Petition for Writ of Certiorari — United Water Conservation District, Petitioner v. United States
Supreme Court briefOct 27, 2025
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IN THE
Supreme Court of the United States
UNITED WATER CONSERVATION DISTRICT,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Federal Circuit
PETITION FOR A WRIT OF CERTIORARI
FRANK S. MURRAY
FOLEY & LARDNER LLP
3000 K. Street, N.W.
Suite 600
Washington, D.C. 20007
DAVID T. RALSTON, JR.
DAVID T. RALSTON, JR., ESQ., PLLC
6510 Rockland Drive
Clifton, VA 20124
THOMAS H. DUPREE, JR.
Counsel of Record
JONATHAN C. BOND
GIBSON, DUNN & CRUTCHER LLP
1700 M Street, N.W.
Washington, D.C. 20036
(202) 955-8500
TDupree@gibsondunn.com
PATRICK J. FUSTER
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
Counsel for Petitioner
QUESTION PRESENTED
Whether the government’s appropriation of water
that a person had a property right to use is analyzed
as a physical taking, rather than a regulatory taking,
under the Fifth Amendment.
ii
RELATED PROCEEDINGS
United States Court of Federal Claims:
United Water Conservation District v.
United States,
No. 22-cv-542 (Jan. 26, 2023)
United States Court of Appeals (Fed. Cir.):
United Water Conservation District v.
United States,
No. 23-1602 (Apr. 2, 2025)
iii
TABLE OF CONTENTS
Page
OPINIONS BELOW .................................................... 1
JURISDICTION .......................................................... 1
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED .................................... 2
INTRODUCTION ........................................................ 2
STATEMENT .............................................................. 5
REASONS FOR GRANTING THE PETITION ....... 13
I. The Federal Circuit’s Decision Conflicts
With This Court’s Decisions ........................... 15
A. The United States’ Expropriation Of
Petitioner’s Right To Use Water Is A
Physical Taking ......................................... 16
B. The Federal Circuit Flouted Cedar
Point For Physical Takings Of Water
Rights ......................................................... 20
II. The Question Presented Is Exceptionally
Important And Recurring............................... 28
III. This Petition Is An Ideal Vehicle ................... 33
CONCLUSION .......................................................... 34
iv
TABLE OF APPENDICES
Page
APPENDIX A:
Opinion of the United States Court of
Appeals for the Federal Circuit
(Apr. 2, 2025) ....................................................... 1a
APPENDIX B:
Order of the United States Court of
Federal Claims Dismissing the Complaint
(Jan. 26, 2023) ................................................... 15a
APPENDIX C:
Order of the United States Court of
Appeals for the Federal Circuit Denying
Rehearing
(July 29, 2025) ................................................... 41a
v
TABLE OF AUTHORITIES
Cases
Page(s)
Arizona v. California,
283 U.S. 423 (1931) ........................................ 14, 24
Arkansas Game and Fish Commission v.
United States,
568 U.S. 23 (2012) ................................................ 32
Armstrong v. United States,
364 U.S. 40 (1960) ................................................ 30
Army Corps of Engineers v. Hawkes Co.,
578 U.S. 590 (2016) .............................................. 30
Babbitt v. Sweet Home Chapter,
Communities for Great Oregon,
515 U.S. 687 (1995) ................................................ 9
Baley v. United States,
942 F.3d 1312 (Fed. Cir. 2019) ............................ 28
California Farm Bureau Federation v. State
Water Resources Control Board,
51 Cal. 4th 421 (2011) ............................................ 7
California v. United States,
438 U.S. 645 (1978) .................................... 6, 20, 25
Casitas Municipal Water District v.
United States,
543 F.3d 1276 (Fed. Cir. 2008) ...................... 11, 29
vi
Cases (continued)
Page(s)
Cedar Point Nursery v. Hassid,
594 U.S. 139 (2021) ............... 2, 3, 4, 12, 14, 15, 16,
17, 18, 19, 20, 21, 25,
26, 27, 29, 31, 32
City of Fresno v. United States,
124 F.4th 876 (Fed. Cir. 2024)............................. 28
City of San Buenaventura v. United Water
Conservation District,
3 Cal. 5th 1191 (2017) ...................................... 7, 33
Colorado v. New Mexico,
459 U.S. 176 (1982) ...................................... 5, 6, 18
CRV Enterprises, Inc. v. United States,
626 F.3d 1241 (Fed. Cir. 2010) ............................ 28
Dugan v. Rank,
372 U.S. 609 (1963) ....................... 4, 12, 14, 19, 22,
24, 25, 26, 27
Eddy v. Simpson,
3 Cal. 249 (1853) .................................................. 24
Estate of Hage v. United States,
687 F.3d 1281 (Fed. Cir. 2012) ............................ 28
Feliciano v. Department of Transportation,
605 U.S. 38 (2025) ................................................ 32
Horne v. Department of Agriculture,
569 U.S. 513 (2013) .............................................. 30
vii
Cases (continued)
Page(s)
Horne v. Department of Agriculture,
576 U.S. 351 (2015) .................. 2, 17, 19, 21, 27, 31
International Paper Co. v. United States,
282 U.S. 399 (1931) ............ 4, 12, 14, 18, 19, 24, 33
Irwin v. Phillips,
5 Cal. 140 (1855) .................................................... 6
Kaiser Aetna v. United States,
444 U.S. 164 (1979) .............................................. 20
Kansas v. Colorado,
206 U.S. 46 (1907) .................................................. 6
Knick v. Township of Scott,
588 U.S. 180 (2019) .............................................. 30
Legal Tender Cases,
79 U.S. (12 Wall.) 457 (1871) ............................... 16
Loretto v. Teleprompter Manhattan
CATV Corp.,
458 U.S. 419 (1982) .............................................. 21
Lucas v. South Carolina Coastal Council,
505 U.S. 1003 (1992) ...................................... 16, 18
Penn Central Transportation Co. v.
New York City,
438 U.S. 104 (1978) .............................. 2, 12, 13, 17
Pennsylvania Coal Co. v. Mahon,
260 U.S. 393 (1922) .............................................. 17
viii
Cases (continued)
Page(s)
Oklahoma ex rel. Phillips v.
Guy F. Atkinson Co.,
313 U.S. 508 (1941) .............................................. 16
Portsmouth Harbor Land & Hotel Co. v.
United States,
260 U.S. 327 (1922) .............................................. 26
Russell & Elizabeth Reid Family Trust v.
United States,
— Fed. Cl. —, 2025 WL 2527572
(Sept. 3, 2025) ...................................................... 29
Sheetz v. El Dorado County,
601 U.S. 267 (2024) .............................................. 27
Soto v. United States,
605 U.S. 360 (2025) .............................................. 32
Tahoe-Sierra Preservation Council, Inc. v.
Tahoe Regional Planning Agency,
535 U.S. 302 (2002) .............................................. 26
Tee-Hit-Ton Indians v. United States,
348 U.S. 272 (1955) .............................................. 22
Thayer v. California Development Co.,
164 Cal. 117 (1912) ................................................ 6
Thryv, Inc. v. Click-To-Call Technologies, LP,
590 U.S. 45 (2020) ................................................ 32
Transportation Co. v. Chicago,
99 U.S. 635 (1879) ................................................ 17
ix
Cases (continued)
Page(s)
TVA v. Hill,
437 U.S. 153 (1978) .............................................. 27
Tyler v. Hennepin County,
598 U.S. 631 (2023) .................................. 16, 23, 24
United States Fish and Wildlife Service v.
