Opposition 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

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

D. JOHN SAUER

Solicitor General

Counsel of Record

ADAM R.F. GUSTAFSON

Principal Deputy Assistant

Attorney General

ROBERT N. STANDER

Deputy Assistant

Attorney General

AMBER BLAHA

BRIAN R. HERMAN

TAMARA ROUNTREE

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals correctly determined

that the complaint in this case, which alleges that the

government restricted petitioner’s use of water from

a river, fails to state a Fifth Amendment claim for a

physical taking of property.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument....................................................................................... 8

Conclusion ................................................................................... 18

TABLE OF AUTHORITIES

Cases:

Allegretti & Co. v. County of Imperial,

42 Cal. Rptr. 3d 122 (Cal. Ct. App. 2006),

cert. denied, 549 U.S. 1113 (2007) ..................................... 16

Bingham v. Roosevelt City Corp.,

235 P.3d 730 (Utah 2010).................................................... 16

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021)..................................................... 9-12, 14

Dugan v. Rank, 372 U.S. 609 (1963) .............................. 13, 14

Horne v. Department of Agric.:

569 U.S. 513 (2013) .......................................................... 15

576 U.S. 351 (2015) .................................................... 14, 15

International Paper Co. v. United States,

282 U.S. 399 (1931)........................................................ 12, 13

Keystone Bituminous Coal Ass’n v. DeBenedictis,

480 U.S. 470 (1987)............................................ 11, 12, 14, 15

Kobobel v. Colorado Dep’t of Natural Res.,

249 P.3d 1127 (Colo.), cert. denied,

565 U.S. 882 (2011).............................................................. 16

Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992)............................................................ 13

National Rif le Ass’n v. Vullo, 602 U.S. 175 (2024) .............. 2

Penn Cent. Transp. Co. v. New York City,

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

(III)

IV

Cases—Continued:

Page

State Dep’t of Ecology v. Grimes,

852 P.2d 1044 (Wash. 1993) ................................................ 16

Sturgeon v. Frost, 587 U.S. 28 (2019) .............................. 2, 10

Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l

Planning Agency, 535 U.S. 302 (2002) ............................. 13

United States v. Central Eureka Mining Co.,

357 U.S. 155 (1958).............................................................. 11

United States v. Gerlach Live Stock Co.,

339 U.S. 725 (1950)........................................................ 13, 14

United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121 (1985).............................................................. 17

Wishtoyo Found. v. United Water

Conservation Dist.:

No. 16-cv-3869, 2018 WL 6265099

(C.D. Cal. Sept. 23, 2018), aff ’d,

795 Fed. Appx. 541 (9th Cir. 2020)..................... 1-3, 5, 6

No. 16-cv-3869, 2018 WL 7571315

(C.D. Cal. Dec. 1, 2018) ............................................ 7, 17

795 Fed. Appx. 541 (9th Cir. 2020) .................................. 7

Constitution and statutes:

U.S. Const.:

Amend. V ............................................................................ 9

Just Compensation Clause ............................... 7, 9, 16

Amend. XIV ..................................................................... 16

Endangered Species Act of 1973,

16 U.S.C. 1531 et seq. ............................................................ 3

16 U.S.C. 1532(19) ............................................................. 4

16 U.S.C. 1536(a)(2) ........................................................... 4

16 U.S.C. 1536(b)(3)(A) ..................................................... 4

16 U.S.C. 1536(b)(4) .......................................................... 4

16 U.S.C. 1536(o) ............................................................... 4

V

Statutes—Continued:

Page

16 U.S.C. 1538(a)(1)(B) ..................................................... 4

16 U.S.C. 1539(a)(1)(B) ..................................................... 4

16 U.S.C. 1539(a)(2) ........................................................... 4

Tucker Act, 28 U.S.C. 1491(a)(1)............................................ 7

Cal. Water Code § 102........................................... 2, 10, 11, 14

Miscellaneous:

62 Fed. Reg. 43,937 (Aug. 18, 1997) ....................................... 3

In the Supreme Court of the United States

No. 25-523

UNITED WATER CONSERVATION DISTRICT, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-14a)

is reported at 133 F.4th 1050. The opinion of the Court

of Federal Claims (Pet. App. 15a-40a) is reported at 164

Fed. Cl. 79.

