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

Supreme Court briefNov 26, 2025

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No. 25–523

In the Supreme Court of the United States

UNITED WATER CONSERVATION DISTRICT,

Petitioner,

UNITED STATES,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FEDERAL CIRCUIT

BRIEF OF ASSOCIATION OF

CALIFORNIA WATER AGENCIES, ET

AL., AS AMICUS CURIAE IN SUPPORT

OF PETITIONER

Brett A. Stroud, Esq.

Counsel of Record

The Law Offices of Young Wooldridge, LLP

10800 Stockdale Highway, Suite 202

Bakersfield, California 93311

bstroud@youngwooldridge.com

(661) 327-9661

Counsel for Amici Curiae

TABLE OF CONTENTS

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

INTEREST OF AMICI CURIAE ..................... 1

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

ARGUMENT .................................................... 5

II.

Appropriative Water Rights Are

of Fundamental Importance to

California and the Other

Western States ............................ 5

Appropriative Rights Are

Crucial to California and

the West............................ 5

Appropriative Rights Are

Essential to California

Agriculture and to the

Nation’s Food Supply ....... 9

The Decision Below Does Not

Apply the Law of Appropriative

Water Rights that This Court

Has Recognized ......................... 10

State law concerning

appropriative rights must

be allowed to define the

property rights at issue, as

this Court affirmed in

Cedar Point Nursery. ..... 10

The decision below

contradicts this Court’s

prior decisions regarding

appropriative water rights,

including Dugan and

International Paper. ....... 12

III.

The Decision Below Contradicts

This Court’s Jurisprudence

Regarding Partial Takings,

Including Dugan and Loretto ... 14

CONCLUSION ............................................... 16

iii

TABLE OF AUTHORITIES

Cases

California v. United States, 438 U.S. 645 (1978) .. 5, 6

Casitas Municipal Water District v. United States,

543 F.3d 1276 (Fed. Cir. 2008) ...................... 13, 14

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

........................................................................ 10, 14

City of Barstow v. Mojave Water Agency, 23 Cal.4th

1224 (2000) ........................................................... 11

El Dorado Irrigation Dist. v. State Water Res.

Control Bd., 142 Cal.App.4th 937 (2006) .............. 6

First Eng. Evangelical Lutheran Church of Glendale

v. Los Angeles Cnty., 482 U.S. 304 (1987) ........... 15

Hage v. United States, 35 Fed.Cl. 147 (1996) ........... 5

Int'l Paper Co. v. United States, 282 U.S. 399 (1931)

.............................................................................. 13

Loretto v. Teleprompter Manhattan CATV

Corporation, 458 U.S. 419 (1982) ........................ 15

Meridian, Ltd., v. City and County of San Francisco,

13 Cal.2d 424 (1939) .............................................. 7

Murr v. Wisconsin, 582 U.S. 383 (2017) .................. 14

Pleasant Valley Canal Co. v. Borror, 61 Cal.App.4th

742 (1998) ............................................................. 12

Rank v. Krug, 142 F. Supp. 1 (S.D. Cal. 1956)........ 11

Thayer v. California Dev. Co., 164 Cal. 117 (1912) 11

United States v. Gerlach Live Stock Co., 339 U.S. 725

(1950) ...................................................................... 5

United States v. State Water Resources Control Bd.,

182 Cal.App.3d 82 (1986)..................................... 10

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

Cir. 2003) .............................................................. 13

Constitutional Provisions

Cal. Const. art. X, § 2 ........................................... 6, 11

Treatises

J.W. Powell, Report on the Lands of the Arid Region

of the United States (2d. Ed., 1878) ...................... 9

Wells A. Hutchins, The California Law of Water

Rights (1956) ........................................................ 12

Journal Articles

Richard Epstein, Property Rights in Water,

Spectrum, and Minerals, 86 U. COLO. L. REV. 389

(2015) ...................................................................... 6

Other Authorities

California Department of Food and Agriculture,

California Agricultural Statistics Review 20222023 .................................................................. 9, 10

