Defining riparian rights as "property" through takings litigation: is there a property right to environmental quality?

• Author: Craig, Robin Kundis

1. INTRODUCTION II. TAKINGS BASICS A. Categories of Unconstitutional Takings B. Takings Claims and Rights to Use Real Property C. Overview of Takings Claims in the Context of Water Rights 1. Supreme Court Cases on Takings of Water Rights 2. Tulare Lake and Casitas III. DEFINING WATER PROPERTY RIGHTS IN THE WEST: TAKINGS CLAIMS AND GRAZING-RELATED WATER RIGHTS A. Early Cases B. Hage v. United States C. Colvin Cattle Co. v. United States D. Walker and Sacramento Grazing Association E. Lessons from the Grazing and Water Rights Cases IV. DEFINING WATER PROPERTY RIGHTS IN THE EAST: RIPARIAN RIGHTS, TAKING CLAIMS, AND ENVIRONMENTAL QUALITY A. Ancarrow v. City of Richmond: Sewage Pollution of a Marina B. Avenal v. United States: Salinity and Oysters C. Mildenberger v. United States: Riparian Property and Aquatic Ecological Well-Being D. A Comparison to Water Quality Takings Claims Under Prior Appropriation: A-B Cattle Company v. United States E. Lessons from the Riparian Pollution Litigation V. CONCLUSION I. INTRODUCTION

   As Carol Rose has observed, "Most of us think that as a nation, the United States is and always has been very conscious of property.... Almost from its inception, our Constitution has included a clause protecting property against takings for public purposes without compensation...." (1) Nevertheless, the Constitution's prohibitions on governments taking private property without compensation have always operated most clearly in the context of the relatively well-defined ownership interests--and especially fee simple interests--in real property. In contrast, arguments that constitutional takings prohibitions should apply to water and water rights often give courts substantial pause.

   Part of the difficulty is that water rights are generally use rights rather than ownership rights. (2) This usufructory status makes it more difficult to identify government actions that can actually "take" the right (3)--especially when the water right can be transferred to different uses. (4) Another difficulty in applying takings jurisprudence to water rights is that water rights vary considerably more from state to state--and sometimes, even within states--than real property rights do. Water rights differ depending on whether surface water or groundwater is involved and on whether the authorizing state is a riparian, prior appropriation, or other jurisdiction. With regard to surface water, for example, common law riparianism assigned the rights to use water from a particular source to the real property owners along the bank of a river, stream, or lake. (5) These rights are shared and co-equal, measured originally according to each owner's right to the natural flow and, more modernly, according to the reasonable use doctrine. (6) In times of shortage, all riparian owners must reduce their use. (7) In contrast, prior appropriation systems assign water rights on the basis of "first in time, first in right," without regard to real property ownership. (8) At least in theory, these appropriative rights are well-defined in terms of priority, quantity, source of supply, and timing and rate of diversion. (9) In times of shortage--again, at least in theory--those right holders with the oldest priority dates--senior appropriators--are fulfilled before newer right holders--junior appropriators--can take any water at all. (10) Combined systems blend these two legal regimes in some way, such as by recognizing both kinds of water rights, as in the California system, (11) or by importing elements of prior appropriation--defined rights, detachment from land ownership--into a "regulated riparianism" system. (12)