Sierra Club, Inc.,
592 U.S. 261 (2021) ................................................ 9
United States v. Causby,
328 U.S. 256 (1946) .............................................. 26
United States v. Gerlach Live Stock Co.,
339 U.S. 725 (1950) ......................... 6, 7, 12, 14, 19,
20, 22, 24, 33
United States v. Rio Grande Dam &
Irrigation Co.,
174 U.S. 690 (1899) .............................................. 20
United States v. State Water Resources
Control Board,
182 Cal. App. 3d 82 (1986) ............................... 7, 24
Washoe County v. United States,
319 F.3d 1320 (Fed. Cir. 2003) ............................ 29
In re Water of Hallett Creek Stream System,
44 Cal. 3d 448 (1988) ............................................. 6
Webb’s Fabulous Pharmacies, Inc. v.
Beckwith,
449 U.S. 155 (1980) .............................................. 23
x
Cases (continued)
Page(s)
Williamson County Regional Planning
Commission v. Hamilton Bank,
473 U.S. 172 (1985) .............................................. 13
Wyoming v. Colorado,
259 U.S. 419 (1922) .............................................. 24
Constitutional Provisions
U.S. Const. Amend. V.................................... 16, 23, 34
Cal. Const. Art. X, § 2.................................................. 7
Statutes
California Statehood Act,
ch. 50, § 1, 9 Stat. 452 (1850)................................. 6
Endangered Species Act of 1973,
Pub. L. No. 93-205, 87 Stat. 884............................ 8
Mining Act of 1866,
ch. 262, § 9, 14 Stat. 253 ........................................ 6
16 U.S.C. § 1531(c)(1) .................................................. 8
16 U.S.C. § 1538(a)(1)(B) ............................................ 9
16 U.S.C. § 1539(a)(1)(B) ............................................ 9
16 U.S.C. § 1540(a)-(b) .............................................. 10
18 U.S.C. § 659 .......................................................... 31
28 U.S.C. § 1254(1) ...................................................... 2
xi
Statutes (continued)
Page(s)
28 U.S.C. § 1295(a)(3) ............................................... 31
28 U.S.C. § 1491(a)(1) ........................................... 2, 31
Cal. Water Code § 102 ............................................... 24
Cal. Water Code § 1381 ............................................... 7
Cal. Water Code § 1610 ............................................... 7
Cal. Water Code § 74000 et seq. .................................. 7
Cal. Water Code § 74203 ............................................. 7
Other Authorities
William Blackstone, Commentaries on the
Laws of England (1776) ......................................... 6
Richard Epstein, Property Rights in Water,
Spectrum, and Minerals, 86 U. Colo. L.
Rev. 389 (2015) ..................................................... 28
62 Fed. Reg. 43937-01 (1997) ...................................... 8
IN THE
Supreme Court of the United States
No.
UNITED WATER CONSERVATION DISTRICT,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Federal Circuit
PETITION FOR A WRIT OF CERTIORARI
Petitioner United Water Conservation District respectfully petitions for a writ of certiorari to review
the judgment of the United States Court of Appeals
for the Federal Circuit.
OPINIONS BELOW
The opinion of the court of appeals (App., infra,
1a-14a) is reported at 133 F.4th 1050. The order of
the Court of Federal Claims dismissing the complaint
(App., infra, 15a-40a) is reported at 164 Fed. Cl. 79.
JURISDICTION
The judgment of the court of appeals was entered
on April 2, 2025. A petition for rehearing was denied
2
on July 29, 2025 (App., infra, 41a-43a). This Court’s
jurisdiction is invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Fifth Amendment to the Constitution of the
United States provides in pertinent part: “[N]or shall
private property be taken for public use, without just
compensation.”
The Tucker Act provides in pertinent part: “The
United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against
the United States founded * * * upon the Constitution * * * or for liquidated or unliquidated damages
in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1).
INTRODUCTION
In recent years, this Court has rejected attempts
to inject doctrinal complexity into the Takings Clause
that frustrates its core mandate: The government
must pay just compensation when it takes private
property for itself. The Court instead has recognized
simple, categorical rules that safeguard property from
physical expropriation by the government—cabining
the unpredictable regulatory-takings balancing approach of Penn Central Transportation Co. v. New York
City, 438 U.S. 104 (1978), to mere limitations on a person’s right to use his own property. E.g., Cedar Point
Nursery v. Hassid, 594 U.S. 139, 149 (2021); Horne v.
Department of Agriculture, 576 U.S. 351, 361 (2015).
The Court’s decisions have fortified the Takings
Clause’s enduring protection against attempts to balance away property rights.
But that protection is only as strong as courts’
willingness to enforce it. Below, the Federal Circuit
3
did the opposite by expanding the reach of Penn Central to the physical taking of water rights. It did so by
interposing arbitrary exceptions to physical-takings
doctrine that have no basis in the Constitution’s text,
case law, or logic but that, left unchecked, will seriously erode the Takings Clause’s central guarantee.
Petitioner is a water-conservation district with an
undisputed property right under California law to divert and use a fixed amount of water (up to 144,630
acre-feet of water per year) from a particular river.
The United States commandeered a sizable chunk of
that water for its own purposes: facilitating fish migration by sending water downstream. Needless to
say, petitioner is never getting that water back. Yet
the Federal Circuit shoehorned petitioner’s claim for
the physical taking of its water rights into the balancing framework of Penn Central by reconceptualizing
the government’s action as a regulatory taking. The
Federal Circuit then kicked the claim out of court, holding that such regulatory-takings claims are unripe so
long as license proceedings under the Endangered
Species Act remain ongoing.
That conclusion erases this Court’s dividing line
between physical and regulatory takings. When the
government “appropriat[es] private property for itself
or a third party,” it “must pay for what it takes”—no
ifs, ands, or buts. Cedar Point, 594 U.S. at 148. But the
Federal Circuit rerouted petitioner into Penn Central
by inventing novel carveouts to physical-takings law:
The United States took petitioner’s water rights only
partially, not “completely”; it intercepted the water for
its own use before the water reached petitioner; and it
acted through “regulation” rather than formal eminentdomain proceedings. App., infra, 11a, 13a. This Court
has repeatedly and recently rejected such contrived
4
workarounds to the Takings Clause as “insupportable
as a matter of precedent and common sense.” Cedar
Point, 594 U.S. at 153; see id. at 153-156. It should do
the same here.
The Federal Circuit put Penn Central on a stage
where it has never belonged. For almost a century,
this Court has held that the Takings Clause mandates
the payment of just compensation whenever the United
States requires a person to relinquish a right to use
water, which is “turned elsewhere by government requisition” to its own ends. International Paper Co. v.
United States, 282 U.S. 399, 407 (1931). The Court
also has analogized the “partial taking of water
rights” to the physical “taking of air space over land.”
Dugan v. Rank, 372 U.S. 609, 625 (1963). Cedar Point
confirmed that physical invasions of the right to exclude remain per se takings that categorically require
payment of just compensation. 594 U.S. at 156. That
is no less true of the partial taking of water rights.
The Court’s intervention is urgently needed. The
Federal Circuit establishes nationwide precedent for
claims seeking just compensation from the United
States because it alone hears appeals from the Court
of Federal Claims, which has exclusive jurisdiction
over just-compensation claims for more than $10,000
against the United States. Those courts routinely adjudicate claims that the United States has taken water rights without compensation. And such disputes
have only increased as the administrative state has
fueled more and more of its regulatory agenda with
water that others have a property right to use. Only
this Court can restore the centuries-old principle that
the United States must honor state water rights as it
finds them.
