. at 683.

(84) Tulare, 49 Fed. Cl. at 321.

(85) Id. O'Neil still provides a formidable hurdle for those who, like the Klamath petitioners, seek to extend the Tulare decision to federal Bureau of Reclamation projects. See supra note 10 and accompanying text for a discussion of the Klamath case. Most federal water contracts contain limits on liability for shortages of water deliveries intended to protect fish and wildlife. See Reed D. Benson, Whose Water Is It? Private Rights and Public Authority Over Reclamation Project Water, 16 VA. ENVTL. L.J. 363, 399-400 (1997).

(86) Tulare, 49 Fed. Cl. at 321.

(87) Id.

(88) In the Matter of Permit 12720, Decision 1485, 1978 WL 41190, at *1 (Aug. 16, 1978).

(89) Tulare, 49 Fed. Cl. at 322.

(90) The court seemed particularly concerned with the lack of judicial resources, stating that "[w]e have many, many interests to consider when we allocate water and those interests [are] often of opposition. How can one possibly expect the court to gather the evidence necessary to then strike an appropriate balance? That's a process that goes on for months." Transcript of Oral Argument at 36, Tulare (No. 98-101L).

(91) Tulare, 49 Fed. Cl. at 322 (citations omitted) (emphasis added). The court's interpretation of the contract rights as fixed in 1978 allowed it to simply side-step two important facts. First, D-1485 was decided well before the listing of the delta smelt and winter-run chinook salmon, as well as the jeopardy determinations and need for water restrictions at issue in the case. Second, SWRCB later did revise the fixed water right allocations. In 1995, SWRCB issued D-95-1, which adopted the measures found in the Biological Opinions to protect the delta smelt and the salmon. Id. at 322. The court acknowledged the 1995 revision of the plaintiffs' rights, but held that for purposes of this suit, it could not be retroactively applied to the 1992-94 water restrictions at issue. Id.

(92) Id. at 324.

(93) Id.

(94) Phillips v. Wash. Legal Found., 524 U.S. 156, 164 (1998).

(95) Id.

(96) There are actually two ways in which the court might have properly avoided this issue. The first would have been to certify the question to the California Supreme Court. Certification is a process by which federal courts can, while interpreting state law, ask the state's highest court for advice on how it would answer the question. CHARES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE & PROCEDURE: JURISDICTION AND RELATED MATTERS [section] 4248 (1988 & Supp. 2001). An example of certification in the water context is the renowned California public trust case National Audubon Society v. Superior Court of Alpine County, 658 P.2d 709 (Cal. 1983). The National Audubon Society decision was issued in response to both a certified question to the California Supreme Court and the plaintiffs' action for declaratory relief in the case filed following the federal court certification request. Id. at 712. The Federal Court of Claims considered certification in at least two instances (both unpublished opinions). In one case, the court actually certified a question on an issue involving state water law. Smith v. Johnson Propeller Co., Case No. 93-CV-75463, 1996 WL 202674 (Cl. Ct. 1996) (Smith, J., dissenting) (advocating certification to the Michigan Supreme Court); A-B Cattle v. United States, 219 Cl. Ct. 624 (1979) (certifying a question of Colorado water law to Colorado Supreme Court).

The second way that the court could have appropriately avoided the question would have been to ask the administrative agency for guidance. California water code allows federal courts to seek administrative assistance in making complex water law determinations regarding the allocation of water. CAL. WATER CODE [section] 2075-76 (West 2002) ("In case suit is brought in a federal court for determination of rights to water within, or partially within, this State, the board may accept a reference of such suit as master or referee for the court.").

(97) Tulare, 49 Fed. Cl., 313, 322 (Fed. Cl. 2001).

(98) Id.

(99) See CAL. WATER CODE [section] 102 (West 2002) ("All water within the state is the property of the people of the State, but the right to use water may be acquired by appropriation in a manner provided by law.").

(100) Eddy v. Simpson, 3 Cal. 249, 252-53 (1853); see also Pope v. Kinman, 54 Cal. 3 (1879); E. Clemens Horst Co. v. New Blue Point Mining Co., 171 P. 417 (Cal. 1918); Rancho Santa Margarita v. Vail, 81 P.2d 533 (Cal. 1938); Spring Valley Water Co. v. County of Alameda, 263 P. 318 (Cal. Ct. App. 1927); Walston, supra note 20, at 88.

