Home » Articles » Volume 42 » Issue 1 » Defining Riparian Rights as “Property” Through Takings Litigation: Is There a Property Right to Environmental Quality?

 
 

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

 

View PDF

Abstract

The United States 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 governmental 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 on federal public lands. The Article finishes by discussing a series of cases involving riparian water rights and claims that those rights entitle the owners to certain basic environmental amenities, 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 and less balancing—private cause of action than nuisance for certain kinds of environmental degradation. 

 

Print this pageEmail this to someoneTweet about this on TwitterShare on Facebook

Comments are closed

Sorry, but you cannot leave a comment for this post.