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Legal analysis of right of govt. to claim water & impact of clause in 5th Amendment. Definitions, case studies & court decisions, property interest, nuisance exception, public use.... More...
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Paper Abstract:
Legal analysis of right of govt. to claim water & impact of clause in 5th Amendment. Definitions, case studies & court decisions, property interest, nuisance exception, public use.

Paper Introduction:
Water Rights and the Takings Clause Introduction This paper will discuss the problem of water rights and the Takings Clause of the United States Constitution. The first part of the paper will discuss the background of the Takings Clause in the Fifth Amendment to the U.S. Constitution, examining the analytical framework which has evolved in takings cases. The second part of the paper will examine water rights and the unique characteristics which cause water rights cases to be analyzed in a somewhat different matter than other takings cases. The third part of the paper will discuss the application of the takings analysis to water rights. Water rights have long been considered a form of property. Property rights

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Water rights have long been considered a form of property. 23-11.336 (West 199 ); Utah CodeAnn. Energy, Nat. denied, 464 U.S. 16-1, 16-5 (1984), cited in Hallford, supra note 64, at 13. If it determined that the property interest superseded thepublic interest in the regulation then a taking had occurred.[21] TheLucas opinion then articulated an exception: even if the regulationdeprived an owner of the total value of the property in question, the stateneed not have to compensate the owner if the regulation's proscriptionsinhered in any background state common-law principles of nuisance.[22] Aswill be further explored below, this exception may have drasticramifications for water rights, especially since it may allow for fiftydifferent outcomes based upon the fifty different common-law nuisanceprinciples, one in each state.[23] Under the Lucas analysis, then, the first question which must beanswered is: are the rights involved transferable property interests? denied, 479 U.S. [65]See Rocky Mountain Power Co. This problem must be dealt with when consideringthe definition of the property interest involved, for if the interest isdefined broadly, then it is much less likely to suffer the entire loss ofits economically beneficial use than if it is defined narrowly. Co. at 441. [68]Fort Lyon Canal Co. 7. The third factor, an evaluation of the character of the governmentaction, looks to whether the action resembles an act of eminent domain.That is, it destroys substantial rights in the owner's property, or isequivalent to the physical invasion of the owner's property. [64]I Hutchins, Water Rights Laws in the Nineteen Western States 226,443 (1971), cited in Hallford, Environmental Regulations as Water RightsTakings, 6 (No. v. 6 University of Colorado Law Review 9 1-22 (1989).Note, Prior Appropriations Water Rights: Does Lucas Provide a Takings Action Against Federal Regulation under the Endangered Species Act? For example, the Industrial Revolution prompted a change in theriparian doctrine, from an emphasis on maintaining the natural flow of awatercourse to permitting some diversion for reasonable use. In addition, water in a natural body is so important to society thatit cannot be privately owned. [115]Keystone Bituminous Coal Ass'n v. at 496-5 2. 831 (Colo. Reduced quantity, in turn, will affect other water rightsholders, who also have a right to the use of the same water. Ass'n, 151 Colo. 211 (1986).Deltona Corp. [84]See In re Hood River, 114 Or. Allard,444 U.S. On the other hand, these cases have requiredthe complete deprivation of a property interest, if not all of the propertyinterests in a piece of property.[1 9] There is little in the way of case law regarding the application ofthis balancing test to water rights cases. at 432. Propertyrights in water consist largely of rights to use water, rather than rightsto possess water. [12 ]Johnson, supra note 29, at 52. v. This maymean that courts will have to look to one of the fifty different common lawdoctrines of nuisance in determining whether the owner had a compensableproperty interest. McIntosh, 19 Colo. The support estate consistsof the right to remove the strata of coal and earth that undergirds thesurface or to leave those layers intact. [49]112 S. of Natural Resources, 3 9 N.W.2d 767, 771(Minn. Other states hold that riparian land extends toany land held in a single title contiguous to a watercourse. 1951).Broyles v. Anglo-American common law viewed profit as one ofthe traditional benefits of property ownership and the right to earn aprofit on property was not one to be lightly taken away. Superior Ct., 33 Cal. The coalcompany argued that the law was an unconstitutional taking of its propertyrights without just compensation.[1 ] The Supreme Court agreed with thedefendant company. In1981, the Claims Court found that Section 4 4 of the Clean Water Act[112]substantially advanced legitimate and important federal interests, since itprevented significant environmental harm.[113] This finding waschallenged, however, by a later Claims Court decision. [123]Tulare Dist. at 136. Water Conservancy Dist.,13 Colo. Pension Benefit Guar.Corp., 475 U.S. 745, 485 A.2d 287 (1984).Colorado Milling & Elevator Co. Butthere may still be taking. Sanderson, 655 P.2d 1374 (Colo. Ann. [28]Andrus v. Such grants are inherently revocable by the state,although compensation must be made to the grantee for the value ofimprovements made during the period of the grant.[94] Similarly, privaterights to water are inherently revocable where they impinge upon the publicright to use water in place; or they are at least subject to "continuingsupervisory control."[95] Common law has long held that the public has rights in rivers andother navigable waterways which support commercial navigation. Rothe Bros., 2 Colo. Nuisance Exception In the cases prior to Lucas, the Court had developed an exception tothe requirement that compensation be provided to property owners whoseproperty interests were taken by government action. [17]Miller v. DeBenedictus,[39] the Courtrejected two arguments of the mine owners who were challenging a statestatute which prevented them from removing coal from certain areas of amine to prevent subsidence of the surface above the mine. In theUnited States, it has been held that the power to control navigable waterscame from the Commerce Clause of the Constitution[96] and that this powertranslated into the power to control all the navigable waters in the UnitedStates.[97] This navigational servitude allows the federal government toundertake any activity with regard to such waters without having tocompensate water rights holders injured by this activity. Cir. In an arid region such as the westernUnited States water is extremely valuable and the uses to which water isput are considered property rights. 31 , 316-17, 618 P.2d 1367, 1371-71 (198 ). Superior Ct., 33 Cal. [2 ]112 S. Rev. 841, 874 (1989); Laitos, supra note 63, at 1631. Constitution, examining the analytical framework which has evolved intakings cases. The issue was whether the appellees' right to alienate their propertywas a separate property right for purposes of takings analysis. 623 (1887).National Audubon Society v. Id. If the regulation fits neither of these two per secategories, the case must undergo an ad hoc factual analysis, balancing thesocial values and interests in the regulation against preservation of theproperty right. United States, 839 F.2d 1572,1577 (Fed. Const. of Colo. Tiburon, 447 U.S. Stat. 112, 227 P. R.R. [89]See Ariz. 121, 127(1985); Claridge v. Rev.Stat. Water law hasconstantly evolved to meet the changing needs of society and commerce.Needs change and new ones arise; water law responds to these changing needsthrough changes the nature and extent of property interests in water.