5
Although the question presented is exceptionally
important on its own terms, the decision below is by
no means limited to water. The Federal Circuit has
resurrected the ancien régime that this Court swept
away in Horne and Cedar Point. And the Federal Circuit’s precedent governs the Court of Federal Claims
when it hears any claim seeking just compensation
from the United States. The Court has not hesitated
to step in when the Federal Circuit gets an important
question wrong for the entire Nation and should not
hesitate to do so here.
This case also is an ideal vehicle. The United States
has never disputed that petitioner possesses a statelaw property interest in its water rights. Nor does the
government deny that petitioner was entitled under
California law to divert the water that the government
instead repurposed to further its own policy priorities.
And the question presented was squarely pressed and
passed upon below. This case thus offers this Court a
clean opportunity to reject the Federal Circuit’s artificial limitations on the physical-takings framework and
to reiterate that Penn Central did not override traditional decisions recognizing per se takings. The petition
should be granted.
STATEMENT
1. “[T]he two basic doctrines governing the
rights to the use of water” are “[t]he prior appropriation doctrine and the riparian doctrine.” Colorado v.
New Mexico, 459 U.S. 176, 179 n.4 (1982). Many
States (mostly in the eastern half of the Nation) follow
the riparian doctrine, which accords downstream
landowners an entitlement to a “variable” amount of
water depending on many factors. Ibid. By contrast,
under the prior-appropriation doctrine—prevalent in
the West—rights are “fixed in quantity” and “do not
6
depend on land ownership but are acquired and maintained by actual use” of the water. Ibid. The core
principle of the prior-appropriation doctrine is that
the first user to redirect water to his own use “acquire[s] a property in the current.” 2 William Blackstone, Commentaries on the Laws of England 403
(1776).
Unlike many States, California has chosen to recognize both riparian and appropriative rights. In re
Water of Hallett Creek Stream System, 44 Cal. 3d 448,
458 (1988). As to the latter, as with other western
States, California has long followed the doctrine that
first in time is first in right for water. United States
v. Gerlach Live Stock Co., 339 U.S. 725, 747 (1950)
(citing Irwin v. Phillips, 5 Cal. 140 (1855)). The right
one “gains by diversion of a stream for a beneficial
use” is property “subject to ownership and disposition
by him, as in the case of other private property.”
Thayer v. California Development Co., 164 Cal. 117,
125 (1912).
The federal government has never asserted superior title to California’s waters. California entered
“the Union on an equal footing with the original
States in all respects whatever.” California Statehood
Act, ch. 50, § 1, 9 Stat. 452 (1850). Indeed, in the
1860s, Congress disavowed any attempt to override
state water rights, even where water flowed through
land that the United States owned. California v.
United States, 438 U.S. 645, 656 (1978) (citing Mining
Act of 1866, ch. 262, § 9, 14 Stat. 253). This Court
later “reaffirmed that each State ‘may determine for
itself whether’” to grant appropriative or riparian
rights because “‘Congress cannot enforce either rule
upon any State.’” Id. at 663 (quoting Kansas v. Colorado, 206 U.S. 46, 94 (1907)).
7
Since 1914, California has assigned appropriative rights through state-issued licenses and permits.
California Farm Bureau Federation v. State Water Resources Control Board, 51 Cal. 4th 421, 429 (2011).
Both licenses and permits may grant the right to take
up to a certain amount of water, as “reasonably required for the beneficial use to be served.” Cal. Const.
Art. X, § 2. Licenses “confir[m] the right to the appropriation of such an amount of water as has been determined to have been applied to beneficial use.” Cal.
Water Code § 1610. Permits similarly grant a “right
to take and use water” for the uses specified in the
permit. Id. § 1381. And “once rights to use water are
acquired, they become vested property rights” that
cannot be taken without “just compensation.” United
States v. State Water Resources Control Board, 182 Cal.
App. 3d 82, 101 (1986) (citing Gerlach, 339 U.S. at
752-754).
2. a. Petitioner is a water-conservation district
established under California law. App., infra, 2a; see
Cal. Water Code § 74000 et seq. Water-conservation
districts are local agencies whose directors are elected
by their constituents. Cal. Water Code § 74203. Petitioner’s territory reaches across 214,000 acres in Ventura County and includes all or part of eight groundwater basins. City of San Buenaventura v. United Water Conservation District, 3 Cal. 5th 1191, 1198 (2017).
Within that territory, petitioner serves 400,000 residents, as well as farmers with 85,102 acres of agricultural land. C.A. App. 23.
The California State Water Resources Control
Board issued petitioner a license in 1958 and a permit
in 1983 to appropriate and divert water from the
Santa Clara River for numerous beneficial uses, including recharging groundwater aquifers, delivering
8
surface water to groundwater users, and stabilizing
the riverbed. App., infra, 2a-3a. Both the license and
permit grant petitioner appropriative property rights.
Id. at 9a. It has the right to appropriate up to 144,630
acre-feet of water per year. Id. at 4a.
Petitioner exercises that right to the fullest, seeking to divert as much water as possible for “aquifer
recharge” and for the benefit of its users through “surface deliveries.” C.A. App. 25. But petitioner is limited by the amount of water actually available in the
Santa Clara River. Between 1991 and 2014, for example, petitioner was able to divert on average less than
half (roughly 71,000 acre-feet) of its annual entitlement. Id. at 26; App., infra, 18a-19a.
b. As amended in 1987, petitioner’s permit authorized it to construct a dam to divert water in the
Santa Clara River for its beneficial use. App., infra,
3a. In 1991, petitioner completed the Vern Freeman
Diversion Dam, built in part with federal funds from
the Bureau of Reclamation. Id. at 17a. The dam diverts water into a canal for petitioner to use and to
distribute to its customers in line with its license and
permit. Id. at 3a.
Petitioner built a fish ladder at the dam to allow
fish to travel up the river, App., infra, 18a, and one of
those fish caused petitioner’s property rights to collide with the Endangered Species Act of 1973, Pub. L.
No. 93-205, 87 Stat. 884. Congress enacted the Act to
further a “policy * * * that all Federal departments
and agencies shall seek to conserve endangered species and threatened species.” 16 U.S.C. § 1531(c)(1).
Years after completion of the dam, the National Marine Fisheries Service designated the southern California steelhead trout as an endangered species.
App., infra, 3a; see 62 Fed. Reg. 43937-01 (1997). That
9
action triggered a ban on “tak[ing]” the fish. 16 U.S.C.
§ 1538(a)(1)(B). This Court has construed “take” in the
Act to include “habitat modification” that “indirect[ly]”
harms members of the designated species. Babbitt v.
Sweet Home Chapter, Communities for Great Oregon,
515 U.S. 687, 697-698 (1995). The federal government
can issue permits to take endangered species “if such
taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.” 16 U.S.C.
§ 1539(a)(1)(B).
The Bureau of Reclamation later initiated a proceeding under the Endangered Species Act to determine whether the operation of petitioner’s dam would
harm steelhead trout. App., infra, 20a-21a. In 2008,
the Service issued a proposed biological opinion finding that the dam could jeopardize the trout’s migration and advocating restrictions on the dam’s operation to increase the “bypass flow” at the dam, meaning
the amount of water left flowing through the Santa
Clara River (directly or through the fish ladder). Id.
at 21a; see United States Fish and Wildlife Service v.
Sierra Club, Inc., 592 U.S. 261, 264-265 (2021) (describing role of biological opinions for interagency coordination under the Act). The Bureau thereafter terminated the proceeding because (despite providing initial funding) it does not own or operate the dam.
App., infra, 21a.
