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 OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

For the Federal Circuit

___________________

BRIEF OF AMICI CURIAE WESTERN

GROWERS ASSOCIATION, CALIFORNIA

COTTON GINNERS AND GROWERS

ASSOCIATION, WESTERN TREE NUT

ASSOCIATION, CALIFORNIA CITRUS

MUTUAL, CALIFORNIA FRESH FRUIT

ASSOCIATION, AMERICAN PISTACHIO

GROWERS, THE CALIFORNIA FARM BUREAU

FEDERATION, IN SUPPORT OF PETITIONER

Ryan R. Waterman

Counsel of Record

BROWNSTEIN HYATT FARBER SCHRECK, LLP

225 Broadway, Suite 1670

San Diego, CA 92101

Telephone: 619.702.7569

Email:rwaterman@bhfs.com

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

Scott S. Slater

BROWNSTEIN HYATT

FARBER SCHRECK, LLP

1020 State Street

Santa Barbara, CA 93101

Telephone: 805.963.7000

Email: sslater@bhfs.com

Mary C. Loum

BROWNSTEIN HYATT

FARBER SCHRECK, LLP

1415 L Street, Suite 800

Sacramento, CA 95814

Telephone: 916.594.9700

Email: mloum@bhfs.com

Counsel for Amici Curiae Western Growers

Association, California Cotton Ginners and Growers

Association, Western Tree Nut Association,

California Citrus Mutual, California Fresh Fruit

Association, American Pistachio Growers, The

California Farm Bureau Federation

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................ii

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

SUMMARY OF ARGUMENT.......................... 4

ARGUMENT .................................................... 6

I.

AGRICULTURAL ENTERPRISES

HAVE A SPECIAL INTEREST IN

WATER RIGHTS. .................................. 6

II.

THE COURT SHOULD ACCEPT THE

PETITION TO CORRECT THE

FEDERAL CIRCUIT’S

MISSTATEMENT OF CALIFORNIA

WATER LAW......................................... 8

III.

THE COURT SHOULD ACCEPT THE

PETITION TO CORRECT THE

CONFLICT WITH EXISTING

PRECEDENT DISCUSSING

PHYSICAL TAKINGS OF WATER

RIGHTS. .............................................. 14

CONCLUSION ............................................... 19

i

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Arizona v. California,

283 U.S. 423 (1931) ........................................... 10

Boise Cascade Corp. v. United States,

296 F.3d 1339 (Fed. Cir. 2002) ......................... 17

California v. United States,

438 U.S. 645 (1978) ............................................. 4

Casitas Mun. Water Dist. v. United States,

543 F.3d 1276 (Fed. Cir. 2008) ..14, 15, 16, 17, 18

Casitas Mun. Water Dist. v. United States,

556 F.3d 1329 (Fed. Cir. 2009) ........................ 18

Casitas Mun. Water Dist. v. United States,

708 F.3d 1340 (Fed. Cir. 2013) ........................... 8

Dugan v. Rank

372 U.S. 609 (1963) ..................................... 14, 15

Hage v. United States,

51 Fed. Cl. 570 (2002) ....................................... 10

Int’l Paper Co. v. United States,

282 U.S. 399 (1931) ..................................... 14, 15

Seiber v. United States,

364 F.3d 1356 (Fed. Cir. 2004) ......................... 17

ii

United States v. Alpine Land & Reservoir

Co.,

510 F.3d 1035 (9th Cir. 2007)........................... 10

United States v. Gerlach Live Stock Co.,

339 U.S. 725 (1950) ..................................... 14, 15

United Water Conservation District v.

United States,

133 F.4th 1050 (Fed. Cir. 2025) .4, 5, 8, 9, 12, 13,

14, 15, 16, 17

Washoe Co., Nev. v. United States,

319 F.3d 1320 (Fed. Cir. 2003) ......................... 17

State Cases

California Water Curtailment Cases, 83

Cal.App.5th 164 (2022) ....................................... 9

City of Barstow v. Mojave Water Agency,

23 Cal.4th 1224 (2000)........................................ 5

County of Boulder v. Boulder & Weld Cty.