(101) See CAL. WATER CODE [section] 1240 (West 2000) ("The appropriation must be for some useful or beneficial purpose, and when the appropriator or his successor in interest ceases to use it for such a purpose the right ceases."); see also 23 CAL. CODE REGS. [subsection] 660-74 (West 2000) (an enumeration of recognized beneficial uses in California, which include irrigation, domestic use, power, and fish and wildlife protection).

(102) United States v. State Water Res. Control Bd., 227 Cal. Rptr. 161, 170 (Cal. Ct. App. 1986) (noting that "[u]nlike real property rights, usufructuary water rights are limited and uncertain. The available supply is largely determined by natural forces.").

(103) Although the riparian and prior appropriation doctrines dominate, California also recognizes pueblo rights and prescriptive rights. William R. Attwater & James Markle, Overview of California Water Rights and Water Quality Law, 19 PAC. L.J. 957, 960 (1988), Pueblo rights are founded in Spanish law and recognize a right of pueblos to use adjacent water sources that run through the pueblo from their source to the sea. Id. at 969. Prescriptive rights allow water to be redistributed through adverse possession. Id. Specifically, this allows junior water right holders to immunize themselves against senior users by open and notorious use of rights held by the senior water right holder. Id. For this reason, some have argued that a more accurate description of California's water allocation scheme is not dual, but pluralistic. Id.

(104) Oklahoma and Nebraska are the only other states that have dual appropriation systems.

(105) California adopted the riparian doctrine when it achieved statehood and legislatively adopted English common law in 1850. United States v. State Water Res. Control Bd., 227 Cal. Rptr. at 168 (citation omitted).

(106) Id.

(107) Id. (citing Prowther v. Hoberg, 150 P.2d 405, 415-416 (Cal. 1944)).

(108) Charles F. Wilkinson, WESTERN WATER LAW IN TRANSITION, 56 U. COLO. L. REV. 317, 317 (1985) (citations omitted).

(109) United States v. State Water Res. Control Bd., 227 Cal. Rptr. at 168 (citing People v. Shirokow, 605 P.2d 859 (Cal. 1980)).

(110) Id. (citations omitted).

(111) Id. (citations omitted).

(112) Id. (citation omitted).

(113) Id. (citations omitted).

(114) Id. (citations omitted).

(115) Lux v. Haggin, 10 P. 674, 716-17 (Cal. 1886). Lux successfully enjoined the Kern River and Canal Company from diverting water from the Kern River upstream from his riparian lands. The court rejected the defendants' argument that public policy considerations required the court to allow appropriators to supercede riparian rights where necessary to further water development, pointing out that riparian rights could always be extinguished by means of eminent domain. Id. at 703-04. Lux v. Haggin was actually the first judicial application of the riparian doctrine in California. The decision set forth a number of doctrinal limitations, summarized and updated by Attwater & Markle, supra note 103, at 970, as follows:

(a) The parcel of land enjoying a riparian right must at some point be contiguous to the source stream in which the right is claimed;

(b) water may be used only upon that portion of the riparian parcel which is within the watershed of the source stream;

(c) unless the right is reserved, a parcel severed from contiguity by conveyance loses the riparian right and it cannot thereafter be reestablished;

(d) the right does not extend to seasonal storage of water, that is, the collecting of water in a reservoir during times of surplus for use during times of deficiency;

(e) the right is part and parcel of riparian land and cannot be transferred for use on other lands.

Next is a list of attributes of the riparian right:

(a) Riparian rights are "paramount." This means that riparian rights as a class must be satisfied before appropriators take water;

(b) the right does not depend upon beneficial use of water for its existence, and it is not lost by nonuse of water;

(c) unless adjudicated, the right is not quantified. Instead, it extends to that amount of water that can be reasonably and beneficially used on the riparian parcel;

(d) riparian rights are correlative. This means that at times when the supply in the source is insufficient to satisfy all reasonable and beneficial uses on riparian lands, the riparian proprietors share the shortage.

Id. at 970-71.

(116) 252 P. 607 (Cal. 1926).

(117) Id. at 609.

(118) Id.

(119) Id. at 617.

(120) Attwater & Markle, supra note 103, at 979.

