14d (2) - Laserfiche WebLink

Home Browse Search

Government's construction of fences around the water and streams amounts to a physical taking during the time period in which Plaintiffs' still had a grazing permit and their cattle had the right to water at these streams." Plaintiffs also argued USFS policy, such as allowing brush and riparian vegetation to overgrow the stream beds and allowing beavers to establish dams in upper reaches of streams, prevented Plaintiffs from using water in the upper reaches of the Plaintiffs' patented lands and amounted to a regulatory taking. Plaintiffs showed that historical flows in streams they used to irrigate patented portions of their lands decreased by 8,000 acre-feet (61%). Using established principles from the U.S. Supreme Court's Penn Central decision, the court found "...that the Government's actions had a severe economic impact on Plaintiffs and that the Government's actions rose to the level of a taking." Next, the Plaintiffs argued that through intimidation, threats, an indictment and conviction, the government prevented Plaintiffs from maintaining their ditches. The court wrote, "The evidence is clear that the ditches to which Plaintiffs have established a property right were in need of routine maintenance. In order to access the water, trees and undergrowth had to be removed, as well as roots, silt, and other deposits." Given that USFS threatened to prosecute Plaintiffs, and had earlier secured a conviction against them which was overturned by the Ninth Circuit, seeking a special use permit would have been futile. "Based on the history between [USFS] and Plaintiffs, the special use permit requirement for ditch maintenance rises to the level of a prohibition, and is therefore a taking of their property rights. Further, the hand tools requirement prevented all effective ditch maintenance, as it cannot be seriously argued that the work normally done by caterpillars and back hoes could be accomplished with hand tools over thousands of acres." Using the Penn Central factors, the court held that the "Government's actions in both preventing access to the ditches and in limiting the maintenance to the use of hand tools constituted a taking of Plaintiffs' water rights in the 1866 Act ditches...." Finally, Plaintiffs argued that USFS devoted their grazing allotment to another "public purpose" after USFS cancelled their grazing permit which entitled them to "...a reasonable compensation for the adjusted value...of [their] authorized permanent improvements....on lands covered by [the] permit..." under 43 U.S.C. § 1752(g). Plaintiffs argued that the lands are no longer used for grazing and are now used for wildlife and recreational purposes, with development of an elk preserve and arecently-constructed mountain bike trail. The court agreed and ordered compensation for fences, roads, ditches, pipelines, and wells they constructed. To date, the United States has not filed a notice of appeal. (Source: Western States Water News Service) BUSH SIGNS BILL TO RECOVER WATER FROM ENERGY DEVELOPMENT - Federal legislation to explore putting groundwater pumped out during oil and gas production to use was signed into law recently. The bill signed by President Bush directs the Interior Department to assess the feasibility of recovering and cleaning up the millions of gallons of water that are reinjected into the ground or disposed of during oil and gas development. The water's fate has become contentious as natural gas development has increased in the Rockies. Large volumes of water are pumped out during coal-bed methane production. Pumping groundwater relieves the pressure that traps the gas in the coal seams. New Mexico Sens. Jeff Bingaman, a Democrat, and Pete Domenici, a Republican, and Sen. Mike Enzi, R-Wyo., were the other sponsors. The House version of the bill was approved last year. ~~~ ~4 5 ~