On May 10, 2009, I wrote about the Federal Circuit's decision in Casitas Municipal Water District v. United States, where a local water district has successfully litigated a 5th Amendment taking claim against the United States for diverting water to provide a better life for endangered steelhead trout (and their human and wild predators, one may assume). I noted that the time to file a certiorari petition with the Supreme Court had not run. Well, that time has come and gone, and no petition was filed. The Solicitor General obtained two extensions of time to file the petition. The second extension expired July 17, 2009, and no petition was filed by the United States.
It should come as no surprise that endangered species litigation usually goes to the critters (although sometimes the plaintiffs' motives are suspect, and the public wins). I cannot recollect a taking case where the critters' keepers had to pay just compensation, but I can tick off many where the landowner had to grin and bear it. (Casitas is a physical taking case, so watch out.)
Casitas widens the open door for our class action on Big Pine and No Name Keys, where the Key deer and the Lower Keys marsh rabbits have been handed the keys to more than 1,000 vacant properties by none other than Monroe County, Florida. This confiscatory behavior extends to the rest of the Florida Keys, albeit with a less Draconian flair.
The Federal Circuit's 2-to-1 decision rests on a "physical taking" theory (water, of course), and former Chief Judge Mayer hammered on that point in his "dissent-in-part." Casitas will probably be most helpful in those situations where landowners cannot use any of their property -- thus establishing a Lucas-style categorical (or per-se) taking. What Casitas adds to landowners' quivers is the ability to strip away the mystique that some see when they hear the words "endangered species."
It should come as no surprise that endangered species litigation usually goes to the critters (although sometimes the plaintiffs' motives are suspect, and the public wins). I cannot recollect a taking case where the critters' keepers had to pay just compensation, but I can tick off many where the landowner had to grin and bear it. (Casitas is a physical taking case, so watch out.)
Casitas widens the open door for our class action on Big Pine and No Name Keys, where the Key deer and the Lower Keys marsh rabbits have been handed the keys to more than 1,000 vacant properties by none other than Monroe County, Florida. This confiscatory behavior extends to the rest of the Florida Keys, albeit with a less Draconian flair.
The Federal Circuit's 2-to-1 decision rests on a "physical taking" theory (water, of course), and former Chief Judge Mayer hammered on that point in his "dissent-in-part." Casitas will probably be most helpful in those situations where landowners cannot use any of their property -- thus establishing a Lucas-style categorical (or per-se) taking. What Casitas adds to landowners' quivers is the ability to strip away the mystique that some see when they hear the words "endangered species."
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