Baley v. United States ( 2019 )

United States Court of Appeals
for the Federal Circuit
______________________
LONNY E. BALEY, ET AL., JOHN ANDERSON
FARMS, INC., ET AL.,
Plaintiffs-Appellants
v.
UNITED STATES, PACIFIC COAST FEDERATION
OF FISHERMEN’S ASSOCIATIONS,
Defendants-Appellees
______________________
2018-1323, 2018-1325
______________________
Appeals from the United States Court of Federal
Claims in Nos. 1:01-cv-00591-MBH, 1:07-cv-00194-MBH,
1:07-cv-19401-MBH, 1:07-cv-19402-MBH, 1:07-cv-19403-
MBH, 1:07-cv-19404-MBH, 1:07-cv-19405-MBH, 1:07-cv-
19406-MBH, 1:07-cv-19407-MBH, 1:07-cv-19408-MBH,
1:07-cv-19409-MBH, 1:07-cv-19410-MBH, 1:07-cv-19411-
MBH, 1:07-cv-19412-MBH, 1:07-cv-19413-MBH, 1:07-cv-
19414-MBH, 1:07-cv-19415-MBH, 1:07-cv-19416-MBH,
1:07-cv-19417-MBH, 1:07-cv-19418-MBH, 1:07-cv-19419-
MBH, 1:07-cv-19420-MBH, Senior Judge Marian Blank
Horn.
______________________
Decided: November 14, 2019
______________________
ROGER J. MARZULLA, Marzulla Law, LLC, Washington,
DC, argued for plaintiffs-appellants Lonny E. Baley, Mark
2 BALEY v. UNITED STATES
R. Trotman, Baley Trotman Farms, James L. Moore,
Cheryl L. Moore, Daniel G. Chin, Deloris D. Chin, Wong
Potatoes, Inc., Michael J. Byrne, Byrne Brothers, John An-
derson Farms, Inc., Buckingham Family Trust, Eileen
Buckingham, Keith Buckingham, Shelly Buckingham,
Constance Frank, John Frank, Hill Land and Cattle Co.,
Inc., Jeff Hunter, Sandra Hunter, McVay Farms, Inc., Bar-
bara McVay, Matthew K. McVay, Michael McVay, Ronald
McVay, Suzan McVay, Tatiana V. McVay, Henry O'Keeffe,
Patricia O'Keeffe, Shasta View Produce, Inc., Edwin
Stastny, Jr., All Plaintiffs. Also represented by NANCIE
GAIL MARZULLA. Plaintiffs-appellants John Anderson
Farms, Inc., Buckingham Family Trust, Eileen Bucking-
ham, Keith Buckingham, Shelly Buckingham, Constance
Frank, John Frank, Hill Land and Cattle Co., Inc., Jeff
Hunter, Sandra Hunter, McVay Farms, Inc., Barbara
McVay, Matthew K. McVay, Michael McVay, Ronald
McVay, Suzan McVay, Tatiana V. McVay, Henry O'Keeffe,
Patricia O'Keeffe, Shasta View Produce, Inc., Edwin
Stastny, Jr. also represented by ALAN IRVING SALTMAN,
Smith, Currie & Hancock LLP, Washington, DC.
JOHN LUTHER SMELTZER, Environment and Natural
Resources Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee United
States. Also represented by ELIZABETH ANN PETERSON,
ERIC GRANT, JEFFREY H. WOOD.
TODD D. TRUE, Earthjustice, Seattle, WA, argued for
defendant-appellee Pacific Coast Federation of Fisher-
men's Associations. Also represented by STEPHANIE
KATHLEEN TSOSIE.
CHARLES T. DUMARS, Law & Resource Planning Asso-
ciates, PC, Albuquerque, NM, argued for amicus curiae The
Middle Rio Grande Conservancy District. Also represented
by TANYA L. SCOTT; LORNA M. WIGGINS, Wiggins, Williams
& Wiggins, PC, Albuquerque, NM.
BALEY v. UNITED STATES 3
CRAIG A. PARTON, Price, Postel & Parma LLP, Santa
Barbara, CA, for amici curiae City of Fresno, Arvin-Edison
Water Storage District, Chowchilla Water District, Delano-
Earlimart Irrigation District, Exeter Irrigation District,
Ivanhoe Irrigation District, Lindmore Irrigation District,
Lindsay-Strathmore Irrigation District, Lower Tule River
Irrigation District, Orange Cove Irrigation District, Porter-
ville Irrigation District, Saucelito Irrigation District,
Shafter-Wasco Irrigation District, Southern San Joaquin
Municipal Utility District, Stone Corral Irrigation District,
Terra Bella Irrigation District, Tulare Irrigation District,
Kern Tulare Water District, Kaweah Delta Water Conser-
vation District, Tea Pot Dome Water District, Fresno Irri-
gation District, Friant Water Authority.
DANIEL LUCAS, Office of the Attorney General, Califor-
nia Department of Justice, Los Angeles, CA, for amicus cu-
riae California State Water Resources Control Board. Also
represented by XAVIER BECERRA, ROBERT W. BYRNE, ERIC
M. KATZ, MELINDA PILLING, San Francisco, CA; JOSHUA A.
KLEIN, Oakland, CA.
JAMES HUFFMAN, Portland, OR, for amici curiae Family
Farm Alliance, National Water Resources Association.
DAVID E. FILIPPI, Stoel Rives LLP, Portland, OR, for
amicus curiae Oregon Water Resources Congress. Also
represented by KIRK BENNY MAAG; STEVEN L. SHROPSHIRE,
Jordan Ramis PC, Bend, OR.
DOUGLAS W. MACDOUGAL, Marten Law PLLC, Port-
land, OR, for amici curiae Oregon Farm Bureau Federa-
tion, California Farm Bureau Federation, Idaho Farm
Bureau Federation, New Mexico Farm and Livestock Bu-
reau, Colorado Farm Bureau, Nevada Farm Bureau, Utah
Farm Bureau Federation, Wyoming Farm Bureau Federa-
tion. Also represented by SARAH ELIZABETH PETERSON,
4 BALEY v. UNITED STATES
Coblentz Patch Duffy & Bass LLP, San Francisco, CA.
DAVID R.E. ALADJEM, Downey Brand LLP, Sacramento,
CA, for amicus curiae Association of California Water
Agencies. Also represented by SAMUEL BIVINS, AVALON J.
FITZGERALD, MEREDITH E. NIKKEL.
DENISE FJORDBECK, Oregon Department of Justice, Sa-
lem, OR, for amicus curiae State of Oregon. Also repre-
sented by BENJAMIN N. GUTMAN, ELLEN F. ROSENBLUM.
ROBERT T. ANDERSON, University of Washington School
of Law, for amici curiae Robert T. Anderson, Reed D. Ben-
son, Michael C. Blumm, Barbara Cosens, Sarah Krakoff,
John D. Leshy, Monte Mills, Joseph William Singer, A. Dan
Tarlock, Charles F. Wilkinson, Jeanette Wolfley. Amici cu-
riae Michael C. Blumm, John D. Leshy, also represented
by DAVID R. OWEN, Hastings College of Law, University of
California, San Francisco, CA,
DAVID R. OWEN, Hastings College of Law, University of
California, San Francisco, CA, for amici curiae Robert
Abrams, Craig Anthony Arnold, Karrigan Bork, Lee P.
Breckenridge, Michelle Bryan, Robin K. Craig, Daniel A.
Farber, Richard M. Frank, Eric Freyfogle, Robert L. Glicks-
man, Sean B. Hecht, Oliver A. Houck, Blake Hudson,
Christine A. Klein, Rhett Larson, Timothy M. Mulvaney,
David R. Owen, Patrick Parenteau, Justin Pidot, Antonio
Rossmann, J.B. Ruhl, Erin Ryan, Mark Squillace, David
Takacs, Gerald Torres, Sandra Zellmer, Michael Pappas.
SUSAN Y. NOE, Native American Rights Fund, Boulder,
CO, for amicus curiae Klamath Tribes.
THOMAS PAUL SCHLOSSER, Morisset Schlosser Jozwiak
& Somerville, Seattle, WA, for amicus curiae Hoopa Valley
Tribe. Also represented by THANE D. SOMERVILLE.
BALEY v. UNITED STATES 5
JOHN ECHEVERRIA, Vermont Law School, South Royal-
ton, VT, for amicus curiae Natural Resources Defense
Council.
AMY CHRISTINE CORDALIS, Yurok Tribe, Klamath, CA,
for amicus curiae Yurok Tribe.
______________________
Before NEWMAN, SCHALL, and CHEN, Circuit Judges.
SCHALL, Circuit Judge.
INTRODUCTION AND DECISION
This case arises out of the Klamath River Basin recla-
mation project (“the Klamath Project” or “the Project”).
The Project straddles the southern Oregon and northern
California borders. Key features of the Project are Upper
Klamath Lake in Oregon, where water is stored for the Pro-
ject, and the Klamath River. The Klamath River rises at
the south end of Upper Klamath Lake and flows from Ore-
gon into California. The river eventually enters the Pacific
Ocean near Klamath, California. The Project supplies wa-
ter to hundreds of farms, comprising approximately
200,000 acres of agricultural land. The Project is managed
and operated by the United States Department of the Inte-
rior’s Bureau of Reclamation (“the Bureau of Reclamation”
or “the Bureau”). The Bureau of Reclamation also manages
the Klamath Project to protect the tribal trust resources of
several Native American Tribes.
