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In general, a cause of action is said to accrue when all events have occurred to fix the Government's alleged liability, entitling the claimant to demand payment and sue here for his money. A claim does not accrue, however, until a claimant has suffered damages. A possible future taking of property cannot give rise to a present action for damages.
Plaintiff Casitas Municipal Water District ("Casitas"), operates the Ventura River Project, a water project that provides water to residential, industrial, and agricultural customers in Ventura County, California. Casitas operates the Robles Diversion Dam, a structure used to divert water from the Ventura River into the Robles-Casitas Canal, a 4.5 mile canal which in turn transports the water to a man-made reservoir known as Lake Casitas. Water is stored in Lake Casitas for delivery to Casitas’ customers. Casitas’ diversion and use of water is governed by a license granted to it by the State Water Resources Control Board ("SWRCB" or "the Board"), the California agency responsible for the issuance of permits and licenses for the appropriation of water in California. In particular, Casitas’ license provides that Casitas may divert up to 107,800 acre-feet of water per year from the Ventura River and other tributaries and may put up to 28,500 acre-feet of water per year to beneficial use. In addition, Casitas’ operations were originally governed by a set of guidelines, established in 1959 ("the 1959 criteria"), which required Casitas to bypass the first 20 cubic feet per second ("cfs") of river flow for use by downstream senior water-rights holders before diverting any water from the Ventura River. Flows in excess of 20 cfs could be diverted into the Robles-Casitas Canal, subject to the provisions of Casitas’ license. Casitas operated under the terms of its license from the completion of the water project in 1959 until the late 1990s. In August 1997, however, NMFS, a federal agency, listed the west coast steelhead trout as an endangered species under the ESA, concluding in the final listing that the primary cause of the decline of the southern California steelhead is "extensive loss of steelhead habitat due to water development, including impassable dams and dewatering.” As a result of this listing, Casitas, its officers, and the United States Bureau of Reclamation ("BOR") (the federal agency that owns the water project) faced possible civil and criminal liability if the continued operation of the water project resulted in harm to the steelhead trout. Following the NMFS listing, Casitas joined several other local water agencies in commissioning a study by Entrix, Inc., a consulting firm specializing in environmental and endangered-species issues, to identify measures to mitigate the impact of the water project operations on the steelhead population, which recommended a restoration and recovery plan. On December 18, 1997, Casitas submitted a grant application to the California Department of Fish and Game ("CDFG"), seeking funds to construct a fish passage facility at the Robles Diversion Dam to lessen the impact of its operations on the steelhead. On December 18, 1998, California Trout, Inc. ("Cal Trout"), a non-profit environmental group, notified Casitas of its intention to bring suit in California district court in an attempt to enjoin Casitas and BOR from unlawfully taking, jeopardizing, and failing to conserve the steelhead trout through the operation of the Robles Diversion facility. Specifically, Cal Trout asserted that Casitas’ operation of the Robles Diversion Dam and its related diversion and storage facilities had "caused the take" of endangered southern California steelhead in violation of the ESA. Talks and intensive planning about what to do about the conservation of the steelhead. Things came to a head when NMFS issued a biological opinion on March 31, 2003 which concluded that the proposal set forth in the final biological assessment—the construction and operation of the Robles fish passage facility—would not jeopardize the continued existence of the steelhead, but might result in the incidental take of the fish. The biological opinion accordingly included an incidental take statement relieving Casitas and BOR of liability under Section 7(o)(2) of the ESA so long as those agencies implemented a set of nondiscretionary, reasonable and prudent measures designed to minimize the incidental take of the steelhead. The biological opinion additionally called for a flow regime, referred to as the Robles Operating Criteria or biological opinion criteria, that increased the amount of water to be bypassed by Casitas during steelhead migration periods to maintain an adequate water flow in the Ventura River for fish passage to upstream spawning sites. Notably, this flow regime increased the amount of water Casitas was required to bypass during certain portions of the year from 20 cfs under the 1959 criteria to 50 cfs under the biological opinion criteria (thereby limiting the amount of water Casitas otherwise would have been permitted to divert). On April 9, 2003, Casitas's board of directors passed a resolution implementing the biological opinion. The resolution noted, however, that "Casitas understands that the Bureau of Reclamation will be sending Casitas a letter that requires Casitas to adhere to the provisions of the Biological Opinion" and that "Casitas is under a powerful coercive effect to move forward with the fish passage project." Casitas formally opened the Robles fish passage facility on December 9, 2004, to prevent fish from entering the Robles-Casitas Canal by directing them instead into a fish passageway to the Ventura River. Despite this development, Cal Trout filed a complaint with the State Water Resources Control Board on December 31, 2004, seeking to amend Casitas's license to conform to the requirements of the biological opinion. While Cal Trout's petition was pending before the SWRCB, Casitas filed suit in this court on January 26, 2005, asserting that the United States, in imposing the biological opinion operating criteria, had breached Casitas’ contract with BOR for the construction and operation of the water project or, in the alternative, had taken Casitas’ property without compensation in violation of the Fifth Amendment. Casj accordingly sought reimbursement of the approximately $9.5 million it had spent to construct the fish passage facility (under the contract theory) and just compensation for the water it had lost (under the takings theory). On October 2, 2006, this court dismissed Casitas’ contract claim against the United States under the theory that even if the government had indeed breached its contract with Casitas, the sovereign acts doctrine applied, shielding the government from liability. Further, the alleged taking was regulatory because it involved the government's restraint on an owner's use of property rather than a government takeover of property (either by physical invasion or by directing the property's use to its own needs). On appeal, the Federal Circuit upheld the dismissal of the contract claim but reversed the dismissal of the takings claim on the ground that the taking was physical rather than regulatory in nature.
Has there been infringement of Casitas’ right to beneficial use of the water that gives rise to a cause of action against the government?
Since the issuance of the biological opinion in 2003, Casitas has not reduced water deliveries to any of its existing customers, has not turned away any prospective customers (and has in fact both added new customers and eliminated its wait list), has not changed how it allocates water to its customers, has not purchased alternative water supplies, has not instituted any mandatory water conservation measures or changed its drought contingency measures, and has not increased the price of the water due to the biological opinion. Indeed, since 2003, the water available for delivery from Lake Casitas has fluctuated between 157,595 acre-feet and 252,597 acre-feet, far above the 28,500 acre-feet that Casitas is authorized to put to beneficial use under its license. (In fact, at no time has Casitas delivered the full 28,500 acre-feet identified in its license.) Casitas, in other words, has produced no evidence that the biological opinion has so far resulted in any reduction in actual water deliveries by Casitas. While the government has interfered with Casitas's ability to divert water—and has done so since the opening of the fish passage facility necessitated by the steelheads' ESA listing—it remains to be seen whether the government's actions will subsequently interfere with Casitas's beneficial use of its water. Absent such a present, compensable injury, Casitas's takings claim is simply not ripe.