Amicus Curiae Brief — United Water Conservation District, Petitioner v. United States

No. 25-523

In the

Supreme Court of the United States

UNITED WATER CONSERVATION DISTRICT,

Petitioner,

v.

UNITED STATES,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Federal Circuit

AMICUS CURIAE BRIEF OF TEXAS FARM

BUREAU IN SUPPORT OF PETITIONER

UNITED WATER CONSERVATION DISTRICT’S

PETITION FOR A WRIT OF CERTIORARI

Joshua D. K atz

Counsel of Record

Gabriella C. Malloy

Bickerstaff Heath

Delgado Acosta LLP

1601 South MoPac Expressway,

Suite C400

Austin, Texas 78746

(512) 472-8021

jkatz@bickerstaff.com

Counsel for Amicus Curiae

120791

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

STATEMENT OF INTEREST OF AMICUS . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

The Panel Opinion’s incorrect analysis of

California’s law on appropriative water rights

also imperils Texas’ regulatory system

governing surface water use rights . . . . . . . . . . . 4

A. Like California, Texas regulates surface

water and treats perfected surface water

permits as a vested property right . . . . . . . 4

B. Texas appropriative water right holders

can sell, lease, or transfer those rights;

and the holders generally own the

appropriative water rights in perpetuity

unless they are cancelled or forfeited . . . . . 7

II. The Panel Opinion’s incorrect categorization

of the government’s actions as a regulatory

taking conflicts with this Court’s precedent

on physical takings of property . . . . . . . . . . . . . . 8

ii

Table of Contents

Page

A. The government’s diversion requirement

permanently deprived the Petitioner

from access to water to which Petitioner

had a vested property right . . . . . . . . . . . . . 8

B. Taking just a portion of an appropriative

water right is still a compensable

physical taking . . . . . . . . . . . . . . . . . . . . . . . 12

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

iii

TABLE OF CITED AUTHORITIES

Cases

Page

Arizona v. California,

283 U.S. 423 (1931) . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Board of Water Engineers v. McKnight,

229 S.W. 301 (Tex. 1921) . . . . . . . . . . . . . . . . . . . . 6, 8-9

Casitas Mun. Water Dist. v. U.S.,

543 F.3d 1276 (Fed. Cir. 2008) . . . . . . . . . . . . . . . 10, 12

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021) . . . . . . . . . . . . . . . . . . . 3, 4, 8-10, 14

Clark v. Briscoe Irr. Co.,

200 S.W.2d 674 (Tex. Civ. App.—1947, no writ) . . . . . 6

Cummins v. Travis County Water

Control and Improvement Dist. No. 17,

175 S.W.3d 34 (Tex. App.—Austin 2005,

pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Dugan v. Rank,

372 U.S. 609 (1963) . . . . . . . . . . . . . . . . . . . . . . 9, 10, 12

Graham v. Kuzmich,

876 S.W.2d 446 (Tex. App.—Corpus ChristiEdinburg 1994, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . 7

iv

Cited Authorities

Page

In re Adjudication of Water

Rights of Brazos III Segment,

746 S.W.2d 207 (Tex. 1988) . . . . . . . . . . . . . . . . . . . . . . 5

International Paper Company v. United States,

282 U.S. 399 (1931) . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

Klamath Irrigation v. United States,

129 Fed. Cl. 722 (Fed. Cir. 2016) . . . . . . . . . . . . . . . . 10

Loretto v. Teleprompter Manhattan

CATV Corporation,

458 U.S. 419 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Lower Colorado River Authority v.

Texas Dept. of Water Resources,

689 S.W.2d 873 (Tex. 1984) . . . . . . . . . . . . . . . . . . . . . . 6

Motl v. Boyd,

286 S.W. 458 (Tex. 1926) . . . . . . . . . . . . . . . . . . . . . . . . 4

Penn Central Transportation Co. v. New York City,

438 U.S. 104 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . 2, 10

Tahoe-Sierra Preservation Council, Inc. v.

