On Sept 25, 2008, a federal appeals court ruled in favor of Casitas
Water District on the Ventura River, California. According to their
lawyer, Casitas is potentially entitled to $80 million for the "loss
of water" due to operations of a recently constructed fish ladder at
Robles Diversion dam, located downstream of the obsolete Matilija Dam
which is slated for removal in 2014. But first the District must show
that they 'own' the water in the river, a public trust asset... The
ultimate outcome will affect future water management policy throughout
local press: http://www.venturacountystar.com/news/2008/sep/27/ruling-favors-casitas-district/
Ruling favors Casitas district
U.S. must pay for water, court says
By Zeke Barlow
Saturday, September 27, 2008
The Casitas Municipal Water District won a major battle in its case
against the federal government on Thursday when an appeals court ruled
the government must pay for any water it takes to help the endangered
The case has ramifications far beyond Ventura's borders, calling into
question how water can be used to protect endangered species.
"It's going to have nationwide implications because anytime the
federal government attempts to divert water that is owned by someone
else for wildlife protection purposes, it's going to face potential
constitutional liability," said J. David Bremmer, a principal attorney
with the Pacific Legal Foundation, a property rights group that filed
a brief during the case and has been closely following it.
Casitas is still a long way from resolving its case. The district
would have to prove that it — not the government — owns the water
before it can be reimbursed for the water that goes down the fish
ladder. The district was essentially forced to build the ladder on the
Ventura River in 2005 to allow steelhead to swim around the diversion
that sends water to Lake Casitas.
The federal government has several options it can take that would
continue the case. But Thursday's 2-1 decision by the U.S. Court of
Appeals for the Federal Circuit in Washington sent ripples beyond the
Casitas' water district board.
The court ruled that when water is taken by the federal government, it
must compensate for it. The government's argument was the water is not
taken, but regulated.
"When the government diverted the water to the fish ladder, it took
Casitas' water. The water, and Casitas' right to use that water, is
forever gone," Circuit Judge Kimberly A. Moore wrote in the majority
The dissenting opinion said, "Casitas does not own the water in
question because all water sources within California belong to the
Some are saying the decision is precedent-setting.
"The message is that the government is not going to be able to take a
portion of the water supply without paying for it," said Casitas'
attorney, Roger Marzulla. "This is of great interest to water
districts across the West because it confirms that water rights are,
in fact, valuable property rights and the government has to pay for
those water rights" when it appropriates them for such purposes as
But Russ Baggerly, a Casitas board member who has opposed the suit
since it was first filed last spring, worries the decision could poke
holes in the Endangered Species Act and change how water rights are
"If it stands as good law, there isn't going to be enough money in the
treasury to deal with all the takings claims all across the country,"
He pointed out this is the first battle Casitas has won and there are
still many more legal obstacles to overcome.
Rich Handley, a board member who has sided with Baggerly, said there
is more at stake here than just Casitas' water.
"There is a bigger picture here," he said, citing a lack of regulation
that led to the recent financial crisis as an example. "It's a
dangerous proposition as you can see when you try to remove
regulations for something that has been in place for 100 years."
But the two members of the board who have been the most outspoken in
pushing the government to pay for the water it takes said this is
about protecting the ratepayers. They argue that if saving the fish
benefits everyone, then everyone, not just the district, should share
in the costs.
"We don't want to hurt the Endangered Species Act, but I don't think
that the full burden should fall on all the people in one special
district," said board member Bill Hicks.
"If they say we need to be saving them because it's a national
treasure, then we nationally should pay for it," said board President
Casitas lost part of Thursday's decision over its argument that the
government should pay for the installation of the ladder. The judge
ruled the construction was part of "operational" and "maintenance"
costs of running the diversion spelled out in an earlier contract,
therefore Casitas had to pay for it.
The board almost didn't pay for the appeal, as it already spent
$450,000 in fees to Marzulla to get that far. The board voted 3-2 to
pay an additional $45,000 for the appeal. If it ultimately wins the
case, it could pay enormous dividends.
Marzulla said Casitas is entitled to $80 million for the loss of
water, but there is a long way to go and many legal arguments before
that check is cut.
"No one should get that excited about this turn of events," Baggerly
said. "This is far from over."
Surfrider Foundation - Ventura Campaign Coordinator