The issue resurfaced in 2016, when the Service sent
petitioner a letter stating that “a significant issue regarding ongoing take of endangered southern California steelhead trout exists at the Diversion Dam.” App.,
infra, 3a (brackets and citation omitted). The Service
opined that the dam’s operation had violated the Act
and ordered petitioner to increase the bypass flow, as
the Service had recommended in its 2008 biological
10
opinion. Id. at 4a. In other words, the Service commandeered the use of the water by forcing petitioner
to send it downstream, to facilitate the migration of
the trout, rather than diverting it at the dam to petitioner’s uses. The Service instructed petitioner that
“these measures must be in place before December 1,
2016.” Id. at 24a (citation and emphasis omitted).
Facing significant civil and even criminal penalties, petitioner did as the Service demanded and surrendered more of its water to flow downstream. App.,
infra, 25a-26a; see 16 U.S.C. § 1540(a)-(b). A federal
district court in California also later issued a permanent injunction under the Endangered Species Act requiring petitioner to continue abiding by the measures
in the 2008 biological opinion. App., infra, 22a-23a. As
a result, petitioner lost at least 49,800 acre-feet of water between 2017 and 2021—reducing the amount petitioner could divert further below its annual entitlement. Id. at 26a. Because the average household in the
area uses between one half and one acre-foot of water
per year, that water could have supported many tens
of thousands of families. C.A. App. 23-24. The Service
instead claimed priority to use the water to increase
bypass flow for steelhead trout. App., infra, 26a.
3. Petitioner sued in the Court of Federal Claims
for just compensation under the Fifth Amendment’s
Takings Clause. C.A. App. 18-40. Claiming a physical
taking of its appropriative rights, petitioner sought at
least $40 million for the 49,800 acre-feet of water that
the Service had commandeered for public use under
the Endangered Species Act. App., infra, 26a-27a.
The United States moved to dismiss the complaint
for lack of subject-matter jurisdiction, asserting the
absence of “final agency action.” App., infra, 27a.
The government has never disputed that petitioner’s
11
“appropriative rights are private property rights.” Id.
at 29a. But it argued that petitioner had to exhaust a
request for an incidental-take permit under the Endangered Species Act before challenging the taking of
its water rights. Ibid.
The Court of Federal Claims dismissed the complaint for lack of subject-matter jurisdiction. App., infra, 15a-40a. The court understood its jurisdiction to
depend on whether petitioner challenged a physical or
regulatory taking. Id. at 28a-29a. It also noted that
the Federal Circuit had previously held that a government mandate to “build [a] fish ladder and divert water” to facilitate the migration of steelhead trout
“should be analyzed under the physical takings rubric.” Id. at 35a (quoting Casitas Municipal Water
District v. United States, 543 F.3d 1276, 1296 (Fed.
Cir. 2008)) (emphasis omitted). But the Court of Federal Claims concluded that the physical-takings
framework applies only when the government’s public
use requires the return of “water that was already diverted into [a] diversion canal,” and not (as here)
when the government prevents water from being diverted in the first place. Id. at 37a (emphasis added).
The court then held that petitioner’s claim, once recharacterized as a regulatory-takings challenge, was
not ripe because petitioner had not exhausted a request for an incidental-take permit. Id. at 39a.
4. The Federal Circuit affirmed, upholding the
dismissal for lack of jurisdiction on the theory that petitioner asserted an unripe regulatory-takings claim,
not a physical-takings claim. App., infra, 1a-14a.
The court of appeals acknowledged that petitioner
asserted a valid property interest. App., infra, 9a-10a.
It recognized that generally “the property rights protected by the Takings Clause are creatures of state
12
law.” Id. at 9a (quoting Cedar Point Nursery v. Hassid,
594 U.S. 139, 155 (2021)). And the court noted that the
United States did not dispute “that [petitioner] acquired a valid, appropriative property right in the
beneficial use of water it diverts to the Freeman Canal.” Ibid. That right to use the water is “private property.” Id. at 10a (citation omitted).
The court of appeals held, however, that the
United States did not physically take petitioner’s appropriative rights by reallocating the use of water that
petitioner had a right to divert under its license and
permit. App., infra, 11a-12a. In the court’s view, a
physical taking would occur only if the United States
had either (1) “completely cut off [petitioner’s] access
to the water” or (2) required petitioner “to return any
volume of water it had previously diverted to its possession.” Id. at 11a (emphases added).
The court of appeals did not dispute petitioner’s contention that this Court had held in a trio of decisions—
International Paper Co. v. United States, 282 U.S. 399
(1931), Gerlach, supra, and Dugan v. Rank, 372 U.S.
609 (1963)—that similar appropriations of water rights
were takings without drawing any distinction between
water taken before or after entry into someone’s facility.
App., infra, 12a-13a. Yet the Federal Circuit discounted those decisions because they predated Penn
Central Transportation Co. v. New York City, 438 U.S.
104 (1978), and “did not arise from a regulation.”
App., infra, 13a. The court also sought to distinguish
Gerlach and Dugan on the theory that only riparian
rights, but not appropriative rights, “vest” as property
interests before water has been diverted. Ibid.
Having recharacterized petitioner’s claim as asserting a regulatory taking, the court of appeals affirmed its dismissal as unripe. App., infra, 14a. The
13
court stated that such a claim “is not ripe until the
government entity charged with implementing the
regulations has reached a final decision regarding the
application of the regulations to the property at issue.”
Id. at 8a (quoting Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 186
(1985)). Because petitioner had not exhausted a request for an incidental-take permit, the court considered the claim to be unripe. Id. at 14a.
5. The Federal Circuit denied rehearing en banc.
App., infra, 41a-43a.
REASONS FOR GRANTING THE PETITION
Petitioner has a conceded state-law property right
to divert up to 144,630 acre-feet of water each year for
its own use. The United States prefers that petitioner’s
water be repurposed—to further federal policy under
the Endangered Species Act. To that end, the government leveraged the threat of civil and even criminal
liability to force petitioner to cede a significant part of
its water rights, commandeering more than 16 billion
gallons of water that petitioner will never get back. But
the Federal Circuit held that petitioner cannot assert
a physical-takings claim. Instead, the court diverted
petitioner’s claim down the regulatory-takings branch
governed by Penn Central Transportation Co. v. New
York City, 438 U.S. 104 (1978). In the decision below—
now controlling precedent for all claims brought
against the United States in the Court of Federal
Claims—a water-rights holder can bring a physicaltakings claim only if the United States takes all of the
water that person has a right to use or commands the
return of water already within the person’s possession.
14
That result and reasoning are irreconcilable with
the Takings Clause and this Court’s precedent. The
Court has recently reiterated that the Clause requires
the payment of just compensation when “the government has physically taken property for itself or someone else—by whatever means.” Cedar Point Nursery v.
Hassid, 594 U.S. 139, 149 (2021). In a trilogy of cases,
the Court also held that government actions reallocating water to its own use were physical appropriations
of another’s right to “the use of the water” that required the payment of just compensation. International Paper Co. v. United States, 282 U.S. 399, 407
(1931); see Dugan v. Rank, 372 U.S. 609, 625 (1963);
United States v. Gerlach Live Stock Co., 339 U.S. 725,
753 (1950). First principles that the Court has reinforced and takings decisions from the water-rights
context point in the same direction: An order to surrender water for a public use should be analyzed as a
physical taking.
None of the Federal Circuit’s attempts to escape the
physical-takings framework has any foothold in law or
logic, and each is at war with this Court’s decisions.
The court of appeals opined that a physical taking requires a total deprivation of petitioner’s water rights.