Tahoe Regional Planning Agency,

535 U.S. 302 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Tee-Hit-Ton Indians v. United States,

348 U.S. 272 (1955) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

v

Cited Authorities

Page

Texas Rivers Protection Ass’n v. Texas

Natural Resource Conservation Com’n,

910 S.W.2d 147 (Tex. App.—Austin 1995,

writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Texas Water Rights Commission v. Wright,

464 S.W.2d 642 (Tex. 1971) . . . . . . . . . . . . . . . . . . . . 6, 8

Thayer v. California Dev. Co.,

164 Cal. 117 (1912) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

United Water Conservation District v.

United States,

133 F.4th 1050 (Fed. Cir. 2025) . . . . . . . . . . . 1, 3, 10-12

Washoe Cnty. v. United States,

319 F.3d 1320 (Fed. Cir. 2003) . . . . . . . . . . . . . . . . . . 11

Wilson v. New Braunfels Utilities,

536 S.W.3d 5 (Tex. App.–Austin 2016, pet dism’d) . . 7

Constitutional Provisions

U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Statutes, Rules and Regulations

30 Tex. Admin. Code § 297.43(a) . . . . . . . . . . . . . . . . . . . . 5

Supreme Court Rule 37.2 . . . . . . . . . . . . . . . . . . . . . . . . . 1

vi

Cited Authorities

Page

Tex. Water Code § 11.021(a) . . . . . . . . . . . . . . . . . . . . . . . 4

Tex. Water Code § 11.0235(a) . . . . . . . . . . . . . . . . . . . . . . 4

Tex. Water Code § 11.025 . . . . . . . . . . . . . . . . . . . . . . . . . 7

Texas Water Code §§ 11.025-026 . . . . . . . . . . . . . . . . . . . 7

Tex. Water Code § 11.027 . . . . . . . . . . . . . . . . . . . . . . . . . 6

Tex. Water Code § 11.0275 . . . . . . . . . . . . . . . . . . . . . . . . 7

Tex. Water Code § 11.030 . . . . . . . . . . . . . . . . . . . . . . . . . 7

Tex. Water Code § 11.040 . . . . . . . . . . . . . . . . . . . . . . . . . 7

Tex. Water Code § 11.040(a) . . . . . . . . . . . . . . . . . . . . . . . 7

Tex. Water Code § 11.121 . . . . . . . . . . . . . . . . . . . . . . . . . 5

Tex. Water Code § 11.172 . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Tex. Water Code §§ 11.301-341 . . . . . . . . . . . . . . . . . . . . . 5

Other Authorities

Frank F. Skillern, I Texas Water Law (1992) . . . . . . . . . 5

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STATEMENT OF INTEREST OF AMICUS

Texas Farm Bureau (“TFB”) submits this brief

on behalf of its members.1 TFB is a Texas non-profit

membership corporation committed to the advancement

of agriculture and prosperity for rural Texas. TFB has

approximately 482,543 member families and is associated

with 205 county Farm Bureau organizations across

the state. TFB and its members – many of whom own

longstanding appropriative water rights throughout Texas

– rely on both the United States and Texas Constitutions’

protections of these vested property rights, ensuring

just compensation if their property is ever taken by the

government for a public use.

Water in Texas (and other western states, including

California) is a very important and increasingly scarce

resource for residents, farmers, and industries. Texas

citizens (including the members of TFB) rely on Texas’

regulatory system governing appropriative water rights

for their livelihoods. Texas’ consistent recognition of water

use rights as vested property interests based on their

permit priority date ensures that Texas has enough water

for its citizens, species, and environment. This system also

protects property rights.

United Water Conservation District v. United States,

133 F.4th 1050 (Fed. Cir. 2025) (the “Panel Opinion”)

1. Counsel for Texas Farm Bureau authored this amicus brief

in whole. Texas Farm Bureau will pay all costs incurred in the

preparation and submission of the brief. No other individuals or

entities other than Texas Farm Bureau have provided monetary

contributions towards the preparation or submission of this brief.

All parties were given timely notice pursuant to Rule 37.2.