In 2001, the Bureau temporarily halted water deliver-
ies to farmers and irrigation districts served by the Project.
It took this action in order to meet the requirements of the
Endangered Species Act, 16 U.S.C. § 1531 et seq. (2000)
(“the ESA”), as outlined in Biological Opinions from the
United States Fish and Wildlife Service (“the FWS”) and
the United States National Marine Fisheries Service (“the
NMFS”). It also took this action in order to meet its tribal
trust obligations.
6 BALEY v. UNITED STATES
In October of 2001, fourteen irrigation organizations
and thirteen individual farmers filed suit in the United
States Court of Federal Claims in Klamath Irrigation Dis-
trict v. United States, No. 1:01-cv-00591. In their second
amended complaint, filed on January 31, 2005, the plain-
tiffs alleged that the Bureau of Reclamation’s action in
temporarily halting their water deliveries in 2001 consti-
tuted a taking of their water rights without just compensa-
tion, in violation of the Fifth Amendment to the United
States Constitution. They also alleged that the Bureau’s
action impaired their water rights under the Klamath
River Basin Compact (“the Klamath Compact” or “the Com-
pact”). 1 The plaintiffs further alleged that the Bureau’s ac-
tion breached certain water delivery contracts they had
1 The Klamath Compact is a congressionally-ap-
proved interstate compact between California and Oregon.
See 71 Stat. 497–508 (1957). The Compact’s purposes are
to “facilitate and promote the orderly, integrated, and com-
prehensive development, use, conservation, and control [of
the water resources of the Klamath River Basin] for vari-
ous purposes” and to “further intergovernmental coopera-
tion and comity with respect to these resources and
programs for their use and development and to remove
causes of present and future controversies.” Id. at 497.
Section XIII of the Compact states that ‘‘[t]he United
States shall not, without payment of just compensation,
impair any rights to the use of water for [domestic or irri-
gation purposes] within the Upper Klamath River Basin.”
Id. at 507. However, this obligation is limited to rights ac-
quired after the effective date of the Compact. Id. With
respect to the rights of Native American tribes, Article X of
the Compact states: “Nothing in this compact shall be
deemed . . . [t]o deprive any individual Indian, tribe, band
or community of Indians of any rights, privileges, or im-
munities afforded under Federal treaty, agreement or stat-
ute.” Id. at 505.
BALEY v. UNITED STATES 7
with the Bureau. The Court of Federal Claims exercised
jurisdiction pursuant to 28 U.S.C. § 1491(a)(1). 2
On August 31, 2005, the Court of Federal Claims
granted the government summary judgment on the plain-
tiffs’ taking and Klamath Compact claims. See generally
Klamath Irrigation Dist. v. United States, 67 Fed. Cl. 504
(2005). Thereafter, on March 16, 2007, the court also
granted the government summary judgment on the plain-
tiffs’ breach of contract claims. See generally Klamath Ir-
rigation Dist. v. United States, 75 Fed. Cl. 677 (2007). 3
Based upon these two summary judgment decisions, the
court entered judgment dismissing the plaintiffs’ taking
claims, their claims arising under the Compact, and their
breach of contract claims. The plaintiffs appealed to this
court.
On July 16, 2008, we issued an order in which we cer-
tified three questions to the Oregon Supreme Court. The
questions related to the plaintiffs’ water rights under Ore-
gon law. See Klamath Irrigation Dist. v. United States, 532
F.3d 1376 (Fed. Cir. 2008) (“Certification Order”). We is-
sued the Certification Order pursuant to a procedure
2 On February 28, 2005, the Court of Federal Claims
granted the motion of the Pacific Coast Federation of Fish-
ermen’s Associations (“the Federation”) to intervene as a
defendant. Klamath Irrigation Dist. v. United States, 64
Fed. Cl. 328, 331 (2005). The Federation represents ap-
proximately 3,000 small commercial fishing operators who
derive income from Pacific salmon that spawn in the Kla-
math River Basin. Id.
3 The Federation joined the government’s motion for
summary judgment on the breach of contract claims. No-
tice of Intervenor-Def. Pac. Coast Fed’n of Fishermen’s
Ass’ns’ Joinder in Federal Defs.’ Mot. for Summ. J. on Con-
tract Claims, No. 1:01-cv-00591 (Ct. Fed. Claims Feb. 17,
2006), ECF No. 263.
8 BALEY v. UNITED STATES
whereby unsettled questions of state law may be certified
to the Oregon Supreme Court. Id. at 1377; see Or. Rev.
Stat. §§ 28.200–28.255 (2007). Pending action by the Ore-
gon Supreme Court, we withheld decision on all of the
plaintiffs’ claims. The Oregon Supreme Court accepted the
case for certification, Klamath Irrigation Dist. v. United
States, 202 P.3d 159, 165 (Or. 2009), and on March 11,
2010, the court rendered its decision answering our certi-
fied questions. See Klamath Irrigation Dist. v. United
States, 227 P.3d 1145 (Or. 2010) (en banc) (“Certification
Decision”). Following receipt of the Certification Decision,
we vacated the judgment of the Court of Federal Claims
and remanded the case to the court for further proceedings.
See Klamath Irrigation Dist. v. United States, 635 F.3d 505,
522 (Fed. Cir. 2011) (“Remand Decision”).
Following our decision and remand, the Court of Fed-
eral Claims entered several orders relevant to the Klamath
Irrigation District case. It also entered several orders rel-
evant to a related case filed by individual water user plain-
tiffs, John Anderson Farms, et al. v. United States, No.
1:07-cv-00194. First, in an order dated November 22, 2013,
the court dismissed the breach of contract claims of three
of the Klamath Irrigation District plaintiffs for lack of ju-
risdiction. Klamath Irrigation Dist. v. United States, 113
Fed. Cl. 688, 718 (2013). Thereafter, on June 3, 2014, the
court granted the remaining Klamath Irrigation District
plaintiffs’ motion to voluntarily dismiss all their pending
breach of contract claims. No. 1:01-cv-00591, ECF No. 343.
Similarly, on March 13, 2014, the court granted a motion
by the plaintiffs in John Anderson Farms to voluntarily
dismiss their breach of contract claims. No. 1:07-cv-00194,
ECF No. 65. Next, on January 12, 2016, the court issued
an order consolidating the Klamath Irrigation District and
John Anderson Farms cases. Subsequently, the parties
filed cross-motions in limine on the question of whether the
plaintiffs’ taking claims should be analyzed as potential
physical or regulatory takings. The plaintiffs urged a
BALEY v. UNITED STATES 9
physical takings approach. On December 21, 2016, the
court issued an opinion ruling in favor of the plaintiffs.
Klamath Irrigation Dist. v. United States, 129 Fed. Cl. 722
(2016). In its opinion, the court held that “the govern-
ment’s actions in the present cases ‘should be analyzed un-
der the physical takings rubric.’” Id. at 737 (quoting
Casitas Mun. Water Dist. v. United States, 543 F.3d 1276,
1296 (Fed. Cir. 2008)). The court’s rulings left for trial the
plaintiffs’ claims that the Bureau of Reclamation’s action
in 2001 constituted a taking and/or a violation of the Kla-
math Compact.
Finally, at a pretrial conference on January 10, 2017,
the court granted a motion for class certification. The cer-
tified class included, as opt-in plaintiffs, all persons who
owned or leased land within, or who received water from,
the fourteen plaintiff irrigation organizations and who
claimed an appurtenant right to Project water 4 and alleged
a Fifth Amendment taking and an impairment of their
rights under the Compact.
The Court of Federal Claims held a ten-day trial com-
mencing on January 30, 2017. Following the trial and post-
trial briefing, all the irrigation organization plaintiffs
moved to voluntarily dismiss their claims. The court
granted the motion, which left as plaintiffs the surviving
individual farmers and the class action opt-in plaintiffs.
This resulted in the recaptioning of the consolidated case
to Lonny Baley, et al. v. United States. Thereafter, on Sep-
tember 29, 2017, the court issued its final decision in the
case. Baley v. United States, 134 Fed. Cl. 619 (2017)
4 In the context of real property, something is “ap-
purtenant” to land “when it is by right used with the land
for its benefit.” Appurtenant, Black’s Law Dictionary (6th
ed. 1990); see also Appurtenant, Black’s Law Dictionary
(11th ed. 2019) (defining appurtenant as “[a]nnexed to a
more important thing”).
10 BALEY v. UNITED STATES
(“Baley”). In its decision, before addressing the plaintiffs’
taking and Compact claims, the court made several rul-
ings. Three of those rulings disposed of the claims of vari-
ous plaintiffs. First, the court dismissed the claims of any
plaintiffs deriving water rights from the Van Brimmer
Ditch Company. Id. at 645–52. 5 Second, the court barred
the claims of certain of the plaintiffs who receive water un-
der what are called “Warren Act Contracts.” Id. at 656–
5 The Van Brimmer Ditch Company is not an irriga-
tion district, but an Oregon business corporation that de-
livers irrigation water to landowners. Baley, 134 Fed. Cl.
at 632. The company traces its history to the 1880s, when
its founders began drawing water from White Lake. Id.
White Lake was associated with Lower Klamath Lake,
which is along the border between Oregon and California.