JURISDICTION

The judgment of the court of appeals was entered on

April 2, 2025. A petition for rehearing was denied on July

29, 2025 (Pet. App. 41a-43a). The petition for a writ of

certiorari was filed on October 27, 2025. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. The Santa Clara River rises in the San Gabriel

Mountains and flows west through Southern California

into the Pacific Ocean. Wishtoyo Found. v. United Water Conservation Dist., No. 16-cv-3869, 2018 WL 6265099,

(1)

2

at *1 (C.D. Cal. Sept. 23, 2018) (Wishtoyo I ), aff ’d, 795

Fed. Appx. 541 (9th Cir. 2020). The River provides habitat for Southern California steelhead trout, a type of

anadromous fish. Id. at *2 & n.6. Steelhead trout hatch

in freshwater upstream, migrate to the ocean to mature,

and return to freshwater as adults to spawn. Id. at *2.

Petitioner is a water conservation district, formed under California law to serve as the water management

agency for the Santa Clara River and the Oxnard coastal

plain. Compl. ¶¶ 1, 13.* In California, “running waters

cannot be owned—whether by a government or by a private party.” Sturgeon v. Frost, 587 U.S. 28, 42 (2019); see

Cal. Water Code § 102. But “the right to the use of water

may be acquired by appropriation in the manner provided by law.” Cal. Water Code § 102 (emphasis added).

Petitioner has acquired such a usufructuary right under

California law. Compl. ¶ 14. As authorized by a license

and a permit issued by the State Water Resources Control Board, petitioner may appropriate and divert from

the River up to 144,630 acre-feet of water per year for

beneficial use, although it has historically diverted much

less. Ibid.; see Compl. ¶ 21 (“Between 1991 and 2014,

annual diversions at the [Dam] averaged nearly 71,000

[acre-feet].”).

In 1987, petitioner’s state permit was amended to allow

the construction of the Vern Freeman Diversion Dam.

Compl. ¶ 22. The federal Bureau of Reclamation (Reclamation) loaned petitioner funds to build the Dam, which

was completed in 1991. Compl. ¶¶ 24, 30; Wishtoyo I, 2018

WL 6265099, at *7. The Dam is a 1200-foot-wide concrete

structure spanning the width of the Santa Clara River

* Because this case arises on a motion to dismiss, this brief assumes the truth of the allegations in the complaint. See National

Rif le Ass’n v. Vullo, 602 U.S. 175, 181 (2024).

3

approximately 10.5 miles from the Pacific Ocean. Wishtoyo I, 2018 WL 6265099, at *7. Petitioner uses the Dam

to divert water from the River into the Freeman Diversion Canal. Compl. ¶ 15. The diverted water is then put

to beneficial use by petitioner and its constituents. Compl.

¶¶ 1-2, 19. Water that is not diverted into the Canal remains in the River and flows to the Pacific Ocean. Compl.

¶ 18. That water is known as “bypass flow.” Compl. ¶ 4.

When petitioner’s state permit was amended in 1987,

it was understood that the operation of the Dam, as well

as petitioner’s diversion of water, would affect the migration of steelhead trout. Compl. ¶¶ 22-25; see Wishtoyo I,

2018 WL 6265099, at *2-*3. To protect that migration, the

amended permit required that the Dam’s construction

include a fish ladder to assist returning steelhead trout

in swimming upstream, past the Dam. Compl. ¶¶ 22, 24.

The amended permit also mandates a specified level of

bypass flow to the Pacific Ocean to help ensure that there

is sufficient water downstream for migration. Compl.

¶¶ 22, 25, 29; see Wishtoyo I, 2018 WL 6265099, at *2.

For example, the amended permit requires petitioner to

“commence[]” bypass flow of 40 cubic-feet per second

(cfs) when “total Santa Clara River volume exceeds 515

cfs.” Compl. ¶ 25. After the permit was amended, petitioner “decided to increase” bypass flow “to either 120

cfs when the total Santa Clara River flow is at or above

280 cfs, or one-half of the river flow when the total Santa

Clara River flow is under 280 cfs.” Compl. ¶ 28.

