129 Fed. Cl. 722
Fed. Cl.2016Background
- Plaintiffs are Klamath Project water users (irrigation districts, landowners, corporations) who allege the Bureau of Reclamation’s 2001 operations denied them irrigation deliveries and thus effected a taking of their water rights.
- In April 2001 FWS and NMFS issued biological opinions under the ESA requiring withholding/diversion of Klamath Project water to protect endangered suckers and threatened coho; the Bureau revised operations and deliveries were largely halted until July 2001.
- The federal works ( dams, canals) are owned by Reclamation; some distribution/operation is contracted to irrigation districts, and plaintiffs historically received near-full irrigation deliveries under the status quo.
- Plaintiffs sued in the Court of Federal Claims alleging Fifth Amendment takings (and other claims later dismissed or appealed); the Federal Circuit remanded for determination whether plaintiffs possess cognizable property interests and, if so, whether a taking occurred.
- The cross-motions in limine presented here ask the court to decide whether the alleged taking should be analyzed as a physical (per se) taking or as a regulatory taking.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper takings framework (physical v. regulatory) | The government physically seized/diverted or impounded Klamath Project water to meet ESA obligations; treat as a per se physical taking. | The action was a regulatory restriction (compliance with the ESA) limiting plaintiffs’ use; apply regulatory takings/Penn Central balancing. | Physical takings framework applies; defendant's motion denied, plaintiffs' granted. |
| Character of government action (physical diversion vs. regulation) | Reclamation used project works to retain/divert water away from plaintiffs — a physical interference with the status quo. | Government only restricted removal of water (regulatory withholding), not an active diversion for its own use. | Court follows Casitas: focus on character of action and status quo; Reclamation’s withholding/diversion amounted to a physical diversion. |
| Applicability of Casitas precedent | Casitas is factually similar and controls; physical takings analysis governs when government diverts water to preserve species. | Casitas is distinguishable because government there conceded diversion rights or because the facts differ here. | Casitas (Fed. Cir.) is controlling; distinctions urged by defendant rejected. |
| Relevance of other ESA/regulation cases (Boise Cascade, Seiber, Penn Central) | Supreme Court water-rights cases uniformly treated government diversion/impoundment as physical takings. | Federal Circuit cases (Boise Cascade, Seiber) treat ESA-related use restrictions as regulatory takings; Penn Central and other land-use precedents support regulatory analysis. | Those regulatory/regulation cases are distinguishable (third‑party/permit contexts); they do not control where government action itself physically withholds/diverts water. |
Key Cases Cited
- Klamath Irrigation Dist. v. United States, 635 F.3d 505 (Fed. Cir. 2011) (remanded to determine cognizable property interests and takings analysis)
- Casitas Mun. Water Dist. v. United States, 543 F.3d 1276 (Fed. Cir. 2008) (government-caused diversion of project water analyzed as a physical, per se taking)
- Int'l Paper Co. v. United States, 282 U.S. 399 (U.S. 1931) (withdrawal of water in support of government use treated as a taking)
- United States v. Gerlach Live Stock Co., 339 U.S. 725 (U.S. 1950) (impoundment/diversion upstream that deprived downstream users constituted a taking)
- Dugan v. Rank, 372 U.S. 609 (U.S. 1963) (storage/diversion behind dam effected a partial taking of water rights)
- Boise Cascade Corp. v. United States, 296 F.3d 1339 (Fed. Cir. 2002) (denial of logging absent an incidental-take permit characterized as regulatory restriction, not per se physical taking)
- Seiber v. United States, 364 F.3d 1356 (Fed. Cir. 2004) (similar to Boise Cascade; permitting/permit denial under ESA treated as regulatory)
- Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (U.S. 1978) (land-use restrictions analyzed under multi-factor regulatory takings inquiry)
- Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (U.S. 1982) (permanent physical occupations are per se takings)
- Hudson County Water Co. v. McCarter, 209 U.S. 349 (U.S. 1908) (upholding state restriction on interstate diversion of water; concerned scope of riparian rights)