Feb. 28, 2013
Tim Dewar, email@example.com
A U.S. Court of Appeals panel ruled “no harm, no foul” Wednesday in the Casitas Municipal Water District’s (CMWD) 2005 lawsuit against the federal government.
On Jan. 26, 2005, CMWD filed suit in the U.S. Court of Federal Claims asserting that the federal government had violated the Fifth Amendment by taking its property without compensation. The suit stems from the 1997 listing of the West Coast steelhead trout as an endangered species and the subsequent need to build a fish ladder at the Robles Diversion Dam.
The completion of the fish ladder, in December 2004, meant the District had to begin diverting approximately 3,500 acre-feet of water each year in order for the ladder to operate properly.
Filed the following month, the lawsuit sought reimbursement of the $9.5 million it spent building the fish ladder and for the water it lost each year.
In October 2006, the Court of Federal claims dismissed Casitas’ claim for the $9.5 million, ruling those costs were considered a normal part of operating and maintaining the water system.
Five months later, the Court ruled in the government’s favor again when it decided that the water used to operate the fish ladder did not constitute illegal taking because this amount did not reduce the water Casitas actually transferred to its customers.
Upon appeal, the Court upheld the dismissal of the $9.5 million breach of contract claim but remanded the illegal takings portion back to the trial court for further proceedings.
At the next hearing, the court reaffirmed that the taking claim could only be applied if Casitas could show that the operation of the fish ladder resulted in a reduction of “beneficial use” of the water to which it was entitled. In this case, the court asserted that this meant water that was actually delivered to customers rather than water stored in the lake for possible future use.
The government argued that the District’s contract with the Bureau of Reclamation provided for the “beneficial use” of up to 28,500 acre-feet per year and Casitas had used, on average, only 17,543 acre-feet per year over the past 40 years. This leaves the District 7,450 acre-feet to deliver before the diverted amount would be a factor.
The court left open the option for the District to refile the case if the amount available to customers were reduced in future years because of the need to operate the fish ladder.
The District also appealed this ruling, claiming the court used the wrong standards for determining “beneficial use.”
It was this appeal that was denied Wednesday.
Ron Merckling, water conservation and public affairs manager for the CMWD said Wednesday that this issue will have to be placed on a future agenda so the District’s board of directors can get legal advice as to its options.
The CMWD board will have a meeting March 13 at 6 p.m. at the Matilija Junior High School auditorium to receive public comment regarding a resolution to form a community facilities district to fund the buyout of Golden State Water Company.