02-5039
WESTERN WATER
DEVELOPMENT CO., INC. AND HAWTHORNE-
and NORTHWEST
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee.
Richard
J. Conway, Dickstein Shapiro Morin & Oshinsky LLP, of
Ethan G.
Shenkman, Attorney, Environment & Natural Resources Division, Policy
Legislation and Special Litigation Section, Department of Justice, of
Appealed from:
Judge Robert H. Hodges, Jr.
02-5039
WESTERN WATER DEVELOPMENT CO., INC. AND HAWTHORNE-NEVADA, INC.
(doing business as TRUCKEE MEADOWS PROJECT PARTNERSHIP);
and NORTHWEST
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee.
_______________________
DECIDED:
_______________________
Before CLEVENGER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and PROST, Circuit Judge.
PROST, Circuit Judge.
Appellants, Washoe County, Nevada, Western Water Development Co. Inc. and Hawthorne-Nevada, Inc. (doing business as Truckee Meadows Project Partnership), and Northwest Nevada Water Resources Limited Partnership (collectively “Appellants”), appeal the decision of the United States Court of Federal Claims granting summary judgment to the United States and denying their motion for partial summary judgment. The court held that the government did not effect a taking of Appellants’ private property, specifically their water rights. Because we agree with the court that a taking was not effectuated, we affirm.
BACKGROUND
In
the State of
In
the mid-1980s, the principals of Northwest Nevada Water Resources Limited
Partnership (“
In April 1988,
In
1989, Washoe County applied to the Nevada State Engineer to change the use
authorized under state law for the water resources on the Ranch to M&I use
at Reno-Sparks. The Ranch’s neighbors,
the Army and the Tribe, objected to the granting of the application because of
the effect diverting water from the
Neither
party disputes that the only feasible method to transport the water from the
water source on the Ranch to Reno-Sparks was by pipeline over federal
land. So, in 1989,
Appellants
filed suit in the Court of Federal Claims claiming that the government’s denial
of
Appellants filed a timely appeal and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).
DISCUSSION
I
At
the outset, the government argues that Appellants’ takings claim is not ripe
for review because the Secretary of the Interior never reached a final decision
as to whether to grant or deny
Appellants
maintain that their takings claim is ripe for adjudication because the
Secretary’s March 1994 order constituted a final decision to deny
We
reject the government’s position that ripeness is lacking and conclude that
Appellants’ takings claim is ripe for review.
We review de novo whether the Court of Federal Claims
possessed jurisdiction. Wheeler v.
Given
the record in the instant case, it is clear that there was no further
“reasonable and necessary step[]”
In
addition, that
II
As the case is ripe, we next turn
to the merits of Appellants’ takings claim.
“Whether a taking compensable under the Fifth Amendment has occurred is
a question of law based on factual underpinnings.” Bass Enter. Prod.
On appeal, Appellants argue that the government’s action preventing them from using their water rights amounted to a taking of that property by rendering their property useless under each of three distinct but related lines of authority. Specifically, relying on Laney v. United States, 661 F.2d 145 (Ct. Cl. 1981), Appellants first argue that by refusing to issue Washoe County a pipeline right-of-way across federal land, the government prevented them from using their property at the only location permitted by state law, Reno-Sparks, rendering their property useless. Appellants next rely on United Nuclear Corp. v. United States, 912 F.2d 1432 (Fed. Cir. 1990), to argue that by conditioning Washoe County’s ability to obtain a right-of-way permit upon receiving approval by the Army and the Tribe of the proposed use of the groundwater, the government gave these agencies veto power over whether Washoe County, and hence the other Appellants, could use their property, rendering their property valueless. Lastly, Appellants, relying on Tulare Lake Basin Water Storage District v. United States, 49 Fed. Cl. 313 (2001), argue that by declining to grant Washoe County a right-of-way permit, the government ensured that their groundwater remained in the aquifer for use by the Army constituting a literal taking of their water-rights property for government use.[3]
The government counters that Appellants have not established a taking and distinguishes the cases upon which they rely. The Court of Federal Claims granted the government’s summary judgment motion and denied Appellant’s motion for partial summary judgment after concluding that the government’s actions did not constitute either a physical or a regulatory taking. We agree that Appellants have not established a taking of their property.
The Supreme Court has recognized two kinds of takings: physical takings and regulatory takings. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1014-15 (1992). A physical taking generally occurs when the government directly appropriates private property or engages in the functional equivalent of a “‘practical ouster of [the owner’s] possession.’” Id. at 1014 (citation omitted). In the context of water rights, courts have recognized a physical taking where the government has physically diverted water for its own consumptive use or decreased the amount of water accessible by the owner of the water rights. See Dugan v. Rank, 372 U.S. 609, 625-26 (1963) (finding a taking where the government diverted water at a dam from downstream owners of water-rights for public purposes); Int’l Paper Co. v. United States, 282 U.S. 399, 407-08 (1931) (finding a taking where the government ordered diversion of water from the owners of water-rights for use in government power production); Tulare, 49 Fed. Cl. at 320 (stating that a deprivation of water from the owner of the water rights amounts to a physical taking). Courts have also recognized a taking where the government denies all meaningful access to the claimant’s private property. See, e.g., Laney, 661 F.2d at 147-49[4]; Foster v. United States, 607 F.2d 943 (Ct. Cl. 1979); Drakes Bay Land Co. v. United States, 424 F.2d 574 (Ct. Cl. 1970). With regard to “regulatory takings,” although the Supreme Court has declined to set out a precise formula for determining whether a regulatory taking has occurred, these types of takings generally involve the regulation of private property. See Lucas, 505 U.S. at 1014-15.