2. In 1997, the Secretary of Commerce (Secretary),

acting through the National Marine Fisheries Service

(NMFS), listed Southern California steelhead trout as

endangered under the Endangered Species Act of 1973

(ESA), 16 U.S.C. 1531 et seq. See 62 Fed. Reg. 43,937

(Aug. 18, 1997). Section 9 of the ESA prohibits the “take”

4

of any species that is listed as endangered. 16 U.S.C.

1538(a)(1)(B). The term “take” includes harming, harassing, capturing, or killing the species. 16 U.S.C. 1532(19).

By issuing an incidental-take permit under Section 10 of

the ESA, the Secretary may authorize a taking that Section 9 would otherwise prohibit. The Secretary may issue such a permit “if such taking is incidental to, and not

the purpose of, the carrying out of an otherwise lawful

activity,” and if the Secretary makes other specified findings. 16 U.S.C. 1539(a)(1)(B); see 16 U.S.C. 1539(a)(2).

Granting an exemption under Section 7 of the ESA

is another means by which the federal government may

authorize a taking that Section 9 would otherwise prohibit. 16 U.S.C. 1536(o). Section 7 requires each federal

agency to “insure that any action authorized, funded, or

carried out by such agency * * * is not likely to jeopardize the continued existence of any endangered species.”

16 U.S.C. 1536(a)(2). If an agency determines that an

action is likely to adversely affect a listed species, it

must engage in formal consultation with NMFS, which

must provide a written statement (known as a biological

opinion) that explains how the action will affect the species or its habitat. 16 U.S.C. 1536(b)(3)(A). If NMFS

determines that the action is likely to jeopardize the

continued existence of a listed species, the biological

opinion must identify “reasonable and prudent alternatives” (RPAs) that NMFS believes will avoid that likelihood. Ibid. The biological opinion must also include an

incidental-take statement setting forth “reasonable and

prudent measures,” which, if implemented, would exempt the action from Section 9’s prohibition on takings.

16 U.S.C. 1536(b)(4); see 16 U.S.C. 1536(o).

In 2005, Reclamation commenced consultation with

NMFS under Section 7 of the ESA to ensure that the

5

Dam, whose construction Reclamation had funded, was

not likely to jeopardize the continued existence of the

steelhead trout. Compl. ¶ 30. In July 2008, NMFS issued a proposed biological opinion, which found that the

Dam was likely to jeopardize the continued existence of

the species, and which identified two RPAs—“RPA 1,

dealing with fish passage, and RPA 2, dealing with bypass flow”—that NMFS believed would avoid that harm.

Compl. ¶ 31. “In turn, the bypass flow RPA was broken

down into two component RPAs, RPA 2A and RPA 2B.”

Ibid. RPA 2A would have required a specified level of

bypass flow to facilitate adult steelhead migration downstream of the Dam, while RPA 2B would have required

a specified level of bypass flow to facilitate juvenile

steelhead migration downstream of the Dam. Ibid. The

bypass-flow requirements would have applied only under specified conditions; RPA 2A, for example, would

have applied only “during the principal steelhead migration season (January through May) when total river

discharge is ≤ 750 cfs.” Wishtoyo I, 2018 WL 6265099,

at *26; see Compl. ¶ 31.

Several months after NMFS issued the proposed biological opinion, Reclamation’s involvement with the Dam

ended. Compl. ¶ 33. Reclamation terminated the Section 7 consultation process without adopting the proposed biological opinion. Ibid.; see Wishtoyo I, 2018 WL

6265099, at *28.

3. In June 2016, Wishtoyo Foundation and other environmental groups filed a citizen suit in federal district

court, alleging that petitioner was engaged in the unauthorized take of steelhead trout, in violation of Section 9

of the ESA. Compl. ¶ 47. Shortly thereafter, NMFS sent

petitioner a letter about “a significant issue regarding

the ongoing take” of endangered steelhead trout at the

6

Dam. C.A. App. 53. The letter expressed the “opinion”

of “NMFS staff ” that petitioner’s operation of the Dam

had “annually resulted in take” of steelhead trout, without an incidental-take permit. Id. at 54. In a section

entitled “Recommendation,” the letter identified the measures that “NMFS believe[d]” petitioner should adopt

“[i]n order to be effective in protecting” the steelhead

trout “pending issuance of an incidental take permit.”

