Agricultural Economics Department


Date of this Version



Published in Cornhusker Economics, 01/28/2004. Produced by the Cooperative Extension, Institute of Agriculture and Natural Resources, Department of Agricultural Economics, University of Nebraska–Lincoln.


It finally happened. For the first time, a court has held that restrictions imposed under the Endangered Species Act constituted a Fifth Amendment taking of Property. So begins a 2002 law review article [Benson, “Tulare, ESA and the Fifth Amendment,” 32 Env L 551] analyzing Tulare Lake Basin Water Storage Dist v US, 49 Fed Cl 313 (2001). In Tulare, the U.S. Court of Claims ruled for the first time that the federal government was required to pay irrigators for water they did not receive due to endangered species habitat requirements. In December 2003 the same court ruled that the water was worth $14 million, which with interest and attorneys fees brought the total monetary award to $26 million. In water and environmental law circles, this case is the shot heard around the world.