United Water Conservation District v. United States (Fed. Cir. No. 23-1602)
On December 7, 2023, the Clinic filed an amicus brief on behalf of Natural Resources Law Professors in support of the government. The question in this case was whether an action taken by the National Marine Fisheries Service under the Endangered Species Act amounted to a physical or regulatory taking of United’s water rights. The Clinic’s brief argued that federal management of “instream” flows—flows that have not yet been diverted—should be analyzed as regulatory, not physical, takings. The unique qualities of water and the nature of water rights require flexibility, and the physical takings framework would be too rigid to accommodate changing public needs. However, the regulatory takings framework would allow courts to balance the protection of private property interests with the government’s ability to regulate common resources for the public good –a balance that will become even more important as water becomes increasingly scarce and competing public and private uses of water clash more often.