Ditch Co.,

367 P.3d 1179 (Colo. 2016) ............................... 10

Crandal v. Woods,

8 Cal. 136 (1857) ............................................... 12

Eaton v. State Water Rights Bd.,

171 Cal.App.2d 409 (1959) ................................. 9

Eddy v. Simpson,

3 Cal. 249 (1853) ............................................... 12

iii

Millview Co. Water Dist. v. State Water Res.

Control Bd.,

229 Cal.App.4th 879 (2014) .............................. 10

National Audubon Soc’y v. Superior Court,

33 Cal.3d 419 (1983) ........................................... 5

United States v. State Water Res. Control

Bd.,

182 Cal.App.3d 82 (1986) ............................... 8, 9

State Statutes

Alaska Stat. §§ 46.15.030-.185 .............................. 11

Ariz. Rev. Stat. § 45-152 ........................................ 11

Cal. Water Code § 102.............................................. 8

Cal. Water Code § 1241.......................................... 10

Cal. Water Code § 1610............................................ 9

Cal. Water Code § 1627.......................................... 10

Kan. Stat. Ann. § 82a-703 ...................................... 11

Miss. Code § 51-3-1 ................................................ 11

N.D. Cent. Code § 61-01-01.................................... 12

Neb. Rev. Stat. § 46-202......................................... 11

Nev. Rev. Stat. § 533.030 ....................................... 11

Okla. Stat. tit. 82, § 105.1A ................................... 11

iv

Or. Rev. Stat. §§ 537.110-130 ................................ 12

S.D. Codified Laws §§ 46-1-3 ................................. 12

Tex. Water Code §§ 11.001, 11.022 ....................... 12

Utah Code §§ 73-3-1 ............................................... 11

Wash. Rev. Code § 90.03.010 ................................. 11

Constitutional Provisions

Colo. Const. art. XVI, §§ 5-6 .................................. 11

N.M. Const. art. XVI, § 2 ...................................... 11

Idaho Const. art. XV, § 3........................................ 11

Mont. Const. art. IX, § 3(1) .................................... 11

Wyo. Const. art. VIII, §§ 1-3 .................................. 11

Other Authorities

Executive Order No. 14181, 90 Fed. Reg.

8747 (Jan. 31, 2025) ........................................ 4, 7

Presidential Memorandum, 90 Fed. Reg

8479 (Jan. 20, 2025), “Putting People

Over Fish: Stopping Radical

Environmentalism to Provide Water to

Southern California,”...................................... 4, 7

Thompson King, Water: Miracle of Nature

(1953) ................................................................... 7

v

Wallace Stegner, Beyond the Hundredth

Meridian: John Wesley Powell and the

Second Opening of the West (1992) .................... 6

vi

STATEMENT OF INTEREST

Amici curiae represent various organizations

involved in agriculture enterprises

California and other Western States. 1

throughout

Founded in 1926, Western Growers Association

(WGA) is a non-profit organization representing local

and family farmers in Arizona, California, Colorado,

and New Mexico. Its members grow roughly half the

fresh produce in the United States and represent 90%

of the growers, shippers and packers of fresh produce,

fruit and nuts in California and Arizona. Of WGA’s

3,000 members, 2,200 are Californians. WGA has a

long-standing practice of advocating on matters

generally affecting its members.

The California Cotton Ginners and Growers

Association (CCGGA) is a voluntary dues trade

association representing cotton gins and cotton

growers throughout the state of California on

regulatory and legislative issues. While membership

is voluntary, CCGGA currently represents 100% of

the cotton gins and cotton growers in the state, which

includes 15 operating cotton gins and approximately

300 cotton growers.

1

No counsel for any party authored this brief in whole or in part,

nor did any such counsel or party make any monetary

contribution intended to fund the preparation or submission of

this brief. Pursuant to Rule 37.2, amici curiae provided timely

notice to counsel of record for all parties of amici’s intent to file

this brief.

1

The Western Tree Nut Association (WTNA) is

a voluntary dues trade association representing more

than 200 tree nut growers, hullers and processors of

almonds, pecans, pistachios and walnuts throughout

California on regulatory and legislative issues.