See id. The subsequent creation of the Klamath Project re-
sulted in the draining of White Lake and Lower Klamath
Lake (which is now a National Wildlife Refuge). Id.; see
also U.S. DEP’T OF THE INTERIOR, Ground-Water Hydrology
of the Upper Klamath Basin, Oregon and California at 1–
2, 6 (2010), https://pubs.usgs.gov/sir/2007/5050/. On No-
vember 6, 1909, the Van Brimmer Ditch Company con-
tracted with the United States to receive water from Upper
Klamath Lake. Baley, 134 Fed. Cl. at 632. In its contract,
the Van Brimmer Ditch Company agreed to “waive[] and
renounce[] . . . any and all of its riparian rights, in relation
to the waters and shores of Lower Klamath Lake.” Id. In
exchange, the United States agreed to “deliver to the Com-
pany during each and every irrigation season . . . a quan-
tity of water, not to exceed fifty second feet.” Id. Named
plaintiffs James and Cheryl Moore are landowner-share-
holders in the Van Brimmer Ditch Company. In 2001, they
owned 135 shares of stock in the company, each of which
corresponded to one acre of irrigable land, with an appur-
tenant right to receive irrigation water from the company.
Id.
BALEY v. UNITED STATES 11
59. 6 And third, the court ruled that plaintiffs who receive
their water through leases for lands in the National Wild-
life Refuges that are located within the Klamath Project
were barred from recovering damages from the govern-
ment based upon the denial of water because of certain pro-
visions in their leases. Id. at 659.
The court turned finally to the taking and Compact
claims of the remaining plaintiffs. After examining the
facts and what it viewed to be the pertinent law, the court
held that Klamath Project operations in 2001 did not result
in takings or violate the plaintiffs’ rights under the Com-
pact because the waters retained in Upper Klamath Lake
and the waters in the Klamath River were within the scope
of federal reserved water rights for tribal fishing that were
6 These irrigation contracts were made pursuant to
the Warren Act of 1911, Pub. L. No. 61-406, 36 Stat. 925
(codified at 43 U.S.C. §§ 523–25 (2012)). Baley, 134 Fed.
Cl. at 630. They are between the United States on the one
hand, and individual water users and irrigation districts
on the other. Id. The contracts cover lands that were not
part of the Klamath Project when it was originally devel-
oped and contain language stating that water rights ac-
quired under the contracts are inferior to prior rights
reserved for the lands of the Klamath Project. Id. The
Warren Act contracts also include language immunizing
the United States from liability in the event of water short-
ages, although this language takes two different forms. Id.
at 631. The contracts with individuals and certain irriga-
tion districts include language limiting the United States’
liability for shortages caused by droughts or “other cause.”
Id. at 631–32. Contracts with other irrigation districts do
not include the “other cause” language. Id. at 631. The
Court of Federal Claims held that the claims of plaintiffs
whose Warren Act contracts included the “other cause” lan-
guage were barred. Id. at 658–59.
12 BALEY v. UNITED STATES
senior in priority to the plaintiffs’ water rights. Baley, 134
Fed. Cl. at 659–80.
Following the entry of judgment in favor of the govern-
ment on October 24, 2017, the plaintiffs timely appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).
For the reasons set forth below, we now affirm the judg-
ment of the Court of Federal Claims.
BACKGROUND
I. The Klamath Project
The Reclamation Act of 1902, Pub. L. No. 57-161, 32
Stat. 388 (codified, as amended, at 43 U.S.C. § 371 et seq.)
(“the Reclamation Act” or “the Act”) “laid the groundwork
for a vast and ambitious federal program to irrigate the
arid lands of the western states.” Grant Cty. Black Sands
Irrigation Dist. v. U.S. Bureau of Reclamation, 579 F.3d
1345, 1351 (Fed. Cir. 2009). 7 Section 8 of the Reclamation
Act requires the Secretary of the Interior to comply with
state law regarding the appropriation of water for irriga-
tion, to the extent such law is not inconsistent with federal
law. Baley, 134 Fed. Cl. at 626 (citing 43 U.S.C. § 383).
Relevant to this case, both Oregon and California fol-
low the doctrine of prior appropriation of water rights. See
Baley, 134 Fed. Cl. at 669 (citing Irwin v. Phillips, 5 Cal.
140, 143 (1855) (California); Teel Irrigation Dist. v. Water
Res. Dep’t of Or., 919 P.2d 1172, 1174 (Or. 1996) (Oregon)).
Under the prior appropriation doctrine, “diversion and ap-
plication of water to a beneficial use constitute an appro-
priation, and entitle the appropriator to a continuing right
to use the water, to the extent of the appropriation, but not
7 Prior to passage of the Reclamation Act, at least
part of the Klamath Basin was not arid land, but wetlands
or marshes that were subsequently drained and converted
to farmland pursuant to the Klamath Project.
BALEY v. UNITED STATES 13
beyond that reasonably required and actually used. The
appropriator first in time is prior in right over others upon
the same stream.” Arizona v. California, 298 U.S. 558,
565–66 (1936). “[T]he doctrine provides that rights to wa-
ter for irrigation are perfected and enforced in order of sen-
iority, starting with the first person to divert water from a
natural stream and apply it to a beneficial use (or to begin
such a project, if diligently completed).” Montana v. Wyo-
ming, 563 U.S. 368, 375–76 (2011) (citing Hinderlider v. La
Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 98
(1938); Arizona v. California, 298 U.S. at 565–66; Wyo.
Const., Art. 8, § 3). “Once such a water right is perfected,
it is senior to any later appropriators’ rights and may be
fulfilled entirely before those junior appropriators get any
water at all.” Id. at 376.
Subsequent to the passage of the Reclamation Act, on
February 22, 1905, the Oregon legislature enacted a stat-
ute (“1905 Oregon Act”) codifying a procedure to assist the
United States in appropriating water for the irrigation
works contemplated by the Act. Remand Decision, 635
F.3d at 508 (citing Or. Gen. Laws, 1905, ch. 228, § 2 (re-
pealed 1953) and Or. Gen. Laws, 1905, ch. 5, §§ 1–2); Baley,
134 Fed. Cl. at 626. Under that procedure, once an officer
of the United States filed in the office of the State Engineer
a written notice that the United States intended to use cer-
tain previously unappropriated waters, the waters were
“deemed to have been appropriated by the United States,”
provided certain deadlines for the filing of plans and con-
struction were met. Baley, 134 Fed. Cl. at 626 (quoting Or.
Gen. Laws, 1905, ch. 228, § 2). In authorizing the United
States to appropriate water for the construction of the Kla-
math Project irrigation works, “the Oregon legislature au-
thorized the United States to appropriate state water
rights pursuant to the 1905 [Oregon A]ct for the benefit of
those persons who the Reclamation Act contemplated
would put water to beneficial use.” Certification Decision,
14 BALEY v. UNITED STATES
227 P.3d at 1159; see also Remand Decision, 635 F.3d at
518 n.8.
On May 17, 1905, the United States Reclamation Ser-
vice, the predecessor to the Bureau of Reclamation, filed a
notice with the Oregon State Engineer. The notice set forth
plans for proposed works and proof of authorization for the
Klamath Project, as required by the 1905 Oregon Act. Ba-
ley, 134 Fed. Cl. at 626. The notice stated that “the United
States intends to utilize . . . [a]ll of the waters of the Kla-
math Basin in Oregon, constituting the entire drainage ba-
sins of the Klamath River and Lost River, and all of the
lakes, streams and rivers supplying water thereto or re-
ceiving water therefrom” for purposes of “the operation of
works for the utilization of water . . . under the provisions
of the . . . Reclamation Act.” Id. 8
Under the Klamath Project, water is stored in Upper
Klamath Lake by means of the Link River Dam. Water is
diverted from Upper Klamath Lake and locations down-
stream from the lake on the Klamath River and conveyed
through canals and laterals to individual users in Oregon
and California. Id. As part of this process, water is stored
and its flow is controlled using a series of dams down-
stream from the Link River Dam, which is at the south end
of Upper Klamath Lake. The last of these dams on the Kla-
math River is the Iron Gate Dam in California. The works
that divert water were constructed by the United States
between 1906 and 1966 and are currently owned by the
8 Private landowners and irrigation companies had
begun to divert water for irrigation purposes prior to the
development of the Klamath Project; most of those inter-
ests were integrated into the Klamath Project. Baley, 134
Fed. Cl. at 626.
BALEY v. UNITED STATES 15
United States. Id. 9 A map of the Klamath River Basin in
Oregon and California is provided in the Appendix.
Individual plaintiff landowners (or their lessees) have
applied water diverted from the Klamath River to irrigate
crops. Baley, 134 Fed. Cl. at 626. In this manner, they
have put Klamath Project water to beneficial use. As a re-
sult, the water became appurtenant to their land. See Cer-
tification Decision, 227 P.3d at 1163, 1169; Remand
Decision, 635 F.3d at 518. The United States “holds the
water right that it appropriated pursuant to the 1905 Ore-
gon [A]ct for the use and benefit of the landowners.” Certi-
fication Decision, 227 P.3d at 1163–64; see Remand
Decision, 635 F.3d at 518.