(121) CAL. CONST. art. X, [section] 2.
 It is hereby declared that because of the conditions prevailing in this
 State the general welfare requires that the water resources of the State be
 put to beneficial use to the fullest extent of which they are capable, and
 that the waste or unreasonable use or unreasonable method of use of water
 be prevented, and that the conservation of such waters is to be exercised
 with a view to the reasonable and beneficial use thereof in the interest of
 the people and for the public welfare. The right to water or to the use or
 flow of water in or from any natural stream or water course in this State
 is and shall be limited to such water as shall be reasonably required for
 the beneficial use to be served, and such right does not and shall not
 extend to the waste or unreasonable use or unreasonable method of use or
 unreasonable method of diversion of water. Riparian rights in a stream or
 water course attach to, but to no more than so much of the flow thereof as
 may be required or used consistently with this section, for the purposes
 for which such lands are, or may be made adaptable, in view of such
 reasonable and beneficial uses; provided, however, that nothing herein
 contained shall be construed as depriving any riparian owner of the
 reasonable use of water of the stream to which the owner's land is riparian
 under reasonable methods of diversion and use, or as depriving any
 appropriator of water to which the appropriator is lawfully entitled. This
 section shall be self-executing, and the Legislature may also enact laws in
 the furtherance of the policy in this section contained.


Id.

(122) United States v. State Water Res. Control Bd., 227 Cal. Rptr. 161, 171 (Cal. Ct. App. 1986).

(123) Harrison C. Dunning, Article X Section 2: From Maximum Water Development to Instream Flow Protection, 17 HASTING CONST. L.Q. 275, 276 (1989). The California Supreme Court has observed the four main declarations of the amendment as the following: 1) the right to the use of water is limited to such water as shall be reasonably required for the beneficial use to be served, 2) such right does not extend to the waste of water, (3) such right does not extend to unreasonable use or unreasonable method of use or unreasonable method of diversion of water, and (4) riparian rights attach only to the flow required or used consistently with the reasonable use requirement. Peabody v. City of Vallejo, 40 P.2d 486, 491 (Cal. 1935).

(124) Dunning, supra note 123, at 275-76 (quoting D. WORSTER, RIVERS OF EMPIRE: WATER, ARIDITY, AND THE GROWTH OF THE AMERICAN WEST 155 (1985)).

(125) Id. at 276.

(126) See, e.g., Chow v. City of Santa Barbara, 22 P.2d 5, 16 (Cal. 1926) (economic use of California's waters is of utmost importance to the state's development and well being); Joslin v. Matin Mun. Water Dist., 429 P.2d 889, 891 (Cal. 1967) (the mere fact that a use may be beneficial to a riparian land is not sufficient if the use is not also reasonable); Waters of Long Valley Creek Stream Sys. v. Ramelli, 599 P.2d 656, 661 (Cal. 1979) (riparian water right that does not promote reasonable and beneficial use is not vested); Dunning, supra note 139, at 276; Gregory S. Weber, The Role of Environmental Law in California Water Law Allocation and Use System: An Overview, 25 PAC. L.J. 907, 919 (1994) (increased power of the public over water allocations has halted further development of water supplies in the last twenty-five years).

(127) See Gray, supra note 20, at 249, 253 (discussing the development of California water law).

(128) Weber, supra note 126, at 910.

(129) 227 Cal. Rptr. at 161 (Cal. Ct. App. 1986); see also Ronald B. Robie, The Delta Decisions: The Quiet Revolution in California Water Rights, 19 PAC. L.J. 1111, 1111-13 (1988) (discussing the Delta Decisions).

(130) United States v. State Water Res. Control Bd., 227 Cal. Rptr. at 161, 165. These cases reflected changes to California water policy in 1967, when the state legislature created SWRCB by combining the roles of water rights adjudication and water quality protection. SWRCB resulted in the merging of two independent boards, the State Water Rights Board and the State Water Quality Control Board. See Robie, supra note 129, at 1111-13 (discussing the importance of the Delta Decisions to California law).

(131) United States v. State Water Res. Control Bd., 227 Cal. Rptr. at 187.

(132) Id.

(133) The fact that California administratively combined its water allocation and water quality duties and then used its authority to reallocate water to protect instream uses itself reflects the new era of reallocation. See Robie, supra note 129, at 1111.-13 (outlining the history of SWRCB as well as the Delta Decisions); see generally Weber, supra note 126 (discussing environmental law and California water allocation).

