Casitas Dealt Another Blow

By Daryl Kelley
After another legal setback, directors of the Casitas Municipal Water District are set to consider today whether to pursue an appeal of a crippling federal ruling against the district’s claim for compensation for water it must provide so steelhead trout can migrate up the Ventura River.
Last week, a federal judge blocked one route to appeal by refusing to certify his decision against Casitas, a move that forces the water agency to take another tact to reach an appellate panel that could reverse a key lower-court ruling against the district.
Casitas directors split 3-2 in April in deciding to continue a two-year lawsuit that had already cost the water district about $500,000. And the board still seems split, with swing vote Pete Kaiser saying this week that nothing has changed except tactics.
“I think that essentially what it does is change the procedural approach to the appeal,” he said. “The federal government has placed a heck of a hardship on this district. It has to be responsible for these unfunded mandates.”
As required by the U.S. Bureau of Reclamation, Casitas has spent millions of dollars to build a fish ladder and provide water for the endangered fish to migrate. ‘’I want the federal government to understand the impact it’s placing on small water districts,” Kaiser said.
However, water board President Russ Baggerly said he’d argue again this afternoon to end a lawsuit he sees as a waste of district money and one that would undermine the federal Endangered Species Act if won.
“I see this as just another opportunity to end this nonsense,” Baggerly said. “It’s ludicrous. We’re gambling with ratepayers’ money. But my guess is that it will still be a 3-2 vote.”
After voting three months ago to appeal a decision by Judge John Wiese, of the U.S. Court of Federal Claims in Washington, Kaiser said he was swayed partly by the low cost of an appeal, $45,000.
Officials said the district’s lawyer for this case, Roger Marzulla of Washington, had also estimated his fee for a trial if the district wins the appeal at $100,000.
But Kaiser said this week that he has no idea how much a trial would cost.
“We don’t know what a trial is going to cost,” Kaiser said. “I don’t have any numbers, frankly. But a lot of things can happen in the meantime. Lawyers can discuss some sort of amicable solution. We’re looking at the federal government coming to us, and working with us.”
Baggerly said the $100,000 estimate for a trial is very low. “Triple that,” he said.
Marzulla said in an interview that even with a change of tactics, his fee for the appeal will remain the same. He would not confirm the $45,000 figure or estimate how much a trial would cost, saying those projections are confidential.
But he said Wiese’s refusal to certify his April decision against the district is not a problem. The district requested a certification only because the judge indicated he would sign it, then changed his mind, Marzulla said.
The district would now simply stipulate that it would lose its case at trial under the rules of law set by Wiese, and the judge would sign his decision, Marzulla said.
Then the district would appeal directly to the three-judge Court of Appeals in Washington.
“We’d get the court of appeal to say, ‘Judge Wiese, you got it wrong,’” Marzulla said. Then the case would go back to Wiese for trial under another set of legal precedents.
In March, Wiese weakened the Casitas lawsuit by ruling that a constitutional property right was not involved when the federal government required Casitas to provide water without compensation for the steelhead trout migration.
Wiese ruled that the Casitas claim must be considered under federal law that deals with the government’s simple regulatory constraint of water use, and not as a “physical taking” of private property.
The Fifth Amendment of the U.S. Constitution requires that the government pay just compensation for property seized through its eminent domain powers, as when land is confiscated for construction of a freeway or a school. But government lawyers argued that the taking of water to protect an endangered species was not the seizure of property, but simply a restriction on water use for the common good.
A claim for compensation for a regulatory taking has rarely, if ever, been successful, officials have said.
After another legal setback, directors of the Casitas Municipal Water District are set to consider today whether to pursue an appeal of a crippling federal ruling against the district’s claim for compensation for water it must provide so steelhead trout can migrate up the Ventura River.