United States Federal Circuit

In a suit alleging breach of contract and a taking by the government in connection with the financing of a water-supply project, summary judgment in favor of the government is affirmed in part, reversed in part, and remanded where: 1) under the terms of the contract, construction of a fish ladder was a maintenance and operational cost rather than a construction cost, and defendant was not obligated to pay for it; 2) defendant's breach of a portion of the contract guaranteeing perpetual water-use rights to plaintiff was a sovereign act and did not give rise to any liability; but 3) defendant's taking of a portion of plaintiff's exclusive water-use right was a physical taking, not a regulatory one, requiring new analysis on remand.

Appellate Information

• Decided 09/25/2008
• Published 09/25/2008

Judges

• Before MAYER, SCHALL, and MOORE, Circuit Judges.

Court

• United States Federal Circuit

Counsel

• For Appellant:
  
• Roger J. Marzulla, Marzulla Law, of Washington, DC, argued for plaintiff-appellant.   With him on the brief were Nancie G. Marzulla and Gregory T. Jaeger., Lisabeth D. Rothman, Hatch & Parent, A Law Corporation, of Los Angeles, CA, for amici curiae California Building Industry Association, et al., Tara L. Mueller, Deputy Attorney General, California Office of the Attorney General, of Oakland, CA, for amicus curiae California State Water Resources Control Board.   With her on the brief was Clifford T. Lee, Deputy Attorney General, of San Francisco, CA., Hertha L. Lund, Wittich Law Firm, P.C., of Bozeman, MT, for amici curiae Idaho Farm Bureau Federation, et al., Jeffrey B. Clark, Kirkland & Ellis LLP, of Washington, DC, for amici curiae Tulare Lake Basin Water Storage District, et al.   With him on the brief was Scott M. Abeles.   Of counsel on the brief was William C. Kuhs, Kuhs & Parker, of Bakersfield, CA., William P. Pendley, Mountain States Legal Foundation, of Lakewood, CO, for amicus curiae Mountain States Legal Foundation.   With him on the brief was J. Scott Detamore., John D. Echeverria, Environmental Law & Policy Institute, Georgetown University Law Center, of Washington, DC, for amicus curiae Natural Resources Defense Council.   Of counsel on the brief was Katherine S. Poole, Natural Resources Defense Council, of San Francisco, CA., J. David Breemer, Pacific Legal Foundation, of Sacramento, CA, for amicus curiae Pacific Legal Foundation., Jennifer L. Spaletta, Herum Crabtree Brown, of Stockton, CA, for amicus curiae Stockton East Water District.


• For Appellees:
  
• Katherine J. Barton, Attorney, Appellate Section, Environment & Natural Resources Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee.   With her on the brief were Ronald J. Tenpas, Assistant Attorney General, and Kathryn E. Kovacs, Kathleen L. Doster, and James D. Gette, Attorneys.