(134) See Martha Guy, Comment, The Public Trust Doctrine and California Water Law: National Audubon Society v. Department of Water and Power, 33 HASTINGS L.J. 653, 658-61 (1982) (providing a detailed account of the development of the public trust doctrine in California); see also CAL. WATER CODE [section] 102 (West 1971) ("All water within the State is the property of the people of the State, but the right to the use of water may be acquired by appropriation in the manner provided by law.").

(135) Ill. Cent. R.R.v. Illinois, 146 U.S. 387, 453 (1982). Illinois Central R.R. grounded the public trust doctrine in American jurisprudence, holding that the state of Illinois did not have the power to convey tidal lands to private ownership in a manner that impaired public trust rights. Id.

(136) See Nat'l Audubon Society v. Superior Court of Alpine City, 658 P.2d 709, 719 (Cal. 1983) ("The objective of the public trust has evolved in tandem with the changing public perception of the values and uses of waterways.').

(137) See Thomas, supra note 33, at 37.

(138) Nat'l Audubon, 658 P.2d at 712 (citing Marks v. Whitney, 491 P.2d 374 (Cal. 1971)).

(139) 658 P.2d 709 (Cal. 1983).

(140) Id. at 711; see also Michael C. Blumm & Thea Schwartz, Mono Lake and the Evolving Public Trust in Western Water, 37 ARIZ. L. REV. 701 (1995) (analyzing the National Audubon decision and its important contribution to public property law).

(141) Nat'l Audubon, 658 P.2d at 712, 719. Because Mono Lake is entirely dependent on its tributaries for its water supply, the diversions drastically altered the lake level, and the surface area of the lake diminished by one-third. Id. at 711. This reduction exposed the California gull rookery to predators, increased the salinity of the lake, and impacted both the scenic beauty of the lake and its ecological value. Id.

(142) Id. at 719-20; see also United States v. State Water Res. Control Bd., 227 Cal. Rptr. 161, 201 (Cal. Ct. App. 1986) (no vested water right in manner which harms public trust).

(143) National Audubon, 658 P.2d at 719 (quoting Marks, 491 P.2d at 374).

(144) Id. at 728 ("[T]he state is not confined to past allocation decisions which may be incorrect in light of current knowledge or inconsistent with current needs.").

(145) Id. at 729; see also Walston, supra note 20, at 63 (arguing that the public trust doctrine requires the state to make a choice between trust trees, such as navigation or fishery protection, and other uses, such as commerce, but does not dictate what the outcome should he).

(146) Nat'l Audubon, 658 P.2d at 723.

(147) See id. at 721 ("[P]arties acquiring rights in trust property generally hold those rights subject to the public trust, and can assert no vested right to use those rights in a manner harmful to the trust.").

(148) Gray, supra note 20, at 266.

(149) Id. at 323-24. At oral argument, in response to government counsel's argument that the court was required to engage in such determinations, Judge Weis stated:
 You know, Mr. Bookshire, I'm sure you're right that the California courts
 play a role in the process of establishing water allocations and resolving
 other issues with respect to defining the competing interests that are
 subsumed under the notion of public trust; but, I find the idea of a court
 being the primary decider or co-equal in this process as too large a
 proposition to believe.


Transcript of Oral Argument at 26, Tulare (No. 98-101L).

(150) Because both public trust and reasonable use requirements change over time, the Tulare court also erred in failing to address inherent public trust concerns. See Nat'l Audubon Soc'y, 658 P.2d at 732 (finding concurrent jurisdiction to make public trust determinations while allowing the court to refer complex issues to the state administrative board).

(151) 605 P.2d 1 (Cal. 1980).

(152) Id. at 4-5.

(153) Id. at 10.

(154) Id.

(155) Id.

(156) People ex rel. State Water Res. Control Bd. v. Forni, 126 Cal. Rptr. 851, 871 (Cal. Ct. App. 1976).

(157) Id.

(158) Id. at 854; see also Imperial Irrigation Dist. v. State Water Res. Control Bd., 231 Cal. Rptr. 283, 289 (Cal. Ct. App. 1987) (holding that SWRCB was not required by the California Water Code to refer reasonable use question to the California Attorney General for legal proceedings in Superior Court). The concept of concurrent jurisdiction is equally applicable to issues involving the public trust doctrine, though the judiciary is not considered the ultimate authority as with reasonable use determinations. Nat'l Audubon Soc'y v. Superior Court of Alpine County, 658 P.2d 709, 713 (Cal. 1983).

