As we highlighted yesterday, four cases scheduled to be argued in January at the Federal Circuit attracted amicus briefs. One of those cases is United Water Conservation District v. United States. In this case, United Water Conservation District appeals a judgment of the Court of Federal Claims, which dismissed its takings claim. The court held that a restriction of water rights did not constitute a physical taking but rather a regulatory taking, which presented an unripe controversy. This is our argument preview.
In its opening brief, United Water Conservation District explained that the case turns on whether “the taking of United’s California beneficial-use water right alleged in United’s Complaint” is “properly analyzed as a physical taking or a regulatory taking.” According to United, if the complaint is “considered a physical taking, as Supreme Court precedent dictates,” then the claim “is unquestionably ripe for adjudication” and the “trial court’s judgment should be reversed.”
United argued its complaint “alleges the facts necessary to state a physical takings claim.” The Supreme Court, United suggested, “has emphasized that the government’s appropriation of a property right is a per se physical taking.” United suggested that, here, the National Marine Fisheries Service “appropriated for the public purpose of fish survival at least 49,800 acre-feet of Santa Clara River water that United had the vested property right to put to beneficial use under its California water license and permit.” Therefore, United argued, “[t]he government here has taken the use of the 49,800 acre-feet of Santa Clara River water for the federal public purpose of endangered species protection.” As a result, United concluded, “[t]he government’s appropriation of United’s beneficial-use right . . . constitutes a per se physical taking that is compensable and ripe for adjudication.”
In its response brief, the United States asserted the “threshold issue on appeal is whether NMFS’s Recommendation Letter can give rise to a taking under the Fifth Amendment.” According to the government, it cannot. First, the government argued, “the letter is an advisory document from NMFS staff that is not capable of effecting either a regulatory or physical taking.” Second, the government argued, “United’s Complaint fails to allege either of the[] requisite elements of a physical taking.” Third, the government continued, “[e]ven assuming the Letter could effect a taking, the CFC properly concluded that the facts alleged . . . should be construed as asserting a regulatory takings claim” and not a physical takings claim. The government argued that, “because United’s takings claim is anchored to the Letter alone, and the Letter constitutes no action by the Government,” the lower court’s decision should be affirmed.
In its reply brief, United joined the government’s argument “that the NMFS Enforcement Letter is not, as a matter of law, a government action sufficient to trigger any taking, physical or regulatory.” United argued the government’s argument “is contradicted by” its “own characterization” of the letter and “presents a merits issue of mixed law and fact.” According to United, the factual allegations in the complaint “plausibly establish that the NMFS Enforcement Letter presented a threat of imminent enforcement action by NMFS under the ESA.” United argued this “coerced United to reduce its diversion of water . . . in compliance with the restrictions set forth in the NMFS Enforcement Letter.” Ultimately, United characterized the government’s argument that the letter is incapable of effecting a physical taking, as “untenable.”
Several natural resources law professors filed an amicus brief in support of affirmance. They expressed concerns that “water rights are a unique form of property” and argued this makes “regulatory actions affecting water rights a poor fit for the physical takings framework.”
Oral argument is scheduled to be heard on Wednesday, January 8. We will keep track of this case and report on any developments.