Yesterday, on May 1, 2015, in Saint Bernard Parish Government v. United States, the U.S. Court of Federal Claims found the U.S. government liable in a major takings case arising from property damage in Louisiana caused by Hurricane Katrina and other hurricanes. The lawsuits were brought by St Bernard Parish itself and by numerous property owners in the Lower Ninth Ward of New Orleans and in St Bernard Parish. The takings claims are based on the theory that Army Corps of Engineer’s construction, expansion, operation and failure to maintain the Mississippi River – Gulf Outlet (“MR-GO”) resulted in temporary takings by causing increased flooding of the plaintiffs’ properties during Hurricane Katrina and several lesser hurricanes. Read the rest of this entry »
On July 15, 2014, Judge Allen Sumner of the California Superior Court issued an important ruling in the case of Environmental Law Foundation v. State Water Resources Control Board, concluding that the California public trust doctrine constrains landowners’ rights to pump groundwater in a way that harms public trust uses of navigable waterways. The case arose from a longstanding dispute over the management of the Scott River in Siskiyou County in northern California. According to plaintiffs’ allegations, extensive pumping of hydrologically connected groundwater has depleted flows in the river, harming fisheries and adversely affecting recreational uses of the river. The Environmental Law Foundation and others filed suit seeking a declaratory judgment and an injunction requiring the County to consider the impact of groundwater pumping on public trust uses of the Scott River before issuing any new well permits.
Judge Sumner handed the plaintiffs a big win. He ruled that the public trust doctrine applies to the extraction of groundwater that causes harm to navigable waters harming the public’s right to use those navigable waters for trust purposes. He also ruled that the County has a duty, as a subdivision of the State, to consider how pumping hydrologically connected groundwater will affect public trust uses before issuing well permits. Importantly, in accord with the established understanding of the California public trust doctrine, the ruling does not necessarily bar the County, after taking the public trust into account, from issuing permits that may not promote, and indeed “may unavoidably harm,” public trust uses. But at the least, the County will have a duty, in accord with the National Audubon precedent, “to protect public trust uses whenever feasible.”
An appeal appears likely. Stay tuned.
Further confirmation that property rights in water really are different — and more limited — than property rights in other resources is provided by the June 16 decision of the California Court of Appeals in the case of Light v. State Water Resources Control Board. The court rejected a challenge by property owners in the Russian River basin to a state water board regulation that will restrict surface water diversions to protect endangered salmon. The regulation was adopted in response to disastrous strandings of salmon that occurred in April 2008 when large volumes of water were drained from the river and sprayed on vineyards and orchards to prevent frost damage. The board’s new regulation is designed to protect the salmon by controlling similar future diversions of water. Read on …