California Citrus Mutual (California Citrus)

was founded by growers in 1977 as a non-profit trade

association. California Citrus works to protect and

enhance the viability of California’s citrus growers.

California Citrus’ goal is to credibly represent the

needs of California’s citrus growers to State and

Federal elected officials and policymakers, foster

communication and cooperation between all segments

of the citrus industry, and deliver relevant, timely

and unbiased information to the membership.

Established in 1936, the California Fresh Fruit

Association (CFFA) is a voluntary public policy

association that represents growers, packers, and

shippers of California table grape, blueberry, kiwi,

pomegranate and deciduous tree fruit communities.

CFFA serves as a public policy representative for its

members on issues at both the state and federal

levels.

American Pistachio Growers is a non-profit

trade association representing over 800 grower

members in California, Arizona, and New Mexico

with the shared goal of increasing global awareness of

nutritious, American-grown pistachios. These entities

represent an industry that feeds our nation, and their

members have a vital interest in the issues presented

in this case.

2

The California Farm Bureau Federation (Farm

Bureau) is a nongovernmental, non-profit, voluntary

membership California corporation whose purpose is

to protect and promote agricultural interests

throughout the State of California and to find

solutions to the problems of the farm, the farm home,

and the rural community. The Farm Bureau is

California’s largest farm organization, comprised of

54 county Farm Bureaus currently representing

approximately 26,000 members in 56 counties. The

Farm Bureau strives to protect and improve the

ability of farmers and ranchers engaged in production

agriculture to provide a reliable supply of food and

fiber through responsible stewardship of California’s

resources, and of utmost importance is the balanced

availability of water resources.

3

SUMMARY OF ARGUMENT

“Water, of course, is a scarce resource in the

western United States.” California v. United States,

438 U.S. 645, 650 (1978). Any precedential decision

impacting water use in the West touches on an issue

of exceptional importance with widespread

implications. As recognized by Executive Order No.

14181, 90 Fed. Reg. 8747 (Jan. 31, 2025), Emergency

Measures to Provide Water Resources in California

and Improve Disaster Response in Certain Areas, and

Presidential Memorandum, 90 Fed. Reg 8479 (Jan.

20, 2025), “Putting People Over Fish: Stopping

Radical Environmentalism to Provide Water to

Southern California,” the impact of government

interference with the availability of water is of

profound

national

concern.

United

Water

Conservation District v. United States, 133 F.4th

1050, 1053-1054 (Fed. Cir. 2025) (hereafter United),

involves a situation the Executive Order aimed to

correct. By virtue of the National Marine Fisheries

Service’s (“Service”) 2016 letter from the Office of

Enforcement, the government took 49,850 acre-feet

from

United

Water

Conservation

District

(“United”)—enough water to supply tens of thousands

of families for a year—for flow through a fish ladder

to benefit endangered steelhead trout. Unless

corrected, the opinion from the Federal Circuit will

enable regulatory entities to commandeer water for

environmental purposes in utter disregard for the

state property rights systems that govern the

apportionment of water.

Under common law and statutory schemes,

priority is the central principle for allocating water

4

among competing uses. City of Barstow v. Mojave

Water Agency, 23 Cal.4th 1224, 1243 (2000). Priority

is expressed as a usufructuary property right, which

“consists not so much of the fluid itself as the

advantage of its use.” National Audubon Soc’y v.

Superior Court, 33 Cal.3d 419, 441 (1983).

The Federal Circuit opinion categorically

misstates California water law by finding that despite

possessing a previously vested appropriative water

right, sanctioned by the State under its

administrative licensing process, United “needed to

have physically diverted water for its property right

to vest” at the time it was appropriated by the

government. See United, 133 F.4th at 1057-1058.

Under this reasoning, it is impossible to state a

physical takings case for any bypass flow requirement

despite the Service denying United the advantage of

its vested right in the priority of use.

The opinion confuses the requirement to divert

water as prerequisite to establishing an appropriative

right with an imaginary requirement to divert water

before asserting harm due to the government’s taking

of a vested usufructuary priority. While water must

be diverted and put to beneficial use to vest an

appropriative right in the first instance, there is no

requirement under California law to “re-vest” the

right. Once vested through initial diversion and

beneficial use, as United has indisputably already

done, the right to use the water exists regardless of

whether that water remains in-river or has been

diverted.