In 1975, Oregon began a general adjudication for the
purpose of determining surface water rights in the Kla-
math River Drainage Basin (“the Klamath Adjudication” or
“the Adjudication”). 10 Baley, 134 Fed. Cl. at 635. The Ad-
judication was undertaken pursuant to the Oregon Water
Rights Act of 1909, Or. Rev. Stat. §§ 539.005–539.240. See
id. The Adjudication covers pre-1909 state-based water
9 The operation and maintenance of all the federally-
owned works downstream of the headgates of Upper Kla-
math Lake and the operation and maintenance of works
that divert water directly from the Klamath River have
been transferred by contract to the Klamath Irrigation Dis-
trict and Tulelake Irrigation District, which distribute wa-
ter to irrigators. Baley, 134 Fed. Cl. at 626–27. Similarly,
other irrigation districts and individuals have constructed,
and own, their own diversion and delivery facilities pursu-
ant to contracts with the United States. Id.
10 An adjudication is a process through which water
rights can be quantified; i.e., quantities of water can be al-
located to holders of rights in a water source. See generally
A. Tarlock & J. Robison, Law of Water Rights and Re-
sources §§ 1.1, 7.2 (2019).
16 BALEY v. UNITED STATES
rights not previously adjudicated, as well as federal re-
served water rights. Id. Claims were filed beginning in
1990. Administrative hearings were initiated in 2001, and
on February 28, 2014, the adjudicator issued amended and
corrected versions of previous orders of determination.
Those orders are now before Oregon state courts for judicial
confirmation. Id.; see Klamath Basin General Stream Ad-
judication, Corrected Partial Order of Determination (Feb.
28, 2014), https://www.oregon.gov/OWRD/programs/Water
Rights/Adjudications/KlamathAdj/KBA_ACFFOD_07017.
PDF.
II. Tribal Fishing Rights
The Klamath Tribes, the Yurok Tribe, and the Hoopa
Valley Tribe of Native Americans (collectively, the
“Tribes”) each hold rights to take fish from water sources
on their reservations. These rights were set aside for them
when their reservations were created, as discussed in fur-
ther detail below. The Tribes’ rights are non-consumptive,
meaning that the Tribes are “not entitled to withdraw wa-
ter from the stream for agricultural, industrial, or other
consumptive uses.” United States v. Adair, 723 F.2d 1394,
1411 (9th Cir. 1983). Instead, they hold “the right to pre-
vent other appropriators from depleting the streams[’] wa-
ters below a protected level in any area where the non-
consumptive right applies.” Id.
The Klamath Tribes, which include the Klamath and
Moadoc Tribes and the Yahooskin Band of Snake Indians,
constitute a federally-recognized tribe which has hunted,
fished, and foraged in the Klamath Basin for over a thou-
sand years. Id. at 1397; see Or. Dep’t of Fish & Wildlife v.
Klamath Indian Tribe, 473 U.S. 753, 755 (1985). The basis
for the Klamath Tribes’ fishing rights is an 1864 treaty
with the United States, in which the Klamath Tribes “re-
linquished [their] aboriginal claim to some 12 million acres
of land in return for a reservation of approximately 800,000
acres” of land that abutted Upper Klamath Lake and
BALEY v. UNITED STATES 17
included several of its tributaries. Adair, 723 F.2d at
1397–98. In addition to other rights, the 1864 Treaty guar-
anteed the Klamath Tribes “the exclusive right of taking
fish in the streams and lakes, included in said reservation.”
Treaty Between the United States of Am. & the Klamath
& Moadoc Tribes & Yahooskin Band of Snake Indians, Art.
I, Oct. 14, 1864, 16 Stat. 707 (“the Klamath Treaty” or “the
1864 Treaty”). In Adair, the Ninth Circuit determined that
“one of the ‘very purposes’ of establishing the Klamath
[r]eservation was to secure to the Tribe a continuation of
its traditional hunting and fishing lifestyle.” 723 F.2d at
1408–09. 11 The Klamath Tribes’ water rights “necessarily
carry a priority date of time immemorial. The rights were
not created by the 1864 Treaty, rather, the treaty con-
firmed the continued existence of these rights.” Adair, 723
F.2d at 1414 (collecting cases).
Until 1887, the Klamath Tribes lived on their reserva-
tion under the terms of the 1864 Treaty, holding the reser-
vation land in communal ownership. Adair, 723 F.2d at
1398. In 1887, Congress passed the General Allotment Act,
24 Stat. 388. Under the General Allotment Act, approxi-
mately 25% of the reservation passed from tribal to indi-
vidual Indian ownership. Id. In 1954, Congress passed the
Klamath Termination Act, 68 Stat. 718 (codified at 25
U.S.C. §§ 564–564w (1976)) (“the Termination Act”),
largely terminating the reservation. Id. at 1398, 1411–12.
This led a large majority of tribal members to give up their
interests in tribal property for cash. Id. at 1398. However,
§ 564m(a) of the Termination Act provides that “[n]othing
in sections 564–564w of this title shall abrogate any water
11 The Adair court referred to the “Klamath Tribe,” as
opposed to the Klamath Tribes. The parties do not contend
that Adair does not apply to all the Klamath Tribes. See
Baley, 134 Fed. Cl. at 633, 670–72; Appellants’ Br. 8, 27,
30, 31; Federation’s Br. 23; United States’ Br. 22.
18 BALEY v. UNITED STATES
rights of the tribe and its members,” id. at 1412, and
§ 564m(b) specifies that the Termination Act’s provisions
will not “abrogate any fishing rights or privileges of the
tribe or the members thereof enjoyed under Federal
treaty,” Oregon Department of Fish & Wildlife, 473 U.S. at
761–62. Courts have subsequently held that the Klamath
Tribes’ hunting, fishing and implied reserved water rights
survived passage of the Termination Act. See, e.g., Adair,
723 F.2d at 1412; Mattz v. Superior Court, 758 P.2d 606,
610 (Cal. 1988); Kimball v. Callahan, 590 F.2d 768, 774–
75 (9th Cir. 1979); Kimball v. Callahan, 493 F.2d 564, 568–
69 (9th Cir. 1974).
The United States purchased parts of the former Kla-
math reservation in 1958 and 1961, in order to establish a
migratory bird refuge and in order to provide for part of the
Winema National Forest. Adair, 723 F.2d at 1398. There-
after, in 1973, the government condemned most of the re-
maining tribal land, which essentially extinguished the
original reservation. Id. The Klamath Tribes were later
restored as a federally-recognized tribe under the Klamath
Indian Tribe Restoration Act of 1986. Pub. L. No. 99-398,
100 Stat. 849.
The rights of the Yurok and Hoopa Valley Tribes, both
located in California, were secured by three presidential
Executive Orders, issued in 1855, 1876, and 1891. The
rights were confirmed by the 1988 Hoopa-Yurok Settle-
ment Act, 25 U.S.C. § 1300i et seq. See Baley, 134 Fed. Cl.
at 633–34 & n.4. Like the Klamath Tribes, the Yurok and
Hoopa Valley Tribes are federally-recognized tribes. In-
dian Entities Recognized and Eligible To Receive Services
From the Bureau of Indian Affairs, 77 Fed. Reg. 47,868,
47,869, 47,870, 47,872. The Hoopa Valley reservation is a
nearly twelve-mile square on the Trinity River at its con-
fluence with the Klamath River. See Karuk Tribe of Cali-
fornia v. Ammon, 209 F.3d 1366, 1370 (Fed. Cir. 2000). The
Yurok reservation runs along the Klamath River, one mile
on each side, from the Hoopa Valley reservation
BALEY v. UNITED STATES 19
downstream to the Pacific Ocean. See id.; Parravano v.
Babbitt, 70 F.3d 539, 542 (9th Cir. 1995). Federal and Cal-
ifornia state courts have recognized that the right of the
Yurok and Hoopa Valley Tribes to take fish from the Kla-
math River for ceremonial, subsistence, and commercial
purposes was reserved when the Hoopa Valley reservation
was created. See Baley, 134 Fed. Cl. at 634, 671; United
States v. Eberhardt, 789 F.2d 1354, 1359 (9th Cir. 1986);
People v. McCovey, 685 P.2d 687, 697 (Cal. 1984). A Janu-
ary 9, 1997 Memorandum by the Department of the Inte-
rior’s Regional Solicitors for the Pacific Southwest and
Pacific Northwest Regions recognized that the Yurok and
Hoopa Valley Tribes “hold adjudicated water rights which
vested at the latest in 1891 and perhaps as early as 1855.”
Baley, 134 Fed. Cl. at 634.
III. Events of 2001
As noted, the Klamath Project is subject to the require-
ments of the ESA. In addition, as we noted in the Remand
Decision, the Ninth Circuit has declared the rights of Kla-
math Project water users to be subservient to the require-
ments of the ESA. Remand Decision, 635 F.3d at 508
(citing Klamath Water Users Protective Ass’n v. Patterson,
204 F.3d 1206, 1213 (9th Cir. 2000)). “Pursuant to the
ESA, the Bureau has an obligation not to engage in any
action that is likely to jeopardize the continued existence of
an endangered or threatened species or result in the de-
struction or adverse modification of the critical habitat of
such a species.” Id. at 509 (citing 16 U.S.C. § 1536(a)(1)).
“As a result, the Bureau is required to perform biological
assessments to determine the impact of the diversion of
Klamath Project water for irrigation purposes upon endan-
gered and threatened species and to adjust water delivery
to minimize the impact upon the habitat of such species.”
Id. (citing 16 U.S.C. § 1536(a)(2), (c)(1)).