[1] The constitutional requirement that takings of property becompensated has also changed since the Constitution was adopted. Ct.2886 (1992); Keystone Bituminous Coal Ass'n v. This means that waterrights are much more limited than other property rights and that thedetermination of whether there is a transferable property interesttriggering the takings clause will likewise be more limited in focus.Water rights have been held to be property rights which are compensableunder the takings clause, however, and the limited nature of propertyinterests in water does not mean that they cannot be taken withoutcompensation. §§ 533. The third part ofthe paper will discuss the application of the takings analysis to waterrights. Non-appropriated water sources and bodieswere traditionally viewed as belonging to the sovereign, with privaterights being granted to individuals in trust. [33]438 U.S. 278, 28 (1893). The water right may be exercisedto apply water to beneficial use, but the waste of water is notpermissible.[75] The right must also be exercised by a reasonable means ofdiversion; it does not include any vested entitlement to the continued useof inefficient facilities.[76] These inherent limitations define theboundaries of the appropriative water right and are the basis for judicialand administrative regulation of such rights. [29]Johnson, Defining the Property Interest: A Vital Issue in WetlandsTaking Analysis After Lucas, 14 J. New Hampshire Wetlands Bd., 126 N.H. [19]112 S. In other words, water in naturalwaterbodies is "public property," belonging to all citizens of the state.As a result, a private citizen can only own the right to use such water;thus the subject of a private property right in water quantity is use ofthe water.[85] Application of the Takings Doctrine to Water Rights From the above discussion, it can already be seen that water rightsdo not fit neatly into the takings doctrine as it has developed over theyears. 1 4 (1978). [3 ]438 U.S. Colo. v. It was clear when property was taken, for the owner wasdeprived of his or her right to possess the property to the exclusion ofothers. Ct. Larimer & Weld Irrigation Co., 26 Colo. 1982). 22, 34 P. 16 Colorado Lawyer 1626-31+ (1987).--------. Unlikeland, water has always been considered a precious item, belonging to thepublic first. at 2893. 393 (1922). [7]458 U.S. 56, 259 P. [67]Broyles v. [44]48 U.S. McIntosh, 19 Colo. These opinions had devised abalancing test, whereby the courts balanced the social values and interestsof society in the regulation at issue against the preservation of theproperty right. Mahon,[9] a coal company sold property to the Mahons with the conditionthat the company could continue to mine the land beneath the property. Courts have not handled the situation as clearly as those involvingother physical property rights and the case law is not very uniform. 14 Journal of Energy, Natural Resources, & Environmental Law 41-81 (1994).Laitos, Jan G. Hinderlider, 57 P.2d 894 (Colo. v. Monsanto Co., 467 U.S. v. Rank,[119] on theother hand, the Court said that interference with the flowage of water in astream upstream from the right holder was an independent property interestwhich was compensable. 61 University of Colorado Law Review 257-82 (199 ). [42]48 U.S. This right was first recognized by the Supreme Court in 1887, inMugler v. 623 (1887). v. He must find some other user who requires lessthan the entire amount allotted by the right.[1 7] Others, however, saythat if the reduced amount of water can still accomplish some, although notall, of the intended purpose, there is no taking. v. at 13 -31. Civ. [16]123 U.S. at 131. Thus, a means-ends test has developed, whereby thegovernment's purpose in enacting the regulation has been scrutinized withregard to the means used to further that purpose and its effect on theproperty interest involved. Cl.1981), cert. The Courtadopted the parcel as a whole rule and examined the effect of theregulations on the full range of appellees' interests in their artifacts,rather than merely the right to alienate the artifacts.[34] The Courtnoted that the regulations did not require the appellees to surrender theirartifacts and did not impose a physical invasion or restraint on theartifacts.[35] While the regulations imposed a significant restriction onone means of disposing of the artifacts, the Court held that the denial ofone traditional property right does not necessarily amount to a taking.[36] "[W]here an owner possesses a full 'bundle' of property rights, thedestruction of one 'strand' of the bundle is not a taking, because theaggregate must be viewed in its entirety." The appellees also failed toprove that they could not derive economic benefit from the artifacts.[37]The appellees still had the right to possess, transport, donate, and devisetheir artifacts.[38] In Keystone Bituminous Coal Ass'n v. New York City, 438 U.S. The district court held that the regulations violated theFifth Amendment and enjoined the government from enforcing the regulationsagainst the traders. denied, 455 U.S. United States, 15 Cl. [77]Hallford, supra note 64, at 13. 112, 227 P. Co. Enforcement of those limitations,therefore, does not restrict the property rights per se but defines theright to prevent its expansion to the detriment of other rights.[77] Since a water right partially consists of the right to divert orstore a set quantity of water, it is different from other property rights.Exercising a water right can diminish the quantity of the underlyingresource. 1912).Mugler v. 1 4(1978); Agins v. New York City, 438 U.S. v. Water Rights There are two types of water rights in the United States: riparianand appropriative. Rev. Stat. 1981).Ciampetti v. SouthCarolina Coastal Council, 112 S. 499, 51 (1945). United States,[99] theplaintiff developer converted a shallow pond separated from the PacificOcean in Hawaii into a marina and connected it to a nearby bay. The Basic Analytical Framework The basic framework for takings analysis was developed in the last12 years. [1 8]Laitos, Water Rights, supra note 78, at 919-2 . v. at 2899. [9]26 U.S. Appropriative rights focus on theprinciple of "first in time, first in right." This doctrine was developedin response to the arid conditions in the west, where riparian rights wouldhave resulted in water wastage.[6 ] Riparian rights involve restrictions upon the use of water upon landwhich is not riparian to the water involved. Consequently, they receive narrower protection thanother property rights and are more easily lost to government action. In examining the impact of the Landmark Preservation Law on theappellant's use of site, the Court noted that the landmark designationallowed the appellants to continue using the property as a railroadterminal with office space and concessions, as they had done for sixtyyears and that it did not interfere with the appellants' primaryexpectation concerning the use of the parcel.[32] The Court also examinedthe value of the transferable development rights associated with thelandmark site in order to determine the effect of the law on the value ofthe site as a whole. New Hampshire Wetlands Bd., 126 N.H. [26]Penn Central Transp. denied, 455 U.S. Philadelphia, 7 U.S. v. at 2897-98. Ditch Co., 123P. [86]Laitos, Water Rights, supra note 78, at 9 6-9 8. (3 Wall.) 713 (1856).Hodel v. Texas Dept. Thus, in a seminal case, improvements to a channel of a bay whichdestroyed oyster beds planted by a lessee of the owner of the submergedlands did not constitute takings. 199 ). [46]48 U.S. at 2894 n. (19 Wheat.) 1 (1824).Gilman v. First, the Courtrejected the argument that since the statute required the owners to leave27 million tons of coal in place the law denied them any economicallyviable use of that coal and was therefore an unconstitutional taking. Pension Benefit Guar. United States, 444 U.S. Ass'n, 151 Colo.45, 53, 376 P.2d 158, 162 (1962). 61, 26 P. Allard, 444 U.S. §§ 72-5-6-31 (Michie1978); Okla. Ann. City of Colorado Springs, 16 Colo. Inst. §§ 46-2 2-2 6 (199 ); Nev. 977 (1983). Northern Colo. City of Englewood, 237 P.2d 116 (Colo. [82]City & County of Denver v. Fort Lyon Canal Co., 638 P.2d 244, 245-46 (Colo. 82, 87-88 (1913). 986 (1984).Schero v. The reason forthis is that water rights have not only been strictly defined but also leftopen to change. The second part of the paper will examine water rights andthe unique characteristics which cause water rights cases to be analyzed ina somewhat different matter than other takings cases. The critical elements of prior appropriationrights have already been discussed. 