The public trust according to 'Casitas': a case of misapplication

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On Dec. 5, 2011, the U.S. Court of Claims issued its decision in Casitas Municipal Water District v. U.S., No. 05-168L. The case involved a claim by the plaintiff that the imposition of Endangered Species Act bypass flow requirements on a Ventura River dam constituted a taking under the Fifth Amendment. The Casitas court ultimately denied this takings claim on the basis that, while the act's requirements had reduced the amount of water diverted for storage, the plaintiff had not established that these reductions in diversion/storage had reduced the plaintiff's actual use of water. Without impairment of actual use of the water there could be no damages and no taking.