2

misinterpreted California’s water right laws when it

stated that an appropriative water right vests only after

the water right owner has diverted the water. In reaching

this conclusion, the Panel Opinion disrupted this Court’s

established delineator between a compensable physical

taking and the more nebulous legal framework for the

regulatory taking of water for the government’s own

purposes, and in so doing entitled the United States

to the use of appropriated water for a public purpose

without compensation. If this Court does not grant United

Water Conservation District’s (“United” or “Petitioner”)

Petition, the Panel Opinion’s new standard, which would

apply nationwide, will weaken longstanding appropriative

water rights and expose those water rights owners to

an increasing number of uncompensated government

takings. TFB urges this Court to grant United’s Petition

in order to affirm its jurisprudence on the physical taking

of property under the Takings Clause of the United States

Constitution.

SUMMARY OF ARGUMENT

This case presents an important question of property

rights. The decision of the Federal Circuit in the Panel

Opinion threatens to upend longstanding precedent of

this Court that separates a regulatory taking under the

analysis of Penn Central Transportation Co. v. New York

City, 438 U.S. 104 (1978) (applicable when regulations

merely limit a person’s right to use his or her property)

from a physical expropriation by the government that

deprives a property owner of the ability to use his or her

property altogether.

The United States expropriated 49,850 acre-feet

of water permitted to United for the public purpose of

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aiding a fish species. Under California (and Texas) state

law, surface water rights are appropriated to users by

permit and, once perfected, are vested property rights.

The Panel Opinion erroneously found that, despite United

possessing a vested appropriative water right created

under California state law, United must have already

diverted the water at the time it was expropriated by the

government in order for its property right to vest. 133

F.4th at 1057-58. Thus, by the government’s argument, no

water right holder could ever assert a takings claim for

a government order compelling it not to enjoy the water

to which it would otherwise be legally entitled to divert.

While water must be initially diverted and put to a

beneficial use in order to vest an appropriative right, once

vested in this manner, the right to use that water exists

regardless of whether the water remains in the river or

has already been diverted. United’s property right to the

use of permitted water is therefore not contingent upon

whether the government expropriated it before or after

United’s diversion; in either event, it is wholly deprived of

that property in the amount the government has ordered.

The Federal Circuit instead treated United’s claim

for the physical taking of its water as a regulatory

taking, then dismissed that claim as unripe so long as

license proceedings under the Endangered Species Act

remain pending. Such a conclusion obviates the distinction

between a regulatory and physical taking. As this Court

has held, when the government appropriates private

property for itself or a third party, it must pay for what it

takes. Cedar Point Nursery v. Hassid, 594 U.S. 139, 148

(2021). This is true whether the taking was only partial

or total, and regardless of whether the government

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expropriated the water before or after it reached the water

rights holder. Such workarounds of the Takings Clause

are “insupportable as a matter of precedent and common

sense.” Id. at 153.

Because the Federal Circuit’s holding in the Panel

Opinion establishes nationwide precedent, this Court’s

intervention is necessary to protect water rights holders’

vested property rights nationwide – including the water

rights of TFB’s members.

ARGUMENT

I.

The Panel Opinion’s incor rect analysis of

California’s law on appropriative water rights

also imperils Texas’ regulatory system governing

surface water use rights.

A.

Like California, Texas regulates surface water

and treats perfected surface water permits as

a vested property right.

Texas owns “[t]he water of the ordinary f low,

underflow, and tides of every flowing river, natural stream,

and lake, and of every bay or arm of the Gulf of Mexico,

and the storm water, floodwater, and rainwater of every

river, natural stream, canyon, ravine, depression, and

watershed in the state” in trust for its citizens. Tex. Water

Code §§ 11.021(a), 11.0235(a).

The use of this water by Texans has long been regulated

by the State. In 1840, Texas adopted the English common

law riparian system. Motl v. Boyd, 286 S.W. 458, 465–66

(Tex. 1926). Texas continued to recognize vested common

5

law riparian rights in land granted from the Mexican or

Spanish governments until 1913, when it passed legislation

that “ceased to recognize riparian rights that were not

already vested and prohibited their creation by state land

patents issued after July 1, 1895.” Cummins v. Travis

County Water Control and Improvement Dist. No. 17, 175

S.W.3d 34, 44 (Tex. App.—Austin 2005, pet. denied), citing

Frank F. Skillern, I Texas Water Law 69 (1992). This

provision of the 1913 act remains the law today, resulting

in a dual system that protects these prior riparian rights

while ultimately adopting and enforcing an appropriation

system. Id. In 1967, Texas adopted the Water Rights

Adjudication Act in an effort to clarify and codify its

appropriative water rights regulations. This Act “required

a Texas landowner claiming a right to use the water to file

a sworn statement, participate in an evidentiary hearing,

and obtain a certificate of adjudication.” Id.; see also Tex.