5

Under a corrected understanding of California

law, a previously vested appropriative water right

need not be actually diverted and recalled by the

government for a specified use to establish a physical

taking claim under the Fifth Amendment. A

government requirement to leave water in-river

effectively deprives an appropriative-rights holder of

the advantage of their priority and the associated

water that could be lawfully diverted, constituting a

physical taking. The Federal Circuit’s failure to

recognize this misstates California law, conflicts with

Supreme Court precedent, and has broad implications

for agricultural interests and water users nationwide.

Correction by this Court is warranted, and we urge

the Court to accept the petition for certiorari.

ARGUMENT

I.

AGRICULTURAL ENTERPRISES HAVE A

SPECIAL INTEREST IN WATER RIGHTS.

“Water is the true wealth in a dry land; without

it, land is worthless or nearly so. And if you control

the water, you control the land that depends on it.”

Wallace Stegner, Beyond the Hundredth Meridian:

John Wesley Powell and the Second Opening of the

West 230 (1992). California is a special place, often

referred to as the nation’s breadbasket, growing over

400 different crops in one of the only mediterranean

growing climates in the western hemisphere.

Apportionment of water rights in the arid west has

crucial impacts on agricultural interests. Water is

essential for all commerce, but none more so than

agriculture. “Man must eat to live, and the problem of

food will always be inextricably associated with

6

water.” Thompson King, Water: Miracle of Nature

167 (1953).

As agricultural-based organizations that rely

on the availability of water, amici have special

interest, experience, and expertise in water law.

Amici and their member organizations rely on water

rights to provide them with a reliable water supply

critical to the successful operation of their farming

enterprises. That security in water availability

underlies crop planning and financial considerations

that impact the long-term stability of agricultural

enterprises.

Concern with undue burden on water

deliveries has received national recognition. In

Executive Order No. 14181, 90 Fed. Reg. 8747 (Jan.

31, 2025), Emergency Measures to Provide Water

Resources in California and Improve Disaster

Response in Certain Areas, President Trump ordered

the Secretary of Interior to “take all available

measures” to maximize water deliveries and to

remove procedures that are “unduly burden” water

delivery projects. Similarly, in the companion

Presidential Memorandum, 90 Fed. Reg 8479 (Jan.

20, 2025), “Putting People Over Fish: Stopping

Radical Environmentalism to Provide Water to

Southern California,” the President noted the need for

“reliable water supply” and directs the agencies to

focus on prioritizing human needs.

Water availability for critical needs such as

farming, and the vested property interest in water

rights that support that availability, must be

protected from overreach by the government. The

7

ability of an entity to bring a physical takings claim

challenging that overreach is a critical avenue to

redress such actions. The Court should grant this

petition to ensure those who wish to challenge

government actions preventing use of those water

rights are not blocked from pursuing in court their

rights under the Fifth Amendment.

II.

THE COURT SHOULD ACCEPT THE

PETITION TO CORRECT THE FEDERAL

CIRCUIT’S MISSTATEMENT OF

CALIFORNIA WATER LAW.

As recognized by the Federal Circuit,

“California property rights are governed by state

law.” United, 133 F.4th at 1056 (citing Cedar Point

Nursery v. Hassid, 594 U.S. 139, 155 (2021)).

“Appropriative water rights (such as those at issue

here) have long been recognized by California courts

as private property subject to ownership and

disposition.” Casitas Mun. Water Dist. v. United

States, 708 F.3d 1340, 1354 (Fed. Cir. 2013) (“Casitas

II”) (citing Thayer v. Cal. Dev. Co., 164 Cal.117, 125

(1912)); see also Cal. Water Code § 102 (“[T]he right

to the use of water may be acquired by appropriation

in the manner provided by law.”).

Under California water law, “once rights to use

water are acquired, they become vested property

rights” that “cannot be ... taken by governmental

action without due process and just compensation.”