As the Bureau of Reclamation developed its operating
plan for the 2001 water year, forecasts from the Natural
20 BALEY v. UNITED STATES
Resources Conservation Service indicated that it would be
a “critical dry” year due to drought conditions. Baley, 134
Fed. Cl. at 637; Kandra v. United States, 145 F. Supp. 2d
1192, 1198 (D. Or. 2001) (“As of April 6, 2001, [the Bureau]
determined that inflow volume into [Upper Klamath Lake]
would be 108,000 acre feet during the period of April
through September, the smallest amount of inflow on rec-
ord.”). In response, the Bureau performed biological as-
sessments of the Klamath Project’s operations on three
species of fish that inhabit associated waters: the endan-
gered shortnose sucker; the endangered Lost River
sucker; 12 and the threatened Southern Oregon Northern
California Coast (“SONCC”) coho salmon. 13 Baley, 134
12 The shortnose and Lost River suckers were listed
as endangered in 1988. Baley, 134 Fed. Cl. at 636 (citing
Final Rule, Determination of Endangered Status for
Shortnose Sucker and Lost River Sucker, 53 Fed. Reg.
27,130 (July 18, 1988)). The Lost River and shortnose
suckers’ only habitat is Upper Klamath Lake and nearby
Project waters. Baley, 134 Fed. Cl. at 636; Pac. Coast Fed’n
of Fishermen’s Ass’ns v. U.S. Bureau of Reclamation, 138
F. Supp. 2d 1228 (N.D. Cal. 2001).
13 The SONCC coho salmon was listed as threatened
in 1997. Baley, 134 Fed. Cl. at 636 (citing Final Rule,
Threatened Status for Southern Oregon/Northern Califor-
nia Coast Evolutionary Significant Unit (ESU) of Coho
Salmon, 62 Fed. Reg. 24,588 (May 6, 1997)). SONCC coho
salmon are anadromous fish, meaning they “hatch in fresh
water, migrate to the ocean where they are reared and
reach mature size, and eventually complete their life cycle
by returning to the fresh-water place of their origin to
spawn.” Baley, 134 Fed. Cl. at 634 n.5 (quoting Washing-
ton v. Wash. State Commercial Passenger Fishing Vessel
Ass’n, 443 U.S. 658, 662 (1979), modified sub nom. Wash-
ington v. United States, 444 U.S. 816 (1979)). The Klamath
River downstream of the Iron Gate Dam in California has
BALEY v. UNITED STATES 21
Fed. Cl. at 637 (citing Klamath Irrigation Dist., 67 Fed. Cl.
at 513).
On January 22, 2001, the Bureau of Reclamation for-
warded its biological assessment regarding the SONCC
coho salmon to the NMFS, which has jurisdiction over ma-
rine and anadromous species. See id. On February 13,
2001, the Bureau also forwarded its biological assessment
regarding the shortnose and Lost River suckers to the
FWS, which has jurisdiction over terrestrial and freshwa-
ter species. See id. The Bureau requested a formal consul-
tation with both the NMFS and FWS pursuant to § 7(a)(2)
of the ESA. Also, it notified the irrigation districts they
should not divert or use Project water until the consulta-
tions were complete. Id. at 637–38. 14 On April 5, 2001, the
FWS issued a final Biological Opinion (“FWS Biological
Opinion”), concluding that the Bureau’s proposed 2001 op-
erating plan was “likely to jeopardize the continued exist-
ence of the [Lost River and shortnose] suckers and
adversely modify their proposed critical habitat.” See id.
been designated a “critical habitat” for the SONCC coho
salmon. Pac. Coast Fed’n of Fishermen’s Ass’ns, 138 F.
Supp. 2d at 1232 (quoting 64 Fed. Reg. 24,049, 24,062 (May
5, 1999)).
14 Notably, during this time period, the Federation
was involved in litigation with the Bureau in the Northern
District of California. Specifically, the Federation brought
a suit alleging, inter alia, that the Bureau had violated the
ESA by failing to consult with the NMFS concerning the
impact of the Klamath Project’s 2000 Operations Plan.
Pac. Coast Fed’n of Fishermen’s Ass’ns, 138 F. Supp. 2d at
1240. The court in that case issued an injunction on April
3, 2001, restricting the Bureau from delivering Project wa-
ter when Klamath River flows at the Iron Gate Dam
dropped below certain minimum levels, until the Bureau
complied with ESA consultation requirements. Id. at 1251.
22 BALEY v. UNITED STATES
at 638 (quoting FWS Biological Opinion, J.A. 2673). The
next day, the NMFS issued its final Biological Opinion
(“NMFS Biological Opinion”), concluding similarly that the
Project’s 2001 operating plan was “likely to jeopardize the
continued existence of SONCC coho salmon” and “to ad-
versely modify critical habitat for the SONCC coho
salmon.” Id. (quoting NMFS Biological Opinion, J.A.
2995).
As required by the ESA, 16 U.S.C. § 1536(b)(3)(A), the
FWS and NMFS Biological Opinions each included “rea-
sonable and prudent alternatives” to address the threat to
the fish. The FWS Biological Opinion proposed, among
other actions, that the Bureau “not divert water from UKL
[Upper Klamath Lake] for irrigation purposes if surface el-
evations are anticipated to go below [certain minimum lev-
els], regardless of inflow year type.” Baley, 134 Fed. Cl. at
638 (alterations in original); J.A. 2919. The NMFS Biolog-
ical Opinion’s reasonable and prudent alternative was to
operate the Project in a manner that provided certain lev-
els of minimum water releases from the Iron Gate Dam
into the Klamath River between April and September of
2001. Baley, 134 Fed. Cl. at 638; J.A. 2998–99.
On April 6, 2001, the Bureau issued a Revised 2001 Op-
erations Plan for the Klamath Project (“the Plan”). The
Plan incorporated the reasonable and prudent alternatives
set forth in the Biological Opinions. The Plan stated that,
“[d]ue to the requirements of the biological opinions and
the ESA [Endangered Species Act] and the current drought
conditions, only limited deliveries of Project water will be
made for irrigation.” Baley, 134 Fed. Cl. at 639 (second al-
teration in original); J.A. 3177. The Plan also stated:
The United States has a trust responsibility to pro-
tect rights reserved by or for federally recognized
Indian tribes by treaties, statutes and executive or-
ders. Reclamation must operate the Project
BALEY v. UNITED STATES 23
consistent with its trust obligations to the tribes in
the Klamath River Basin . . . .
...
Trust Responsibility of the United States to Feder-
ally Recognized Tribes Within the Klamath River
Basin The trust responsibility to the Klamath Ba-
sin Tribes is shared by all federal agencies that un-
dertake activities in the Klamath Basin. Fishery
and other resources in the Klamath River, Upper
Klamath Lake . . . , and nearby lakes and streams
are important tribal trust resources to the Klamath
Basin tribes. Reclamation’s Plan provides flow re-
gimes and lake levels for protection of tribal trust
resources within the limitations of the available
water supply.
...
Prior to listing of endangered and threatened spe-
cies and the increased scientific understanding of
the needs of ESA-listed species and tribal trust re-
sources, the Project was operated to optimize irri-
gation diversions . . . .
...
. . . Under the current hydrology, the [Upper Kla-
math Lake] levels and river flows under this Plan
are consistent with requirements of the ESA and
Reclamation’s obligation to protect Tribal trust re-
sources.
J.A. 3176–78. As a result, the Bureau ceased water deliv-
eries from the Project until July 2001, when it released ap-
proximately 70,000 acre-feet of water. Baley, 134 Fed. Cl.
24 BALEY v. UNITED STATES
at 640. 15 The plaintiffs’ suits in the Court of Federal
Claims followed.
IV. Prior Proceedings in the Federal Circuit
As indicated above, after the Court of Federal Claims
initially entered judgment against the plaintiffs and dis-
missed their taking, Compact, and breach of contract
claims, the plaintiffs appealed to this court. Thereafter, as
noted, in the Certification Order, we certified three ques-
tions of law to the Supreme Court of Oregon. 16 The Oregon
15 On April 9, 2001, a group of Klamath Project water
users filed a lawsuit in the United States District Court for
the District of Oregon seeking to enjoin the Bureau from
implementing the Plan. Baley, 134 Fed. Cl. at 640; see
Kandra, 145 F. Supp. 2d at 1195–96, 1199. The Kandra
plaintiffs alleged breach of contractual rights to irrigation
water, as well as violations of the ESA due to issues in the
Biological Opinions. See Kandra, 145 F. Supp. 2d at 1201–
02, 1206–11. The district court denied a preliminary in-
junction, and the case was ultimately dismissed. Id. at
1211; Baley, 134 Fed. Cl. at 640.
16 The certified questions were:
1. Assuming that Klamath Basin water for
the Klamath Reclamation Project ‘‘may be deemed
to have been appropriated by the United States’’
pursuant to Oregon General Laws, Chapter 228,
§ 2 (1905), does that statute preclude irrigation dis-
tricts and landowners from acquiring a beneficial
or equitable property interest in the water right ac-
quired by the United States?
2. In light of the [1905 Oregon] statute, do the
landowners who receive water from the Klamath
Basin Reclamation Project and put the water to
beneficial use have a beneficial or equitable prop-
erty interest appurtenant to their land in the water
right acquired by the United States, and do the
BALEY v. UNITED STATES 25
court answered those questions in the Certification Deci-
sion. 17 Following receipt of the Certification Decision, we
irrigation districts that receive water from the Kla-
math Basin Reclamation Project have a beneficial
or equitable property interest in the water right ac-
quired by the United States?