(159) Forni, 126 Cal. Rptr. at 857.

(160) See Envtl. Defense Fund v. East Bay Mun. Util. Dist., 605 P.2d 1, 6 (Cal. 1980) (reasoning that what constitutes reasonable water use changes over time); United States v. State Water Res. Control Bd., 227 Cal. Rptr. 161, 187 (Cal. Ct. App. 1986) (holding that all water rights are subject to continuing authority to prevent unreasonable use); Forni, 126 Cal. Rptr. at 855 (finding that what is reasonable use of water depends on the specific situation).

(161) See infra Part, III.B and accompanying text.

(162) 227 Cal. Rptr. at 202; see supra notes 129-133 and accompanying text for more details on this case.

(163) Id. at 178-80. SWRCB improperly limited its water quality goals to those that could be achieved by modifying the CVP and SWP water permits without also addressing preproject water withdrawals. Id. at 180.

(164) In re D-95-1, 1995 WL 418666 (California State Water Resources Board 1995).

(165) Id.

(166) Id. at 271.

(167) Tulare, 49 Fed. Cl. 313, 322 (2001).

(168) Id. at 321.

(169) Id. at 320-21.

(170) The language reads as follows:
 The Board's authority to review and amend these permits is derived from
 Section 1394 of the California Water Code, jurisdiction expressly reserved
 in subject permits, Water Code Section 100, and the continuing authority of
 the Board, as stated in the terms of their permits, to prevent waste,
 unreasonable use, unreasonable method of use, or unreasonable method of
 diversion of water and Section 763.5 of Title 23 of the California
 Administrative Code.


In the Matter of Permit 12720, Decision 1485, 1978 W.L 41190, at *1 (body that ruled 1978).

(171) SWRCB further clarified the relationship between water contractors and water rights holders in an administrative decision regarding the flow objectives for the Delta/Bay estuary, stating that
 [a] water supply contract does not give the water supply contractor a legal
 interest in the water independent of the rights of the water right holder.
 Indeed, unlike persons who appropriate return flows from imported water,
 water supply contractors do not themselves hold any water rights. Water
 supply contractors have a right to use water only by virtue of their
 contracts with their water suppliers ...

 The contract does not create a right to divert or use water, except in
 accordance with the rights of the water right holder, and does not define
 or alter those water rights.


Defendants' Supplemental Brief at 4-5, In the Matter of Permit 12720 (citing Def.'s Ex. 01186-01187) (on file with the author). The government used this administrative decision in supplemental briefing as further evidence that the Omaia rule barred any constitutional take theory based on the contractual nature of the plaintiffs' interests. Id. at 5.

(172) See United States v. State Water Res. Control Bd., 227 Cal. Rptr. 161, 171 (Cal. Ct. App. 1986) ("no water rights are inviolable; all water rights are subject to governmental regulation").

(173) U.S. CONST. amend. V ("nor shall private property be taken for public use, without just compensation").

(174) Nolan v. California Coastal Comm'n, 483 U.S. 825, 866 (1987) (Stevens, J., dissenting).

(175) Armstrong v. United States, 364 U.S. 40, 49 (1960).

(176) Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1057 (1992) (Blackmun, J., dissenting) (citing M. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 63-64 (1977)).

(177) HORWITZ, supra note 176, at 65 (quoting Commonwealth v. Fisher, 1 Pen. & W. 462, 465 (Pa. 1830); see also State v. Dawson, 22 S.C.L. (3 Hill) 100, 103 (1836).

(178) HORWITZ, supra note 176, at 65 (citation omitted).

(179) Skip Kirchdorfer, Inc. v. United States, 6 F.3d 1573, 1579 (Fed. Cir. 1993) (quoting James Madison, Speech Proposing Bill of Rights (June 8, 1789)).

(180) U.S. CONST. amend. V.