Id. at 55 (emphasis omitted). Those measures included

RPA 2 of the 2008 proposed biological opinion. Ibid.

The letter closed by “encourag[ing] petitioner in the

strongest terms possible” to implement those measures,

and by warning petitioner that “NMFS intend[ed] to

pursue legal options available under the ESA” “[a]bsent

a firm commitment” by petitioner to do so. Ibid.

In August 2016, petitioner responded to the letter

by stating that it would implement RPA 2A but would

“refuse[] to comply” with RPA 2B. Compl. ¶ 44. The

following month, NMFS sent petitioner a further letter,

which petitioner read as indicating that the agency had

misunderstood petitioner to have stated that it would

implement RPA 2B as well. Compl. ¶ 45. Petitioner

then implemented “both RPA 2A and 2B.” Compl. ¶ 46.

Meanwhile, the Wishtoyo litigation, to which the federal government was not a party, proceeded to a bench

trial. Compl. ¶ 48; see Wishtoyo I, 2018 WL 6265099, at

*4. In September 2018, the district court found that, without an incidental-take permit, petitioner’s operation of

the Dam constituted an unauthorized take of steelhead

trout, in violation of Section 9 of the ESA. Compl. ¶ 49;

see Wishtoyo I, 2018 WL 6265099, at *77. In a subsequent

order entering final judgment, the district court issued

a permanent injunction that requires petitioner to implement RPA 2 until it obtains incidental-take authori-

7

zation from NMFS. Compl. ¶ 50; see Wishtoyo Found. v.

United Water Conservation Dist., No. 16-cv-3869, 2018

WL 7571315, at *1 (C.D. Cal. Dec. 1, 2018). The Ninth Circuit affirmed, Compl. ¶ 51; see Wishtoyo Found. v. United

Water Conservation Dist., 795 Fed. Appx. 541 (2020),

and the permanent injunction remains in place today.

4. In 2022, petitioner sued the United States in the

Court of Federal Claims (CFC) under the Tucker Act, 28

U.S.C. 1491(a)(1). Compl. ¶ 7. Petitioner asserted that

NMFS’s 2016 letter had “compel[led]” it to implement

RPA 2 of the proposed biological opinion, Compl. ¶ 63;

that by implementing RPA 2, petitioner had “increased

the volume of bypass flow” through the Dam, Compl. ¶ 64;

that the “increased amount” of bypass flow was “water”

that petitioner had a “right to appropriate and divert

from the Santa Clara River for [petitioner’s] beneficial

use,” Compl. ¶ 67; and that by “compell[ing]” petitioner

to increase bypass flow, the United States had “taken”

that “water” for “public purposes under the ESA,” ibid.

Petitioner alleged that it had suffered a “physical taking” of its property, ibid., and that it was entitled under

the Fifth Amendment’s Just Compensation Clause to

$40 million for the loss of at least 49,800 acre-feet of water, Compl. ¶¶ 53, 58.

The CFC granted the United States’ motion to dismiss

petitioner’s complaint. Pet. App. 15a-40a. The court held

that petitioner had “fail[ed] to state a viable claim” for

a physical taking. Id. at 40a. The court explained that

“[a] physical taking occurs when the government directly

appropriates property or ‘engages in the functional

equivalent of a practical ouster of the owner’s possession,’ ” whereas “a regulatory taking occurs when a regulation goes too far.” Id. at 33a (brackets and citation

omitted). The court observed that petitioner “does not

8

allege that water that was already diverted into its diversion canal was required to be returned to the river.”