United States v. State Water Res. Control Bd., 182

Cal.App.3d 82, 101 (1986). Specifically, “senior

appropriators,” like United, “… are entitled to satisfy

their reasonable needs, up to the full appropriation,

8

before more junior appropriators are entitled to any

water.” California Water Curtailment Cases, 83

Cal.App.5th 164, 180 (2022) (noting junior users may

be prevented from diverting to satisfy senior rights in

times of shortage of supply).

The Federal Circuit mistakenly ruled that

United—despite already holding an undisputed

vested right as evidenced by a water rights license–

still “needed to have physically diverted water for its

property right to vest” during the period of the

claimed taking. United, 133 F.4th at 1058. This is

wrong. Water rights licenses are issued by the

California State Water Board only after a water user

has already met state law requirements to

appropriate and apply water to a beneficial use, and

thus a license serves as confirmation of the vested

right. See Cal. Water Code § 1610 (a license “confirms

the right” to appropriate the water in the amount that

has been applied to beneficial use). Issuance of a

license is the final step in California’s post-1914

statutory scheme regulating new water rights. State

Water Res. Control Bd., 182 Cal.App.3d at 102 (noting

appropriative rights are confirmed upon issuance of a

water rights license); Eaton v. State Water Rights

Bd., 171 Cal.App.2d 409, 415 (1959) (“The final

procedural step in perfecting a water right is the

issuance of a license”).

Once vested, California law does not

distinguish the scope of the right based on the water’s

location—in-river versus within a diversion

structure—as the Federal Circuit did. Instead, the

holder of an appropriative water right license has a

vested property right whether the water has been

9

diverted at a given point in time or not. Cal. Water

Code § 1627 (once issued, a license continues in

perpetuity as long as the holder puts the water to

beneficial use); Cal. Water Code § 1241 (requiring at

least five years of nonuse and a finding by the state

water board prior to reversion of a water right to

unappropriated public water); see also Arizona v.

California, 283 U.S. 423, 459 (1931) (noting diversion

and use of water results in “a vested right to take and

divert from the same source, and to use and consume

the same quantity of water annually forever ….”). 2

Furthermore, the reach of the Federal Circuit’s

misunderstanding of California water law is not

limited to that state because these foundational water

law principles regarding vesting of water rights apply

across the western states. See, e.g., County of Boulder

v. Boulder & Weld Cty. Ditch Co., 367 P.3d 1179, 1186

(Colo. 2016) (“The doctrine of prior appropriation is

embedded in the Colorado Constitution and forms the

foundation of Colorado water law.”); Hage v. United

States, 51 Fed. Cl. 570, 577 (2002) (noting under

Nevada law, “[a] vested water right becomes ‘fixed

and established ... either by actual diversion and

application to beneficial use or by appropriation ...

and is a right which is regarded and protected as

property.’”); see also United States v. Alpine Land &

2

This licensing process mirrors that which applied to the

perfection of appropriative rights acquired prior to the existence

of the current statutory scheme. Millview Co. Water Dist. v.

State Water Res. Control Bd., 229 Cal.App.4th 879, 890 (2014)

(noting under pre-1914 water rights, so long as an appropriator

“did in fact divert within a reasonable time, and used the

diverted water for a beneficial purpose, the claim was

perfected.”).

10

Reservoir Co., 510 F.3d 1035, 1040 (9th Cir. 2007)

(explaining that nonuse alone does not establish

abandonment). 3

3 In fact, nationwide there are 19 states that use appropriative

statutory schemes, underscoring the wide-reaching impacts of

the Federal Circuit opinion. See, e.g., Ariz. Rev. Stat. § 45-152

(right to apply for a permit to appropriate water for beneficial

use); N.M. Const. art. XVI, § 2 (all unappropriated water belongs

to the public and available for appropriation for beneficial use);

Alaska Stat. §§ 46.15.030-.185 (water occurring in its natural

state is “reserved to the people for common use and is subject to

appropriation and beneficial use”); Colo. Const. art. XVI, §§ 5-6

(unappropriated water is public property and guaranteeing the

right to divert such water subject to priority); Idaho Const. art.

