The United States Court of Federal Claims(“CFC”) entered a judgment in the above-entitled caseafter nearly 20 years of proceedings, finding FifthAmendment regulatory and physical takings of ditchesand water rights owned by Petitioners pursuant to theAct of July 26, 1866, 43 U.S.C. § 661. The rights of 1866Act ditch rights-of-way have been matters of intensecontroversy in recent years.The Federal Circuit court reversed the ClaimsCourt’s findings of regulatory takings on ripenessgrounds by holding that Petitioners should have made anapplication for a maintenance permit, overruling theClaims Court’s finding, consistent with
, that no permit was legally required. Itvacated the Claims Court’s findings as to physical takingsresulting from the government’s fencing off of Hagewater sources.The questions presented are:1. Whether governmental agency interferencewith a person’s ability to access and beneficially use hisvested water right under threat of prosecution, in part byrequiring a permit not authorized or contemplated by anystatute or regulation and in derogation of the very natureof the property right, is properly analyzed as a per setaking under Loretto v. Teleprompter CATV Corp, 458U.S. 419(1982), rather than as a regulatory taking underPenn Central Transportation Co. v. New York City, 438U.S. 104(1978).
2. Whether the Forest Service or Bureau of Land Management can alter the congressional grant orrecognition of water rights and rights-of-way pursuant tothe Act of July 26, 1866 by administratively redefiningthe scope and purpose of the easements or bysuperimposing a special use permitting requirement fortheir maintenance.3. Whether the fencing of water sources inwhich Petitioners had stockwater and other water rights,intended to and which was sufficient to prevent livestockaccess to the source for at least a period of time, is aphysical taking subject to
Loretto v. Teleprompter CATV Corp
., 458 U.S. 419 (1982) and
Arkansas Game and FishCommission v. United States
, 512 U.S. ___ (2012)(slip.op.), without regard to whether some residualamount of water could escape.
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