Id. at 37a. Rather, the court emphasized, petitioner

“states that, to comply with the ESA and protect the endangered steelhead trout, water it otherwise could have

diverted under its license and permit was used ‘as bypass flow into the Diversion dam fish ladder and/or remained in the river.’ ” Ibid. (brackets omitted) (quoting

Compl. ¶ 6). The court concluded that, “[b]ecause [petitioner] does not allege that it had to return water it

had already diverted, it has not stated a physical takings claim.” Id. at 37a-38a.

5. The Federal Circuit affirmed. Pet. App. 1a-14a.

The court of appeals agreed with the CFC that petitioner

had failed to state a physical-takings claim. Id. at 11a14a. The court observed that petitioner “has not alleged

that the government completely cut off its access to the

water or caused it to return any volume of water it had

previously diverted to its possession in the Freeman Canal.” Id. at 11a. “In fact,” the court noted, “[petitioner]

alleges that NMFS, at most, required more water to

stay in the Santa Clara River.” Ibid. (citing Compl. ¶¶ 4,

18). The court thus described the RPAs as “nonpossessory government activity merely requiring that more

Santa Clara River water * * * remain[] in the river.”

Id. at 12a. The court of appeals concluded that the “RPAs

therefore operate as ‘regulatory restrictions on the use

of ’ a natural resource and ‘do not constitute physical

takings.’ ” Ibid. (citation omitted).

6. The court of appeals denied rehearing en banc

without noted dissent. Pet. App. 41a-43a.

ARGUMENT

Petitioner’s complaint alleges that the government

restricted petitioner’s use of water from the Santa Clara

9

River. The court of appeals correctly held that those

allegations do not state a claim for a physical taking under the Fifth Amendment, and its decision does not conflict with any decision of this Court or another court of

appeals. In any event, this case would be a poor vehicle

for the Court’s review because petitioner’s framing of

the question presented rests on the erroneous premise

that the government imposed a compulsory restriction

on petitioner’s diversion of water. The petition for a

writ of certiorari should be denied.

1. Petitioner alleges that a letter sent by NMFS in

2016 caused petitioner to divert less water from the

Santa Clara River than it otherwise might have. Compl.

¶ 67. Even if the letter had compelled that result,

NMFS’s action would not have effected a physical taking. Pet. App. 11a-13a. Rather, it would have merely

restricted petitioner’s use of water from the River.

Compl. ¶ 67. Such a “use restriction” may effect a taking only if it satisfies this Court’s test for “ ‘regulatory

takings.’ ” Cedar Point Nursery v. Hassid, 594 U.S. 139,

148-149 (2021) (citation omitted). And petitioner has

disclaimed any regulatory-takings claim in this case.

See Pet. C.A. Br. 17 n.2 (“[Petitioner] did not contest

below, and does not contest in this appeal, that its Complaint does not state a regulatory takings claim that is

ripe for adjudication.”). Accordingly, the court of appeals correctly affirmed the dismissal of petitioner’s

complaint. Pet. App. 2a.

a. The Just Compensation Clause of the Fifth Amendment provides: “[N]or shall private property be taken

for public use, without just compensation.” U.S. Const.

Amend. V. Under this Court’s precedents, the standard

for determining whether a governmental action effects

a taking depends on the nature of the action.

10

“When the government physically acquires private

property for a public use,” the Court applies “a simple,

per se rule: The government must pay for what it takes.”

Cedar Point, 594 U.S. at 147-148. “The government commits a physical taking when it uses its power of eminent

domain to formally condemn property.” Id. at 147. “The

same is true when the government physically takes possession of property without acquiring title to it.” Ibid.

“And the government likewise effects a physical taking

when it occupies property.” Id. at 148.

“When the government, rather than appropriating

private property for itself or a third party, instead imposes regulations that restrict an owner’s ability to use

his own property, a different standard applies.” Cedar

Point, 594 U.S. at 148. “To determine whether a use restriction effects a taking, this Court has generally applied the flexible test developed” in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978),

“balancing factors such as the economic impact of the

regulation, its interference with reasonable investmentbacked expectations, and the character of the government action.” Cedar Point, 594 U.S. at 148. Under that

test, “use restrictions that go ‘too far’ ” are known as

“ ‘regulatory takings.’ ” Id. at 149 (citation omitted).

