Taking Cover: Fifth Amendment Takings Jurisprudence as a Tool for Resolving Water Disputes in the American West

Authors

Jeffrey A. Wilcox

Abstract

The Supreme Court's Fifth Amendment takings jurisprudence over the last half-century, through its notorious inconsistency, has provided relatively unreliable precedent for those seeking clearly to delineate the parameters of appropriate government intrusion upon private property rights. Although the Court has outlined a few categories where a per se taking has occurred, these categories cover but a small portion of takings challenges, thus leaving a broad swath of ambiguity for parties that might otherwise implement these decisions to vindicate their rights.

At present, litigants on both sides of a water dispute in the arid American West seek refuge in these scattered decisions. This Note seeks to interpret modern takings jurisprudence to reveal its underlying consistencies and then to apply these results to a complex controversy pending along California's Lower Yuba River. The Note will show that the Court's recent rejection of property owners' takings claims in Tahoe Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency indicates a retreat from the modern Court's increasingly broad view of what constitutes a Fifth Amendment taking.

After investigating the complicated nature of a water right in California and identifying the sometimes hidden consistencies in takings jurisprudence noted above, this Note will analyze the takings claims presently at issue in the Yuba controversy. As part of this analysis, this Note necessarily includes an overview of takings law and a more detailed description of the Yuba River watershed. Rather than by way of review, however, this overview seeks specifically to address the intersections between takings law and the land use regulatory flexibility that is so frequently impacted by Fifth Amendment takings decisions. It is intended that these intersections, informed by further analysis of both state common law doctrines and federal environmental laws, shall provide a useful blueprint for resolving water disputes in the traditionally water-starved American West. Upon completion of these analyses, this Note will conclude that the Yuba River petitioners' takings arguments must fail, and that the Supreme Court's takings jurisprudence is preserved as a viable tool for vindicating environmental interests.

Recommended Citation

Jeffrey A. Wilcox, Taking Cover: Fifth Amendment Takings Jurisprudence as a Tool for Resolving Water Disputes in the American West, 55 Hastings L.J. 477 (2003).
Available at: https://repository.uclawsf.edu/hastings_law_journal/vol55/iss2/5