California’s Water Supply Strategy (2022) ............... 8

Press Release, Office of the California Governor,

California is now the 4th largest economy in the

world ....................................................................... 7

Statistical Abstract of the United States (1931) ....... 7

U.S. Census Bureau, 2020 Census: Table 2 .............. 7

Water Blueprint for the San Joaquin Valley,

California is facing a water scarcity that we can’t

ignore ...................................................................... 8

INTEREST OF AMICI CURIAE1

The Association of California Water Agencies is

the largest statewide coalition of public water

agencies in the United States, whose 460+ members

are collectively responsible for approximately ninety

percent of the water delivered to agricultural,

domestic, and industrial beneficial uses in California.

Mission Springs Water District, Modesto Irrigation

District, Rowland Water District, San Gorgonio Pass

Water Agency, Santa Clarita Valley Water Agency,

South San Joaquin Irrigation District, and Turlock

Irrigation District are among the many ACWA

members who depend on appropriative rights to

supply their water users.

National Water Resources Association is a

nonprofit federation of state water resources

associations and special interest caucuses, whose

members include irrigation districts, water

conservation and conservancy districts, municipal

water districts, farmers, ranchers, and others with an

interest in water issues in the western United States.

The NWRA has member entities in Arizona,

California, Colorado, Idaho, Kansas, Montana,

Nebraska, New Mexico, North Dakota, Oregon, South

Dakota, Utah, and Washington. With roots that date

back to the 1890s, it is the oldest national association

Counsel for amici curiae state that no counsel for a party

authored this brief and that no person other than amicus curiae

or their counsel made a monetary contribution to the

preparation or submission of this brief. Under USSC Rule 37.2,

counsel for amici curiae gave notice to the parties’ counsel of

record more than 10 days prior to this filing.

concerned with water resources policy and

development. NWRA members provide water and

hydropower to approximately 50 million individuals,

families, agricultural producers, and other industries

that support our communities (large and small),

economy, and environment. One of the primary

objectives of the NWRA is to advocate on behalf of

western water users for federal government

compliance with all applicable state laws and

regulations and interstate compacts governing the

appropriation, distribution, control, or use of water.

The Public Water Agencies Group (the

“Group”) is a non-profit mutual benefit corporation

comprised of 21 public water agencies and mutual

water companies that provide retail, wholesale,

replenishment, and watermaster services throughout

Los Angeles County.2

The Group consists of Bellflower-Somerset Mutual Water

Company, Crescenta Valley Water District, Kinneloa Irrigation

District, La Cañada Irrigation District, La Habra Heights

County Water District, La Puente Valley County Water District,

Main San Gabriel Basin Watermaster, Montebello Land and

Water Company, Palmdale Water District, Pico Water District,

Quartz Hill Water District, Rowland Water District, Rubio

Cañon Land and Water Association, San Gabriel County Water

District, San Gabriel Valley Municipal Water District, South

Montebello Irrigation District, Sunny Slope Water Company,

Three Valleys Municipal Water District, Valencia Heights Water

Company, Valley County Water District and Walnut Valley

Water District.

The California Special Districts Association is

a non-profit organization with membership consisting

of over 1,000 special districts throughout California.

It was formed to promote good governance and

improve core local services through professional

development, advocacy, and other services for all

types of independent special districts. Independent

special districts provide a wide variety of public

services to urban, suburban, and rural communities

throughout California, including providing water for

all manner of beneficial uses.

The Family Farm Alliance is a grassroots, nonprofit organization composed of family farmers,

ranchers, irrigation districts, and allied industries in

sixteen western states. The Alliance’s mission is to

ensure the availability of reliable and affordable

irrigation water supplies to western farmers and

ranchers, including supplies from federal water

projects. The Alliance has a long history of

collaboration with constructive partners in all levels

of government, with conservation and energy

organizations, and with Native American tribal

interests who seek real solutions to water resources

challenges in the West.

