On Friday, April 20, 2018, the U.S. Court of Appeals for the Federal Circuit issued an important ruling in the case of St. Bernard Parish v. United States, reversing a judgment of the U.S. Court of Federal Claims that threatened to impose hundreds of millions of dollars of liability on U.S. taxpayers based on flood losses allegedly attributable to the construction and management of the Mississippi River-Gulf Outlet (MRGO) navigation channel. The decision represents a potential landmark precedent limiting the extent to which the government can be held financially responsible for flood damages, an already serious challenge for private landowners that will only get more serious with advancing climate change. Read the rest of this entry »
The U.S. Court of Federal Claims in Washington D.C. recently issued a remarkable opinion in a case captioned Sacramento Grazing Association, Inc. v. United States. The court ruled that a cattle ranching corporation using U.S. Forest Service lands in New Mexico is entitled to a financial payment from the taxpayers because the agency’s efforts to control the damage the corporation’s cattle were doing to the public lands “took” private property rights in water in violation of the U.S. Constitution.
The remarkable nature of the opinion, authored by Chief Judge Susan Braden, begins with the first paragraph, which reads: “On January 2, 2016, several dozen ranchers, who unsuccessfully attempted to find common ground with environmental groups and officials from Oregon’s Malheur National Wildlife Refuge for over a decade, decided to take up arms to protest federal policy and regulations to prioritize migrating bird water habitat, by limiting the number of cattle that historically grazed and used water in that area–decades before it was subject to federal control. In contrast, the Sacramento Grazing Association, Inc. (“SGA”) filed a complaint in the United States Court of Federal Claims for an adjudication of its right to beneficial use of stock water sources within the Sacramento Allotment of the Lincoln National Forest, New Mexico.” Read the rest of this entry »
On August 27, as Hurricane Harvey blew through the Houston area, the U.S. Army Corps of Engineers found itself between the proverbial rock and hard place. Since the 1940s, it had operated a flood control project to control the risk of flood damage to downtown Houston and the Houston Ship Channel. It had accomplished this by carefully controlling the release of flood waters from the project’s dams. Now, however, the Corps confronted Hurricane Harvey, a megastorm generating massive, unprecedented volumes of flood water.
The Corps faced the choice of either limiting water releases from the project to protect downstream properties at the cost of flooding upstream properties, or increasing project releases to protect upstream properties at the cost of flooding downstream properties. Not surprisingly, the Corps’ decision on August 27 and on the following days, to release up to 13,000 cubic feet per second from the project dams, which arguably contributed to the flooding of both downstream and upstream properties, left everyone unhappy. Read the rest of this entry »
On June 17, 2016, the Texas Supreme Court issued a decision in Harris County Flood Control District v. Kerr, available here, http://www.txcourts.gov/supreme/orders-opinions/2016/june/june-17,-2016.aspx, which should be of great interest to all those who follow major developments in takings doctrine.
The Texas Supreme Court, by a vote of 5-4, rejected a takings claim based on the theory that Harris County should be held liable for property damage allegedly caused by the county’s prior approval of upstream development without adequate flood mitigation. The headline is that the Court’s recent decision supersedes the Court’s prior decision in this case, issued on June 12, 2015, http://www.txcourts.gov/media/996484/130303.pdf, supporting, again by a 5 to 4 vote, the plaintiffs’ takings theory. The change in outcome was explained by Justice Eva Guzman’s decision, in response to an application for rehearing, to switch her vote. Read the rest of this entry »
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 …