393 (1926).People ex rel. 419 (1982). 2d ed. In Lucas, however, the Court rejected the separate line of analysiswhich considered nuisance as an exception to compensation in cases wherethere was otherwise a taking. In Lucas v. The analysisconcerning takings and nuisance similarly evolved, from viewing nuisanceabatement as an exception to the requirement that compensation be paid fortakings, to the idea that nuisances are part of a broader category of useswhich the government can regulate without paying compensation.[2] The Takings Clause The Fifth Amendment states that "private property [shall not] betaken for public use, without just compensation." This clause essentiallyrecognizes that the federal government has the power to take privateproperty, so long as it compensates the owners of this property. Sheriff, 1 5 Colo. [1 6]Laitos, Water Rights, supra note 78, at 919. The result so far has beenthe establishment of an ad hoc analysis which looks at the facts of eachindividual case. CasesAgins v. v. [52]Mugler v. The traditional definitions of water rights have openlyanticipated change in the parameters of water rights as circumstancesdictate. Fort Lyon Canal Co., 638 P.2d 244 (Colo. 3d 419, 445, 658P.2d 7 9, 727, 189 Cal. 255 (198 ).Alamosa-La Jara Water Users Ass'n v. § 41-3 (1972). A Texas court has held that one of the mostcritical riparian rights is the "right to reasonable use, without waste,unrestricted as to specific quantity, and not lost by non-use."[1 3] Inthat case, the court held that the quantification of a riparian right basedupon the past use by the holder constituted a taking. If the regulation resulted in a partialdiminution in value of the property interest, the social values andinterests in the regulation must be balanced against the interest inpreserving the property right. [4]Pennsylvania Coal v. [23]Note, Prior Appropriations Water Rights: Does Lucas Provide aTakings Action Against Federal Regulation under the Endangered SpeciesAct?, 71 Wash. Thus, property rights in water have always been verylimited: usufructuary, subject to public servitudes, incapable of beingowned completely, subject to constraints that it be used in a non-wasteful,beneficial, and reasonable manner.[122] Establishing the definition of property rights in water by referringback to state common law threatens water rights holders. 6 9 (1963). 45, 376 P.2d 158 (1962).Ruckelshaus v. at 391. Rothe Bros., 2 Colo. 1982).Nichols v. v. New York City, 438 U.S. The application of the takings clause is unique with regard to waterrights largely because of the rather limited nature of property rights inwater. [11 ]Allied-General Nuclear Serv. Bibliography Articles and BooksGoldfarb, William. [1 ]444 U.S. v. [79]Navajo Dev. [116]Kaiser Aetna v. 211, 226-27 (1986), and investment-backed, see Hodel v.Irving, 481 U.S. at 24. Cl. §§ 73-3-1-23 (1953); Wash. 1953). Thus, nuisances which legitimize regulations which render propertyvalueless are to be found in the common law of the state in which theproperty resides. 193, 96 P.2d 836,84 (Colo. The ArmyCorps of Engineers asserted jurisdiction over the project and demanded thatthe plaintiff developer obtain a permit granting public access to the pond. [13]48 U.S. Generally, theowner must have been deprived of all economic value in the propertyinterest,[118] although it appears that there is continuing confusionconcerning this element. Ann. [6 ]Note, Prior Appropriations, supra note 23, at 1225-26. The Court held that the Corps did have jurisdiction but that thenavigation servitude did not apply to the pond. 6 University of Colorado Law Review 841-9 (1989).Johnson, Stephen M. Lindsay-Strathmore Dist., 3 Cal.2d 489, 45 P.2d 972 (1935).United States v. 977 (1983).Navajo Dev. Water Rights, Clean Water Act Section 4 4 Permitting, and the Takings Clause. If there has been such deprivation, thenthere is a per se taking. (13 Wall.) 166 (1871).Rocky Mountain Power Co. 1984).Gibbons v. Mahon, 26 U.S. Since there is no possessory right to water, one of the normallyimportant sticks in the traditional bundle of property rights is missing.There are many uses for water, thus the denial of any one use may be saidnot to be the denial of the whole right to use. Co. Allard, 444 U.S. [112]Section 4 4 requires that a permit be issued before an owner candischarge dredged or fill material into the waters of the United States.33 U.S.C. [34]444 U.S. Or should all possible uses be exhausted? 1984).Allied-General Nuclear Serv. of Water Resources, 63 S.W.2d 516 (Tex. White River Elec. 47 (1987). Known as inversecondemnation, this area of takings law evolved on its own, as the SupremeCourt considered such questions as whether the government had the power toact in ways which diminished the value of property without payingcompensation if that action was within the traditional police powers of thegovernment. United States, 791 F.2d 893 (Fed. Second, a regulation which deprived the property owner of "alleconomically beneficial or productive use" of that property would alsoconstitute a taking.[2 ] Although Lucas concentrated upon actions which completely deprived anowner of his or her property interests, the opinion recognized the previouscases which had held that regulations which did not effect such drasticdeprivations might also constitute takings. In addition, there was the problem of use. Especially in areas where it is scarce, water has aspecial public status, reflecting its importance to society as a whole.Thus, one of the first issues in the takings analysis with regard to waterrights is the public use right. Stat. 61, 26 P. at 498. [39]48 U.S. v. City of Englewood, 237 P.2d 116 (Colo.1951); People ex rel. [47]112 S. United States, 657 F.2d 1184, 1193-94 (Ct. at 2894 n. It said that anygovernment action which resulted in a permanent invasion would constitute ataking, no matter what the economic implications.[7] Permanent physicalinvasions destroy one of the most important of property rights: the powerto exclude others from the property.[8] A regulation can effect a taking if it deprives the property owner ofthe economic benefit of owning the property at issue. 1981). (13 Wall.) 166 (1871). 419 (1982).Loveladies Harbor, Inc. Northern Colo. [48]112 S. Rev. 943 (1993). In Kaiser Aetna v. 1984). Co. [12]Keystone Bituminous Coal Ass'n v. 1) Natural Resources & Environment 13, 13 (Summer 1991);Laitos, supra note 63. United States, 657 F.2d 1184 (Ct. [1 3]Schero v. They set the parameters ofthe right of use embodied by the water right, and protect other waterrights that attach to the same source. v. Some states limit riparianland to the smallest parcel held in one ownership that has never beensevered from the stream. [93]See Laitos, Constitutional Limits, supra note 63, at 1626-31;Note, Prior Appropriations, supra note 23, at 1245. This line said thatthe state could regulate against harmful or noxious use of private propertywithout effecting a taking.[15] The reasoning behind this analysis wasthat property owners had an implied obligation to use their property in amanner which did not cause injury to the community.[16] One case held thatthe state could force the destruction of cedar trees on privately-ownedland because these trees were infected with a disease which threatened thestate's apple crop. Briggs, 229 U.S. [124]Sax, Rights, supra note 57, at 951-53. [9 ]Dugan v. Rev. Stat. This has resulted in a legal scheme whichrecognizes the right to divert unappropriated waters from their naturalcourse and considers this right to be so important as to be worthy ofconstitutional protection by many state constitutions.[63] The beneficial use of water has long been recognized as a propertyright throughout the western United States.[64] There are two types ofrights pertaining to water rights. Therefore, harm-preventing and benefit-conferringregulations have blurred into a single category of legitimate stateinterest.