Ventura

County

Coalition

Labor,

Agriculture, and Business (“VC CoLAB”) is a nonprofit advocacy organization representing over 700

members throughout Ventura County and Southern

California. Our diverse membership includes

agriculture, commercial business, manufacturing,

construction, real estate, finance, transportation,

energy, and property owners who support our efforts

to advocate for reasonable regulatory processes and a

robust local economy.

Appropriative water rights are essential to the

water rights framework of the western states. Amici

and their members rely on appropriative rights to

supply water to residents, industries, and agriculture.

The decision below denies Fifth Amendment

protection to appropriative rights based on

misstatements of Takings Clause jurisprudence and

of California law, which would undermine the

security of investments in water appropriations that

are critical to solving California’s water supply

problems.

SUMMARY OF ARGUMENT

The Court should grant certiorari, because the

Federal Circuit “has decided an important question of

federal law … in a way that conflicts with relevant

decisions of this Court.” Sup. Ct. R. 10(c).

The issue presented is of paramount

importance. In the arid western states, including

California, the law of appropriative water rights

developed in response to the fundamental condition of

water shortage that is endemic to the west. Without

secure property rights protections, appropriators will

not be incentivized to make the substantial

investments required to develop and conserve this

scarce and critical resource. Through such

development, California has created a thriving

economy in major urban centers that are dependent

on appropriations. California also leads the nation in

agricultural output. Therefore, destabilizing the

protection of appropriative rights, as the decision

below does, negatively impacts the economy of one of

the nation’s largest states as well as the nation’s food

security. Infra, Part I.

There are several ways in which the decision

below

conflicts

with

precedent.

First,

mischaracterizes the nature of appropriative rights in

California law, in direct contradiction to decisions of

this Court that correctly apply the law of

appropriative rights. Infra, Part II. Second, it

contradicts this Court’s broader jurisprudence

regarding “partial takings,” including cases

concerning water rights. Infra, Part III.

ARGUMENT

Appropriative Water Rights Are of

Fundamental Importance to California

and the Other Western States

Appropriative Rights Are Crucial to

California and the West

The common law of water rights “developed

where lands were amply watered by rainfall.” United

States v. Gerlach Live Stock Co., 339 U.S. 725, 745

(1950). During the nation’s westward expansion,

experience demonstrated that this doctrine, which

“had served well in the humid regions of the East …

would not work in the arid lands of the West.”

California v. United States, 438 U.S. 645, 655 (1978).

In the arid West—the seventeen states west of the

100th meridian—”water means the difference between

farm and desert, ranch and wilderness, and even life

and death.” Hage v. United States, 35 Fed.Cl. 147, 172

(1996).

The western states developed water rights laws

and customs adapted to the “peculiar necessities of

their condition.” California, 438 U.S. at 656. Their

“most

fundamental

water

problem”

“maldistribution of moisture in relation to human

needs.” El Dorado Irrigation Dist. v. State Water Res.

Control Bd., 142 Cal.App.4th 937, 945 (2006).

Settlement of the West thus required diversion of

water from streams for use elsewhere, often over

great distances. This “fundamental need to invest in

long-term improvements in the form of ditches and

other equipment” necessitated the development of the

doctrine of appropriative rights. Richard Epstein,

Property Rights in Water, Spectrum, and Minerals, 86

U. COLO. L. REV. 389, 402 (2015).

The ever-present need to make such

investments and to conserve and steward a scarce and

vital resource has given rise to a constitutional

framework for water law in California. In 1928, the

People of California amended their constitution to

declare California’s fundamental water policy:

“It is hereby declared that because of

the conditions prevailing in this State

the general welfare requires that the

water resources of the State be put to

beneficial use to the fullest extent of

which they are capable, … in the

interest of the people and for the public

welfare.”

Cal. Const. art. X, § 2. The purpose of the amendment

was “to make it possible to marshal the water

resources of the state and make them available for the

constantly increasing needs of all of its people.”

