Thursday, March 7, 2013

The Casitas Throwback?

Last week, the Federal Circuit released another major decision in Casitas Municipal Water District v. United States.  The decision brings an apparent end to a long legal saga.  Broadly speaking, the litigation addressed the complex three-way intersection between the Endangered Species Act, the 5th Amendment of the United States Constitution, and water law.  In this latest round, traditional water law took center stage.  They key question was whether Casitas actually held property rights in the water that was diverted away from its intake canal (the court's answer was no).  Answering that question compelled the Court of Claims and then, on appeal, the Federal Circuit to consider the basic elements of an appropriative right.

I think that makes the case something of a throwback.  Water law casebooks devote many of their pages to explaining the basic parameters of appropriative rights, and years ago, that may well have been a recurring litigation question.  But in my four years as a practicing water lawyer, those kinds of questions hardly ever came up.  My firm’s water cases raised issues under the Endangered Species Act, the Federal Power Act, takings doctrine, and, with particular frequency, the California Environmental Quality Act (among other laws).  And, of course, we spent many hours on civil procedure.  But I hardly ever worked on cases involving the nuances of prior appropriation doctrine, and therefore spent little time with the issues that form the traditional core of a water law curriculum.   Based on my narrow experience, at least, the Casitas decision appears to be an intriguing anomaly.

That does not mean those issues are irrelevant.  In California, the relatively junior status of some key institutional players—Metropolitan Water District and Westlands Water District, for example—has enormous implications for their political and legal strategies.  Priority, in other words, still has a foundational influence on western water management.  But that doesn’t mean it’s a key litigation issue.  And if it isn’t, that raises some questions about the ways we now teach water law.

But were my experiences representative of modern water law practice?  Although I’ve long been curious, I really don’t know the answer to that question.  So if any of our readers are practicing water lawyers, or know practicing water lawyers well, I’d love to hear what they’re spending most of their time doing these days.  Do the traditional rules of prior appropriation—or, in the east, riparian doctrine—still form a key component of water law practice?  Or have you found, as I found, the primary issues to arise from the application of statutory environmental laws to water use?

-Dave Owen

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