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Tulare Lake Basin Water Storage District v. United States

ELR Citation: 31 ELR 20648
Nos. 98-101 L, 49 Fed. Cl. 313/52 ERC 1658/(Fed. Cl., 04/30/2001)

The court holds that California water users' contractually conferred rights to use water in the Tulare Lake Basin were taken from them when the federal government imposed water use restrictions under the Endangered Species Act, and, therefore, the users may seek compensation for their loss. The case arose after time-and-manner limitations were imposed in the basin that caused water that would have otherwise been available to the users to be unavailable.

The court first rejects the government's argument that the contracts' purpose was merely frustrated by lawful government action. Only where the contract right remains separate and distinct from the property that is the subject of the contract does not taking occur. Here, the water users can claim an identifiable interest in a stipulated volume of water. Thus, their contract rights in the water's use are superior to all competing interests. The court next holds that to the extent that the government, by preventing the users from using the water to which they would otherwise have been entitled, has rendered the usufructuary right to that water valueless, they have effected a physical taking. The court then holds that the water users owned the property for which they seek to be compensated. The government argued that the contracts' terms and state-law-imposed limits on the water users' title rendered their loss of water noncompensable. However, the government enjoys no contractual immunity from liability. Likewise, the public trust doctrine, the doctrine of reasonable use, and nuisance law do not limit the users' property rights. The users' right to divert water in the manner specified by their contracts and in conformance with state law continued until a determination to the contrary was made by the California courts or by the state water board, and no such determination was made.

Counsel for Plaintiffs
Roger J. Marzulla
Marzulla & Marzulla
1350 Connecticut Ave. NW, Washington DC 20036
(202) 822-6760

Counsel for Defendant
James S. Brookshire
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000