The Tulare Case: Water Rights, the Endangered Species Act, and the Fifth Amendment

Posted: 12 Aug 2009

See all articles by Melinda Morgan

Melinda Morgan

Geography & Environmental Studies

Date Written: August, 10 2009


The Article discusses the recent United States Court of Federal Claims' decision in Tulare Lake Basin Water Storage District v. United States. Tulare is the first published court decision holding that efforts to protect species under the Endangered Species Act constitute a taking of property in violation of the Fifth Amendment. The Article critiques the court's holding and concludes that the Tulare decision was fundamentally flawed in at least two respects. First, the court erred in finding that the Tulare plaintiffs' water contracts constituted protectable property interests given the limited, contextual nature of such rights under California water law. Second, the court improperly applied a physical - as opposed to regulatory - takings analysis, which led the court to find a taking per se. Had the court conducted the more appropriate takings analysis, it would have found that the de minimis actual impact on the plaintiffs' rights, as well as the limited nature of the plaintiffs' reasonable expectations to exercise those water rights in a manner that harmed threatened species, combine to prevent any successful compensation claim under the Fifth Amendment. For these and other reasons discussed in the Article, the Tulare decision will be of lasting significance only if the federal government fails, for political reasons, to appeal the decision.

Suggested Citation

Morgan, Melinda, The Tulare Case: Water Rights, the Endangered Species Act, and the Fifth Amendment (August, 10 2009). Environmental Law, Vol. 32, No. 3, 2002, Available at SSRN:

Melinda Morgan (Contact Author)

Geography & Environmental Studies

Albuquerque, NM 87131-1221
United States

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