3. With respect to surface water rights where
appropriation was initiated under Oregon law prior
to February 24, 1909, and where such rights are
not within any previously adjudicated area of the
Klamath Basin, does Oregon State law recognize
any property interest, whether legal or equitable,
in the use of Klamath Basin water that is not sub-
ject to adjudication in the Klamath Basin Adjudi-
cation?
Certification Order, 532 F.3d at 1377–78.
17 The Supreme Court of Oregon answered “no” to our
first certified question and “yes” to our third certified ques-
tion. Certification Decision, 227 P.3d at 1157, 1166. The
Court’s answer to our second certified question was not de-
finitive:
2. Under Oregon law, whether plaintiffs ac-
quired an equitable or beneficial property interest
in the water right turns on three factors: whether
plaintiffs put the water to beneficial use with the
result that it became appurtenant to their land,
whether the United States acquired the water right
for plaintiffs’ use and benefit, and, if it did, whether
the contractual agreements between the United
States and plaintiffs somehow have altered that re-
lationship. In this case, the first two factors sug-
gest that plaintiffs acquired a beneficial or
equitable property interest in the water right to
which the United States claims legal title, but we
cannot provide a definitive answer to the court’s
26 BALEY v. UNITED STATES
vacated the prior decision of the Court of Federal Claims
and remanded the case to the court with instructions:
[W]e remand plaintiffs’ takings and Compact
claims for (1) determination, based on the Certifi-
cation Decision, on a case-by-case basis, of any out-
standing property interest questions; and
(2) determination on the merits, on a case-by-case
basis, of all surviving takings and Compact claims.
On remand, the Court of Federal Claims should
proceed as follows: First, it should determine, for
purposes of plaintiffs’ takings and Compact claims,
whether plaintiffs have asserted cognizable prop-
erty interests. In making that determination, the
court should direct its attention to the third part of
the three-part test set forth by the Oregon Supreme
Court in response to our certified question 2. That
is because it is not disputed that, in this case, the
first two parts of the three-part test have been met.
Specifically, the parties do not dispute that plain-
tiffs have put Klamath Project water to beneficial
use and that the United States acquired the perti-
nent water rights for plaintiffs’ use and benefit. As
far as the third part of the three-part test is con-
cerned, the court should address whether contrac-
tual agreements between plaintiffs and the
government have clarified, redefined, or altered the
foregoing beneficial relationship so as to deprive
plaintiffs of cognizable property interests for pur-
poses of their takings and Compact claims.
Remand Decision, 635 F.3d at 519.
second question because all the agreements be-
tween the parties are not before us.
Certification Decision, 227 P.3d at 1169.
BALEY v. UNITED STATES 27
V. Decision of the Court of Federal Claims on Remand
On remand, the Court of Federal Claims held a ten-day
trial. Baley, 134 Fed. Cl. at 645. As noted above, following
various pretrial rulings, what remained at issue for trial
were the plaintiffs’ claims that the Bureau of Reclamation’s
actions in 2001 constituted a taking and/or a violation of
the Klamath Compact. In its subsequent final decision, the
court began by dismissing the claims of plaintiffs whose
water rights are derived from the Van Brimmer Ditch Com-
pany. It did so because the court determined that a No-
vember 13, 2003 Order of the Court of Federal Claims
remained in effect and continued to bar the plaintiffs from
“making any claims or seeking any relief in this case based
on rights, titles, or interests that are or may be subject to
determination in the Adjudication.” Baley, 134 Fed. Cl. at
650. The court determined that the Van Brimmer Ditch
Company’s claims were based on the same water rights
that were at issue in the Klamath Adjudication. Id. at 651.
Accordingly, the court held that plaintiffs whose rights de-
rived from shares in the Van Brimmer Ditch Company
were barred from bringing claims to Klamath Project water
based on those shares. Id. at 651–52.
The Court of Federal Claims next addressed the claims
of plaintiffs who receive water under Warren Act Con-
tracts. This was in response to our instruction to “address
whether contractual agreements between plaintiffs and
the government” had “clarified, redefined, or altered” the
beneficial relationship such plaintiffs had obtained by put-
ting to beneficial use Klamath Project water “so as to de-
prive plaintiffs of cognizable property interests for
purposes of their takings and Compact claims.” Baley, 134
Fed. Cl. at 652 (quoting Remand Decision, 635 F.3d at 519).
This instruction was prompted by the third part of the Su-
preme Court of Oregon’s answer to our second certified
question noted above. The Court of Federal Claims held
that plaintiffs whose Warren Act contracts include a short-
age provision providing that the United States is immune
28 BALEY v. UNITED STATES
from liability caused “[o]n account of drought, inaccuracy
in distribution or other cause” had had their rights altered
in such a way that they were barred from seeking compen-
sation for a taking under the Fifth Amendment or for an
impairment of their rights under the Klamath Compact.
Baley, 134 Fed. Cl. at 657–59 (emphasis added). 18
Turning to plaintiffs who receive water through leases
for land in National Wildlife Refuges, the Court of Federal
Claims held such plaintiffs were barred from recovering
damages. Among other provisions, those plaintiffs’ leases
state that “the United States . . . shall not be held liable for
damages because irrigation water is not available.” Id. at
659. Because those plaintiffs’ rights were subject to this
provision and because “[t]he provision contain[ed] no lan-
guage requiring that water be unavailable due to specific
causes,” the court concluded that the claims of plaintiffs
who leased land in the National Wildlife Refuges were
barred. Id.
The Court of Federal Claims then addressed the re-
quest of the United States and the Federation to reconsider
the court’s December 21, 2016 ruling that the Bureau of
Reclamation’s 2001 actions should be analyzed under a
physical taking rubric. Baley, 134 Fed. Cl. at 660–66. The
court rejected the United States’ and the Federation’s ar-
guments, again concluding that the Bureau’s diversion of
water should be analyzed as a potential physical taking.
Id. at 663–66. In addition, expanding upon its December
21, 2016 opinion, the court concluded that the diversion of
18 The court held that plaintiffs whose contracts do
not include the “other cause” language hold beneficial
rights to receive Klamath water for which they could seek
compensation under the Fifth Amendment or the Klamath
Compact. Baley, 134 Fed. Cl. at 658.
BALEY v. UNITED STATES 29
water should be analyzed as a potential permanent physi-
cal taking. Id. at 668.
Finally, turning to the issue of tribal water rights, the
Court of Federal Claims determined those rights to be fed-
eral reserved rights. Id. at 669–70 (quoting Cappaert v.
United States, 426 U.S. 128, 138 (1976) (“[W]hen the Fed-
eral Government withdraws its land from the public do-
main and reserves it for a federal purpose, the
Government, by implication, reserves appurtenant water
then unappropriated to the extent needed to accomplish
the purpose of the reservation.”)). The water rights stem-
ming from tribal reservations established by treaties and
executive orders are “substantively the same, at least with
respect to non-federal interests,” the court observed. Id. at
670 (quoting Parravano, 70 F.3d at 545). Reserved rights,
the court stated, “represent an exception to the general rule
that allocation of water is the province of the states,” and
“need not be adjudicated only in state courts.” Id. (first
quoting F. Cohen, Handbook of Federal Indian Law (“Co-
hen”) § 19.01[1] (2012), then quoting Cappaert, 426 U.S. at
145).
The Court of Federal Claims stated that the priority
date of a tribe’s reserved rights is “no later than the date
on which a reservation was established.” Id. (quoting Co-
hen § 19.01[1]). When a treaty recognizes the continued
existence of a tribe’s water rights, as the 1864 Treaty with
the Klamath Tribes did for those tribes, the rights carry a
priority date of “time immemorial,” the court stated. Id.
(quoting Adair, 723 F.2d at 1414). Although the Yurok and
Hoopa Valley Tribes’ reserved water rights had not previ-
ously been assigned a priority date, the Court of Federal
Claims determined that the priority date for those rights
must be at least 1891, the year of the last executive order
creating the Yurok and Hoopa Valley reservations, possibly
earlier. Id. In contrast, the court noted, the United States
first posted notice that it was appropriating water for the
Klamath Project in 1905, making the plaintiffs’ priority
30 BALEY v. UNITED STATES
date 1905 at the earliest. Id. Thus, the court concluded,
the Tribes’ reserved rights are senior to those of the plain-
tiffs. Id.
Continuing, the court stated that the Klamath Tribes’
non-consumptive rights entitle them to “prevent other ap-
propriators from depleting [Upper Klamath Lake and its
tributaries’] waters below levels that would prevent them
from ‘support[ing] game and fish adequate to the needs of
Indian hunters and fishers.’” Id. at 671 (quoting Adair, 723
F.2d at 1410–11). “The Lost River and short nose suckers
are tribal resources of the Klamath Tribes and uncontested
evidence presented at trial demonstrated that the fish have
played an important role in the Klamath Tribes’ history,”
the court noted. Id. “Thus,” the court held, “the Klamath
Tribes’ aboriginal right to take fish entitles them to prevent
junior appropriators from withdrawing water from Upper
Klamath Lake and its tributaries in amounts that would
cause the extinction of the Lost River and short nose suck-
ers.” Id. (citing United States v. Anderson, 591 F. Supp. 1,
5–6 (E.D. Wash. 1982)).
Similarly, the Court of Federal Claims determined that
the SONCC coho salmon is a tribal trust resource for the
Yurok and Hoopa Valley Tribes, who hold the right to take
fish from the Klamath River for “ceremonial, subsistence,
and commercial purposes.” Id. (quoting United States v.