(181) Lucas, 505 U.S. at 1056 (Blackmun, J., dissenting) (citing William Michael Treanor, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 YALE L.J. 694, 711 (1985). In his Lucas dissent, Blackmun made precisely this argument, citing Professor Joseph Sax's observation that although "contemporaneous commentary upon the meaning of the compensation clause is in very short supply," the few authorities that are available indicate that the clause was "designed to prevent arbitrary government action," not to protect economic value. Id. (quoting Joseph L. Sax, Eminent Domain, 74 YALE L.J. 36, 58-60 (1964)). For example, according to William Michael Treanor:
 [T]he federal Takings Clause and its predecessor clauses, as they were
 originally understood, divided governmental actions affecting property into
 two groups. When the government physically took property, it owed
 compensation. Any other governmental action, no matter how severely it
 affected the value of property, did not give rise to a compensation
 requirement. This requirement applied to physical takings because the
 framers believed that majoritarian decisionmaking processes would not give
 fair consideration to the individuals interest in not having her property
 physically seized by the government.


William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUMBIA L. REV. 782, 859-60 (1995).

(182) Skip Kirchdorfer, 6 F.3d at 1579.

(183) 260 U.S. 393 (1922).

(184) Id. at 412-13

(185) Id.

(186) Lucas, 505 U.S. 1003, 1014 (1992) (citations omitted); see also Pumpelly v. Green Bay Co., 80 U.S. (13 Wall) 166 (1871) (permanent physical invasion caused by flooding of property a taking requiring compensation).

(187) Mahon, 260 U.S. at 415.

(188) See supra Part II.B.1.

(189) The Supreme Court's most recent takings case decided earlier this spring, Tahoe-Sierra Preservation Council, Inc., v. Tahoe Regional Planning Agency, provided, in dicta, some further elucidation of the distinction between physical and regulatory takings. 2002 WL 654431, at *10 (U.S. 2002). The Court began by noting the textual basis for the distinction:
 The text of the Fifth Amendment itself provides a basis for drawing a
 distinction between physical takings and regulatory takings. Its plain
 language requires the payment of compensation whenever the government
 acquires private property for a public purpose, whether the acquisition is
 the result of a condemnation proceeding or a physical appropriation. But
 the Constitution contains no comparable reference to regulations that
 prohibit a property owner from making certain uses of her private property.
 Our jurisprudence involving condemnations and physical takings is as old as
 the Republic and, for the most part, involves the straightforward
 application of per se rules. Our regulatory takings jurisprudence, in
 contrast, is of more recent vintage and is characterized by "essentially ad
 hoc, factual inquiries."


Id. (quoting Penn Central Transp. Co. v. N.Y. City, 438 U.S. 104, 124 (1978)) (footnote omitted). The Court went on, detailing recent cases and noting the importance of preserving the distinction:
 This longstanding distinction between acquisitions of property for public
 use, on the one hand, and regulations prohibiting private uses, on the
 other, makes it inappropriate to treat cases involving physical takings as
 controlling precedents for the evaluation of a claim that there has been a
 (`regulatory taking,') and vice versa. For the same reason that we do not
 ask whether a physical appropriation advances a substantial government
 interest or whether it deprives the owner of all economically valuable use,
 we do not apply our precedent from the physical takings context to
 regulatory takings claims. Land-use regulations are ubiquitous and most of
 them impact property values in some tangential way--often in completely
 unanticipated ways. Treating them all as per se takings would transform
 government regulation into a luxury few governments could afford.


Id. at *11(footnote omitted).

For the purposes of Tulare, Tahoe-Sierra is simply a further affirmation of the carefully crafted distinction between physical and regulatory takings. Because it was issued more than a year after the Tulare decision, and because the Tahoe-Sierra merely provides further explanation of already existing law that the Tulare court could have and should have properly applied to make a regulatory takings analysis, this Article does not provide further application of the Tahoe-Sierra analysis for the facts of Tulare.

(190) Lorreto v. Telepropter Manhattan CATV Corp., 458 U.S. 419, 426 (1982); Yee v. City of Escondido, 503 U.S. 519 (1992).

(191) Lorreto, 458 U.S. at 426.

(192) Id. at 421.

(193) Id. at 441.

(194) Id.

(195) Id. at 435 n. 12.

(196) Id. at 428, 435 n.12; see also Pumpelly v. Green Bay Co., 80 U.S. 166 (1872) (discussing overflow from a dam); United States v. Lynah, 188 U.S. 445, 468-70 (1903) (requirement for compensation not defeated in government navigation project); Bedford v. United States, 192 U.S. 217, 225 (1904) (injury resulting from overflow not a direct consequence of government action); United States v. Cress, 243 U.S. 316, 327-28 (1917) (compensation awarded for a taking resulting from lock and dam construction); Sanguinetti v. United States, 264 U.S. 146, 149 (1924) (to be a taking, flooding must "constitute an actual, permanent invasion of the land amounting to an appropriation of and not merely an injury to, the property"); United States v. Kansas City Life Ins. Co., 339 U.S. 799, 809-10 (1950) (a taking when the government raises and maintains a navigable stream at its high water mark).