But the “size of an appropriation * * * bears only on
the amount of compensation,” not on whether a physical taking occurred at all. Cedar Point, 594 U.S. at 153
(emphasis added). The court suggested that petitioner
has no vested property right unless and until it has diverted particular molecules of water. But after acquiring its license and permit, petitioner maintains a
“vested right to take and divert from the same source,
and to use and consume the same quantity of water annually forever.” Arizona v. California, 283 U.S. 423, 459
(1931). And the court dismissed International Paper,
Gerlach, and Dugan as outdated relics that predated
15
Penn Central’s purported epiphany and did not arise
from regulations. But this Court’s historical decisions
“safeguar[d] the basic property rights that help preserve individual liberty,” no matter the “complexities of
modern society” and the administrative state. Cedar
Point, 594 U.S. at 158.
The question presented also warrants this Court’s
review. Water rights hold unsurpassed practical importance and represent a substantial subset of physicaltakings litigation against the United States. Because
the Federal Circuit has exclusive appellate jurisdiction over claims seeking more than $10,000 in just
compensation from the United States, the decision below further invites manipulation of all kinds of property rights in the Court of Federal Claims. And this
petition is an ideal vehicle to correct the court of appeals’ departures from this Court’s decisions. The
Court should grant the petition, reverse the judgment
below, and allow petitioner to proceed on its physicaltakings claim.
I.
THE FEDERAL CIRCUIT’S DECISION CONFLICTS
WITH THIS COURT’S DECISIONS
For almost a century, this Court has treated government appropriations of the right to use water as a
physical taking requiring the payment of just compensation. The Court also has recently and repeatedly rejected artificial limits on the physical-takings
doctrine—just as it has rejected other contrived efforts
to cabin the Takings Clause. But the Federal Circuit
dusted off the forbidden playbook, refusing to recognize petitioner’s physical-takings claim here because
the United States took only some of petitioner’s water
rights, commandeered that water before it reached petitioner, and acted through a regulatory mandate instead of an eminent-domain proceeding. At every turn,
16
that reasoning defies this Court’s decisions interpreting the Takings Clause.
A. The United States’ Expropriation Of
Petitioner’s Right To Use Water Is A
Physical Taking
When the government appropriates property for
itself, that action is a physical taking, which triggers
a categorical mandate under the Takings Clause to
pay just compensation. The action here—an order demanding that petitioner surrender water that it has a
legal right to use—is a physical taking under this
Court’s decisions.
1. The Takings Clause requires the United States
to pay “just compensation” when it “take[s]” “private
property,” U.S. Const. Amend. V, including property
owned by state and local entities, e.g., Oklahoma ex rel.
Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 534
(1941). By and large, “the property rights protected by
the Takings Clause are creatures of state law.” Cedar
Point, 594 U.S. at 155. This Court also considers “‘traditional property law principles,’ plus historical practice and this Court’s precedents,” but primarily to prevent governments from circumventing the Takings
Clause by changing the law to erase established rights.
Tyler v. Hennepin County, 598 U.S. 631, 638 (2023)
(citation omitted).
This Court has distinguished between physical
and regulatory takings. The Takings Clause’s traditional core is its just-compensation mandate for physical takings: “‘direct appropriation’ of property” and
“the functional equivalent of a ‘practical ouster of [the
owner’s] possession.’” Lucas v. South Carolina Coastal
Council, 505 U.S. 1003, 1014 (1992) (quoting Legal
Tender Cases, 79 U.S. (12 Wall.) 457, 551 (1871), and
17
Transportation Co. v. Chicago, 99 U.S. 635, 642 (1879)).
The Court has long recognized that the Clause’s protection extends beyond physical takings and also requires just compensation when the government does
not take property but imposes a burden on its use
through “regulation” that “goes too far.” Cedar Point,
594 U.S. at 148 (quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922)). For that zone of additional protection against regulatory takings, the
Court has applied a more “flexible” test that “balanc[es] factors such as the economic impact of the regulation, its interference with reasonable investmentbacked expectations, and the character of the government action.” Ibid. (citing Penn Central, 438 U.S. at
124). But that context-sensitive approach for regulatory takings does not dilute the just-compensation
guarantee for physical takings.
In Cedar Point, this Court explained how to categorize government interference with property rights
as a physical or regulatory taking. A physical taking
occurs when the government “appropriat[es] private
property for itself or a third party.” 594 U.S. at 148.
Examples include the formal condemnation of property, the total or partial occupation of property, physical invasions of property, and dispossession of property. Id. at 147-152. In Horne v. Department of Agriculture, 576 U.S. 351 (2015), for example, the United
States physically took raisins by requiring growers to
set aside a portion of their crop subject to government
control, regardless of whether the United States acquired actual possession of the raisins. Id. at 361-362.
By contrast, regulatory takings governed by Penn
Central arise from “regulations that restrict an
owner’s ability to use his own property.” Cedar Point,
594 U.S. at 148.
18
When “the government has physically taken property for itself or someone else,” this Court applies a
“simple, per se rule: The government must pay for
what it takes.” Cedar Point, 594 U.S. at 148-149. The
government can defend against paying just compensation only by establishing that its action was “consistent with longstanding background restrictions on
property rights.” Id. at 160. That inquiry is not an
exception to the Takings Clause; it is instead an application of the principle that the government does not
“take a property interest when it merely asserts a ‘preexisting limitation.’” Ibid. (quoting Lucas, 505 U.S. at
1028-1029) (emphasis added).
2. Petitioner alleged a physical taking under this
Court’s decisions. The United States has never disputed that petitioner “acquired a valid, appropriative
property right in the beneficial use of ” up to 144,630
acre-feet of water per year. App., infra, 9a. That right
was “fixed in quantity” by California law. Colorado v.
New Mexico, 459 U.S. 176, 179 n.4 (1982). Petitioner
already received less than its full legal entitlement because of limited water levels in the river. C.A. App.
25-26. As a result of the government’s challenged action, petitioner now gets even less: The United States
has asserted a priority to use the water under the Endangered Species Act, forcing petitioner to surrender
part of its share. Petitioner was required to plead and
prove no more.
This Court has long held that the United States
physically takes water rights by reallocating water
away from its rightful owner, including through:
a wartime requisition order to a power plant
for water that was owed to a mill by contract,
International Paper, 282 U.S. at 407-408;
19
construction of a dam that deprived landowners
of floodwaters to which they had a right under
state law, Gerlach, 339 U.S. at 752-755; and
upstream diversion of water at a dam that “entail[ed] a taking of water rights below the
dam,” Dugan, 372 U.S. at 623.
Those decisions establish a physical taking on the
face of petitioner’s complaint. In reallocating some of
petitioner’s physical water for federal purposes, the
United States imposed a “servitude” on petitioner’s
property right to use that same water. Dugan, 372 U.S.
at 625 (citation omitted). That is a classic physical
taking. “[I]t is hard to see what more the Government
could do to take the use.” International Paper, 282 U.S.
at 407. Whatever justification the United States had
to invoke the Endangered Species Act, that public use
could justify only “appropriation” paired with just
compensation—not “expropriation.” Gerlach, 339 U.S.
at 753.
Cedar Point confirms that petitioner’s claim asserts a physical taking, not a regulatory taking. By
repurposing water that petitioner was otherwise entitled to withdraw and use, the United States “has physically taken property for itself ” and has not merely regulated petitioner’s “ability to use [its] own property.”
594 U.S. at 149. The government did far more than
regulate petitioner’s use of the water. It prevented petitioner from taking possession of the water in the
first place and instead redirected the water to the public use of promoting the migration of steelhead trout.
App., infra, 25a. Just as the United States could not
issue an uncompensated mandate that raisin growers
surrender a portion of their produce to a federal program, Horne, 576 U.S. at 361-362, it cannot issue an
uncompensated mandate that petitioner dedicate a
20
portion of its water to a public purpose. Petitioner is
never getting that water back, so the United States
must pay for what it took.