Eberhardt, 789 F.2d 1354, 1359 (9th Cir. 1986)). Citing
Adair, the court held that the Yurok and Hoopa Valley
Tribes, like the Klamath Tribes, hold a non-consumptive
water right that entitles them, at a minimum, to prevent
junior appropriators from withdrawing water from the Kla-
math River in amounts that would cause the endanger-
ment and extinction of the SONCC coho salmon. Id. at 672.
Rejecting the plaintiffs’ argument that, absent quanti-
fication of the Tribes’ water rights, the government could
not show that all or any portion of the water in Upper Kla-
math Lake belonged to the Tribes, the court pointed to the
BALEY v. UNITED STATES 31
FWS and NMFS Biological Opinions, which set forth min-
imum elevations in Upper Klamath Lake and minimum
flows into the Klamath River needed to avoid jeopardizing
the continued existence of the relevant fish. Id. at 673–76.
The court found the Biological Opinions to be reasoned and
credible. Id. at 676. Moreover, the court “accept[ed] the
conclusions of the FWS Biological Opinion, including that
the elevation levels for Upper Klamath Lake . . . were nec-
essary to avoid jeopardizing the continued existence of the
Lost River and shortnose suckers.” Id. Likewise, the court
“accept[ed] the conclusions of the NMFS Biological Opin-
ion, including that the release of certain minimum flows of
Klamath Project water . . . were necessary to avoid jeop-
ardizing the continued existence of the SONCC coho
salmon.” Id. Next, the court rejected the plaintiffs’ argu-
ment that the Bureau’s actions were intended solely to
meet its obligations under the ESA and were not intended
to satisfy the Bureau’s tribal trust obligations. Id. at 677.
In doing so, the court agreed with an argument set forth in
the amicus brief filed by the Klamath Tribes that the Bu-
reau’s motives are not dispositive. Id. at 678. The court
also rejected the plaintiffs’ contention that because the
Yurok and Hoopa Valley Tribes did not file a claim in the
Klamath Adjudication, they do not hold Oregon water
rights, pointing out that those tribes hold reserved rights
arising out of federal, not state, law. Id. at 679.
Concluding, the Court of Federal Claims noted that
plaintiffs had “perfected their water rights under state
law” and had “relied upon those rights” and that many
plaintiffs “were severely and negatively impacted by the
[Bureau of Reclamation]’s actions.” Id. at 679–80. The
court nonetheless held that the Bureau’s actions did not
constitute a taking of the plaintiffs’ water rights or a viola-
tion of the plaintiffs’ rights under the Compact. Id. The
court stated:
[B]ecause the Tribes held water rights to Klamath
Project water that were senior to those held by all
32 BALEY v. UNITED STATES
remaining plaintiff class members, and because
the Tribes[’] water rights were at least co-extensive
to the amount of water that was required by de-
fendant to satisfy its obligations under the [ESA]
concerning the Lost River and shortnose suckers
and the coho salmon in 2001, plaintiffs had no en-
titlement to receive any water before the govern-
ment had satisfied what it determined to be its
obligations under the [ESA] and its Tribal Trust re-
sponsibilities.
Id. The court therefore entered judgment in favor of the
government. This appeal followed. 19
DISCUSSION
I. Standard of Review and Legal Framework
We review a judgment of the Court of Federal Claims
following a trial “to determine if [it is] incorrect as a matter
of law or premised on clearly erroneous factual determina-
tions.” Stockton East Water Dist. v. United States, 761 F.3d
1344, 1349 (Fed. Cir. 2014) (quoting Dairyland Power Co-
op v. United States, 645 F.3d 1363, 1368–69 (Fed. Cir.
2011)). “We review the Court of Federal Claims’ legal con-
clusions de novo and its factual findings for clear error.”
Meridian Eng’g Co. v. United States, 885 F.3d 1351, 1354–
55 (Fed. Cir. 2018) (citing John R. Sand & Gravel Co. v.
United States, 457 F.3d 1345, 1353 (Fed. Cir. 2006), aff’d
552 U.S. 130 (2008)). “A finding may be held clearly erro-
neous when the appellate court is left with a definite and
firm conviction that a mistake has been committed.” Id. at
1355 (quoting Ind. Mich. Power Co. v. United States, 422
F.3d 1369, 1373 (Fed. Cir. 2005) (internal quotation marks,
ellipsis, and citation omitted)).
19 From this point on, we refer to the remaining plain-
tiffs as “appellants.”
BALEY v. UNITED STATES 33
The Fifth Amendment to the United States Constitu-
tion proscribes the taking of private property ‘‘for public
use, without just compensation.’’ U.S. CONST. amend. V, cl.
4. When evaluating whether governmental action consti-
tutes a taking, a court employs a two-part test. First, the
court determines whether the claimant has identified a
cognizable Fifth Amendment property interest that is as-
serted to be the subject of the taking. Second, if the court
concludes that a cognizable property interest exists, it de-
termines whether the government’s action amounted to a
compensable taking of that property interest. See Ali-
manestianu v. United States, 888 F.3d 1374, 1380 (Fed. Cir.
2018); Aviation & General Ins. Co. v. United States, 882
F.3d 1088, 1096 (Fed. Cir. 2018).
II. Overall Contentions of the Parties
On appeal, appellants argue that the Court of Federal
Claims erred in holding that their taking claims were
barred by the prior reserved water rights of the Tribes. 20
20 In addition to requesting that we vacate and re-
mand the case for a determination and award of taking
damages, appellants request, in a single sentence in their
opening brief, that we award them damages for breach of
the Klamath Compact. Appellants’ Br. 60; see also Reply
Br. 13 (alleging that, under the Compact, irrigation rights
take priority over water rights for fish and wildlife). The
Court of Federal Claims did not provide analysis regarding
appellants’ rights under the Compact separate from its
analysis of their Fifth Amendment claims. See e.g., Baley,
134 Fed. Cl. at 652–53, 680. In any event, appellants’ cur-
sory mention of the Klamath Compact is insufficient to pre-
serve any separate arguments pertaining to the Compact.
See Trading Techs. Int’l, Inc. v. IBG, LLC, 921 F.3d 1378,
1385 (Fed. Cir. 2019) (“[A] conclusory assertion with no
analysis is insufficient to preserve the issue for appeal.”);
United States v. Great Am. Ins. Co. of N.Y., 738 F.3d 1320,
34 BALEY v. UNITED STATES
Appellants also challenge the court’s determinations that
appellants who receive water under National Wildlife Ref-
uge leases and that appellants who receive water under
Warren Act contracts that limit the government’s liability
for “other cause” are barred from seeking compensation.
Appellants’ Br. 43–55. In addition, appellants challenge
the court’s dismissal of the claims of farmers whose water
rights are derived from the Van Brimmer Ditch Company.
Appellants’ Br. 55–59. 21
1328 (Fed. Cir. 2013) (“It is well established that argu-
ments that are not appropriately developed in a party’s
briefing may be deemed waived.”); SmithKline Beecham
Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006)
(“[M]ere statements of disagreement with the district court
as to the existence of factual disputes do not amount to a
developed argument.”); United States v. Zannino, 895 F.2d
1, 17 (1st Cir. 1990) (“[W]e see no reason to abandon the
settled appellate rule that issues adverted to in a perfunc-
tory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.”). We therefore de-
cline to separately address appellants’ rights under the
Klamath Compact.
21 In their opening brief, appellants assert that the
water rights deriving from the Van Brimmer Ditch Com-
pany date back to 1883, which they claim makes them sen-
ior to the “alleged 1891 Hoopa Valley and Yurok tribes’
water rights.” Appellants’ Br. 36. For its part, the govern-
ment contends that the Yurok and Hoopa Valley Tribes’
rights have priority dates of no later than 1855 and 1876,
the dates on which their land was reserved. United States’
Br. at 32 & n.3. At oral argument, however, appellants’
counsel agreed that the Van Brimmer Ditch Company ap-
pellants are “in the same situation as everyone else.” Oral
arg. 17:12–18:22 (July 8, 2019).
BALEY v. UNITED STATES 35
The government and the Federation (collectively, “ap-
pellees”) respond that the Court of Federal Claims did not
err in ruling that superior tribal rights defeated appellants’
claims. They also contend that the court did not err in its
rulings with respect to claims arising from National Wild-
life Refuge leases, claims arising from Warren Act con-
tracts containing limiting language, and claims of farmers
deriving their water rights from the Van Brimmer Ditch
Company. United States’ Br. 52–66. In addition, appellees
argue that, should we determine that the Court of Federal
Claims erred in its tribal rights ruling, we should vacate
the court’s decision and remand with the instruction that
the court analyze appellants’ claims as asserting regula-
tory, as opposed to physical, takings. Federation Br. 36–
53; United States’ Br. 70–77.
The parties state, and we agree, that we must affirm
the judgment of the Court of Federal Claims if we conclude
the court did not err in holding that, in 2001, the superior
water rights of the Tribes required that the Bureau tempo-
rarily halt deliveries of water to appellants. Oral arg.
16:18–54, 17:10–18:22 (appellants); 37:28–43 (government)
(requesting affirmance on two independent bases). 22 Ac-
cordingly, it is to the issue of tribal rights that we turn first.
III. Contentions of the Parties Regarding Tribal Rights
A.