[55] After he had formulated what was meant to be a comprehensiveanalytical framework for takings analysis, however, Scalia then articulateda new nuisance exception, one which may have even more confusingramifications than the old. v. [71]See Colo. v. Stategovernments likewise are required to provide just compensation for propertytaken by the application of the Takings Clause through the Due ProcessClause of Fourteenth Amendment. The takingsclause does not apply because there can be no property rights in navigablewaters. [5 ]Johnson, supra note 29, at 64. United States, 18 Cl. 185 (1899).Connolly v. Resources, & Envtl. Consequently, property owners whofirst put water to use have been granted priority rights in the particularsources of water at issue. Cir. Thus, cases involving nuisances andtakings in California will have to refer back to this statement for itplaces acquirers on notice that their rights are subject to change. 1988). It is generally held to be owned by thestate as trustee for its citizens. Monsanto Co., 467 U.S. 825 (1987). Co. The narrownessof water rights tends to make it easier for government regulations torepresent an eminent domain action in destroying the rights of the holder. Thus, it is not easy forcourts to make the leap and say that a water rights holder has lostproperty when that right is taken away, even though the primary propertyright in water has to do with its use. The Court said thatthe old law had been specifically enacted for the benefit of privateeconomic interests and thus was distinguishable from the new law.[13] Inaddition, the Court said that the new law did not constitute a totaleconomic loss as it applied only to the mining rights to sell coal; thepetitioner still held the remaining elements of property rights (such asthe ownership of the coal) and that this bundle was the relevant propertyby which to evaluate economic devaluation.[14] A third line of analysis existed prior to 1992. [96]Gibbons v. Sanderson, 655 P.2d 1374, 1379 (Colo. 164, 175 (1979).Expectations must be reasonable, see Connolly v. [3]Loretto v. 419 (1982). This factorwill usually not help owners in regulatory takings involving land, forregulations rarely prevent owners from possessing the land, excludingothers from it, or disposing of it.[12 ] On the other hand, these elementsare not a part of most property interests in water rights. This assures that once a valid appropriation diveststhe state of its "proprietary" property interest in water, the state willstill retain a police power interest in the water right as "sovereign."[82] In addition, many states recognize a public interest dimension in a vestedwater right. [58]W. Both of these consequences, in turn, affect personsexternal to the exercise of the right itself. [25]See, e.g., Lucas v. Rptr. This means that uses which were once permitted may be curtailedor even abolished as property rights. at 66. City of Colorado Springs, 16Colo. Thus, with regard to water rights, use may be apart of the definition of the interest to the extent that deprivation ofthat particular use may qualify as total deprivation of economicallybeneficial use. It still remains unclear as to what the U.S. Most eastern states recognize riparian water rights.Riparian rights utilize the doctrine of "reasonable use," under which ariparian owner may use the water in any reasonable manner, provided that heor she does not unreasonable interfere with another riparian owner'sreasonable use.[58] A riparian owner is one who owns property adjacent toa water source.[59] Western states, on the other hand, developed thedoctrine of appropriative rights. art. 1 4 (1978).Pennsylvania Coal v. McIntosh, 19 Colo. 6 (No. Ifthey are, then it must be asked whether the two conditions set forth inLucas are satisfied: does the regulation result in a physical invasion ofthe private property in question, or does the regulation deprive theproperty owner of "all economically beneficial or productive use" of theproperty in question. This hasespecially surfaced in the treatment of uses which go against what has cometo be considered the public interest. 278 (1893).Nollan v. XVI, § 6; Laitos, Constitutional Limits onPolice Power Regulations Affecting the Exercise of Water Rights, 16 Colo.Law. v. tit. Based upon the nuisance exception articulated inLucas, their rights may have been circumscribed by changing notions ofharmful use in California and they may not be entitled to compensationunder the takings clause.[124] Conclusion The analytical framework of the Takings Clause has evolved inresponse to changing ideas of property and public interest in what used tobe areas of private concern. The Supreme Court reversed. [6]458 U.S. [117]See Loveladies, 15 Cl. at 499. Mount Shasta Power Corp., 2 2 Cal. Sanderson, 655 P.2d 1374, 1377 (Colo. [1 2]Note, Prior Appropriations, supra note 23, at 1246. In appropriation jurisdictions, the right to water is generallygranted through permits from the states. App. Riverside Bayview Homes, Inc., 474 U.S. [83]Laitos, Water Rights, supra note 78, at 91 -911. 22, 25, 34 P. at 1245-46. [119]372 U.S. Thus, property owners were not constitutionally entitled tocompensation if the government action was taken to abate some nuisance.The idea of what constituted a nuisance in turn evolved throughout theTwentieth Century, as laws aimed at protecting the environment were enactedand a public consciousness grew about environmental concerns. 2886 (1992).Miller v. Constitutional Limits on Police Power Regulations Affecting the Exercise of Water Rights. Thus, thereare two consequences which can accompany the exercise of a water right: onthe water resource itself and on other appropriators. [76]Alamosa-La Jara Water Users Ass'n v. "Absolute" water rights are rights touse based upon the completion of facilities and actual water use."Conditional" water rights are appropriations that have been initiated butnot yet completed by actual beneficial use; these conditional rights arerecognized as vested property interests.[65] As a result of the aridclimate in the western United States, senior water rights that attach tophysically reliable sources generally have great value. L. v. 6 9 (1963). 1988).Andrus v. [98]Lewis Blue Plant Oyster Co. Lindsay-Strathmore Dist., 3 Cal.2d 489, 567, 45P.2d 972, 1 7 (1935). at 5 1. Ct. 164 (1979). Thus, the state'saction deprived him of one of the critical rights in water under theriparian system.[1 4] A state action which diminishes the water quantity available to theright holder becomes a taking only when the action severely diminishes orremoves altogether the water which was otherwise under the control of theright holder.[1 5] Thus, a regulation which diminishes the amount of wateravailable to a right holder will generally not effect a complete diminutionin value of that right if there is enough left over for the holder toaccomplish the intended use.[1 6] The ability of the holder to accomplishhis or her intended use will generally determine the economic value of theright. 548 (1989). §§ 11. 517, 283 A.2d 246 (1971). [61]Goldfarb, supra note 58, at 23. The situation became more uncertain, however, when the interesttaken was the right to earn a profit from the property, either fromdisposition or from use. [57]Note, Prior Appropriations, supra note 23, at 1248; See also Sax,Rights that "Inhere in the Title Itself": The Impact of the Lucas Case onWestern Water Law, 26 Loyola of Los Angeles L. Gould, 674 P.2d 914, 934-35(Colo. at 665. Ogden, 22 U.S. 1217, 1248-49 (1993). Dept. 31 , 618 P.2d 1367 (198 ).----------------------- [1]Sax, The Constitution, Property Rights and the Future of Water Law,61 U. 7. [118]Penn Central 438 U.S. The opinion by Justice Holmes focused upon thedeprivation of the economic benefits to the company, rather than upon theregulation against harm by the state. California CoastalComm'n, 483 U.S. United States, 18 Cl. New York City, 438 U.S. 1 17 (1982). [1 5]Dugan v. DeBenedictis, 48 U.S. 82 §§ 1 5.23-1 5.31 (199 ); Ore. v. [27]Keystone Bituminous Coal Ass'n v. [75]Hobbs & Raley, supra note 73, at 876. [97]Gilman v. 47 (1987).Lawton v. Courts have usually recognized that the right touse something is very important and that the loss of this right can havesevere and adverse economic consequences on the holder of this right. 6 9, 613 (1963); Fall River ValleyIrrigation Dist. He explained that this was the logical step in theunderstanding of property and the inherent police power of the state, astep which had already been taken by the Court in Penn Central.