Thursday, March 20, 2014
Over the past few years, I’ve spent a fair amount of time thinking about water rights and the takings clause. One outcome of that work is an article, which just came out in the Washington University Law Review, on takings and groundwater use regulation.
Another output is a case study designed for law school teaching. It draws upon an ongoing conflict between the Bragg family and the Edwards Aquifer Authority. That conflict already produced several published decisions—with more potentially on the way—and a fair bit of commentary (examples here and here). Its facts also make it a good fit for a classroom.
The very quick summary is that the Braggs planted one pecan orchard, and bought another, well before the modern regulatory regime for the Edwards Aquifer came into existence (but after conflict over that aquifer had begun to brew). They planned to use Edwards Aquifer water to irrigate their orchard, but not immediately. By the time their trees had grown large enough to need the water, a different and much more extensive regulatory regime was in place, and it favored existing users. So the Braggs sued, alleging a taking. Their claims raise a whole host of interesting issues, including, among others, what analytical framework is appropriate for a water rights/takings case, what counts as a reasonable investment-backed expectation, how diminution in value should be measured, what forms the relevant unit of property in a water rights/takings case, and what basic values takings doctrine should serve.
My case study provides students with a summary of the conflict and a few documents from the record (there are many more that could be included, but I elected to keep it simple), and it asks them to argue the case from the point of view of the Braggs, the EAA, Environmental Defense, or the Texas Attorney General’s office. I’ve tested it out once (after covering a few water/takings cases in the previous class), and it seemed to go very well.
If you’re interested in an MS Word version of the case study, in seeing the exhibits, or in seeing other documents from the case, please let me know. And a big thank you to Deborah Clarke Trejo, who represents the Edwards Aquifer Authority in this litigation and who provided me with some of the key documents.