Here, petitioner alleges that NMFS’s 2016 letter

caused it to divert less water from the Santa Clara River

than it otherwise might have. Compl. ¶ 67. Even if the

letter is read as compelling petitioner to divert less water, the letter did not achieve that result by physically

appropriating any property that petitioner owned. After

all, water flowing down the River “cannot be owned—

whether by a government or by a private party.” Sturgeon v. Frost, 587 U.S. 28, 42 (2019); see Cal. Water Code

§ 102. And on petitioner’s own account, the letter simply

11

“required more water to stay in” the River. Pet. App.

11a (citing Compl. ¶¶ 4, 18).

NMFS’s 2016 letter therefore did not cause the government to physically occupy, invade, or possess any

property that petitioner owned. Rather, even accepting

petitioner’s view that the letter had binding effect, the

letter merely limited petitioner’s “right to the use of ” the

River’s flows. Cal. Water Code § 102 (emphasis added).

The alleged limitation on that usufructuary right is a

classic “use restriction[].” Cedar Point, 594 U.S. at 148.

This Court’s precedents illustrate that point. In

United States v. Central Eureka Mining Co., 357 U.S. 155

(1958), the Court considered a governmental directive

“ordering nonessential gold mines to close down.” Id.

at 156. Mining companies sued, alleging that the directive had effected a “taking” of their “rights to operate their respective gold mines.” Ibid. The Court held

that the order had not effected a physical taking because “the Government did not occupy, use, or in any

manner take physical possession of the gold mines or of

the equipment connected with them.” Id. at 165-166.

Instead, the Court analyzed the order “barring the mining of gold” under the framework that “applies to use

restrictions.” Cedar Point, 594 U.S. at 148 (citing Central Eureka, 357 U.S. at 168).

The Court likewise applied that framework in Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S.

470 (1987). The regulation in that case “require[d] 50%

of the coal beneath” certain structures “to be kept in

place as a means of providing surface support.” Id. at 477.

Coal-reserve owners sued, alleging that the regulation

required them “to leave approximately 27 million tons

of coal in place,” thereby “appropriat[ing]” that coal for

“public purposes” without just compensation. Id. at 498.

12

The Court rejected the suggestion that the plaintiffs’

“coal ha[d] been physically appropriated.” Id. at 499 n.27.

The Court explained that the case “involve[d] land use

regulation, not a physical appropriation of [the owners’]

property.” Id. at 489 n.18. The Court therefore analyzed

the regulation under the standard that applies to regulatory takings. Id. at 485.

Although this case involves water use, not land use, the

same principle applies here. Whether “a use restriction

effects a taking” depends on “the flexible test developed

in Penn Central,” not the “per se rule” that applies to

physical appropriations. Cedar Point, 594 U.S. at 148.

Indeed, the plaintiffs in Central Eureka and Keystone

owned the gold mines and the coal, but the Court still

declined to treat the regulations that prevented them

from using those resources as a physical appropriation

of their property. Since petitioner does not even own the

water at issue here, see p. 10, supra, it follows a fortiori

that an alleged regulation preventing petitioner from

using that water is not a physical appropriation either.

b. Contrary to petitioner’s contention (Pet. 18-27),

the decision below does not conflict with any decision of

this Court. Petitioner cites (Pet. 18-19) several decisions

involving water rights, but none of them supports the

view that the 2016 letter in this case should be analyzed

as a physical taking. See Pet. App. 12a-13a (rejecting

petitioner’s reliance on those decisions).

International Paper Co. v. United States, 282 U.S. 399

(1931), involved a wartime requisition order that took

“all of the water capable of being diverted through [a

particular] canal,” including all of the water that a paper

company had a right to withdraw from the canal. Id. at

405. The Court held that the order effected a taking of

the company’s “water rights.” Id. at 407. But in so hold-

13

ing, the Court did not specify whether it viewed the taking as a physical taking or as a regulatory one. Indeed,

the Court did not address the distinction between those

two types of takings at all. Instead, the Court explained

that “when all the water that [the paper company] used

was withdrawn from the [company’s] mill and turned

elsewhere by government requisition,” “it is hard to see

what more the Government could do to take the use.”