XV, § 3 (establishing right to divert and appropriate

unappropriated waters to beneficial uses); Miss. Code § 51-3-1

(requiring the state’s waters be placed to beneficial use under a

regulatory system that prohibits waste and subjects all water to

state management); Mont. Const. art. IX, § 3(1) (declaring all

surface, underground, flood, and atmospheric waters in the state

are property of the state “for the use of its people and are subject

to appropriation for beneficial uses”); Nev. Rev. Stat. § 533.030

(stating that all water may be appropriated for beneficial use as

provided by law); Okla. Stat. tit. 82, § 105.1A (stating legislative

intent to provide unified appropriation system requiring

beneficial use and recognizing priority in time as the better

right); Utah Code §§ 73-3-1 (providing that an appropriation

may be made only for a useful and beneficial purpose); Wash.

Rev. Code § 90.03.010 (declaring that, subject to existing rights,

all waters within the state belong to the public and may be

acquired only by appropriation for beneficial use); Wyo. Const.

art. VIII, §§ 1-3 (all natural waters within the state are property

of the state with priority of appropriation for beneficial use and

appropriation supervised by Board of Control); Kan. Stat. Ann.

§ 82a-703 (providing that all waters may be appropriated for

beneficial use subject to vested rights); Neb. Rev. Stat. § 46-202

(providing that unappropriated waters of every natural stream

are the property of the public and dedicated to use of the people,

11

Springing from its mistaken understanding of

the law of prior appropriation prevalent in the

western states, and consistently applied by California

courts, the opinion from the Federal Circuit insists

that for there to be a physical taking of the water

right, an appropriator must either be deprived of

100% of the water it can physically appropriate, or be

required to give back water already diverted under

the theory that prior to the diversion, they had yet to

qualify as a vested right. United, 133 F.4th at 105758.

Even ignoring the inconsistency with 175 years

of California water law precedent, see e.g., Eddy v.

Simpson, 3 Cal. 249 (1853); Crandal v. Woods, 8 Cal.

136 (1857), the internal inconsistency of the opinion

is hard to overlook. After recognizing that it was

“undisputed that United acquired a valid,

appropriative property right” to the water at issue

(United, 133 F.4th at 1056)—specifically noting

United held both a water license and permit from the

State Water Board (id. at 1053)—the Federal Circuit

perplexingly finds that the right had not vested

because United had not “physically diverted water” at

the time of the taking (id. at 1058). That contradictory

subject to appropriation); N.D. Cent. Code § 61-01-01(specifies

state waters belong to the public and are subject to appropriation

for beneficial use); Or. Rev. Stat. §§ 537.110-130 (all waters

within the state belong to the public and may be appropriated

for beneficial use under permit system, subject to vested rights);

S.D. Codified Laws §§ 46-1-3 (declaring that all water within the

state is the property of the people, but the right to use water may

be acquired by appropriation); Tex. Water Code §§ 11.001,

11.022 (providing that state water may be governed by

appropriation, with pre-1895 riparian rights vested.)

12

statement fails to acknowledge that United had

already physically diverted the water and applied it

to a beneficial use prior to the government action, the

only necessary prerequisites to gaining an

appropriative water right in the first place. The

government subsequently appropriated the water by

ordering that it be sent to the fish ladder, thus

depriving United of the usufructuary right to the

priority of its vested right to divert the water for its

own use. Although the Federal Circuit attempts to

characterize the bypass flow requirement as “a

nonpossessory

government

activity,”

that

characterization ignores that requiring United to

leave water in the river for the fish disturbs United’s

vested right to the water and functions in the same

way as the government taking possession of the water

for itself. Id. at 1058.

This Court must correct the Federal Circuit’s

mischaracterization of what is needed to vest an

appropriative water right in the context of a physical

taking under the Fifth Amendment. It cannot be that

an order from the government is any less a physical

taking because it commandeers the water before it

gets to United’s intake. Whether United diverted the

water into its canals and returned it to the channel,

or left it there in the first instance, the consequences

are the same—49,850 acre-feet of water was

permanently taken from United, and it should be

allowed to pursue that physical takings claim in

court.

13

III.

THE COURT SHOULD ACCEPT THE

PETITION TO CORRECT THE CONFLICT

WITH EXISTING PRECEDENT

DISCUSSING PHYSICAL TAKINGS OF

APPROPRIATIVE WATER RIGHTS.