The government did not effect a physical taking here because it neither physically appropriated nor denied meaningful access to Appellants’ water rights. Appellants contend that by declining to grant Washoe County a pipeline right-of-way permit the government physically appropriated the water represented by their Reno-Sparks M&I rights for the government’s own use by ensuring that the water remained in the aquifer. The cases relied upon by Appellants, however, do not support their position. Appellants place particular importance on Tulare, a case in which they contend the Court of Federal Claims found a taking based on government conduct directly analogous to that in this case.
We conclude, however, that Tulare (which is not a binding precedent in this court) does not support Appellants’ taking claim. In Tulare, the plaintiffs included county water districts that had contracted with a state agency for “the right to withdraw or use prescribed quantities of water” stored in a state water project. 49 Fed. Cl. at 315. To protect certain fish species pursuant to the Endangered Species Act, however, federal and state agencies restricted pumping from the water projects. Id. The Court of Federal Claims found that the contracts had conferred on plaintiffs an identifiable property interest in a stipulated amount of water and that the restrictions prevented the plaintiffs from receiving the full amount of water to which they were entitled under the contracts. Id. at 318-20. The court reasoned that the government had physically appropriated the plaintiffs’ water because its actions were no different than if the government had physically diverted water for its own consumptive use. Id. at 319-20. In the instant case, the government has neither physically diverted or appropriated any water nor physically reduced the quantity of water that is available to the Appellants from the water source on the Ranch.
Cases finding a taking where the government denies all meaningful access to plaintiffs’ private property also do not buttress Appellants’ takings claim because the government did not deny Appellants access to their water rights. As the Court of Federal Claims recognized below, the government has not affected Appellants’ water rights except by denying permission to use the government’s own land to exploit those rights. Moreover, Appellants’ constitutionally protected property was the right to use the water on the Ranch. See Int’l Paper, 282 U.S. at 407 (stating that petitioner’s right was to the use of the water). Thus, the State Engineer did not confer an additional or separate and distinct water right. The State Engineer only authorized a change in place and manner of use of its pre-existing water rights from agricultural use to M&I use. See Pyramid Lake Paiute Tribe of Indians, 918 P.2d at 698. Appellants still retained their right to use the water after the government denied Washoe County’s pipeline right-of-way application. Indeed, Appellants do not dispute that they exercised that right by using the water for its original agricultural use, albeit because they were unable to perfect the new M&I use. See, e.g., Nev. Rev. Stat. 533.060, 533.380, 533.395 (Appellants would need to actually put the water to the new use in the new location to perfect those new use water rights). Therefore, the government did not prevent Appellants from accessing their water rights. Because the government neither physically diverted or reduced the amount of water accessible by Appellants nor denied all meaningful access to their water rights, it did not effect a physical taking.
Appellants also have not established a regulatory taking because regulation of private property was not at issue here. See Lucas, 505 U.S. at 1014-15; Pa. Coal Co. v. Mahon, 260 U.S. 393, 394-95 (1922); United Nuclear Corp., 912 F.2d at 394-95. In Lucas and the other “regulatory takings” cases, property owners claimed that government regulation of their private property has gone “too far.” 505 U.S. at 1014 (citation omitted). The government in the instant case, however, was not acting in its regulatory capacity when it denied Washoe County a right-of-way permit.[5] Washoe County applied for a right-of-way to build a pipeline on federal land. Washoe County and the other Appellants had no right to build on federal land and thus no interest in the land. The government applied internal regulations concerning the federal government’s management of public lands to determine whether to grant a right-of-way on property it owns. Thus, the government in no way imposed regulatory restrictions on the use of Appellants’ private property, neither the land nor the groundwater rights appurtenant to the land. For example, the government did not limit the Appellants’ access to their wells, restrict the amount of groundwater they could pump, or dictate what they could do with the water. Rather, the government was acting as a landowner whose neighbor sought permission to lay a pipeline across its property. However, the government had no obligation as a neighbor to assist Washoe County or the other Appellants in putting their water rights to the most profitable use or to pay just compensation because the State of Nevada granted Washoe County authorization under state law to make a particular use of the water on the Ranch. Because the government did not impose any regulations on Appellants’ water rights, it did not effect a regulatory taking.
CONCLUSION
Having concluded that the government effected neither a physical nor a regulatory taking, we affirm the decision of the Court of Federal Claims granting summary judgment to the government and denying Appellants’ motion for partial summary judgment.
COSTS
In accordance with Fed. R. App. P. 39(a), costs are taxed against the Appellants.
[1] Washoe County never exercised this option.
[2] The government raised the ripeness
issue in the Court of Federal Claims, but the court did not address it.
[3] Appellants also cite Dugan v. Rank, 372 U.S. 609 (1963), and Interantional Paper Co. v. United States, 282 U.S. 399 (1931), in support of this argument.
[4] As the government points out on appeal, the Court of Federal Claims did not find that a taking occurred in that case. Rather, in Laney, the court denied cross motions for summary judgment and remanded for further factual development. 661 F.2d at 150.
[5] This is yet another reason Laney is distinguishable from this case. In Laney, the property at issue was subject to federal regulation of navigable waters. 661 F.2d at 146-48. Thus, the government was acting in its regulatory capacity when denying the property owner permission to construct a concrete pier and connect the pier to his island so that it would be accessible by boat. Id.