Now,
the district will ask Judge John Wiese, of the U.S. Court of Federal
Claims in Washington, to certify his March 29 ruling even before trial,
making the decision eligible for consideration by a federal claims
appellate panel. The judge has indicated he will do so, a move that
would delay the trial previously set for May 7.
Officials
said Thursday that the district's lawyer for this case, Roger Marzulla
of Washington, who set the cost of appeal at $45,000, had estimated
his fee for the trial at $100,000. They said he said he would work
after that, if there is a second appeal, on a contingency basis, apparently
meaning he would be paid only if victorious. Baggerly said the estimates
were very low.
Wiese
weakened the Casitas lawsuit last month by ruling that a constitutional
property right was not involved when the federal government required
Casitas to provide water without compensation so the endangered steelhead
trout could migrate up the Ventura River.
Wiese
ruled that the Casitas claim must be considered under federal law
that deals with the government's simple regulatory constraint of water
use, and not as a “physical taking” of private property.
The
Fifth Amendment of the U. S. Constitution requires that the government
pay just compensation for property seized through its imminent domain
powers, as when land is confiscated for construction of a freeway
or a school. But government lawyers argued that the taking of water
to protect an endangered species was not the seizure of property,
but simply a restriction on water use for the common good.
A
claim for compensation for a regulatory taking has rarely, if ever,
been successful, officials have said.
Wiese
has now rejected Casitas' two main claims – that it should
be paid $9.1 million for construction of the Robles fish ladder and
that its property was unconstitutionally seized.
But
the majority of the Casitas board apparently now thinks an appellate
claims panel will overrule his property rights decision, or that the
cost of gaining an appeals decision is low enough to at least try.
If
Casitas wins on appeal, the case would return to Wiese to be tried
under precedents pertaining to property rights, not regulatory
takings. And that would apparently favor Casitas.
Hicks
and Word said in interviews that now is not the time to quit.
“With
our investment, we can't just let it flush away,” said Word. “We need
to exhaust all avenues to see what we can recover for the ratepayers.
... The judge invited an appeal, because he wasn't sure he'd made
the right decision.”
Hicks
added: “I just feel the extra little bit of money, compared with the
possible return for ratepayers, was worth the gamble. We're going
to have water problems win, lose or draw. And I just think this little
bit of money keeps the message out there.”
Baggerly
and Handley said in interviews that they were disappointed by their
colleagues' decision because they consider the appeal a money-wasting
long-shot. The water agency is running a $483,000 deficit on water
operations this fiscal year because the suit has drained funds away
from key maintenance projects, they said. And they said that a prominent
property rights group might now enter the case, which could hike the
case's profile and ratchet up costs.
“I
have heard that the Pacific Legal Foundation might be getting involved
here,” Handley said.
Baggerly
said that Casitas' general counsel, Robert Sawyer, had told him in
a parking lot conversation, which he could discuss because
it was not confidential, “that Casitas could become the poster child
for some of these groups that are for undermining the (federal) Endangered
Species Act.”
Sawyer
said Friday that he had had no contact with Pacific Legal Foundation
and that the group typically represents individuals who are fighting
government use of power, not a local governmental agency such as Casitas.
He
also said he doesn't recall a conversation with Baggerly about Casitas
as a “poster child” for attacking the Endangered Species Act. “I don't
recall ever having said any such thing to anyone.”
Hicks
said he'd never heard of the Sacramento-based Pacific Legal Foundation,
which historically enters cases in which it sees a government breach
of constitutional rights.
But
J. David Breemer, a principal attorney for the foundation, said it
is very interested in the Casitas case, and had filed a legal brief
in support of Casitas in late January. It now plans to file a brief
to the appeals court, he said.
“It's
not our typical client, but it is our typical issue,” Breemer said.
And it has the potential to go to the U.S. Supreme Court: “There's
not a lot of precedent, so it has the potential to help define the
law of water rights in the future.
“We
just want to make sure this case doesn't go into a black hole so water
rights can't ever be protected as much as land and other real estate,”
he said. “And the scary thing about this precedent is under this logic,
they could have taken 75% of (Casitas) water, and there's nothing
to stop them from taking it in the future.”
If
Casitas were to ask for the foundation's help, and its board approved,
Breemer said he would work for free. “But we have great respect for
Roger Marzulla,” he said. “They are being very ably represented.”
Such
future strategy was not on the minds of about two dozen people who
commented on the suit Thursday evening.
Most
said it was time for Casitas to concentrate on saving water through
conservation projects, and not on lawsuits that filter money away
from operations.
“The
basic issue here is are we going to spend more money on a lawsuit
we're not going to win?” said David Magney of Ojai.
Former
Ojai Mayor David Bury encouraged the board – reconstituted by
the election of Baggerly and Handley – to override its predecessors
and end the suit. “It's really about stewardship of the environment.”
And
Dennis Rice of Ojai counseled: “You also need to pay attention to
all environmental issues in the valley. We (people) don't deserve
to take all the water.”
But
supporters of the suit argued that the district's job is to provide
water to ratepayers at a reasonable price, and not to be protectors
of the Endangered Species Act.
“There's
a radical change on the board,” said David Pressey. “The emphasis
is on save the trout, which you can buy at Costco and Vons. And that
disturbs me mightily.”
Attorney
Ron Myers, a district resident, urged an appeal because he said Wiese's
own words made it clear the judge was struggling with his decision.
Wiese is “looking for some answers, some guidelines, from the appellate
court,” Myers said.
Casitas
filed suit in January 2005 against the U.S. Bureau of Reclamation,
which directed Casitas to supply up to 3,200 acre feet of water annually,
if needed, for steelhead migration.
A
2001 case on the same issue before Judge Wiese resulted in a federal
payout of almost $17 million to a water district in the Central Valley.
But
since then, a 2002 U.S. Supreme Court decision involving a moratorium
on development at Lake Tahoe has admonished judges “that only the
government's active hand in the redirection of a property's use may
be treated as a per se (property) taking,” Judge Wiese wrote in his
decision last month.
And
Wiese, in undercutting his own 2001 ruling, declared that criteria
had not been met in the Casitas case.
“Tempted
though we may be (to rule otherwise,) Tahoe-Sierra counsels against
our doing so,” Wiese wrote. “That case counsels us to respect the
distinction between a government takeover of property ... and government's
restraints on an owner's use of that property.”
Casitas
provides water for about 65,000 people and nearly 5,700 acres of farmland
in the Ojai Valley and Ventura.
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