This corrected understanding of California law

undercuts the Federal Circuit’s conclusion that

“Supreme Court precedent and related cases United

cites are consistent with our decision here.” United,

133 F.4th at 1058 (citing to Int’l Paper Co. v. United

States, 282 U.S. 399 (1931), United States v. Gerlach

Live Stock Co., 339 U.S. 725 (1950), Dugan v. Rank

372 U.S. 609 (1963), and Casitas Mun. Water Dist. v.

United States, 543 F.3d 1276 (Fed. Cir. 2008)

(“Casitas I”). Neither this Court’s precedent nor the

Federal Circuit’s precedent supports the opinion’s

novel requirement that the holder of a previously

vested appropriative water right must have already

physically diverted water away from its source for a

physical taking claim to accrue. There is no material

difference between the rights granted under an

appropriative water right based on the water’s

location in-river or in a diversion structure.

Based on its read of International Paper and

Casitas I, the Federal Circuit states that United must

allege “the government completely cut off its access to

the water or caused it to return [a] volume of water it

had previously diverted” in order to state a valid

physical taking claim. United, 133 F.4th at 1057. But

that is inconsistent with the underlying principles

articulated in those cases. In International Paper,

this Court stated that “[t]he petitioner’s right was to

the use of the water” and noted that International

14

Paper was deprived of its property right by

government action, which prevented any diversion of

the water. Int’l Paper, 228 U.S. at 405, 407 (noting

that the government intended to cut off the water

being diverted); see also Casitas I, 543 F.3d at 1289

(noting the government prevented International

Paper from diverting water for its intended use).

International Paper’s inability to divert and use

water to which it held a property right was sufficient

to support a physical taking claim.

In Casitas I, an appropriative-right holder was

required to devote a portion of its water to the

operation of a fish ladder. 543 F.3d at 1282. The

Federal Circuit opinion emphasizes that Casitas had

already diverted the water and was subsequently

required to return it through the fish ladder. See

United, 133 F.4th at 1057. This ignores, however,

Casitas I’s focus on the permanent deprivation of the

water right that was caused by the government’s

actions. “[T]he water that is diverted away from the

[canal] is permanently gone. Casitas will never, at the

end of any period of time, be able to get that water

back.” Casitas I, 543 F.3d at 1296. The water is

similarly “permanently gone” when an entity is

prevented from diverting it in the first place.

The Federal Circuit incorrectly dismisses two

cases from this Court—United States v. Gerlach Live

Stock Co., 339 U.S. 725 (1950) and Dugan v. Rank,

372 U.S. 609 (1963)—by stating they are inapplicable

as they address riparian rights. This distinction

appears founded in the erroneous conclusion that

United’s water right had not yet vested as an

appropriative right and, therefore, somehow had

15

different status than a riparian rightsholder would.

United, 133 F.4th at 1058 (“the appropriative-rights

holder here needed to have physically diverted water

for its property right to vest and thus become subject

to a physical taking, as in Casitas.”). The Federal

Circuit opinion also suggests that had the

downstream users in Dugan and Gerlach been

holders of appropriative rights rather than riparian

rights, the outcomes would have been different. This

is wrong. The right is a usufruct and an

appropriative-rights holder with a diversion point

downstream from a dam is prevented from diverting

and using the water under its vested right in the same

way a riparian right is prevented from using its water

right. 4 The fact that an appropriator vests its right

upon initial application to beneficial use and a

riparian vests by the acquisition of land, is irrelevant

once the usufructuary right has vested.

The Federal Circuit suggests United can

simply apply to the Service for the necessary permit,

be denied, and then proceed to court with a regulatory

takings claim. United, 133 F.4th at 1058–59. In

addition to the long, arduous, and costly effort to

apply for the required permit under the Endangered

Species Act, the government’s actions here do not fit

within the confines of a regulatory taking as defined

by relevant cases. The government’s decision to

prohibit United from diverting a portion of its water

is more than a burden, restriction in use, or

temporary impairment of United’s water right—the

Casitas I, the water rights

at issue in Dugan were not just riparian, but included “other

water rights in the river.” Casitas I, 543 F.3d at 1290.