Meridian, Ltd., v. City and County of San Francisco,

13 Cal.2d 424, 451 (1939). Those needs continue to

increase. In 1930, immediately following the

amendment, the population of California was

5,677,251. Statistical Abstract of the United States 9

(1931),

https://www2.census.gov/prod2/statcomp/

documents/1931-02.pdf. By 2020, it was 39,538,223—

an almost seven-fold increase. U.S. Census Bureau,

2020 Census: Table 2, https://www2.census.gov/

programs-surveys/decennial/2020/data/

apportionment/apportionment-2020-table02.pdf.

That growth was made possible by large

appropriations of water, including numerous state,

federal, and local projects, all requiring massive

investments of capital. Californians have invested

tens of billions of dollars to develop infrastructure

that conveys appropriated water—sometimes

hundreds of miles—to large urban centers and

productive agricultural regions. The state’s largest

urban centers rely on their investment-backed

expectations in these water supplies to grow and

remain socially and economically vibrant, and its

farmers rely on their appropriated water supplies to

produce food and fiber for California and for the

nation. Through these investments, California has

become the fourth-largest economy in the world.

Press Release, Office of the California Governor,

California is now the 4th largest economy in the

world, https://www.gov.ca.gov/2025/04/23/california-

is-now-the-4th-largest-economy-in-the-world/

visited July 2, 2025).

(last

Those investments, funded through taxes,

assessments, and water charges, are secured by

California law’s protection of an appropriator’s

vested property right in the continued

appropriation and use of water. See infra, II.A.

Reductions in supply impose serious burdens on

water suppliers, who often must incur large costs to

develop substitute supplies and thus increase charges

to their ratepayers. The decision below permits

federal agencies to redirect water from those projects

to uses favored by the agencies with no compensation,

upsetting existing investment-backed expectations

and disincentivizing further investment. California’s

current water supply challenges require additional

investments in new projects and improvements.

California’s

Water

Supply Strategy

(2022),

https://resources.ca.gov/-/media/CNRAWebsite/Files/Initiatives/Water-Resilience/CAWater-Supply-Strategy.pdf; Water Blueprint for the

San Joaquin Valley, California is facing a water

scarcity

that

can’t

ignore,

https://waterblueprintca.com/information/the-need/

(last visited July 2, 2025). Public water agencies need

to invest billions of dollars in projects like the Delta

Conveyance Project, the Sites Reservoir, the Shasta

Dam

Enlargement,

groundwater

recharge,

desalination, water recycling, and more. The public

and private sectors need assurance that if the water

they invest in capturing is repurposed by federal

agencies, the agencies will adequately compensate

affected water-right holders for their property losses.

Appropriative Rights Are Essential

to California Agriculture and to the

Nation’s Food Supply

The agricultural potential of the western states

was recognized from an early date. In his magisterial

report on the conditions of the arid West, Major John

Wesley Powell identified the problems and the

promise of western agriculture:

“All of these lands require either … to

be redeemed from excessive humidity

[or] to be redeemed from excessive

aridity. When the excessively humid

lands are redeemed, their fertility is

almost

inexhaustible,

and

the

agricultural capacity of the United

States will eventually be largely

increased…. In like manner, … the arid

lands, so far as they can be redeemed

by irrigation, will perennially yield

bountiful crops….”

J.W. Powell, Report on the Lands of the Arid Region

of the United States at viii (2d. Ed., 1878),

https://pubs.usgs.gov/unnumbered/70039240/

report.pdf. Powell’s predictions have particularly

proven true in California, which leads the nation in

agriculture. In 2022-23, California farmers produced

18.2% of the nation’s dairy and 10.4% of the nation’s

entire agricultural output (by cash farm receipts).

California Department of Food and Agriculture,

California Agricultural Statistics Review 2022-2023

at 3 https://www.cdfa.ca.gov/Statistics/PDFs/20222023_california_agricultural_statistics_review.pdf.