Water Code §§ 11.301-341. The Water Rights Adjudication

Act is now “the exclusive means by which [water] rights

may be recognized” in Texas. Id., citing In re Adjudication

of Water Rights of Brazos III Segment, 746 S.W.2d 207, 210

(Tex. 1988). Certificates of adjudication issued pursuant

to this Act are the water permits that grant Texans the

right to use surface water.

A person or entity can acquire permanent, term, and/

or temporary surface water use rights by submitting

a permit application to the Texas Commission on

Environmental Quality (“TCEQ”), the state regulatory

agency charged with regulating surface water in Texas.

30 Tex. Admin. Code § 297.43(a); Tex. Water Code § 11.121;

see also In re Adjudication of Water Rights of Brazos III

Segment of Brazos River Basin, 746 S.W.2d at 211 (holding

that TCEQ retains the sole authority to grant and deny

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water use permits based on its review of already existing

senior appropriative water rights). These appropriative

water rights are operated under the “first in time, first

in right” priority system, under which older or “senior”

rights are given precedence over newer or “junior” rights

during a time of water shortage within the relevant river

segment. Tex. Water Code § 11.027.

In Texas, appropriative rights to use State surface

water are a vested property right when acquired and

perfected. Texas Water Rights Commission v. Wright, 464

S.W.2d 642, 646-648 (Tex. 1971); see also Lower Colorado

River Authority v. Texas Dept. of Water Resources, 689

S.W.2d 873, 874 (Tex. 1984) (holding that “unappropriated

water” does not include water covered under valid water

use permits); Texas Rivers Protection Ass’n v. Texas

Natural Resource Conservation Com’n, 910 S.W.2d 147,

155-156 (Tex. App.—Austin 1995, writ denied) (holding

that an appropriative water permit projecting future

beneficial uses was valid because the permit owner’s

infrastructure updates, nearby competitor interest, and

population growth showed that the permit owner would

likely implement the beneficial use projections). Once the

permitted water has been diverted and put to beneficial

use, the appropriative right is, and remains, a vested

property right. Clark v. Briscoe Irr. Co., 200 S.W.2d 674,

676 (Tex. Civ. App.—1947, no writ). Riparian water rights

are also vested property rights under Texas law. Board

of Water Engineers v. McKnight, 229 S.W. 301, 304 (Tex.

1921).

A vested water right owner’s property interest focuses

on “…the amount specifically appropriated but also to the

amount which is being or can be beneficially used for the

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purposes specified in the appropriation….” Tex. Water

Code §§ 11.025, 11.040(a) (categorizing a permanent water

right as an easement which passes with land title, and

which may be recorded in the same manner as any other

instrument relating to a conveyance of land); see also

Wilson v. New Braunfels Utilities, 536 S.W.3d 5, 13-14

(Tex. App.–Austin 2016, pet dism’d) (holding that an owner

of a vested appropriative water right possesses title to

use that water). Thus, while the State of Texas owns the

surface water of the state, a permit to appropriate that

water is itself a vested property right once it is initially

put to beneficial use. Tex. Water Code § 11.025-026.

B. Texas appropriative water right holders can

sell, lease, or transfer those rights; and the

holders generally own the appropriative water

rights in perpetuity unless they are cancelled

or forfeited.

A Texas appropriative water right owner can sell,

lease, or transfer that right to other people or entities.

Tex. Water Code §§ 11.040, 11.0275; see also Graham v.

Kuzmich, 876 S.W.2d 446, 448-449 (Tex. App.—Corpus

Christi-Edinburg 1994, no pet.).

Permanent water right owners generally retain those

property rights in perpetuity until they are: (1) cancelled

after ten continuous years of nonuse, or (2) forfeited after

three successive years of willful abandonment. See Tex.

Water Code §§ 11.172, 11.030.

