Monday, April 15, 2013
Fifty years ago today, in Dugan v. Rank, 372 U.S. 609 (1963) the United Supreme Court did something it has not done since: it issued a decision in a takings case involving water allocation.
That statement might seem surprising. The Court has decided many takings cases in the last five decades. Those decisions have addressed wetlands (Palazzolo), floodplains (Dollan, First English), lakes (Tahoe Sierra Preservation Council), and, with particular frequency, beaches (Nollan, Lucas, Stop the Beach Renourishment). This past term, a flooding case and a wetlands case both occupied the docket. The Court, in short, has shown no lack of interest in water. And in that same period, water allocation controversies have produced a tremendous amount of litigation, some of it involving the takings clause. But not one of the resulting cases has found its way to the Supreme Court.
Is this a problem? Ten years ago, many water lawyers would have said so. In the absence of guidance from the Supreme Court, takings plaintiffs pressed some rather aggressive theories about how the takings clause should apply to regulation of water rights. Most notoriously, in Tulare Lake Basin Water Storage District v. United States, 49 Fed. Cl. 313 (2001), they argued, successfully, that a regulatory restriction on water use should be analyzed as a physical taking. The case, and a host of copycat claims, created a fear, widely shared among the many people (including me) who strongly believe in government regulation of water use, that caselaw at the intersection of water rights and takings was in danger of turning seriously astray. And in the wake of the Court’s Tahoe-Sierra Preservation Council decision—and with Justice O’Connor the likely deciding vote—the Supreme Court seemed like a promising forum for those seeking a change in course.
Now, however, the picture looks different. In surface water cases, the Tulare Lake case has never gained a following. Only one other decision (Casitas Municipal Water District v. United States, 543 F.3d 1276 (Fed.Cir. 2008)) has adopted a physical takings framework for a regulatory restriction, and that decision involved a rather complicated and unique fact pattern (and the plaintiffs still eventually lost). In groundwater cases, I recently discovered, courts have uniformly rejected that more categorical approach. Many questions remain about the application of takings doctrine to water use allocation, and some academic debate lingers, but most courts at least seem to be moving toward a view that the regulatory takings doctrines the Court has developed for land will serve equally well for water.
If that trend continues, there may be little need for Supreme Court intervention. So, on the fiftieth birthday of Dugan v. Rank, perhaps water lawyers can raise a toast to judicial restraint, lack of interest, fear of the complexities of water law, or whatever else it is that has kept water rights out of the Supreme Court.