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Casitas Mun. Water Dist. v. United States

ELR Citation: 38 ELR 20251
Nos. No. 2007-5153, (Fed. Cir., 09/25/2008) rev'd in part

The Federal Circuit affirmed in part and remanded in part a lower court's grant of summary judgment in favor of the United States in a water district's breach of contract and takings suit against the government in connection with a water supply project in Ventura County, California. In August 1997, almost 40 years after the construction of the project, National Oceanic and Atmospheric Administration-Fisheries listed the West Coast steelhead trout as an endangered species in the project watershed. The district was ordered to construct a fish ladder facility and to divert water from the project to the fish ladder, resulting in a permanent loss to the district of a certain amount of water per year. The district complied with the directive under protest, but then filed suit alleging that these actions constituted a breach of contract and a compensable Fifth Amendment taking of its water. The construction of a fish ladder was a maintenance and operational cost rather than a construction cost under the terms of the contract. The U.S. government, therefore, was not obligated to pay for it. And the government's breach of a portion of the contract guaranteeing perpetual water use rights to the district was a sovereign act and did not give rise to liability. But the government's taking of a portion of the district's exclusive water use right was a physical taking, not a regulatory one. The issue therefore requires new analysis on remand.

[A prior decision in this litigation can be found at 36 ELR 20209.]