There is No Free Lunch: The Endangered Species Act, The Public Trust Doctrine and The Takings Clause

April 2018

Best Paper Award, ABA 36th Annual Water Law Conference

For the last half-century, there have been conflicts between, on the one hand, the demands of the federal Endangered Species Act and the common-law public trust doctrine to provide water for the environment and, on the other hand, the demands of farms and cities to use water for consumptive purposes. This paper discusses a trilogy of Supreme Court cases that interpret the Fifth Amendment’s Takings Clause in the context of water rights, together with three recent controversies from California and Oregon. The paper argues that the “expropriation doctrine” articulated by the Supreme Court is the proper way to analyze whether there has been a taking of water rights and concludes that reallocating water away from farms and cities for environmental purposes generally constitutes a physical and permanent taking that requires just compensation. The paper uses recent decisions by the Court of Claims and the Federal Circuit, including the 2017 decision by the Court of Claims in Baley v. United States, to discuss the policies that motivate this conclusion and also to explain why the defenses to a physical taking, notably those grounded in the background principles discussion in Lucas v. South Carolina, actually support the award of just compensation.

You can view a PDF of the full article on the ABA’s website.