ESA Reductions in Reclamation Water Contract Deliveries: A Fifth Amendment Taking of Property?

By Grant, Douglas L. | Environmental Law, Fall 2006 | Go to article overview

ESA Reductions in Reclamation Water Contract Deliveries: A Fifth Amendment Taking of Property?


Grant, Douglas L., Environmental Law


Two United States Court of Federal Claims cases have given different answers to the question posed in the title of this article. One case found a per se physical taking of water users' property; the other ruled water users lacked property rights protected by the Fifth Amendment. Commentators have widely criticized the Finding of a per se physical taking.

This Article undertakes a more searching analysis of the takings question than appears in the two eases and the commentary. By untangling federalism complexities in reclamation law and focusing on longstanding state law regarding water distribution organizations, the article shows that water users supplied under Bureau of Reclamation (Bureau) contracts often will have Fifth Amendment property rights. The Article then shows why Bureau water delivery reductions made to comply with the ESA come within a gap in Supreme Court takings jurisprudence and suggests there is at least some chance the Court would treat delivery reductions as per se physical takings. Finally, the Article explains why it is unclear in many states whether nuisance law or the public trust doctrine constitute preexisting title limitations that would avoid any takings problem, and it suggests a litigation strategy for states concerned about the evolution of their nuisance or public trust law in this regard

I.  INTRODUCTION
II. BUREAU WATER CONTRACTS AND PROPERTY RIGHTS
    A. Pre-Reclamation Act Western Water Law
       1. The Appurtenance Rule
       2. The Relationship Between a Water Supply Entity and the
          Irrigators Supplied.
    B. Reclamation Act Section 8
       1 Text and Legislative History
       2. Section 8 in the Supreme Court
          a. Vested Rights Acquired Under State Law
          b. State Water Law and Federal Preemption
          c. Reallocation of Bureau-Controlled Water
          d. Types of Bureau Water Contracts
             i. Water Service Contracts
             ii. Municipal Water Contracts
    C. The Klamath Case
       1. Judge Allegra's Opinion
       2. What Judge Allegra Overlooked
          a. The Factual and Legal Context of the 1905 Oregon
             Statute
          b. Other Oregon Water Law
    D. Summary
III. TAKINGS LAW AND WATER RIGHTS
     A. The Structure of Takings Law
     B. Where Bureau Water Delivery Reductions Fit in the Takings
        Structure
        1. The Tulare Opinion and Its Critics
        2. Usufructuary Rights
        3. Temporary Versus Permanent Physical invasion
           a. The Loretto Takings Categories
           b. Loretto in the Lower Federal Courts
           c. A Closer Look at Loretto
        4. Lucas and Other Supreme Court Land Use Cases
IV. PREEXISTING TITLE LIMITATIONS
    A. Shortage Clauses in Bureau Contracts
    B. State Nuisance and Property Law
       1. Existing Nuisance Case Law
       2. Existing Property Case Law (The Public Trust Doctrine)
       3. Evolution of Nuisance and Public Trust Law
V. CONCLUSION

I. INTRODUCTION

The Bureau of Reclamation in the United States Department of the Interior (Bureau) operates 476 dams and 348 reservoirs in the seventeen western mainland states. (1) A primary mission of the Bureau is to deliver water from these facilities by contract to municipalities (2) and irrigation districts or similar organizations. (3) The contract water deliveries make up all or part of the supply for thirty-one million urban residents (4) and for farmers irrigating ten million acres. (5)

Many of the Bureau's dams and reservoirs are on streams that are the habitat of fish species listed as threatened or endangered under the Endangered Species Act (ESA). (6) ESA section 7 obligates every federal agency to insure that its actions are "not likely to jeopardize the continued existence of any endangered species or threatened species." (7) To comply with this mandate, the Bureau may have to refrain from storing water in a reservoir for later delivery to contract users and instead let the water flow downstream to provide habitat for protected fish species.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

ESA Reductions in Reclamation Water Contract Deliveries: A Fifth Amendment Taking of Property?
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.