Wiese, in undercutting
his own 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 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.”
A trial on the merits of the remaining case is set for May 7, although
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 – have now been rejected by Wiese.
It may still seek damages for the regulatory taking, although no such
claim has ever succeeded, Casitas officials said.
Even before Monday's announcement, most members of the reconfigured
Casitas board had said they did not agree with the decision of their
predecessors to sue in 2005, and might move to kill the suit because
of cost and concerns the case could undermine environmental policy
nationwide if successful.
A special hearing is set for April 19, although trustees' could consider
the suit at their next meeting, April 11. However, director Jim Word
would not be back from vacation until April 18.
Casitas, which has already spent nearly $500,000 on the case, will
not incur any more legal costs until a decision on whether to continue
the suit is made, said district interim general manager Steve Wickstrum.
Two board members, Russ Baggerly and Richard Handley, said Monday
that they were ready to abandon the case before the judge's ruling,
and that it only reinforced their decision.
“I would like to move to vacate the case as soon as possible,”
Handley said.
And Board President Russ Baggerly said the board has been advised
that its chances of winning the case as a regulatory taking are next
to none.
“To me, it's over,” Baggerly said. “Our chances
at this point are miniscule. We can't go forward with this.”
Baggerly said he was not surprised Wiese reversed his own ruling.
“He had to follow the Supreme Court decisions that came after
the Tulare Water District case (in 2001). ... He would like to have
said it was a physical taking, but he couldn't, so he had to recant
his Tulare decision.”
Trustee Pete Kaiser, seen as the swing vote, would not say for certain
that he would vote to kill the case. But he sounded as if that was
his next step.
“In the simplest terms, the batter (Casitas) has swung and missed
each time on its legal journey,” he said. “As one of the
original dissenting votes, this (ruling) reinforces in my mind the
necessity of moving on.”
He said the judge's ruling extremely limits the amount of damages
Casitas could receive and called on the board to meet “immediately
... to discuss the prudence of continuing any further legal action
in this case.”
But Trustee Bill Hicks said the case isn't over yet.
“I would vote to keep going,” Hicks said, estimating the
cost of taking the issue to trial at only $100,000. Baggerly has said
it would cost $300,000 to take the case through trial, and perhaps
much more on appeal.
Hicks allowed, however,
that he knows of no case considered under regulatory law in which
a district has successfully sued the government for compensation.
“But we're in it 500 grand, and it's only going to cost $100,000
more to go to trial,” he said. “That's a drop in the bucket
compared with the millions it's going to cost to hook up to the state
(Water Project) or a desalination (system) to replace out lost water.”
He said estimates have been $10 million to $20 million to build the
pipelines to connect to the state system, which ends in mid-Ventura.
Hicks said that in multiple drought years, with as much as 5,000 acre
feet of water lost to fish diversions, Lake Casitas would drop very
low, and the district would lose about 30 percentof its $11 million
annual budget because no one would want to recreate in a mud hole.
“I'm very disappointed and alarmed for the people of the Ojai
Valley, especially the farmers,” Hicks said. He said farmers
might have no choice to but let their orchards die in drought years,
because of short supplies and cost. “It's not good news that
the government can come in and take your property and not pay you
for it.”
When it sued the Bureau of Reclamation in 2005, Casitas claimed that
by enforcing the federal Endangered Species Act, the bureau violated
the district's constitutional property rights and essentially seized
enough water to supply 3,200 families so fish could swim upstream.
The district asked for repayment of $9.1 million spent to build a
fish ladder and for millions of dollars in compensation for the on-going
loss of water each year.
In October, Wiese threw out part of the Casitas suit, ruling that
the Bureau of Reclamation, which owns the Casitas Dam project, had
not broken its contract with Casitas, operator of the waterworks,
and was not entitled to compensation for the fish ladder.
The district provides water for about 65,000 people and nearly 5,700
acres of farmland in the Ojai Valley and Ventura.
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