Ibid. Because the requisition order deprived the company of “all economically beneficial uses” of its water

rights, the requisition order satisfied this Court’s test for

a regulatory taking. Tahoe-Sierra Pres. Council, Inc. v.

Tahoe Reg’l Planning Agency, 535 U.S. 302, 330 (2002)

(quoting Lucas v. South Carolina Coastal Council, 505

U.S. 1003, 1019 (1992), a regulatory-takings case).

The Court likewise did not address the distinction

between physical and regulatory takings in either United

States v. Gerlach Live Stock Co., 339 U.S. 725 (1950), or

Dugan v. Rank, 372 U.S. 609 (1963). In each of those

cases, the storing and diverting of water at a dam, which

was part of a federal reclamation project, substantially

diminished the flow of the San Joaquin River downstream. See id. at 610, 625; Gerlach, 339 U.S. at 727-728.

To the extent the Court engaged in any takings analysis

in either case, it did so only in dicta. See Dugan, 372

U.S. at 626 (making “clear that [the Court] do[es] not in

any way pass upon or indicate any view regarding the

validity of respondents’ water right claims”). And in any

event, the Court’s reasoning was consistent with the

view that operation of the dam had effected a regulatory,

rather than a physical, taking of riparian rights downstream. In Dugan, for instance, the Court observed that

the operation of the dam had deprived downstream water users of the “profitable use” of their riparian rights.

14

Id. at 625 (citation omitted); see Gerlach, 339 U.S. at 730

(explaining that “the bed of the San Joaquin along claimants’ lands will be parched, and their grass lands will be

barren,” as a result of the dam). As in International Paper, the Court’s reasoning thus suggested that any taking was a regulatory one.

Petitioner also contends (Pet. 20-27) that the decision below conflicts with this Court’s decision in Cedar

Point. But the Cedar Point Court reaffirmed that landuse regulations such as “zoning ordinances” and “orders barring the mining of gold” should be analyzed under the regulatory-takings framework. 594 U.S. at 148.

And as explained above, there is no principled reason to

apply a different framework to water-use regulations

like the one alleged here. See p. 12, supra. If a regulation

that required a coal-reserve owner to “leave approximately 27 million tons of coal in place” is not a physical

taking, Keystone, 480 U.S. at 498, then an agency communication that allegedly required petitioner to leave

49,800 acre-feet of water in the River is not a physical

taking either, see Compl. ¶ 53.

c. Petitioner’s remaining arguments lack merit. Petitioner asserts that, if “the United States could not issue an uncompensated mandate that raisin growers surrender a portion of their produce to a federal program,”

then “it cannot issue an uncompensated mandate that

petitioner dedicate a portion of its water to a public purpose.” Pet. 19 (citing Horne v. Department of Agric., 576

U.S. 351, 361-362 (2015) (Horne II )). But while the affected raisin growers in Horne II owned the raisins, petitioner does not own water in the Santa Clara River; rather, it holds a “right to the use of [the] water.” Cal. Water Code § 102; see p. 10, supra. And while in Horne II

“[a]ctual raisins [were] transferred from the growers to

15

the Government,” 576 U.S. at 361 (emphasis added), any

limitation on the quantity of water that petitioner may

divert does not result in a transfer of water to any federal

entity. The 2016 letter therefore did not cause the physical appropriation of any property that petitioner owned.

Petitioner characterizes (Pet. 21) the decision below

as holding that “even though the government requisitioned nearly 50,000 acre-feet of water from 2017 to

2021,” “no physical taking occurred because petitioner

still got some fraction of the water that it was entitled

to divert.” But contrary to that characterization, the

court of appeals did not hold that the government may

“physically appropriate relatively small amounts of private property for its own use without paying just compensation.” Keystone, 480 U.S. at 499 n.27. Rather, the

court held that the government had not physically appropriated (or requisitioned) petitioner’s property at all.

The court thus described the RPAs as “represent[ing] a

nonpossessory government activity merely requiring

that more Santa Clara River water * * * remain[] in the

river.” Pet. App. 12a.