[54] Thus,regulation must advance a legitimate state interest in order to avoideffecting a taking. 1939); Pratt v. Effects on other appropriators involve competing propertyrights to the water. There are basically two lines of analysis which apply to thetakings problem. App. [1 9]See Penn Central Transp. 419 (1982);Pumpnelly v. 193, 96 P.2d 836 (Colo. art. This, in turn, creates fifty different sets of nuisanceexceptions in takings analysis.[57] As will be discussed below, this mayhave potentially harmful effects on owners of water rights in the future. (19 Wheat.) 1, 197 (1824). [41]48 U.S. v. Centennial Irr. [8]458 U.S. [95]National Audubon Society v. [37]444 U.S. The Court said that the infected cedars were akin to apublic nuisance so their destruction was a valid exercise of the state'spolice power and compensation was not required.[17] These three lines of analysis caused confusion within the takingsdoctrine and the Court began taking an ad hoc approach to the problem bythe 197 s.[18] Finally, in 1992, the Court made an attempt to formulate adefinitive doctrine. Ct. Rights that "Inhere in the Title Itself": The Impact of the Lucas Case on Western Water Law. R.R. Code Ann.§§ 85-2-3 1-328 (1989); Neb. Generally, a property interest must have been either physicallyinvaded or deprived of all economically beneficial or productive use beforethere can be a taking of that interest requiring compensation under thetakings clause. 1981). The expansion of this public interest has ledto government actions which prevent property owners from using theirproperty in ways which may previously have been acceptable. 1981), cert. DeBenedictis, 48 U.S. In Dugan v. 1953).Brighton Ditch Co. The Takings Clause reflected a desire torestrict the traditional power of eminent domain by ensuring that thegovernment was required to fairly compensate property owners for propertytaken by the government. Ct. Rev. Stat. 1891); Blackv. In this fashion, thestate had limited the holder's right to use the water in which he hadrights, restricting him to a specific quantity. South Carolina Coastal Council, 112 S. Justice Scalia said that where the action ofthe state was undertaken in order to prevent harmful or noxious use ofprivate property, the action was best understood as not being a taking inthe first place. The pond was not subjectto the servitude because the government's action went beyond the regulationof navigation. Rptr. [74]See e.g., Monte Vista Canal Co. Teleprompter Manhattan CATV Corp., 458 U.S. 1 -533.545 (1991); N.M. [36]444 U.S. of Natural Resources, 3 9 N.W.2d 767 (Minn. Texas Dept. In Penn Central, the Court rejected the argument that theairspace above the existing Grand Central Terminal was a separate propertyinterest and that the law prohibiting the owners from increasing the heightof the building without city permission deprived them of any use of these"air rights." The Court said that the taking "jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. City of Colorado Springs, 26 P. (3 Wall.) 713 (1856). Effects on theresource itself can include adverse effects on water quality, since adiminished supply contains a higher concentration of pollutants than anabundant supply. [85]Goldfarb, supra note 58, at 11. [73]Hobbs & Raley, Water Rights Protection and Water Quality Law, 6 U. TheMahons sued the company in Pennsylvania state court to prevent the companyfrom exercising this right, arguing that mining would undermine theproperty and cause subsidence damage to permanent structures. 185 (1899); Strickler v. at 435. Rev. 257, 267-68 (199 ). In order for there to be a complete deprivationof all such use, the right holder must have been deprived of the criticalelements of the water right. Thus,compensation was due to an owner if the value of his property wasdiminished by government action. Mount Shasta Power Corp., 2 2 Cal. 133 (1894).Lewis Blue Plant Oyster Co. Mahon, 26 U.S. Property rights in water are usufructuary in nature, since watercannot be possessed like other physical property. Cir. [66]Fischer & Fischer, Title and Valuation Rights, 3 Rocky MountainMin. Code §§1414-1422 (West 199 ); Colo. SupremeCourt has held that riparian water rights[9 ] and rights in a non-navigablepond are property interests which are compensable under the takingsclause.[91] Colorado courts, for example, have held that water rights aresimilar to other property rights and are freely alienable.[92] Thus, inspite of the unique nature of water as property, it seems logical thatrights to use water are property rights.[93] Public Use The unique public nature of water, however, limits its status asprivate property. 387 (1892). [81]See United States v. While there are many caseschallenging environmental regulations which directly affect water rights,most of these cases involve development activities affecting wetlands.These cases can be instructive, though, as to how a court may likelyanalyze a water rights case. Rev. Stat. Simple denial of a permit willnot trigger a taking, unless the use of this permit or licensing power wasused to accomplish some other objective besides that which was within thepurpose of that power,[11 ] or if there are no other economically viableuse of the property available to the owner.[111] It has been relatively easy for courts to find an important socialinterest in environmental regulations which affect property interests. [1 1]458 U.S. §537 (1987); Tex. It said that a regulation which"goes too far" constitutes a taking.[11] In 1987, however, the Court saidthat a regulation which was aimed at promoting public health and safety didnot effect a taking.[12] The law was another piece of legislation enactedby Pennsylvania to address the problem of subsidence. 499 (1945).Weibert v. [24]Id. 375, 276 P.2d 992 (1954). Ct. 1) Natural Resources & Environment 13-15+ (Summer 1991).Hobbs, Gregory J., Jr., and Raley, Bennett W. Stat. This exceptionessentially said that even if the government action constituted a takingunder the foregoing analysis, compensation need not be awarded if thegovernment had been acting within its inherent police power. 1936).Pratt v. at 478. Itensures that the appropriator will be able to divert or store a quantity ofwater sufficient for his use.[88] Water rights have generally been held to be property rights which aretransferable and thus entitled to takings analysis. It is what holders of water rights in California receive whenthey acquire those property rights. [1 ]26 U.S. Willow River power Co., 324 U.S. Schoene, 276 U.S. Some argue that a regulation which prevents holdersfrom withdrawing and using the entire amount of water permitted in theright constitutes a deprivation of the total value of the right, and thusamount to a taking. 381 (1988).Lucas v. First, it has long been accepted that when the governmentphysically invades private property it has effected a taking of thatproperty and must compensate the owner for that taking.[3] Second, ataking can be effected when the government enacts a law or regulation whichin effect deprives a property owner of some or all of the value of his orher property. 47 (1987). Chelsea: Lewis Publishers, 1988.Hallford, David C. Consequently, this interest wasoutweighed by the economic harm inflicted upon the owners.[114] Evaluating when an owner has been denied economically beneficial useof his property requires looking into three things: the objectivelyreasonable expectations of the right holder, the extent to which theproperty is devalued, and the nature of the government interest.Evaluation of these three factors has not been required, but the SupremeCourt has suggested that they are indicative of the deprivation of use ofthe property.[115] The property-owner's expectations interfered with by the regulationmust be reasonable and investment-backed.[116] This factor is oftenanalyzed as part of the economic impact on the property,[117] but it isimportant by itself. Thus, the right to the entireamount of water granted by the appropriation permit is a critical elementof the right of use. [54]112 S. Rank, 372 U.S. United States, 444 U.S. v. Thus, certain restrictions are an inherent part of the titleto water rights and the owner is not entitled to compensation for the lossof uses due to these restrictions, even though he or she had using thewater free of these restrictions. Philadelphia, 7 U.S. The Court said that the owner of thebeds held title subject to the dominant public right of navigation and thegovernment could take any action whose purpose was to aid navigation.Therefore, the plaintiff had no private property right which wascompensable under the takings clause.