California leads the nation in dozens of crops and is

the sole (99%+) producer of many—including garlic,

grapes, olives, certain tree nuts (almonds, pistachios,

walnuts), and certain stone fruits (cling peaches,

plums). Id. at 9. California farmers achieve this

prodigious output, essential to the nation’s foodsecurity, largely using appropriated water. This vital

role of appropriated water in the nation’s agriculture

is another reason to grant certiorari, because the

decision below jeopardizes the security of those

appropriations.

II.

The Decision Below Does Not Apply the

Law of Appropriative Water Rights that

This Court Has Recognized

A. State law concerning appropriative

rights must be allowed to define the

property rights at issue, as this

Court affirmed in Cedar Point

Nursery.

It is state law that defines the property interest

at issue in a takings case. Cedar Point Nursery v.

Hassid, 594 U.S. 139, 155 (2021) (“[T]he property

rights protected by the Takings Clause are creatures

of state law.”). California law is clear: it is “axiomatic

that once rights to use water are acquired, they

become vested property rights” and “cannot be

infringed by others or taken by governmental action

without due process and just compensation.” United

States v. State Water Resources Control Bd., 182

Cal.App.3d 82, 101 (1986). This Court has expressly

acknowledged that water rights under California law

are protected by the Takings Clause and that, if the

federal government interferes with such rights, it

must compensate the right-holder. United States v.

Gerlach Live Stock Co., 339 U.S. 725, 754–55 (1950);

Dugan v. Rank, 372 U.S. 609, 625–26 (1963). The

decision below attempts to distinguish those cases

because they “involve[d] riparian rights, not

appropriative rights.”3 United Water Conservation

Dist. v. United States, 133 F.4th 1050, 1058 (Fed. Cir.

2025). The distinction is irrelevant, as California law

is clear that appropriative rights are also “vested

rights” that are compensable if taken. See, e.g.,

United States, supra, 182 Cal.App.3d at 139. Indeed,

the California Constitution, which “dictates the basic

principles defining water rights” in California,

explicitly protects both riparian and appropriative

rights. City of Barstow v. Mojave Water Agency, 23

Cal.4th 1224, 1242 (2000), citing Cal. Const. art. X,

§ 2.

The decision below also argues that an

appropriator “need[s] to have physically diverted

water for its property right to vest and thus become

subject to a physical taking.” United Water

Conservation Dist., supra, 133 F.4th at 1058. That is

also contrary to California law, which has always

acknowledged the appropriative right as itself a

3 As shown in this brief, the distinction is irrelevant. But to be

clear, Dugan involved appropriative rights as well as riparian

rights. See Rank v. Krug, 142 F. Supp. 1, 115 (S.D. Cal. 1956).

private property right. Thayer v. California Dev. Co.,

164 Cal. 117, 129 (1912); see generally Wells A.

Hutchins, The California Law of Water Rights 120–

22 (1956) [describing earliest cases]. That

usufructuary right is a “vested” real property right.

Pleasant Valley Canal Co. v. Borror, 61 Cal.App.4th

742, 752 (1998).

B. The decision below contradicts this

Court’s prior decisions regarding

appropriative

water

rights,

including Dugan and International

Paper.

These errors concerning the law of

appropriative rights are not simply misconstructions

of one state’s law. The doctrine of prior appropriation

is relatively consistent across the western states. See

generally, 1 Wells A. Hutchins, Water Rights Law in

the Nineteen Western States (1971), 14 (law of

appropriation “prevails throughout the statutory and

case law of the West”). This Court has long recognized

that appropriative rights are compensable property

interests, and Dugan is a seminal example. The Court

there held that “[i]nterference with or partial taking

of water rights” by the government, even through

actions upstream that “subordinate [the claimants]

water rights to the [government’s] uses … constitute

an appropriation of property for which compensation

should be made.” Dugan, supra, 372 U.S. at 625,

citing 1 Wiel, Water Rights in the Western States (3d

ed. 1911), § 15. Note that the protection of the

Takings Clause applied in Dugan even where

upstream activity prevented the right-holder from

diverting its water in the first place. The decision

below instead argued that compensation is only

required where “after the water had been diverted …

the government subsequently mandated a return of

that water for a public purpose—fish preservation.”