Nor has the United States ever invoked a murky
“background restrictio[n]” to blur petitioner’s appropriative rights. Cedar Point, 594 U.S. at 160. Although
the Court has held that the United States can claim
water under its “reserved rights” as “‘necessary for
the beneficial uses of [federal] government property’”
and under its “navigation servitude,” California v.
United States, 438 U.S. 645, 662 (1978) (quoting
United States v. Rio Grande Dam & Irrigation Co.,
174 U.S. 690, 703 (1899)), the government never contended that either exception applies here. This Court
has refused, moreover, to permit the United States to
“pervert its navigation servitude into a right to destroy [water] rights.” Gerlach, 339 U.S. at 737; see,
e.g., Kaiser Aetna v. United States, 444 U.S. 164, 180
(1979) (requiring just compensation for imposition of
navigational servitude beyond traditional scope).
In short, petitioner alleged a physical taking of its
water rights under this Court’s decisions. Review is
necessary to ensure that the courthouse doors remain
open to petitioner and countless other people who possess water rights across the country.
B. The Federal Circuit Flouted Cedar Point
For Physical Takings Of Water Rights
In attempting to circumvent this Court’s waterrights decisions in International Paper, Gerlach, and
Dugan, the Federal Circuit ran headlong into Cedar
Point. It posited several purported bases to distinguish
those precedents and deny a physical taking here, but
none can be reconciled with this Court’s framework for
physical takings. Its published decision now threatens
21
to render Cedar Point meaningless for water-rights
claims against the United States.
1. The Federal Circuit held that a physical taking
would occur if the United States “completely cut off
[petitioner’s] access to the water,” but not where (as
here) the United States appropriated only part of petitioner’s water rights. App., infra, 11a (emphasis
added). Thus, even though the government requisitioned nearly 50,000 acre-feet of water from 2017 to
2021, the court held that no physical taking occurred
because petitioner still got some fraction of the water
that it was entitled to divert.
That total-versus-partial distinction contravenes
Cedar Point. There, this Court explained that “the size
of an appropriation * * * bears only on the amount of
compensation,” not on the existence of a physical taking. 594 U.S. at 153 (citing Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419, 436-437 (1982)).
Here, too, the amount of water that the United States
commandeered from petitioner affects only how much
the federal government must pay, not the threshold
question whether the government’s appropriation
should be analyzed as a physical or regulatory taking.
The government’s “formal demand” that petitioner
dedicate to a public use a sizable “percentage” of water
that it was entitled to divert (approximately 32%) is a
per se taking. Horne, 576 U.S. at 362; see id. at 355
(holding that United States had to pay just compensation for requiring growers to set aside 47% and 30% of
their raisin crops in successive years).
The Federal Circuit’s effort to confine the physicaltakings framework to total takings also defies this
Court’s water-rights precedent. The court of appeals
noted that International Paper involved a complete
deprivation of water. App., infra, 10a-11a. But Inter-
22
national Paper did not hold that the Takings Clause
requires a complete taking. To the contrary, Dugan
later held that the “partial taking of water rights”
likewise triggers the United States’ obligation to pay
just compensation. 372 U.S. at 625 (emphasis added).
The “extent” of the taking goes only to the amount of
compensation owed, not to the existence of a taking.
Id. at 626; see Tee-Hit-Ton Indians v. United States,
348 U.S. 272, 273 n.1 (1955) (“A partial taking is compensable.” (citing Gerlach, 339 U.S. at 739)). That was
the law long before the Court confirmed the principle
in Cedar Point. Now it is a dead letter for claims
against the United States under the decision below.
The court of appeals’ approach is also unworkable
and will invite government manipulation of property
rights. Determining whether all of a water-rights
holder’s property has been taken requires identifying
the denominator. Is the unit of analysis the set of
rights conferred by each separate legal instrument for
each body of water, or all water the property owner
can access in the aggregate? And is the relevant window a day, a year, or a decade? The Federal Circuit’s
arbitrary all-or-nothing approach incentivizes the
government to invent ways to spin massive expropriation as less than all one has to give.
2. The Federal Circuit also held that a government order to return water that was already diverted
is a physical taking but that a government order to
give up water that a person is legally entitled to divert
is a regulatory taking. App., infra, 11a-13a. That
made-to-order, before-or-after distinction likewise has
no basis in this Court’s physical-takings framework or
the cases addressing takings of water rights.
This Court has never suggested that the categorical mandate to pay just compensation for the physical
23
appropriation of property depends on whether the
government requires an owner to hand over his property or instead intercepts the property on the way to
its owner. In Webb’s Fabulous Pharmacies, Inc. v.
Beckwith, 449 U.S. 155 (1980), for example, this Court
held that the Takings Clause required the government to pay just compensation for taking the interest
that was earned on a court-administered interpleader
fund but owed to creditors whose claims would later
be determined. Id. at 161-164. That the funds were
“held temporarily by the court” instead of being in
their ultimate owners’ possession made no difference
to the analysis. Id. at 164; see, e.g., Tyler, 598 U.S. at
639 (holding that government must return excess
value of property to taxpayer after sale).
The Federal Circuit’s before-or-after distinction is
also insupportable as a matter of text and common
sense. The guarantee of just compensation applies
whenever the government takes property for a public
use—whether the government pries property from a
person’s fingers or intercepts property he owns while
on the way to him. U.S. Const. Amend. V. Nor is there
any reason that the Takings Clause should turn on
the happenstance of whether the United States uses
postal agents to seize a check in the mail, instructs the
sender to change the mailing address to the Treasury,
or orders the recipient to hand over the check after
opening the envelope. The government cannot avoid
physical-takings liability by intercepting property before it reaches the hands of the person with a legal
entitlement to it.
Water is no exception to that rule. In International Paper, the United States requisitioned water
from the plaintiff by ordering a third party (a power
company) to redirect the water before it reached the
24
plaintiff. 282 U.S. at 405-406. In Gerlach, the United
States took water rights by building a dam that prevented flooding from occurring in the first place, leaving the plaintiffs’ lands “parched” and “barren.”
339 U.S. at 730. And in Dugan, the United States had
to pay just compensation for actions “occur[ring] upstream” that deprived downstream users of water that
they were entitled to use. 372 U.S. at 625. Each case
refutes the court of appeals’ suggestion that the government takes water rights only by requiring the
plaintiff to hand over actual water molecules in its
possession.
The court of appeals suggested that appropriative
rights, in contrast to riparian rights, “vest” only once
the owner has “physically diverted water” on a particular occasion. App., infra, 13a. That contrived limitation has no basis in “state law” or “‘traditional property law principles.’” Tyler, 598 U.S. at 638 (citation
omitted). Under California law, an appropriative right
“consists not so much of the fluid itself as the advantage of its use.” Eddy v. Simpson, 3 Cal. 249, 252
(1853); see Cal. Water Code § 102. Petitioner’s rights
to divert up to 144,630 acre-feet annually thus “vested”
under California law when it “acquired” them under
its license and permit, not when each drop of water
reached petitioner’s canal and facilities. United States
v. State Water Resources Control Board, 182 Cal. App.
3d 82, 101 (1986) (emphasis added). An appropriative
right is a “vested right to take and divert from the
same source, and to use and consume the same quantity of water annually forever.” Arizona, 283 U.S. at
459; see Wyoming v. Colorado, 259 U.S. 419, 459 (1922)
(appropriative right creates a “continuing right to divert and use the water” (emphasis added)). The United
States has physically taken that right regardless of
25
whether it commandeers water before it reaches its
owner or afterward.
