Abstract: This Note examines both the physical and regulatory takings of water rights found in Estate of Hage and provides an analysis of how takings law should apply to water rights. Part II of this Note provides a brief background of takings law under the Fifth Amendment of the Constitution with a focus on case law involving water rights. Parts III and IV review the history of the Estate of Hage case and focus on the recent Estate of Hage decision, including Judge Smith's logic for finding that there was a taking of water rights. In Part V, this Note analyzes the Estate of Hage decision as applied to takings law and congressional mandates regarding public lands, concluding that the circumstances in this case cannot support the physical and regulatory takings of water rights held by Judge Smith. Finally, Part VI concludes that because water is a unique form of property, the courts must treat water rights taking claims differently than more traditional takings cases.
Citation: 10 Nev. L.J. 185 (2010)