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The Fifth Amendment’s Takings Clause requires the government to pay “just compensation” when it takes private property for public use. Supreme Court cases consistently have treated govermental takings of water rights as per se, physical takings of property. But in United Water Conservation District v. United States, 133 F.4th 1050 (Fed. Cir. 2025), a court of appeals panel misread those, and its own, water rights takings precedents. It held that the appropriation of a California water-conservation district’s state-law water rights for purposes of complying with the Endangered Species Act by facilitating steelhead trout migration is a “regulatory taking” subject to a balancing test rather than to the categorical, per se takings rule.
United Conservation Water District is seeking Supreme Court review of this unprecedented Federal Circuit treatment of the taking of water property rights. Nationally renowned takings-law expert Nancie Marzulla of Marzulla Law, LLC has authored an amicus brief on behalf of the Atlantic Legal Foundation urging the Court to grant review.
ALF's Amicus Brief
ALF’s amicus brief supports the pending certiorari petition in United Water Conservation District v. United States (25-523). The brief discuses why the Federal Circuit’s opinion conflicts with leading Supreme Court water rights takings precedents such as International Paper Co. v. United States, 282 U.S. 399 (1931), United States v. Gerlach Live Stock Co., 339 U.S. 725 (1950), and Dugan v. Rank, 372 U.S. 609 (1963), and also the circuit court’s own ruling in Casitas Municipal Water District v. United States, 543 Fed. Cir. 1276 (2008).
Equally important, the amicus brief explains why the “regulatory taking” guidepoints identified by the Supreme Court in a non-water rights case, Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), do not apply. Emphasizing the importance of the question presented, the amicus brief also illuminates the unique character of water property rights, which are state-law rights to the use of water, not necessarily to ownership of water.
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