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abstract 156

SHOULD U.S. WATER TAKINGS JURISPRUDENCE INFLUENCE NAFTA CH. 11 APPROPRIATION CLAIMS FOR WATER?

Author(s): Jonathan R. Schutz
Jonathan R. Schutz Attorney Somach, Simmons & Dunn 813 Sixth Street, Third Floor Sacramento, CA 95814 916-446-7979 (Phone) 916-446-8199 (Fax) jonathanrschutz@yahoo.com I am a water attorney in California, United States.

Keyword(s): Nafta, transboundary, trade, globalisation, governance, institution, treaty, appropriation, taking, water law, law

Article:

Poster:

Session: OS2a Trade and globalisation

AbstractIn 2001, Roger Marzulla in won a historic legal case in the United States in

Tulare Lake Basin Water Storage District v. United States, 49 Fed. Cl. 313 (Fed. Cl. 2001). This case threatened

to change U.S. takings law as it applied to water. In Tulare Lake, Marzulla successfully sued the U.S. government

on behalf of irrigators who had their water supply reduced to leave water in the streams for fish pursuant to the U.S.

Endangered Species Act. The irrigators successfully argued that because the amount of their available water was

reduced, the federal government had taken the irrigators’ water rights without financial compensation as required

under the U.S. Constitution. The case was decided in the U.S. Court of Claims—the court in the U.S. that decides

compensation claims against the federal government.

Riding on the success in Tulare Lake, Mr. Marzulla

filed a NAFTA Chapter 11 claim against Mexico on behalf of a group of Texas farmers and irrigators. This case is

still pending. The claim alleges that Mexico withheld water that originates in Mexico but is rightfully owned by the

irrigators pursuant to a 1944 Treaty between the U.S. and Mexico for the Rio Grande and Colorado Rivers. The

Texas irrigators argue that Mexico appropriated the water, thereby violating the provisions of NAFTA’s Ch. 11.

Recently, Mr. Marzulla also filed three more lawsuits in the Court of Claims alleging the taking of private

irrigators’ water rights by the federal government. The courts in all three of these cases have determined that no

takings occurred and that no compensation was due to the irrigators. The courts so held because water rights are

treated differently than other forms of property. This paper analyzes the nature of water rights in the U.S. and under

NAFTA.

The NAFTA tribunal is poised to rule on the Texas irrigators’ Ch. 11 claim against Mexico. One

of the issues in this case, and in other NAFTA cases over water resources, is the nature of water rights under

NAFTA and whether U.S. water takings jurisprudence should be applied to NAFTA Ch. 11 appropriation claims.

This paper will review water rights takings jurisprudence in light of the recent Court of Claims cases.

This

paper concludes that the courts were correct in determining that water rights should not be subject to the same

takings jurisprudence as other forms of real property. Lastly, this paper argues that U.S. water law takings

jurisprudence should not be used to evaluate NAFTA Ch. 11 compensation claims. However, if U.S. water takings

law is used to evaluate the pending Texas irrigators Ch. 11 claim, the three recent Court of Claims cases should

make it clear that no appropriation has occurred and that the Texas irrigators are not entitled to compensation.

Other Themes Addressed:

1. Water Governance and Water Security: Improving legal

and institutional frameworks
2. Water Governance and Water Security: Transboundary river basins and shared

aquifers
3. Water Availability, Use and Management: Regional Sessions, North America

Events

The congress

Programme

Practical Infos

SHOULD U.S. WATER TAKINGS JURISPRUDENCE INFLUENCE NAFTA CH. 11 APPROPRIATION CLAIMS FOR WATER?