(197) Loretto, 458 U.S. at 435 n. 12. The extent to which this limitation on the physical takings per se rule has lasting viability remains to be seen. In the Federal Circuit, for example, there is an increasing tendency to see temporary physical occupation as a taking. See Skip Kirchdorfer, Inc., 6 F.3d 1573, 1583 (Fed. Cir. 1993) (one year invasion of a storage warehouse a physical taking); Hendler v. United States, 952 F.2d 1364, 1376 (Fed. Cir. 1991) (holding "there is nothing `temporary' about the wells the government installed on plaintiffs' property" when years had passed since the Government installed the first wells).

(198) Mahon, 260 U.S. 393, 415 (1922).

(199) Id. at 415-16.

(200) In addition, there is a special test for land use decisions where approval of development is contingent on the dedication of property to public use. Dolan v. Tigard, 512 U.S. 374, 386 (1994) (court must first determine whether an "essential nexus" exists between the legitimate state interest asserted and the permit condition exacted and, if so, whether the required degree of connection exists between the exactions and the projected impact of the proposed development).

(201) 505 U.S. 1003 (1992).

(202) Petitioner Lucas owned two residential lots along the ecologically sensitive South Carolina coast. Id. at 1006-07. The trial court found that the South Carolina Beachfront Management Act (SCBMA), S.C. CODE ANN. [subsection] 48-39-250-290 (Supp. 1990) deprived Lucas of any reasonable economic use of his property. Id. at 1009. A number of developments after trial, however, most notably the creation of a special permit process allowing certain exemptions under the SCBMA, reopened the question. For this reason, several members of the Court viewed the majority's holding premature. Id. at 1046 (Blackmun, J., dissenting); id. at 1061 (Stevens, J., dissenting); id. at 1076 (statement of Souter, J.); id. at 1032 (Kennedy, J., concurring).

(203) Id. at 1017-18.

(204) Id. at 1017. While the Court made clear that the rule would apply only under the "extraordinary circumstances when no productive or economically beneficial use of land is permitted," the key question then becomes how the Court defines the parcel of land at issue. Michael C. Blumm, The End of Environmental Law? Libertarian Property, Natural Law, and the Just Compensation Clause in the Federal Circuit, 25 ENVTL. L. 171, 177 (1995).

(205) Lucas, 505 U.S. at 1029.

(206)Id.

(207) 438 U.S. 104 (1978).

(208) Id. at 124.

(209) See, e.g., Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 225 (1986); Penn Central, 438 U.S. at 122-25; Palazzolo v. Rhode Island, 533 U.S. 606 (2001); Bowen v. Gilliard, 483 U.S. 587 (1987); PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 82-83 (1980).

(210) Palazzolo, 533 U.S. at 634 (O'Connor, J., concurring).

(211) Ruckelhaus v. Monsanto, 467 U.S. 986, 1005-06 (1984) (citation omitted).

(212) See Palazzolo, 533 U.S. at 634 (O'Connor, J., concurring); Good v. United States, 39 Fed. Cl. 81, 109 (1997) (no taking where the pervasiveness of federal and state regulatory regimes limiting development of coastal wetlands at the time developer purchased and developed the property deprived the owner of reasonable investment backed expectations of his development plan).

(213) Forest Props., Inc. v. United States, 177 F.3d 1360 (Fed. Cir. 1997) (citing Yee v. City of Escondido, 503 U.S. 519, 527 (1992)); Preseault v. United States, 100 F.3d 1525, 1551 (Fed. Cir. 1996) (en banc) (quotations omitted).

(214) Yee, 503 U.S. at 527. In Yee, the plaintiffs argued that a rent control ordinance restricting mobile home park owners from raising park fees constituted a physical taking. They contended that the rent control effectively transferred an interest in land, i.e., the right to occupy, to a third party--the mobile home owner--and that this was not less than a physical occupation of the park owner's land. Id. The Court rejected this view, holding that "[t]his element of required acquiescence is at the heart of the concept of occupation." Id. (quoting FCC v. Fla. Power Corp., 480 U.S. 245, 252 (1987)). Because the plaintiffs voluntarily rented their land and retained their ability to change the use of their land, there was no authorized physical occupation and no taking. Id.