2. Petitioner does not contend that the decision below conflicts with any decision of another court of appeals or a state court of last resort. Petitioner asserts

(Pet. 32) that this Court’s review is warranted because

the Federal Circuit’s exclusive jurisdiction over appeals

from the CFC in cases arising under the Tucker Act will

“stymie[] the development of a square circuit conflict.”

But the Tucker Act is not the only way for parties to

assert takings claims against the United States. Other

statutes displace Tucker Act jurisdiction over certain

takings claims. See, e.g., Horne v. Department of Agric.,

569 U.S. 513, 516 (2013) (Horne I ) (holding that another

statute provided a “comprehensive remedial scheme” that

16

withdrew “Tucker Act jurisdiction over takings claims

brought by raisin handlers”).

State courts also hear claims under the Just Compensation Clause, as incorporated against the States by

the Fourteenth Amendment, including claims involving

water rights. See, e.g., Kobobel v. Colorado Dep’t of Natural Res., 249 P.3d 1127, 1134 (Colo.) (rejecting takings

claim based on limitations on decreed water rights), cert.

denied, 565 U.S. 882 (2011); Bingham v. Roosevelt City

Corp., 235 P.3d 730, 739-741 (Utah 2010) (rejecting takings claim based on diminution of water in soil); State

Dep’t of Ecology v. Grimes, 852 P.2d 1044, 1054-1055

(Wash. 1993) (rejecting takings claim based on diminishment of prior appropriation). The California Court

of Appeal, for instance, has held that the “imposition of

a permit condition limiting the total quantity of groundwater available” for “use” did “not effect a per se physical taking under any reasonable analysis.” Allegretti &

Co. v. County of Imperial, 42 Cal. Rptr. 3d 122, 130-131

(2006), cert. denied, 549 U.S. 1113 (2007). Whether the

type of water-use regulation alleged here should be analyzed as a physical taking is therefore a question that

may arise outside the Federal Circuit. And there is no

pressing need for this Court to decide that question

now, in the absence of a split of authority.

3. In any event, this case would be a poor vehicle for

the Court’s review. Petitioner’s framing of the question

presented (Pet. i) assumes that NMFS’s 2016 letter

compelled the “appropriation of water that [petitioner]

had a property right to use.” But as the government explained below, the 2016 letter did not compel anything.

See Gov’t C.A. Br. 20-26; CFC Doc. 13, at 2-6 (Nov. 14,

2022). Indeed, petitioner acknowledged below that the

2016 letter merely “threatened an enforcement action

17

against [petitioner] if [petitioner] did not reduce its diversion of water to comply with” RPA 2 in the proposed

biological opinion. Pet. C.A. Reply Br. 23. And a mere

“threat[]” to bring an enforcement action lacks the legal

force necessary to effect a taking, whether physical or

regulatory. Ibid.; cf. United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121, 126-127 (1985) (explaining

that neither “the mere assertion of regulatory jurisdiction by a governmental body” nor the “requirement that

a person obtain a permit before engaging in a certain

use of his or her property” is itself a taking).

If anything compelled petitioner to divert less water

from the Santa Clara River, it was not the 2016 letter,

but the permanent injunction entered by the district

court in Wishtoyo Foundation v. United Water Conservation District, No. 16-cv-3869, 2018 WL 7571315 (C.D.

Cal. Dec. 1, 2018). That injunction requires petitioner

to implement RPA 2 until it obtains incidental-take authorization from NMFS. See pp. 6-7, supra. The federal government is not a party to the Wishtoyo litigation; it has not brought its own enforcement suit against

petitioner; and it has not issued petitioner an incidentaltake permit under Section 10 of the ESA. Because petitioner’s Fifth Amendment claim depends on the erroneous premise that NMFS compelled petitioner to reduce its diversion of water, this case would be a poor

vehicle for this Court’s review.

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CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

ADAM R.F. GUSTAFSON

Principal Deputy Assistant

Attorney General

ROBERT N. STANDER

Deputy Assistant

Attorney General

AMBER BLAHA

BRIAN R. HERMAN

TAMARA ROUNTREE

Attorneys

JANUARY 2026