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Journal Article

Water in the West: Vested Water Rights Merit Protection under the Takings Clause

01 Jan 2003-Chapman Law Review (Chapman University)-Vol. 6, Iss: 1, pp 305
TL;DR: In fact, property owners' expectations associated with long-standing property rights continue to be a significant consideration in takings jurisprudence in the United States as mentioned in this paper, and the protection of individuals' "settled, justified expectations" in their property rights is integral to this concept.
Abstract: Property rights are a fundamental aspect of liberty in the United States.2 The protection of individuals' "settled, justified expectations" in their property rights is integral to this concept. In fact, property owners' expectations associated with long-standing property rights continue to be a significant consideration in takings jurisprudence.4 The Takings Clause of the Fifth Amendment provides, in part, "nor shall private property be taken for public use, without just compensation."5 This clause is implicated

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Citations
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Journal Article
TL;DR: Theoretical perspectives on Property Rights and Sustainability have been discussed in this article, where the authors present a new vision of property and its relationship with sustainable development in the context of natural resources.
Abstract: 1. Property Rights and Sustainability: Toward a New Vision of Property, Prue Taylor and David Grinlinton PART I: Theoretical Perspectives on Property Rights and Sustainability 2. Property Rights and Sustainability: Can they be Reconciled? Klaus Bosselmann 3. Taking Property Seriously, Eric T. Freyfogle 4. Property: Faustian Pact or New Covenant with Earth? J. Ronald Engel 5. Property Rights Viewed from Emerging Relational Perspectives, Peter Horsley 6. Property beyond Growth: Toward a Politics of Voluntary Simplicity, Samuel Alexander 7. The Mythology of Environmental Markets, Nicole Graham 8. Sustainable Webs of Interests: Reconceptualizing Property in an Interconnected Environment, Tony Arnold PART II: Differing Cultural Approaches to Property Rights in Natural Resources 9. Elusive Forms: Materiality and Cultural Diversity in the Ownership of Water, Veronica Strang 10. Maori Concepts of Rangatiratanga, Kaitiakitanga, the Environment, and Property Rights, Nin Tomas 11. Communal Governance of Land and Resources as a Sustainable Property Institution, Lee Godden PART III: Changing Conceptions of Property and the Challenge of Accommodating Principles of Sustainability in the Ownership and Use of Natural Resources 12. Evolution, Adaptation, and Invention: Property Rights in Natural Resources in a Changing World, David Grinlinton 13. Property Rights across Sustainable Landscapes: Competing Claims, Collapsing Dichotomies, and the Future of Property, Ann Brower and John Page 14. South African Natural Resources, Property Rights, and the Public Trusteeship - Transformation in Progress, Elmarie van der Schyff 15. International Law's Protection of Foreign-Owned Property against Uncompensated Expropriation: Preserving Host-State Regulatory Freedom, Amokura Kawharu Bibliography Index

32 citations

01 Jan 2011
TL;DR: This article examined the passage of the Nevada Water Law of 1913 in the light of the conflict between populism and progressivism, the tragedy of the commons, and boosterism, and demonstrated that aridity was not the overriding factor in the development of the Western United States, especially Nevada.
Abstract: This dissertation is an examination of the passage of the Nevada Water Law of 1913 in the light of the conflict between populism and progressivism, the tragedy of the commons, and boosterism. It demonstrates that aridity was not the overriding factor in the development of the Western United States, especially Nevada. Rather, aridity was merely a technical problem to be solved by technical experts such as lawyers and engineers.

4 citations

Journal ArticleDOI
01 Feb 2018
TL;DR: In this article, the authors argue that the most likely claims by downstream agricultural irrigators in the American West are that state statutes authorizing rainwater harvesting are per se physical takings, even though they do not result in the total loss of the right to use water or have a minimal economic impact on a senior appropriator.
Abstract: Although rainwater harvesting would appear to be a win-win solution to the problem of developing new sources of water, implementing rainwater harvesting in the American West has been fraught with tensions that have pitted rural farmers and other agricultural interests against urban and suburban homeowners. The water law of the western states is based on the prior appropriation doctrine, which creates a “first in time, first in right” system of water rights tied to when a user diverts surface water for beneficial use. Since water rights are property rights, state statutes and regulations that “go too far” in affecting them risk giving senior appropriators a takings claim. Based on the nature of rainwater harvesting and judicial interpretations of federal and state constitutional takings clauses, the most likely claims by downstream agricultural irrigators in the West are that state statutes authorizing rainwater harvesting are per se physical takings. Such takings require compensation, even though they do not result in the total loss of the right to use water or have a minimal economic impact on a senior appropriator. To avoid a taking, state legislatures need to draft these statutes in ways that take advantage of how existing state laws implement the prior appropriation doctrine. Colorado’s most recent rainwater harvesting statute leverages how the no-injury requirement placed on junior appropriators ultimately limits the scope of the senior appropriators’ water rights and avoids a taking.

1 citations