   States display even more variety with respect to rights to pump and use groundwater. Indeed, treatises and other authorities generally identify five major groundwater doctrines operating in the United States. (13) The English common-law rule, which is essentially a rule of capture, allows any surface owner to pump and use--or store--any amount of groundwater that the owner desires. (14) Because this rule causes fairly obvious problems in terms of groundwater competition, depletion of aquifers, and effects on connected surface waters, most states have eliminated it, and the English rule is now most relevant in parts of Texas. (15) Most eastern states now use instead one of two forms of a reasonable use rule. The common law reasonable use rule, or American rule, operates much like riparian rights in surface water: (16) each landowner may 1) make reasonable use of groundwater beneath his or her land for beneficial purposes on that land, and 2) use the water off-property so long as the use does not injure others, subject to the same rights of all other landowners to do the same. (17) In contrast, the Restatement of Torts's reasonable use rule downplays the common law's preference for on-property use but also creates liability if the landowner's pumping affects surface watercourses or lakes, acknowledging the possible hydrological connections between surface water and groundwater. (18) Michigan, Ohio, and Wisconsin are three states that follow the Restatement rule. (19) A fourth groundwater rights regime is the doctrine of correlative rights, under which all landowners above a common aquifer have co-equal rights to proportional use of the groundwater beneath them, often leading courts to divide the groundwater into "shares." (20) "California is the leading state for this doctrine." (21) Finally, most western states use the prior appropriation doctrine--"first in time, first in right"--for groundwater as well as for surface water. (22)

   These differences in state water law pose real problems for courts attempting to assess takings claims in the water rights context. (23) Nevertheless, the most fundamental difficulty in applying takings jurisprudence to water rights is the fact that both the status of water rights as "property" and the defining characteristics of any such property right--its scope and elements--are highly contested. For example, regarding the first fundamental issue--are water rights property at all?--Sandra Zellmer and Jessica Harder have noted:

   One of the most divisive issues in contemporary natural resources law in the United States is whether interests in water are legally recognized as property. In the West, surface water is typically viewed as a form of private property, while in the East it is not. In either case, the law is surprisingly unsettled; over two centuries of American caselaw have yielded no consistent answers. (24) Under their conception of water rights, "[t]he public interest in water ... is so compelling that, by precluding non-use and imposing trade constraints, public access is ensured and private rights are correspondingly limited." (25) As a result, they argue that even under a prior appropriation regime, "appropriators do not have full takings property, but they may have due process or common law property." (26)

   With regard to the second fundamental issue--if water rights are property rights, what are their defining aspects?--property rights in water are legitimately viewed as both normatively and pragmatically different from property rights in land. As Zellmer and Harder emphasized, even when water is viewed as some species of property, the public interest in water is unusually strong, given water's absolute necessity to the existence of life. (27) Moreover, water is nowhere near the (relatively) fixed natural resource that land is, but instead changes seasonally, annually, and decadally or longer, sometimes significantly, in response to seasonal and annual precipitation, flow rates and volumes, recharge rates for groundwater aquifers, and climate variability. (28) These unavoidable features of water resources render water rights inherently more contextualized and adjustable than real property rights. To again quote Carol Rose:

   If water were our chief symbol for property, we might think of property rights--and perhaps other rights--in a quite different way. We might think of rights literally and figuratively as more fluid and less fenced-in; we might think of property as entailing less of the awesome Blackstonian power of exclusion and more of the qualities of flexibility, reasonableness and moderation, attentiveness to others, and cooperative solutions to common problems. (29) One premise of this Article, therefore, is that takings litigation can provide an occasion for more precisely defining what a water right actually is as a species--or not--of property. For example, the Florida Supreme Court has twice used litigation alleging unconstitutional takings of riparian and littoral rights to define the future-oriented aspects of those rights--the right to begin using water in the future and the right to future accretions, respectively--as contingent future interests subject to legal regulation without compensation. (30)

   However, this Article also explores the potential for the definitional process that takings litigation requires to recognize environmental quality as an element of water rights in the riparian rights context. In general, takings claims that involve environmental protection measures pit public environmental and land-use restrictions against private property rights. (31) A series of takings cases involving riparian water rights, however, suggest that this conflict could be turned on its head in riparian states, with the private property rights holders becoming the advocates for increased environmental protection. (32)

   Part II of this Article provides a quick review of basic takings jurisprudence, emphasizing how the constitutional prohibitions on government takings of private property apply to property use rights--traditionally, easements. Part III examines the potential for takings litigation to help define the nature of water rights in general, presenting as a case study relatively recent litigation in the West involving water rights connected with federal cattle...