TFB, like the Petitioner, is concerned that the Panel

Opinion’s application of the regulatory rather than physical

takings test to the diversion of a vested appropriative

8

water right by the United States government for its

desired uses of that water deprives Petitioner of its

property rights without compensation in violation of the

Takings Clause of the United States Constitution. Because

Texas law treating appropriative permits as a property

right is similar to California law, TFB urges this Court to

grant the Petition to affirm its longstanding precedents

governing the physical taking of property.

II. The Panel Opinion’s incorrect categorization of

the government’s actions as a regulatory taking

conflicts with this Court’s precedent on physical

takings of property.

The Panel Opinion created an impossibly stringent

physical taking standard where the government must

compensate appropriative water right owners when it:

(a) expropriates all permitted water and/or (b) demands

the owner to return water after the owner’s diversion.

This standard is not supported by this Court’s existing

precedents and should be rejected.

A.

The government’s diversion requirement

permanently deprived the Petitioner from

access to water to which Petitioner had a

vested property right.

Property rights that are protected by the Takings

Clause of the United States Constitution are “creatures

of state law.” Cedar Point, 594 U.S. at 155. As discussed

above, in California as in Texas, a perfected water right

is a vested property right. Wright, 464 S.W.2d at 646-648;

Arizona v. California, 283 U.S. 423, 459 (1931). That is true

for both appropriative and riparian water rights. Board

9

of Water Engineers, 229 S.W. at 304; Dugan, 372 U.S. at

614, 619. The Panel Opinion therefore inappropriately

distinguishes cases such as Dugan v. Rank, 372 U.S. 609

(1963) on the basis that they involved riparian and not

appropriative rights. Panel Opinion, 133 F.4th at 1058.

That is a distinction without a difference for the purpose

of Takings Clause analysis. After acquiring its license

and permit under state law, the Petitioner holds 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). In either

the appropriative or riparian context, the United States

cannot escape the physical takings framework when it

has ordered a water rights holder to surrender water for

a public purpose.

First, the Panel Opinion’s attempt to shunt its analysis

to a regulatory rather than physical taking is misplaced.

“A government action that physically appropriates

property is no less a physical taking because it arises from

a regulation.” Cedar Point, 594 U.S. at 149. The essential

question thus is not whether the government action

“comes garbed as a regulation (or statute, or ordinance,

or miscellaneous decree),” but whether it has “physically

taken property for itself or someone else – by whatever

means – or has instead restricted a property owner’s

ability to use his own property.” Id, citing Tahoe-Sierra

Preservation Council, Inc. v. Tahoe Regional Planning

Agency, 535 U.S. 302, 321 (2002). The Panel Opinion

indeed cloaks the government’s actions in the garb of a

regulation, calling the diversion of United’s water right

for the benefit of a fish species as merely a “nonpossessory

government activity merely requiring that more Santa

Clara River water . . . remains in the river.” Panel Opinion,

10

133 F.4th at 1057. However, by asserting a servitude that

commits a water right held by United to another public

purpose, the government physically appropriated those

water rights, which “cannot be so easily manipulated” by

simply recategorizing the government’s appropriation as

a regulatory action. Dugan, 372 U.S. at 625; Cedar Point,

594 U.S. at 155.

The Panel Opinion’s holding that the United States’

water diversion requirement for Petitioner was not a

physical taking directly conflicts with longstanding

precedent from both this Court and the Federal Circuit

Court about compensable physical taking requirements for

water use rights. This Court has held that the government’s

partial appropriation of private property constitutes a

physical taking requiring adequate compensation due to

“...the inability of the owner to make a reasonable return

on his property….” Penn Central, 438 U.S. at 149; Dugan,

372 U.S. at 625-626 (holding that the taking of a water

right occurs if “any part” of the claimed water right is

invaded).

As discussed further below, the Federal Circuit Court

has also repeatedly held that even a partial diversion of

water constitutes a physical taking by the government

requiring compensation because the owner’s “…right to

use that water, is forever gone.” Casitas Mun. Water Dist.

v. U.S., 543 F.3d 1276, 1288-1296 (Fed. Cir. 2008) (holding

that the government’s partial diversion of an appropriative

water right owner’s water via the installation of a fish

ladder to preserve an endangered species constituted a

physical taking requiring compensation); see also Klamath

Irrigation v. United States, 129 Fed. Cl. 722, 734-735

(Fed. Cir. 2016) (holding that the government’s partial

11

retention of water to protect fish species constituted a

physical taking requiring compensation to the water use

right owners).

