January 2005

A New Year Provides New Resolutions

Private property rights advocates, water districts, and farmers can ring in the New Year with a cheer, as there are a few signs that there is reason for a renewed level of optimism regarding Fifth Amendment protections of water rights and the possibility of amending the Endangered Species Act. These two recent developments provide New Year’s Resolutions that we should support and hope can be attained.

New Year’s Resolution Number 1: Ensure ESA compliance with the Fifth Amendment

In a precedent setting case involving the federal government and three California water districts, U.S. Federal Claims Court Judge John Paul Wiese ruled in favor of Kern County Water Agency, Wheeler Ridge-Maricopa Water Storage, and Lost Hills Water District, requiring that the federal government pay compensation for water taken from them under the Endangered Species Act (ESA).

The pertinent portion of the Fifth Amendment at issue, as framed by our Founding Fathers, reads as follows:

". . . Nor shall private property be taken for pubic use, without just compensation." In his decision, Judge Wiese noted that the purpose of the Fifth Amendment of the United States Constitution is "to bar government from forcing some people alone to bear public burdens which, in all fairness, should be borne by the public as a whole."

This litigation dates back to the years of 1992-1994, when the federal government reduced the amount of water being exported to farms through the Delta, via the State Water Project, in order to dedicate the water to in stream uses for the stated purpose of protecting endangered and threatened fish. Judge Weise did not rule that the federal government did not have the authority to take the water for environmental purposes; his decision merely declared that the Fifth Amendment Takings Clause requires that the government compensate those whose water has been reallocated.

The ruling awarded the water districts over $26 million, the market cost for each acre foot of water foregone, plus attorney’s fees expended in the fight to correct this violation of the U.S. Constitution. However, the water districts and the Bush administration recently agreed to a settlement in the amount of $16.7 million, ending the legal wrangling over this issue. The settlement was finalized despite the urgings of Senator Dianne Feinstein, D-California, and Art Bagget, State Water Resources Control Board Chairman, who both appealed to the Bush Administration to appeal the ruling, to no avail.

This decision is hailed as a victory to all private property rights advocates. It may not be the end of environmental water grabs, but the decision certainly alters the calculus to be employed when making future decisions to reallocate water away from individuals who have long been dependent, and made significant investments, based on their property rights in this resource. This decision assures that should the state and federal resource agencies choose to take property in the name of the public good, the burden will be borne by society as a whole, not placed squarely on the backs of individual water districts and farmers.

New Year’s Resolution Number 2: Reform the ESA

Led by the efforts of the Chairman of the House Resources Committee, Congressman Richard Pombo (R- Tracy, California), and supported by the Bush Administration, a serious dialogue has broken out over how to amend the Endangered Species Act (ESA) in a way that will respect property rights, while simultaneously trying to improve recovery of threatened species.

In December of 2004, Governors from 18 western states, the region of the United States most adversely affected by the ESA, convened in San Diego for two days to take the first steps toward reforming this broken law.

The ESA has been employed to control private property, causing increased costs for energy production, transportation, development, logging, and agriculture, yet failed in its stated purpose to recover endangered plant and animal species. Illustrative of how ineffective the ESA has been, only twelve of the 1300 or so listed species have been deemed recovered in over 30 years. Craig Manson, Assistant Dept. of Interior Secretary, who oversees the U.S. Fish and Wildlife Service, the federal agency that implements the mandates of the ESA, has criticized the Act in its current form, claiming that it is too costly and ineffective.

At the centerpiece of the reforms sought are two issues: the designation of critical habitat that restricts land use; and how much protection distinct regional populations of a particular species merit when the larger population viewed as a whole is healthy. Manson has opined that critical habitat provides little additional protection to species.

A spokesman for Pombo summed up the problem, stating: "If we don’t bring new law to the forefront that is more collaborative and cooperative with private property owners, we are not going to see more recovery of endangered species. The application of the Endangered Species Act over the last 30 years has alienated the people we need the most to be included in the process: private property owners."

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