[98] The navigation servitude is not absolute, however, and the governmenthas been prevented from asserting it as a defense in cases involvingpreviously non-navigable waters. Even though theplaintiff could show that the law deprived him entirely of the economicallybeneficial use of his property interest in his brewery, the Court said thatno compensation was required because the law prevented public harm. Goldfarb, Water Law 21-22 (2d ed. New York City, 438 U.S. 47 (1987); Ruckelshaus v. Larimer & Weld Irrigation Co.,26 Colo. 623 (1887). Ct. 313 (1891).Tulare Dist. If the holderrequired the entire amount allotted for his use, the value of the righthas indeed been destroyed. v. Nuisance Exception The Lucas decision rid the takings analysis of the old nuisanceexception and replaced it with a new one. 1986), cert. 255 (198 ); Nollan v. [72]City & County of Denver v. L. Amity Mutual Irrigation Co., 688 P.2d 111 ,1113 (Colo. Ann. v. [56]Id. [2]See Justice Scalia's opinion for the majority in Lucas v. The owners argued thatPennsylvania law recognized the support estate as a separate estate inland, that they purchased or retained the support estate associated withseveral parcels of property in transactions in which they obtained orretained mineral rights in property, and that the Pennsylvania SubsidenceAct denied them any viable use of the support estate in those parcels ofproperty.[43] The Court rejected these arguments, however, saying that"takings jurisprudence forecloses reliance on such legalistic distinctionswithin a bundle of property rights," and noted that the definition ofproperty interests in Penn Central and Andrus did not turn on whether statelaw allowed the separate sale of a segment of property.[44] The supportestate has no intrinsic value and has value only insofar as it protects orenlarges the value of the surface estate or mineral estate.[45] Thus,since the owners retained the right to mine almost all of the coal in theirmineral estates, the burden placed upon the support estate by thePennsylvania law did not constitute a taking.[46] The Court addressed the issue in dicta in Lucas v. 272 (1928). § 9 .16 (West 1988); Wyo.Stat. United States, 791 F.2d 893, 9 4 (Fed. v. v. The beneficial use of theappropriation is the measure, basis, and limit of the property right. at 485-92. This was because the servitude should be characterized asan assertion of a public interest in the flow of interstate waters in theirnatural condition capable of supporting public navigation; in its naturalstate, the pond could not support public navigation.[1 ] Deprivation of all Economically Beneficial or Productive Use Under the next strand of analysis, it must be determined whether thedeprivation of a water right resulted from a physical invasion. §§ 821-7 1-732 (1989); Mont. Ct. A physicalinvasion will result in a per se taking, according to the analysis inLoretto.[1 1] Because of the physical nature of water, a physical invasionresulting in the deprivation of water rights will certainly be rare; infact, it will necessarily have to involve the physical invasion of suchproperty as land, thus leading to an action for the deprivation of propertyrights in that property.[1 2] The next strand in the analysis asks whether the deprivation of theright resulted in the total deprivation of "all economically beneficial orproductive use" of the property. 346, 364, cert. at 5 . Itreasoned that private property owners have an implied obligation to usetheir property in a manner which is not harmful to the public. [15]Mugler v. Taylor, 264 P.2d 5 2 (Colo. 1 4(1978). In addition, the new nuisance exceptionunder Lucas may have adverse effects on water rights. 47 (1987). 26 Loyola of Los Angeles Law Rev. 943-54 (1993)--------. denied, 464 U.S. Water Code Ann. [91]Kaiser Aetna v. Where the State seeks to sustain regulation that deprives land of all economically beneficial use, we think it may resist compensation only if the logically antecedent inquiry into the nature of the owner's estate shows that the proscribed use interests were not part of his title to begin with.[56]This effectively means that the courts must refer to background common lawprinciples of nuisance to see if the regulation's proscriptions inhered inthem. v. [45]48 U.S. L. [14]48 U.S. Co. One commentator has said thatJustice Scalia attempted to clarify and simplify the nuisance problem inthe takings analysis by referring back to common law. Rev. 9 1, 9 5-9 6 (1989). With regard to prior appropriation rights, many commentators havesaid that the most important elements in such a water right are priorityand ultimate use.[86] Priority of use consists of the priority of theparticular appropriation over other appropriations from the samewatercourse.[87] In times of shortage, priority is critical since itensures that the latest (or junior) appropriators will be cut off ininverse historic order until the earliest (or senior) appropriators canaccomplish their beneficial use of the water. at 498. Hinderlider, 57 P.2d 894 (Colo.1936); Strickler v. 986 (1984); Andrus v. Thus, even though theplaintiff's future use might be within the scope of "reasonable use," hecould not use more than the state allowed him to use. Initiallycontemplating the exercise of the traditional power of eminent domain, thetakings clause quickly evolved to require that compensation be paid toproperty owners whose property was taken through some government actionwhich unintentionally rendered the property valueless. A water right holder does not have a legally protectedinterest in the ownership of the water itself; the protected right is tothe use of the water. Water Rights and the Takings Clause Introduction This paper will discuss the problem of water rights and the TakingsClause of the United States Constitution. Teleprompter Manhattan CATV Corp., 458 U.S. 1 65, 1 87 (1924);Laitos, Water Rights, supra note 78, at 91 -911. TheCourt said that this remaining coal did not constitute a separate segmentof property for takings purposes.[4 ] Analogizing the rule to the zoningrules which specify setback and percentage of lot used for buildings, theCourt said that there was no basis for treating this less than 2% ofowners' coal as a separate parcel of property.[41] The Court placed theremaining coal in the context of "any reasonable unit of petitioners' coalmining operations and financial-backed expectations," and that they had notbeen denied the economically viable use of that property.[42] Second, the Court rejected the argument that the "support estate" inland constitutes a separate property interest. at 5 1. 831 (Colo. XVI, §§ 5, 6. New York City, 438 U.S. [88]Laitos, Water Rights, supra note 78, at 9 7-9 8. Water Conservancy Dist., 13 Colo. at 2899-29 . v. Teleprompter Manhattan CATV Corp.,[5] New York legislationrequired the placement of "thirty feet of one-half inch cable and two, four-square-inch cable boxes" in rental apartment buildings.[6] The Court heldthat this was a physical taking requiring compensation. v. Environmental Regulations as Water Rights Takings. at 18 . Ogden, 22 U.S. Kansas, 123 U.S. 387 (1892).In re Hood River, 114 Or. Ct. [8 ]Colorado Milling & Elevator Co. Since a specific piece of water is impossible to identify, itcannot be possessed to the exclusion of others. 375, 276 P.2d 992 (1954).City & County of Denver v. [62]Id. 51 (1979).Application of Hemco, 129 Vt. Riverside Bayview Homes, Inc., 474 U.S. 56, 259 P. 1982).Strickler v. Thus, if there is stillan economically viable use remaining after the diminution in amount ofwater, the right has not been deprived of all of its economic value.[1 8] If the regulation in question resulted in neither a physical invasionof the property nor a total deprivation of all economically beneficial orproductive use of the property interest, there is no per se taking. 