To be clear, preventing the diversion of water held

under an appropriative right is just as much of a physical

taking as redirecting already diverted water. The Panel

Opinion erroneously concluded that an appropriator

must have already “physically diverted water” for its

property right to vest and become subject to a physical

taking. Panel Opinion, 133 F.4th at 1058. California law

provides that a usufructuary right to the use of water

through an appropriative right is itself a vested private

property right. Thayer v. California Dev. Co., 164 Cal.

117, 129 (1912). Crucially, the Panel Opinion’s reasoning

that a physical taking occurs only by the government

commandeering already-diverted water is undercut by

this Court and the Federal Circuit’s prior holdings. See

International Paper Company v. United States, 282 U.S.

399, 405–06 (1931) (Government’s actions to “cut off the

water being taken” before it was diverted, in order to

increase another use of that water, constituted a taking);

Washoe Cnty. v. United States, 319 F.3d 1320, 1326 (Fed.

Cir. 2003) (“[C]ourts have recognized a physical taking

where the government has … decreased the amount of

water accessible by the owner of the water rights.”).

Moreover, International Paper concluded that, as

Respondent does in the present matter, redirecting

water from the owner’s use to one “deemed more useful”

by the government is no less a taking that directly

expropriating it. International Paper, 282 U.S. at 408.

Thus, an agency of the federal government determining

that water appropriated to a water district, or Texas

12

farmers for that matter, is necessary for the “habitat of

an endangered species” is a public use of that water that

requires compensation to the rights holder. Casitas, 543

F.3d at 1292.

B. Taking just a portion of an appropriative water

right is still a compensable physical taking.

The Panel Opinion distinguished International Paper

on the basis that, in that case, the government “completely

cut off” the claimant’s access to its water, while here, the

government claims only a portion of United’s water right.

Panel Opinion, 133 F.4th at 1057. As the Federal Circuit held

in Casitas, it does not matter that the government only

commandeered some of the water rights holder’s water,

because the water that the government appropriated was

“gone forever.” Casitas, 543 F.3d at 1294, n.5.

As discussed above, this Court has held that the taking

of any part of a water right constitutes a taking. Dugan,

372 U.S. at 623. As held in Dugan, interference with or

even the partial taking of water rights must be analogized

to the partial taking of air space over land. Id. at 625. Thus,

even a small “permanent physical occupation” of property

is a per se taking. Loretto v. Teleprompter Manhattan

CATV Corporation, 458 U.S. 419 (1982). That is because

the extent of the taking concerns only the amount of

compensation owed, not the existence of the taking itself.

Dugan, 372 U.S. at 626; see also Tee-Hit-Ton Indians v.

United States, 348 U.S. 272, 273 n.1 (1955) (“A partial

taking is compensable.”).

It is irrelevant whether the government has redirected

only some but not all of United’s water right, because that

13

specific water is forever gone, as it has been dedicated to

a public use. Such action is a physical taking that requires

compensation, and for this additional reason, this Court

should grant the Petition to correct the decision of the

Federal Circuit.

14

CONCLUSION

The United States government has numerous

obligations under federal law, including the Endangered

Species Act. However, the Fifth Amendment to the United

States Constitution requires that private property taken

for such public purposes must be justly compensated.

Appropriated surface water rights of Texans such

as TFB’s members are vested property rights upon

perfection, regardless of whether the government

commandeers that water for another purpose prior to or

after diversion of the water. This is a physical taking that

must be justly compensated. This Court should therefore

grant the Petition in order to affirm its physical takings

jurisprudence of Cedar Point and its progeny, and to avoid

the confusion that would ensue with the panel’s creation

of a conflicting standard.

Respectfully submitted,

Joshua D. K atz

Counsel of Record

Gabriella C. Malloy

Bickerstaff Heath

Delgado Acosta LLP

1601 South MoPac Expressway,

Suite C400

Austin, Texas 78746

(512) 472-8021

jkatz@bickerstaff.com

Counsel for Amicus Curiae