Monday, May 17, 2010
Josh Patashnik (JD Candidate, Stanford) has posted Physical Takings, Regulatory Takings, and Water Rights, forthcoming in the Santa Clara Law Review (2010). The abstract:
Alleged takings of property are divided into two broad categories: physical takings claims, which are categorically subject to compensation, and regulatory takings claims, which are analyzed under the multi-factor Penn Central test and rarely result in compensation being paid. This Article addresses the question of whether alleged takings of water rights should be treated as physical or regulatory takings. It is an increasingly salient question in the West, where growing conflict between federal environmental laws and appropriative water rights has resulted in a proliferation of takings claims over the past decade. Because whether a claim is analyzed as a physical or a regulatory taking tends to be dispositive of the question of whether compensation must be paid, the legal issue is a critical one: millions of dollars and control over the region’s most precious natural resource are at stake.
This Article is the first to comprehensively assess the merits of all the major rationales that have been offered for treating alleged takings of water rights as either physical or regulatory. Past scholarship has focused on just one or two of these rationales, usually in the context of a particular case or fact pattern. This Article takes a broader look and offers novel arguments demonstrating why there are serious conceptual problems with all of the major rationales that have been offered so far, on both sides of the debate. The thesis is a particularly timely one, since the Federal Circuit recently issued its decision in Casitas Municipal Water District v. United States, its first foray into this area and one of the most extensive judicial treatments of the issue offered to date. While the Article discusses the holding and implications of Casitas in detail, it also seeks to go well beyond that case and offer a broader thesis about how courts should treat alleged takings of water rights. My basic contention is that while water rights takings cannot fit straightforwardly as either physical or regulatory takings under current doctrine, treating them as physical takings – that is, applying a categorical takings rule requiring compensation when the government restricts any exercise of water rights otherwise permissible under background principles of state property law – is the most sound approach.