1 53 (1987), aff'd on remand, 21 Cl. Kansas, 123 U.S. Steele, 152 U.S.133, 137 (1894). Green Bay Co., 8 U.S. However, legislatures commonly give municipalities the power toacquire water rights through eminent domain; once these rights have beencondemned, the municipalities may sell water to nonriparians regardless ofrestrictions.[62] Appropriative rights differ from riparian rights in that they focusupon use rather than location. at 65-66. 164 (1979).Keystone Bituminous Coal Ass'n v. at 138. Ct. v. 278, 28 (1893). 313 (1891). Theycannot rely upon a broad definition of property interests in water whenthey claim that a government action or regulation has resulted in a takingof their water rights. The Constitution, Property Rights and the Future of Water Law. 121 (1985).United States v. The public is harmed bydegraded water quality and other water rights holders deprived of water maynot be able to accomplish the beneficial use of the water.[78] Since the right to divert or store a specific quantity of watershould be conditioned to reduce the above-mentioned consequences, attentionshould be placed on some of the other aspects of a water right.Commentators and case law have suggested that the two key elements of awater right are the (1) priority of the appropriation (with respect toother appropriators),[79] and (2) the right of the ultimate use of thewater for a beneficial purpose.[8 ] Traditionally, water rights were not recognized as beingabsolute.[81] In most western states, there are constitutional orstatutory declarations that waters within the states belong to either thepublic or the states. 161 (199 ).Fort Lyon Canal Co. 1984). Illinois, 146 U.S. Park Reservoir Co. Supreme Courtwill consider a complete deprivation of all economically beneficial use.In the past, the Court has required that the property essentially bedeprived of all value, but some cases have indicated that a completedeprivation of the value of one use or interest may be considered a taking. South CarolinaCoastal Council.[47] It stated that it was unclear whether it shouldanalyze the situation where a regulation required a developer to leave 9 %of a rural tract in its natural state as "one in which the owner has beendeprived of all economically beneficial use of the burdened portion of thetract, or as one in which the owner has suffered a mere diminution in valueof the tract as a whole."[48] It suggested that the relevant propertyinterest for takings analysis may depend upon how the owner's reasonable expectations have been shaped by the State's law of property, i.e., whether and to what degree the State's law has accorded legal recognition and protection to the particular interest with respect to which the takings claimant alleges a diminution in (or elimination of) value.[49] Because the Lucas Court held that regulations which deprive propertyof all economically beneficial use effect a taking regardless of thepurpose of the regulation, the definition of the relevant property interestfor takings analysis becomes much more significant.[5 ] Consequently, the overall rule developed by the Court in Penn Centraland the following decisions is that where an owner of property possesses afull bundle of rights, the destruction of one of those rights by thegovernment does not necessarily constitute a taking since courts must focusupon the aggregate effect of the government's actions on the parcel as awhole, rather than on the effect on a particular right in the parcel.[51]This can have an important effect upon the analysis of takings with regardto water rights, since water rights are not possessory rights, butusufructuary ones. 548 (1989).City & County of Denver v. at 65-66. [38]444 U.S. Amity Mutual Irrigation Co., 688 P.2d 111 (Colo. [35]444 U.S. Gould, 674 P.2d 914 (Colo. 47, 56 P. The Court essentially set forth two conditions fordetermining whether property had been taken for public use. United States, 839 F.2d 1572 (Fed. Ct. Ct. Theplaintiffs argued that Pennsylvania law prohibited the mining. The elements of the appropriative right aremainly the right to a source of supply,[67] for a specific quantity ofwater,[68] in a priority system established by date of appropriation,[69]for a beneficial use or uses.[7 ] The right also includes the right todivert water out of a waterbody,[71] the right to store water,[72] and theprivilege to change the place, type, and manner of use of the right.[73]The appropriative water right is recognized as a property interest which isseparate from facilities such as headgates, ditches, or reservoirs throughwhich the right is exercised.[74] Appropriative water rights are inherently limited and can beregulated according to those limitations. Defining the Property Interest: A Vital Issue in Wetlands Taking Analysis After Lucas. 22, 27, 34 P. White River Elec. [59]Black's Law Dictionary 1327 (6th ed. 1 65 (1924).Kaiser Aetna v. Until Lucas, there was a nuisance exception to takings analysis whichsaid that compensation is not required in cases where the government actionwas intended to prevent a noxious or harmful use of the property inquestion. App. at 65. Under thereasonable use rule, every riparian owner has the right to divert water forany purpose if the use is reasonable with respect to other riparians.Factors which affect a judicial determination of reasonable use are: (1)the purpose of the use; (2) the suitability of the use to the watercourse;(3) the economic value of the use; (4) the social value of the use; (5) theextent and amount of the harm it causes; (6) the practicality of avoidingthe harm by adjusting the use or method of use of one proprietor or theother; (7) the practicality of adjusting the quantity of the water used byeach proprietor; (8) the protection of existing values of water uses, land,investments, and enterprises; and (9) the justice of requiring the usercausing the harm to bear the loss.[61] In most riparian states, riparianrights cannot be severed from the land and are not transferable apart fromthe land. Const. 745, 485 A.2d 287(1984); Application of Hemco, 129 Vt. [1 4]Id. 1982). 393 (1926). [11]26 U.S. This public interest condition, constituting a limit on theexercise of the water right from the time of the creation of the right,arises through the recognition and application of the public trustdoctrine.[83] It is important to remember that the right to use water is not apossessory right. California Coastal Comm'n, 483 U.S. [114]Loveladies Harbor, Inc. 1982);Nichols v. The first part of the paper willdiscuss the background of the Takings Clause in the Fifth Amendment to theU.S. 444 (1927).Florida Rock Indus., Inc. v. § 1311(a). §§ 37-9 -1 2 (1987); Idaho Code §§42-1 1-252 (199 ); Kan. Because there can be no possessory right to water traditionalproperty notions fail to adequately convey the economic importance of waterrights and their loss. [121]Sax, supra note 57, at 944. This may mean that no water right is safe in the future fromuncompensated takings. v. In Pennsylvania Coalv. Rev. Code Ann. In this sense, hetook a historical/definitional view of property, rather than the functionalview which had been used previously. Ditch Co., 123 P. Rank, 372 U.S. v. In 1935, the California SupremeCourt said that "[w]hat is a beneficial use at one time may, because ofchanged conditions, become a waste of water at a later time."[123] Thisstatement not only reveals the common perception of water rights in theUnited States but also articulates a principle of property law inCalifornia. DeBenedictus, 48 U.S. Onthe other hand, courts have had difficulty in translating this loss intothe idea that the holder lost his or her most important property right inthat object. U.L.Q. In deciding whether a particular government action has effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole ...."[3 ]This "parcel as a whole" test is now generally accepted as the test fordefining the relevant property interest in regulatory takings analysis.[31] In Penn Central, the Court said that the parcel as a whole was thecity tax block which designated as the Grand Central Terminal landmarksite. 41,55 (1994). Aswill be explained in greater detail in later parts of the paper, propertyrights in water have traditionally been circumscribed by common law;private holders have always held their rights subject to a public interestin the water which is the object of their rights. First, aregulation which physically invaded the private property would constitute ataking. Ct. at 65. Thus, the application of the law to the appellants'property did not constitute a taking of the property.