Fish protection equals unconstitutional taking

A decision by the Ninth Circuit court of appeal has found a taking resulting from endangered species protection.

The Bureau of Reclamation's (BOR) directive to a municipal water district requiring implementation of a fish ladder to protect the endangered steelhead trout, under the Endangered Species Act (ESA), and requiring diversion of water towards the fish ladder, thereby partially, but permanently, impairing the district's valid property right to use of the water, constituted a physical taking, requiring just compensation under the Fifth Amendment. The BOR commandeered physical possession of the water for government use by forced rerouting of the water to the fish ladder for the public purpose of protecting the trout.

The Ninth Circuit decision in Casitas Municipal Water District v. U.S. 2008 WL 4349234, deemed the regulatory action a "per se taking," noting that such taking occurs when “an owner to suffer a permanent physical invasion of her property-however minor,” citing Loretto v. Teleprompter Manhattan CATV Corp. (1982) 458 U.S. 419. "Such action effects a physical invasion of the property and therefore qualifies as a physical taking." The Court also based its ruling on the per se taking which occurs with the the regulation “completely deprive[s] an owner of ‘all economically beneficial use’ of her property.” citing Lucas v. S.C. Coastal Council (1992) 505 U.S. 1003, 1019.