The court of appeals’ contrary conclusion squarely
conflicts with Dugan. The court asserted that Dugan
addressed only riparian rights. App., infra, 13a. But
the plaintiffs in Dugan were holders of “riparian as
well as other types of water rights,” including “appropriative” rights. 372 U.S. at 614, 619. The United
States itself told this Court that “[t]he present case is
concerned with the riparian and appropriative rights”
in the San Joaquin River. Pet. Br. at 7, Dugan, supra
(No. 62-31). And the evenhanded treatment of water
rights in Dugan honors the longstanding “federalism”
tenet that “each State ‘may determine for itself
whether’” to grant appropriative or riparian rights
without any federal thumb on the scales. California
v. United States, 438 U.S. 645, 648, 663 (1978) (citation omitted). The court of appeals’ holding that appropriative rights are uniquely vulnerable to federal
expropriation upends the settled federal/state balance
in water law and jeopardizes state-law water rights
throughout the arid West.
3. The Federal Circuit suggested that International Paper, Gerlach, and Dugan can be disregarded
because they did “not acknowledge any distinction between physical and regulatory takings” and predated
this Court’s articulation of the regulatory-takings
framework in Penn Central. App., infra, 13a. That
effort to dilute takings doctrine also defies Cedar
Point.
Cedar Point reaffirmed that “Penn Central has no
place” in addressing “physical appropriation[s] of
property.” 594 U.S. at 149. The Court repudiated an
attempt to reconceptualize retroactively earlier cases
involving physical invasions as regulatory takings.
26
Id. at 158 (citing United States v. Causby, 328 U.S.
256 (1946), and Portsmouth Harbor Land & Hotel Co.
v. United States, 260 U.S. 327 (1922)). Cedar Point
shielded traditional takings doctrine from Penn Central incursions because, whatever one thinks of regulatory takings, the “physical takings jurisprudence is
‘as old as the Republic.’” Id. at 147 (quoting TahoeSierra Preservation Council, Inc. v. Tahoe Regional
Planning Agency, 535 U.S. 302, 322 (2002)).
The court of appeals attempted the same forbidden revisionist relabeling of past cases. App., infra,
13a. Dugan analogized the “[i]nterference with or
partial taking of water rights” to the “interference or
partial taking of air space over land” in Causby and
Portsmouth. 372 U.S. at 625. The takeaway is unmistakable: Appropriations of water rights, like invasions of the right to exclude, remain physical takings
that categorically require just compensation. Ibid.
“[T]he complexities of modern society” do not undermine such historically grounded takings decisions but
instead “only reinforce the importance of safeguarding
the basic property rights that help preserve individual
liberty.” Cedar Point, 594 U.S. at 158.
4. Finally, the Federal Circuit treated this case
differently because the taking arose from regulatory
action under the Endangered Species Act, while International Paper, Gerlach, and Dugan “did not arise
from a regulation.” App., infra, 13a. But the “essential question is not, as the [Federal] Circuit seemed to
think, whether the government action at issue comes
garbed as a regulation (or statute, or ordinance, or
miscellaneous decree).” Cedar Point, 594 U.S. at 149.
What matters is “whether the government has physically taken property for itself or someone else—by
whatever means.” Ibid. As this Court recently made
27
clear, the Takings Clause “constrains the government
without any distinction between legislation and other
official acts.” Sheetz v. El Dorado County, 601 U.S.
267, 277 (2024).
The court of appeals tried to dress up the taking
in regulatory-speak as a “nonpossessory government
activity merely requiring that more Santa Clara River
water, whether flown through the fish ladder or not,
remains in the river.” App., infra, 12a. The United
States, however, cannot escape paying just compensation for water it requisitions by sidestepping the procedural safeguards it must observe in “formally condemn[ing]” property. Cedar Point, 594 U.S. at 147.
Under the Takings Clause, “property rights ‘cannot be
so easily manipulated.’” Id. at 155 (quoting Horne,
576 U.S. at 365). The United States has asserted a
“servitude” for the public use of water to facilitate
fish migration even though petitioner possesses superior rights to the water under California law. Dugan,
372 U.S. at 625 (citation omitted). Through that action, the United States physically appropriated a sizable portion of petitioner’s water rights. That the government self-servingly refuses to acknowledge that it
is engaged in physical appropriation only adds insult
to property owners’ injury.
That conclusion respects the proper function of the
Takings Clause. Congress enacted the Endangered
Species Act “to halt and reverse the trend toward species extinction, whatever the cost.” TVA v. Hill, 437 U.S.
153, 184 (1978). That was Congress’s choice to make.
But long before legislation to safeguard animal species, the People made the foundational choice in the
Bill of Rights who must bear that cost: the United
States, not property owners like petitioner.
28
II. THE QUESTION PRESENTED IS EXCEPTIONALLY
IMPORTANT AND RECURRING
The Federal Circuit’s decision exposes water rights
to uncompensated partial takings, so long as the government manages to intercept water before it reaches
its rightful owner. Because the Federal Circuit has exclusive appellate jurisdiction over the Court of Federal
Claims, the decision below also promises to have spillover effects across all kinds of physical-takings claims
against the United States. Those weighty legal and
practical implications warrant this Court’s intervention.
A. The question presented is exceptionally important. W.H. Auden was being realistic (if unromantic) in observing, “Thousands have lived without love,
not one without water.” States developed and then
reaffirmed appropriative property rights to encourage
much-needed investments “in long-term improvements” that capture water and allow people to survive
in the arid West. Richard Epstein, Property Rights in
Water, Spectrum, and Minerals, 86 U. Colo. L. Rev.
389, 402 (2015). As the United States commandeers
ever-scarcer water to support the ever-growing demand of various federal priorities, the protections of
the Takings Clause become even more vital.
Because the United States (like everyone) needs
water for itself, the question presented also implicates
a recurring fact pattern. The Federal Circuit routinely
hears claims that the United States has taken water
rights. E.g., City of Fresno v. United States, 124 F.4th
876, 896-897 (Fed. Cir. 2024), petition for cert. pending,
No. 25-266 (filed Sept. 5, 2025); Baley v. United States,
942 F.3d 1312, 1331 (Fed. Cir. 2019); Estate of Hage v.
United States, 687 F.3d 1281, 1288-1290 (Fed. Cir.
2012); CRV Enterprises, Inc. v. United States, 626 F.3d
29
1241, 1246-1248 (Fed. Cir. 2010); Casitas Municipal
Water District v. United States, 543 F.3d 1276, 1290
(Fed. Cir. 2008); Washoe County v. United States,
319 F.3d 1320, 1326 (Fed. Cir. 2003). Without this
Court’s review, the decision below will supply the
framework for a host of claims that the United States
has taken water rights without paying just compensation.
The contrived limitations that the Federal Circuit
adopted under the Takings Clause already are distorting physical-takings claims against the United
States. Plaintiffs are now pigeonholed into seeking
just compensation only if the United States “completely cut[s] off [the plaintiffs’] access to water.” Russell & Elizabeth Reid Family Trust v. United States,
— Fed. Cl. —, 2025 WL 2527572, at *9 (Sept. 3, 2025).
The United States has wielded the decision below aggressively in arguing that a plaintiff may seek just
compensation only when required to return “the ‘particular molecules of water’ that reach” the plaintiff ’s
property. Id. at *6. And that case is just the tip of the
iceberg—for both the cases to come and the ones that
will never be filed when the United States takes some,
but not all, of the water that a person is entitled to
divert.
Shunting such claims into the regulatory-takings
framework is no solution at all. As an initial matter,
water rights should not be “balanced away” under
Penn Central when the government appropriates water for its own use. Cedar Point, 594 U.S. at 158. But
the consequences are even worse because many will
be locked entirely out of court while permit applications remain in regulatory limbo. As this Court knows
well, similar permitting processes “can be arduous,
30
expensive, and long.” Army Corps of Engineers v.