[33] In the next case, Andrus v. Water Rights Protection and Water Quality Law. The reason for this is that under the appropriationdoctrine, the holder does not enjoy any other property rights in the water,except for the right to exclude others from encroaching upon this right ofuse and the right to transfer the appropriation right. 1981).Pumpnelly v. [78]Laitos, Water Rights, Clean Water Act Section 4 4 Permitting, andthe Takings Clause, 6 U. 272 (1928).Monte Vista Canal Co. The Lucas decision, however, said that this nuisance exceptionwas now being bound up in the broader category of uses which the governmentmay abate or prevent without triggering the takings clause. Irving, 481 U.S. This new exceptionrelies upon common law doctrines, and the common law doctrines in water lawhave emphasized that water rights can be affected by changing societalneeds. Was thegovernment required to compensate an owner if one particular use waseffectively proscribed, even thought there might be other uses to which theproperty could be applied? Co. 825 (1987).Penn Central Transp. 1 4(1978), where the Court said that in order to resolve takings cases, courtsmust undertake "essentially ad hoc, factual inquiries." Id. As noted in an earlier part of the paper,this line of analysis has evolved through a series of cases in which theSupreme Court struggled with the problem of compensating property ownersfor less than complete deprivation of value. v. at 2897-98. at 412. [31]Johnson, supra note 29, at 56-58. The critical elements of riparianrights also deal with use. [63]See Colo. denied, 479 U.S. [18]See Penn Central Transp. 161(199 ); the Claims Court further questioned the legitimacy of Section 4 4in Ciampetti v. South Carolina Coastal Council, 112 S. 51 (1979); Penn Central Transp. In addition, waterrights law has almost continually changed throughout the history of commonlaw. §§ 45-1512-167 (1988); Cal. On the otherhand, the Lucas opinion articulated a new nuisance exception, which saysthat the property owner has no compensable property interest where thatinterest runs counter to state common law doctrines of nuisance. 313 (Colo. 346, cert. Green Bay Co., 8 U.S. [5]458 U.S. Steele, 152 U.S. at 2897. The economic impact of the regulation on the propertyis usually evaluated by comparing the fair market value of the propertyinterest prior to the impact of the regulation with the fair market valueafter the regulation takes effect on the property interest. App. And since there is apublic interest in preserving water and putting it to certain uses,regulation of water is often seen as necessary and proper. This view succeeds in simplifying thenuisance analysis problem with regard to land, because few things weretraditionally categorized as nuisances in a time when land was relativelyunregulated by government.[121] The problem with this approach to water rights, however, is thatwater rights have always been delineated in very narrow terms. [55]Id. Co. 7 4 (1987).Illinois Cent. Centennial Irr. Kansas.[53] In that case, a brewery owner challenged a state lawwhich proscribed the manufacture and sale of alcohol. 47 , 494-95 (1987). Co. [43]48 U.S. 1939).Claridge v. [7 ]Weibert v. Water Law. at 124. Numerous statestatutes have afforded water rights such a status[89] and the U.S. Taylor, 264 P.2d 5 2 (Colo. [94]Illinois Cent. [22]112 S. 2886 (1992), where he states that theearly focus on "noxious" uses has evolved into an understanding that thedistinction between "harm-preventing" and "benefit-conferring" regulationshas blurred into a single broad category. 6 9 (1963).Fall River Valley Irrigation Dist. The problem, as will be discussed below,was how much value could be lost before this particular property interestwas considered taken? 3d 419, 658 P.2d 7 9, 189 Cal. v. 82 (1913).Loretto v. In these cases, compensation may be required under certainconditions.[4] A physical invasion need not take all of the property in question.In Loretto v. 1626, 1631 (1987). 517, 283 A.2d 246 (1971).Black v. DeBenedictis, 48 U.S. 2886 (1992). of Water Resources, 63 S.W.2d 516, 52 -21(Tex. [51]Id. 1 17 (1982).Dugan v. Willow River power Co., 324 U.S. 71 Washington University Law Quarterly 1217-1254 (1993).Sax, Joseph L. [122]See Sax, supra note 1, at 26 . 47, 56 P. L. United States, 444 U.S. [53]123 U.S. Dept. Briggs, 229 U.S. [69]Navajo Dev. 51 (1979). Sheriff, 1 5 Colo. [32]438 U.S. Schoene, 276 U.S. v. 1 4, 123-28(1978). [21]Penn Central Transp. Allard, Indian artifacts traderschallenged federal regulations that prohibited commercial transactions inparts of birds protected by the Eagle Protection Act and the Migratory BirdTreaty Act. 7 4, 715 (1987). v. United States, 15 Cl. This principle worked well with regard to traditional possessoryinterests. Under thepolice power, the government has the right to take action to abate anuisance on behalf of the public.[52] This meant that the government hadthe right to regulate against the harmful or noxious use of privateproperty. If the Court determines that the property interestsupersedes the public's interest in the regulation, then the governmentwill be required to compensate the property owners.[24] Transferable Property Interest The Supreme Court has not yet established a precise categorical rulefor defining the relevant property interest in regulatory takings analysis,but it has addressed the issue in several cases.[25] These cases havefocused on whether the particular rights in the property, such as airrights,[26] support rights,[27] or the right to alienate property,[28]constitute separate property interests which can be taken by thegovernment.[29] The basic problem is defining a property interest which istransferable. In the United States, landbeneath navigable water belonged to the state, which granted title toprivate holders. Corp., 475 U.S. Waterrights are subject to the public interest and common law has traditionallysaid that water rights holders can be prevented from putting water tocertain uses. The Courtin Penn Central refused to separate the air rights from the parcel whichwas defined as the entire city tax block. This usufructuary right carries less than the fullbundle of sticks in a property right, since the holder does not have theownership-possessory interests that are present in the case of realproperty.[84] It is here that the basic problem with property rights in watersurfaces. Ct. 2886 (1992). L. Colo. Tiburon, 447 U.S. [4 ]48 U.S. [111]United States v. 381 (1988);the Federal Circuit also challenged the legitimacy of Section 4 4 inFlorida Rock Indus., Inc. [1 7]Note, Prior Appropriations, supra note 23, at 1246-48. The court in thisopinion said that Section 4 4 was not enacted to prevent environmental harmbut to maintain a public benefit. It found that the development restrictions weresubstantially related to the promotion of the general welfare and allowedthe appellants reasonable beneficial use of the parcel as a whole: thelandmark site. The appropriative water right is a unique type of property interest,representing a right of use rather than possession.[66] It does notentitle the appropriator to the actual possession and ownership of specificwater but instead represents a priority entitlement to divert or store suchwater as is needed for the appropriator's beneficial use, above all otherswho might use the water. The Court has generally rejected efforts to requirecompensation for individual property interests which are part of a largerproperty right. [99]444 U.S. South Carolina Coastal Council,[19] theCourt articulated a clarification of the analysis which had evolved in theprevious cases. Cir.1986), cert. Ct. 1 53 (1987), aff'd on remand, 21 Cl. [113]Deltona Corp. 623 (1887); Lawton v. DeBenedictus, 48 U.S. at 413-15. Rank, 372 U.S. 164 (1979). 1912). [87]See Nichols v. 1988). These cases usually involve permitrequirements, where an owner is required to obtain a permit fordevelopment, and denials of these permits. Park Reservoir Co. Ct. Ct. 444(1927). Illinois, 146 U.S. [92]See Brighton Ditch Co. Kansas, 123 U.S.

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