4 Additionally, as noted by the court in

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typical hallmarks of a regulatory taking. To the

extent the Federal Circuit cites to Seiber v. United

States, 364 F.3d 1356 (Fed. Cir. 2004) and Boise

Cascade Corp. v. United States, 296 F.3d 1339 (Fed.

Cir. 2002) to support its holding that this case

presents a temporary restriction on natural

resources, see United, 133 F.4th at 1058, it ignores

that Casitas I expressly distinguished temporary use

restriction from permanent deprivations. Casitas I,

543 F.3d at 1296 (finding the regulatory taking

analysis for temporary restrictions inapplicable given

Casitas “will never … get that water back.”). Even

partial impairment of a water right is sufficient to

find a physical taking. See id. at 1292 (“[I]n the

physical taking jurisprudence any impairment is

sufficient.”); see also Washoe Co., Nev. v. United

States, 319 F.3d 1320, 1326 (Fed. Cir. 2003) (noting a

physical taking can occur where the government

“decreased the amount of water accessible” by the

owner of the water right). Government action

preventing diversion and use of water under a vested

appropriative water right is a permanent deprivation

properly analyzed as a physical taking. United should

not be forced into the regulatory takings pathway,

with its associated costs in terms of time and finances,

when the government’s actions now already qualify as

a physical taking.

Under the Federal Circuit opinion, government

action decreasing the amount of water available for

diversion would never qualify as a physical taking

unless the government took 100% of the water right,

or the water right holder first removed the water from

the river, and then was forced to return it. Decreasing

the amount of water available for diversion,

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however—in

any

amount—is

a

permanent

deprivation of the water right. There is no meaningful

difference in the impact to United’s vested

appropriative right from a requirement to leave water

in-river versus allowing United to first divert to its

canal but then requiring the return of the water to the

river prior to use.

California water law makes no distinction in

the vested right based on whether the water is inriver or diverted to another structure. In either

scenario, once vested by having completed its

appropriation, an appropriative-rights holder is

permanently deprived of a portion of their right

because “[t]he water, and [the] right to use that water,

is forever gone.” Casitas I, 543 F.3d at 1294 n.15

(noting that the water used for a fish ladder was “gone

forever, as the license does not allow Casitas to make

up this amount in subsequent years.”); see also

Casitas Mun. Water Dist. v. United States, 556 F.3d

1329, 1332 (Fed. Cir. 2009) (memorandum

disposition) (Moore, J. concurring in the denial of

rehearing en banc) (“Nor is there a distinction

between some water that must remain in the Ventura

River and the water needed for the fish ladder.”).

Whether required to divert and return water, run it

through a fish ladder, or leave it in-river as the

Service required, United has been permanently

deprived of its vested right to use the water

guaranteed under its licenses. That deprivation is a

physical taking and United should be allowed to

pursue its claim in court.

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CONCLUSION

Meting out water among competing claimants

under the water rights hierarchy is no simple exercise

in California, a state intermittently besieged by

drought, floods, and fires, and further impacted by

zealous regulations. The Federal Circuit opinion, if

left unrectified, will cause harm by enabling the

government to appropriate vested water rights under

the pretext that denial of access to water is not a

taking. This contradicts the Takings Clause, this

Court’s precedent, and California water law, and has

the potential to significantly impact water rights

reliability for critical needs such as agriculture. The

petition for a writ of certiorari should be granted.

Respectfully submitted

November 25, 2025

Ryan R. Waterman

Scott S. Slater

BROWNSTEIN HYATT

FARBER SCHRECK, LLP

1020 State Street

Santa Barbara, CA

93101

Telephone:

805.963.7000

Email:

sslater@bhfs.com

Counsel of Record

BROWNSTEIN HYATT

FARBER SCHRECK, LLP

225 Broadway, Suite 1670

San Diego, CA 92101

Telephone: 619.702.7569

Email:

rwaterman@bhfs.com

Mary C. Loum

BROWNSTEIN HYATT

FARBER SCHRECK, LLP

1415 L Street, Suite 800

Sacramento, CA 95814

Telephone: 916.594.9700

Email: mloum@bhfs.com

Counsel for Amici

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