After
hearing comments from a dozen residents, all but three urging an end
to the case, the board retreated for about 45 minutes in a session
closed because it involved an ongoing legal issue. Then board President
Russ Baggerly announced that the four directors had not voted to end,
or to proceed, with the controversial case.
"There
was no reportable action," Baggerly said, adding that directors
will meet again, probably on April 19, "for public comment and
review of the case."
Director
Bill Hicks, who still supports the suit, added: "We're going
to have a meeting on the 19th, an open forum, for the public to come
to."
And
Baggerly, who favors ending the case as soon as possible, said, "again,"
referring to the fact that the public has commented twice in recent
meetings about whether the district should pursue the case.
A
federal judge weakened the Casitas lawsuit late 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.
Judge
John Wiese, of the U.S. Court of Federal Claims in Washington, ruled
that the Casitas claim will 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 eminent 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. A trial on that issue is set
to begin May 7, although 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.
An
array of local residents said Wednesday that it was time to end the
case.
"I
think it's a massive waste of the ratepayers money," said Alasdair
Coyne, of the Keep the Sespe Wild environmental group.
"The
way I see it, this lawsuit has been a mistake from the beginning,"
said Lorenz K. Schaller.
And
Paul Jenkin, noting three recent court decisions that favored diverting
water for endangered species protection, said: "I think the writing's
on the wall."
However,
farmer James Coultas, a former Casitas director who voted for the
suit, cautioned against a decision without more public comment. He
said the farming community had expected the suit to be fully discussed
at a special meeting next week, only to find it was on Wednesday's
closed-session agenda.
"I
know a whole bunch of farmers who'd like to have their say,"
said Coultas, urging the board to consult with another attorney to
see if there were alternatives to dismissing the case, "if there
is any way to perhaps settle … and get something back."
Oak
View resident Bruce Kuebler, a former engineer for the Los Angeles
Department of Water and Power, also urged to board to consider carefully
how they deal with the case, apparently referring to Casitas' option
of dismissing the case without prejudice, which would allow it to
be refiled in the future. "Nothing's forever," he said.
Meanwhile,
Director Hicks said Thursday that he may continue to push the board
to appeal the Wiese's ruling, depending on information he's gathering
and future public comment. "I don't know yet," he said.
But
he said Washington attorney Roger Marzulla, who represents the district,
has said he might press the case "on a contingency basis,"
meaning without further compensation unless Casitas wins. But Hicks
said he doesn't know that for sure.
And
there would probably be other legal costs even if Marzulla works on
contingency. "I would guess it would cost some," Hicks said,
"but in comparison to the money it's going to cost us to go outside
(for replacement water), it's minuscule."
Baggerly
has estimated the cost of continuing the case through trial in May
at $300,000.
A
2001 case on the same issue before the same judge 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, 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 writes in an 11-page decision. "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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