(215) Id.

(216) First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S. 304, 308 (1987) (Stevens, J., dissenting). According to Stevens,
 [r]egulations are three dimensional; they have depth, width, and length. As
 for depth, regulations define the extent to which the owner may not use the
 property in question. With respect to width, regulations define the amount
 of property encompassed by the restrictions. Finally, ... regulations set
 forth the duration of the restrictions.


Id.

(217) There remains a fundamental question regarding whether the biological opinions actually restricted the plaintiffs' property or merely outlined the steps necessary for benefiting from the terms and conditions associated with the incidental take permit.

(218) See supra notes 41-49 and accompanying text.

(219) See supra notes 68-71 and accompanying text.

(220) See supra notes 72-75 and accompanying text.

(221) See supra notes 64-67 and accompanying text.

(222) Tulare, 49 Fed. Cl. at 320.

(223) See supra notes 198-203 and accompanying text.

(224) Mahon, 260 U.S. 393, 413 (1922).

(225) Id.

(226) Id. at 414-15.

(227) Id. at 414.

(228) See supra note 200-204 and accompanying text.

(229) Federal Water Pollution Control Act, 33 U.S.C. [subsection] 1251-1387 (2000).

(230) See Forest Props., Inc. v. United States, 177 F.3d 1360 (Fed. Cir. 1999) (in which the Corps of Engineers denied a permit to fill lake-bottom property for residential development); Loveladies Harbor, Inc., v. United States, 28 F.3d 1171 (Fed. Cir. 1994) (Corps of Engineers denied permit to fill and develop 12.5 acres to build 135 homes); Florida Rock Indus., Inc. v. United States, 18 F.3d 1560 (Fed. Cir. 1994) (Corps of Engineers denied permit to mine limestone under 98 acres of wetlands); Good v. United States, 39 Fed. Cl. 81 (1997) (Corps of Engineers denied permit to build 16 homes in wetlands, as well as a tennis court and a boat canal), aff'd, 189 F.3d 1355 (Fed. Cir. 1999).

(231) See, e.g., Forest Props., 177 F.3d at 1364 (discussing physical versus regulatory takings language and finding claim based on the denial of the permit to fill wetland to be a "classic regulatory taking claim").

(232) See supra notes 52-54 and accompanying text.

(233) The lack of actual economic injury makes this case quite similar to the Supreme Court's decision in Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987). Keystone Bituminous Coal came several decades after Mahon and was another Pennsylvania coal case involving a no-subsidence provision similar to that in Mahon. The plaintiffs argued that the reasoning in Mahon should apply to create a taking per se. Id. at 474, 481. The Supreme Court disagreed. Noting that the plaintiffs were actually being deprived of only a fraction of the coal available (the law required them to leave 27 millions tons of coal in place, which accounted for approximately two percent of the total), the court held that the regulation was not facially invalid merely because it required some coal to be left in the ground. Id. at 496-99.

(234) The "damages" phase of the Tulare case is scheduled for mid-July 2002. It will be interesting to see how the plaintiffs attempt to calculate their per se taking damages when they have up to this point failed to demonstrate any damages in fact.

(235) See supra notes 52-54 and accompanying text.

(236) Tulare, 49 Fed. Cl. 313, 319 (2001).

(237) Id.

(238) See Blumm, supra note 204 (discussing the relevant Federal Circuit decisions).

(239) Lucas, 505 U.S. 1003, 1016 n.7. (1992).

(240) Keystone Bituminous Coal, 480 U.S. 470, 497 (1987)(quoting Penn Central, 438 U.S. 104, 131 (1978)).

MELINDA HARM BENSON *

* Natural Resources Law Institute Fellow, Lewis & Clark Law School, 2001-02; J.D., University of Idaho, 1998. The author thanks Reed Benson, Fred Disheroon, Dale Goble, Brian Gray, Dana Jacobson, Duane Mecham, Zyg Plater, Gregory Thonms, and Janet Neuman, Michael Blumm, and the rest of the natural resources faculty at Lewis & Clark Law School for their advice and contributions to this Article. Special thanks to Janice Weis and the Natural Resources Law Institute for supporting this work.
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