United Water Conservation Dist., 133 F.4th at 1057,

distinguishing Casitas Municipal Water District v.

United States, 543 F.3d 1276, 1291–92 (Fed. Cir.

2008) (“Casitas I”). That cannot be reconciled with

Dugan.

Nor can it be reconciled with another precedent

of this Court, International Paper Company v. United

States, 282 U.S. 399, 405–06 (1931), in which the

government “cut off the water being taken” before it

was diverted, which the Court found to be a taking.

See also 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.”) (emphasis added).

The government action in International Paper

Company was the same as NMFS’s action in this case:

it “cut off the water being taken by [the right holder]

and thereby increase[d] [another use of the water].”

Int’l Paper Co., 282 U.S. at 405–06. Redirecting a

resource from the owner’s use to one “deemed more

useful” by the government is “not … any less a taking”

than directly expropriating it. Id. at 408. In this case,

the use “deemed more useful” by the government was

“the preservation of the habitat of an endangered

species,” which Casitas I held amounted to a public

use of the water. 543 F.3d at 1292.

NMFS exercised federal power to redirect

water from United’s uses to NMFS’s preferred uses,

permanently usurping United’s vested rights.

Compensation for that redeployment of United’s

water is required by the core purpose of the Takings

Clause: “to prevent the 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.” Murr v. Wisconsin, 582 U.S. 383, 393 (2017)

(internal quotation marks omitted).

III.

The Decision Below Contradicts This

Court’s Jurisprudence Regarding Partial

Takings, Including Dugan and Loretto

The decision below also distinguished

International Paper Company because in that case

“the government completely cut off [the claimant’s]

access to the water.” United Water Conservation Dist.,

133 F.4th at 1057. This distinction is “insupportable

as a matter of precedent and common sense.” Cedar

Point Nursery v. Hassid, 594 U.S. 139, 153 (2021).

There is “no reason the law should analyze an

abrogation of the right to [divert water for use] in one

manner if it extends [to 100% of that water supply],

but in an entirely different manner if it [extends to

99% of that water supply].” Ibid. Just as in Casitas I,

it is immaterial that United was allowed to divert

some of its water, because the specific water that

United was required to bypass is now “gone forever.”

543 F.3d at 1294 n.15.

Likewise, in Dugan, this Court held that a

taking of water rights occurs “if any part of

respondents’ claimed water rights were invaded.” 372

U.S. at 623 (emphasis added). “Interference with or

partial taking of water rights … might be analogized

to interference or partial taking of air space over

land.” Id. at 625. Such partial takings are also

analogous to the seminal case of Loretto v.

Teleprompter Manhattan CATV Corporation, 458

U.S. 419 (1982). The Loretto Court held “a permanent

physical occupation” of property, even as small as a

cable box, constituted a per se taking because it “does

not simply take a single ‘strand’ from the ‘bundle’ of

property rights: it chops through the bundle, taking a

slice of every strand.”4 458 U.S. at 435. Likewise, if an

appropriator is entitled to, for example, 1,000 acrefeet and the government takes 100 acre-feet for its

own use, the government has not impaired his right

to the 1,000 acre-feet by 10%. It has taken 100% of his

right to that 100 acre-feet of water. For purposes of

the critical interests of California appropriators

described supra, Part I, any reduction in water supply

takes away a valuable property right, and individual

appropriators and their rate-payers should not bear

the cost of that reduction.

4 An analogous rule applies to temporary physical takings, which

are not simply impairments of a fee interest but can be

conceptualized as complete takings of leasehold interests. See

First Eng. Evangelical Lutheran Church of Glendale v. Los

Angeles Cnty., 482 U.S. 304, 318–19 (1987).

CONCLUSION

The Court should grant certiorari, because the

correct application of Takings Clause protections to

appropriative water rights is essential to ensure the

people of California and the other western states can

continue to live and thrive in the unique conditions of

the arid West.

Respectfully submitted,