Abstract
Water, an already scarce and valuable resource in the arid western United States, will only become more important as competing demands for water increase and water availability decreases. Lower precipitation driven by climate change is likely to worsen in the coming decades. The lasting impact of climate change can also manifest itself legally. Thus, the law operates to balance conflicting uses of water (and the associated rights) between public and private entities.
Differing views on the nature of property rights, particularly the nature of private nights in public resources, become determinative of how public and private interests should be balanced. In 2011, the competition between public and private interests materialized in the form of a lawsuit between the National Ski Area Association and the United States Forest Service, regarding regulatory changes requiring the assignment of water nights to the federal government as a condition to Ski Area Permit renewal.
Ultimately, the court resolved the case between the National Ski Area Association and United States Forest Service procedurally. This paper analyzes the unresolved substantive takings claim in light of differing perspectives on how we should treat property rights under the law.
First Page
67
Custom Citation
Kiefer Armitage Stenseng, The Legal Consequences of Climate Change and the Durability of U.S. Forest Service Sky Area Permits and Water Rights, 25 U. Denv. Water L. Rev. 67 (2021).