Hawkes Co., 578 U.S. 590, 601 (2016).
Here, for example, the Service noted that petitioner had expended “eight years of effort” to obtain
an incidental-take permit as of 2016. C.A. App. 54. Yet
the completion of that process was then (and remains
now) “years off.” Ibid. Conditioning access to court on
the vagaries of the serpentine permitting process is
yet another attempt to “relegat[e] the Takings Clause
‘to the status of a poor relation’ among the provisions
of the Bill of Rights.” Knick v. Township of Scott,
588 U.S. 180, 189 (2019) (citation omitted). Whether
or not that approach is proper for regulatory-takings
claims, it is intolerable to tie up traditional physicaltakings claims indefinitely in agency red tape.
The Federal Circuit lost sight of the principle that
the Takings Clause “was designed to bar Government
from forcing some people alone to bear public burdens
which, in all fairness and justice, should be borne by
the public as a whole.” Armstrong v. United States,
364 U.S. 40, 49 (1960). Granting review and holding
that petitioner pleaded a physical taking of its water
rights would ensure that the United States pays compensation to petitioner and numerous others with
similar rights—and perhaps thinks twice about taking water rights in the first place.
B. The Federal Circuit’s workarounds to Cedar
Point also invite abuse of property rights by the
United States across the full range of physical takings. Plaintiffs seeking more than $10,000 in “just
compensation under the Takings Clause” must bring
their claims in “the Court of Federal Claims in the
first instance” outside of rare circumstances where
“Congress has withdrawn the Tucker Act grant of jurisdiction in the relevant statute.” Horne v. Department
31
of Agriculture, 569 U.S. 513, 527 (2013) (citation omitted); see 28 U.S.C. § 1491(a)(1). The Federal Circuit, in
turn, has exclusive appellate jurisdiction over decisions
of the Court of Federal Claims. 28 U.S.C. § 1295(a)(3).
Under the decision below, the United States has a new
array of arguments to evade paying just compensation
under the Takings Clause.
The message sent by the decision below is clear:
Be thankful when the government leaves you anything at all. For example, the government can now
walk right up to the line of taking all of a person’s
property interest—say, 75% of water that someone
had a right to use, 90% of wheat that someone had a
right to harvest, or 99% of oil that someone had a right
to extract—so long as it does not “completely cut off
[the person’s] access” to the property. App., infra, 11a.
Such percentage games might be de rigueur under
Penn Central. But they should “ha[ve] no place” when
it comes to physical takings. Cedar Point, 594 U.S. at
149.
Because the Federal Circuit’s rule also depends on
whether the government intercepts property before a
person can exercise his rights or instead requires the
“return” of property, the government can avoid the
physical-takings framework merely by planning its appropriations in advance and commandeering property
before it is received by its owner. App., infra, 11a. If a
person steals a package from a delivery truck just as it
arrives at its destination, a federal prosecutor would
call that theft. E.g., 18 U.S.C. § 659. But in the Federal Circuit’s view, the federal government can do the
same thing without even engaging in a physical taking. This Court has stressed that “property rights ‘cannot be so easily manipulated.’” Cedar Point, 594 U.S.
at 155 (quoting Horne, 576 U.S. at 365). But even
32
minimal bureaucratic foresight now will allow the
United States to sidestep the Takings Clause.
Exacerbating the injury, the Federal Circuit’s decision breathes new life into long-defunct efforts to exempt the administrative state from physical-takings
safeguards. The court of appeals purported to recognize that “[g]overnment action that physically appropriates property is no less a physical taking because it
arises from a regulation.” App., infra, 7a (quoting Cedar Point, 594 U.S. at 149). But the court held only
pages later that this case should be analyzed as a regulatory taking because the appropriation of water
rights “ar[o]se from a regulation” under the Endangered Species Act. Id. at 13a. That escape hatch from
Cedar Point should be welded shut as soon as possible.
C. This Court regularly grants review of important
issues over which the Federal Circuit has exclusive nationwide jurisdiction. See, e.g., Soto v. United States,
605 U.S. 360, 367 (2025) (procedures for seeking military benefits); Feliciano v. Department of Transportation, 605 U.S. 38, 44 (2025) (standard for military pay
in Merit Systems Protection Board); Thryv, Inc. v.
Click-To-Call Technologies, LP, 590 U.S. 45, 52 (2020)
(reviewability of determinations by Patent Trial and
Appeal Board). That exclusive jurisdiction stymies
the development of a square circuit conflict and gives
the Federal Circuit the final say until this Court intervenes.
Takings litigation is a prime example of a context
where the Federal Circuit’s errors will reverberate nationwide until this Court intervenes. See pp. 30-31,
supra. Certiorari is appropriate to determine whether
the Federal Circuit has properly applied this Court’s
decisions under the Takings Clause to claims against
the United States. E.g., Arkansas Game and Fish
33
Commission v. United States, 568 U.S. 23, 31 (2012);
see also, e.g., Gerlach, 339 U.S. at 725 (certiorari to
the Court of Claims, whose appellate jurisdiction was
later transferred to the Federal Circuit); International
Paper, 282 U.S. at 399 (same). The Federal Circuit’s
exclusive jurisdiction over appeals from the Court of
Federal Claims creates an even more pressing need to
resolve the question presented correctly.
III. THIS PETITION IS AN IDEAL VEHICLE
This case offers a clean opportunity to resolve the
question presented. The United States has never disputed that petitioner has a property right under its
license and permit to divert and use water. App., infra, 9a. Nor has the United States ever disputed that
petitioner would have had a right to divert and use
the water that was instead reallocated to the instream use of facilitating steelhead trout migration.
Ibid. And the Federal Circuit squarely resolved petitioner’s argument that the United States’ interference
with the water rights should be analyzed as a physical
rather than a regulatory taking. Id. at 10a-13a.
This case also vividly illustrates the harmful consequences of the Federal Circuit’s departures from
this Court’s decisions. Petitioner’s efforts to “diver[t]
water” from the Santa Clara River are critical because
the groundwater basins in petitioner’s territory experience “‘overdraft’—meaning that more water is being
taken out than is replaced by natural processes.” City
of San Buenaventura v. United Water Conservation
District, 3 Cal. 5th 1191, 1198 (2017). If petitioner
does not replenish its basins, saltwater may “intru[de]
into the fresh groundwater supply,” making the water
undrinkable and unsuitable for agriculture. Ibid.; see
C.A. App. 25. This case demonstrates that the harms
34
from the Federal Circuit’s rule are anything but hypothetical.
*****
Fish are important, but not more so than Fifth
Amendment rights. If the United States wishes to appropriate water rights for a “public use,” U.S. Const.
Amend. V, it can do so. But the Takings Clause guarantees that the United States must provide “just compensation” for the property rights it took from petitioner. Ibid. This Court should grant review and make
clear that it meant what it said in Cedar Point.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted.
FRANK S. MURRAY
FOLEY & LARDNER LLP
3000 K. Street, N.W.
Suite 600
Washington, D.C. 20007
DAVID T. RALSTON, JR.
DAVID T. RALSTON, JR., ESQ., PLLC
6510 Rockland Drive
Clifton, VA 20124
THOMAS H. DUPREE, JR.
Counsel of Record
JONATHAN C. BOND
GIBSON, DUNN & CRUTCHER LLP
1700 M Street, N.W.
Washington, D.C. 20036
(202) 955-8500
TDupree@gibsondunn.com
PATRICK J. FUSTER
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
Counsel for Petitioner
October 27, 2025
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.