Abstract

http://ssrn.com/abstract=1917532
 


 



Defining Riparian Rights as 'Property' Through Takings Litigation: Is There a Property Right to Environmental Quality?


Robin Kundis Craig


University of Utah S.J. Quinney College of Law

May 15, 2012

Environmental Law, Vol. 42:1 (Winter 2012), at 115-155
FSU College of Law, Public Law Research Paper No. 547

Abstract:     
The U.S. Constitution’s prohibitions on governments taking private property without compensation have always operated most clearly in the context of real property. In contrast, arguments that these takings restrictions should apply to water and water rights throw courts for a loop. A fundamental problem for takings decisions in the water rights context is the fact that both the status of water rights as property and the defining elements of any property rights that exist are contested.

This Article argues that takings litigation can become a productive occasion for defining the status and nature of water rights, especially, increasingly, in the riparianism context. It first provides a quick review of basic takings jurisprudence, emphasizing how the constitutional prohibitions on government takings apply to property use rights, such as easements. It then examines the potential for takings litigation to help define the nature of water rights in general, focusing on relatively recent litigation involving water rights connected with cattle grazing. The Article ends by discussing a series of cases involving riparian water rights and claims that those rights entitle the owners to certain basic environmental quality standards, especially with respect to water quality. It concludes that takings jurisprudence in the riparian rights context may yet align private property rights and environmental protection, providing a more focused - and potentially more predictable/less balancing - private cause of action than nuisance for certain kinds of environmental degradation.

Number of Pages in PDF File: 41

Keywords: water law, water rights, prior appropriation, grazing, riparian, water quality, takings, physical takings, regulatory takings

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Date posted: August 26, 2011 ; Last revised: February 3, 2013

Suggested Citation

Craig, Robin Kundis, Defining Riparian Rights as 'Property' Through Takings Litigation: Is There a Property Right to Environmental Quality? (May 15, 2012). Environmental Law, Vol. 42:1 (Winter 2012), at 115-155; FSU College of Law, Public Law Research Paper No. 547. Available at SSRN: http://ssrn.com/abstract=1917532

Contact Information

Robin Kundis Craig (Contact Author)
University of Utah S.J. Quinney College of Law ( email )
332 S. 1400 East Front
Salt Lake City, UT 84112-0730
United States

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