According to the Court of Federal Claims, the rights of
appellants to Klamath Project water constitute cognizable
22 If the Tribes’ rights control over appellants’ prop-
erty interests, any taking claims asserted by appellants, as
well as appellants’ other claims, are with respect to inferior
property interests and therefore must fail. See Winters v.
United States, 207 U.S. 564, 568–70, 576–78 (1908) (hold-
ing that a tribe’s senior, federally-protected right had pri-
ority over irrigators’ junior, state-law rights).
36 BALEY v. UNITED STATES
property interests for which they may seek compensation.
And appellees do not challenge this ruling. As seen, how-
ever, the court also ruled that those property interests were
inferior to the Tribes’ non-consumptive water rights—an-
other property interest. It therefore held that appellants
could not establish their taking or Compact claims and en-
tered judgment for the government and the Federation.
Preliminarily, the parties agree that the Klamath
Tribes have federally-reserved non-consumptive water
rights to support fishing on their former reservation. Ap-
pellants’ Br. 8; Federation’s Br. 10–11; United States’ Br.
21–22. The parties also agree that the Klamath Tribes’
rights have priority to a date of “time immemorial.” Appel-
lants’ Br. 8; Federation’s Br. 10–11; United States’ Br. 21–
23. Similarly, the parties do not appear to dispute that the
Yurok and Hoopa Valley Tribes hold federally-reserved
fishing rights, impliedly created by executive order, that
permit them to take anadromous fish from waters adjacent
to their reservations. See Federation’s Br. 12–13; United
States’ Br. 23–24. 23
23 In their briefs, appellants suggest that cases from
this court lead to the conclusion that Congress did not con-
fer any property rights, including water rights, upon the
Yurok and Hoopa Valley tribes. Appellants’ Br. 27–28; Re-
ply Br. 15–16. In making this suggestion, appellants rely
upon Karuk Tribe of California v. Ammon, 209 F.3d 1366.
In that case, we held that certain individuals and tribes,
including the Yurok Tribe, did not possess vested, compen-
sable property interests in the land of the Hoopa Valley
reservation for purposes of the Fifth Amendment. Id. at
1370, 1375–76. At oral argument, appellants appear to
have conceded the existence of the water rights of the
Yurok and Hoopa Valley Tribes and to have focused their
argument on the scope of those rights. See Oral arg. at
5:40–6:16 (“[T]hey have only so much water as is necessary
BALEY v. UNITED STATES 37
B.
Appellants make three main arguments relating to
tribal rights. First, they argue that it was error for the
Court of Federal Claims to hold that, in 2001, the Tribes
held rights to an amount of water that was at least equal
to what was needed to satisfy the Bureau of Reclamation’s
ESA obligations. Appellants’ Br. 21. The ESA requires
that the Bureau not “jeopardize the continued existence” of
endangered and threatened fish. 16 U.S.C. § 1536(a)(2).
Appellants contend that the Tribes’ water rights only enti-
tled them to a catch that was adequate to support a “rea-
sonable livelihood” or a “moderate living,” as stated in
Washington v. Washington State Commercial Passenger
Fishing Vessel Association, 443 U.S. at 685, 686. Appel-
lants’ Br. 21–23. In other words, appellants argue that the
Court of Federal Claims erred by looking to a standard that
gave the Tribes more water than they were entitled to.
Continuing with this argument, appellants state that
the Klamath Tribes do not fish or use the suckers “for any
purpose today.” Id. at 25. Appellants claim that, under
to fulfill the purposes of the reservation [which] were of
course to allow for fishing . . . adjacent to the reservation
for the Hoopa and Yurok. Those were the original purposes
of the reservation.”) & 1:15:00—1:16:12 (“Did Congress re-
ally intend that [Upper Klamath Lake], 200 miles away,
which might supply . . . one percent, two percent, no per-
cent of the flows needed for the salmon runs at the Hoopa,
did Congress really intend that that would all come from
Klamath Lake and not from anywhere like say, the Trinity
River, which has flows of over a million acre-feet per
year?”). In any event, to the extent appellants maintain
this argument, we do not read Karuk Tribe as repudiating
the Yurok and Hoopa Valley Tribes’ fishing rights. See Ba-
ley, 134 Fed. Cl. at 634, 671; Eberhardt, 789 F.2d at 1359;
McCovey, 685 P.2d at 697.
38 BALEY v. UNITED STATES
Adair, the Tribes are entitled to only the amount of water
that is sufficient to support their hunting and fishing rights
as they currently are exercised. Oral arg. 6:58–10:55; Ci-
tation to Supplemental Authority Fed. R. App. P. 28(j)
(July 9, 2019). Turning to the Yurok and Hoopa Valley
Tribes, appellants state that those tribes catch sufficient
fish to sustain their “reasonable livelihood” since they har-
vest abundant chinook salmon. Appellants’ Br. 23–25. In
sum, appellants urge that the “reasonable livelihood” or
“moderate living” needs of the Tribes did not require that
the Bureau halt water deliveries to the extent required to
comply with the ESA.
Second, appellants contend that the Court of Federal
Claims erred in concluding that the Tribes have senior
rights in Klamath Project water. Appellants argue that the
Tribes’ water rights were created before the Klamath Pro-
ject and therefore do not include a right to the then non-
existent stored water produced by the Klamath Project. Id.
at 40–41. According to appellants, in Oregon Department
of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. at 768,
the Supreme Court held that the Klamath Tribes’ fishing
rights extend only to lakes and streams within the tribes’
former reservation, which did not include Upper Klamath
Lake, where Project water is stored. Id. at 26, 31–33. Ap-
pellants argue that the Court of Federal Claims misread
Adair to extend the Klamath Tribes’ right to fish to include
access to Upper Klamath Lake, since Adair dealt only with
the Klamath Tribes’ fishing rights in the Williamson River,
which, along with the Sprague River, flows into Upper Kla-
math Lake. 24 Appellants maintain there is no evidence
24 In Adair, the Ninth Circuit affirmed a decision de-
claring that the “Klamath Tribe” and its members have wa-
ter rights, with a priority date of time immemorial,
sufficient to maintain their treaty rights to hunt and fish
BALEY v. UNITED STATES 39
showing that water in Upper Klamath Lake flows up-
stream into these rivers. On these grounds, appellants as-
sert that the Klamath Tribes do not have implied rights to
the water stored in Upper Klamath Lake for purposes of
the Klamath Project.
As far as the Yurok and Hoopa Valley Tribes are con-
cerned, appellants argue that the tribes have waived any
rights they have to Klamath Project water because they de-
clined to participate in the Klamath Adjudication. In addi-
tion, appellants contend, because the reservations of those
tribes lie approximately 200 miles downstream of Upper
Klamath Lake, Klamath Project water is not “appurte-
nant” to their reservations, as required by Winters v.
United States, 207 U.S. 564 (1908). Appellants’ Br. 26–30.
In Winters, the United States brought suit to enjoin up-
stream irrigators from constructing or maintaining dams
on the Milk River, or from otherwise preventing the water
of the river or its tributaries from flowing downstream to
the Fort Belknap Indian Reservation in Montana. 207 U.S.
at 565. Although there was no express reservation of the
river’s water in the 1888 agreement creating the reserva-
tion, the Supreme Court noted that it was the “policy” of
the government and the “desire of the Indians” to become
“a pastoral and civilized people” and that, without the river
water to irrigate the land of the reservation, the land would
be “practically valueless.” Id. at 576. Noting that “[b]y a
rule of interpretation of agreements and treaties with the
Indians, ambiguities occurring will be resolved from the
standpoint of the Indians,” the Court affirmed the perma-
nent injunction of the district court that prevented the ir-
rigators from interfering with the water flow needed by the
reservation. Id. at 576–78. The Supreme Court has
in the Williamson River watershed on the former Klamath
reservation. 723 F.2d at 1397, 1415.
40 BALEY v. UNITED STATES
subsequently restated this “Reserved-Water-Rights Doc-
trine” as follows:
This Court has long held that when the Federal
Government withdraws its land from the public do-
main and reserves it for a federal purpose, the Gov-
ernment, by implication, reserves appurtenant
water then unappropriated to the extent needed to
accomplish the purpose of the reservation.
Cappaert, 426 U.S. at 138. Cases refer to these reserved
water rights as Winters rights. Crow Creek Sioux Tribe v.
United States, 900 F.3d 1350, 1352, 1355–56 (Fed. Cir.
2018); Navajo Nation v. Dep’t of the Interior, 876 F.3d 1144,
1155 (9th Cir. 2017); see Arizona v. California, 373 U.S.
546, 600 (1963) (“The Court in Winters concluded that the
Government, when it created that Indian Reservation, in-
tended to deal fairly with the Indians by reserving for them
the waters without which their lands would have been use-
less.”).
Appellants’ argument is that the distance of their re-
spective reservations from Upper Klamath Lake prevents
the Yurok and Hoopa Valley Tribes from claiming Winters
rights with respect to Klamath Project water. Any re-
served rights intended for those tribes, appellants contend,
would have been in the closer Lower Klamath Basin or
Trinity River. Appellants’ Br. 28–30.
Third, appellants argue that the Court of Federal
Claims erred in several respects regarding the exercise of
the Tribes’ rights. Appellants’ Br. 33–43. Specifically, ac-
cording to appellants, the Bureau of Reclamation should
not have taken unilateral action in response to the FWS
and NMFS Biological Opinions, but instead should have
sought a “judicial determination regarding the existence,
location, quantity, source, and lawful purposes of the water
rights [at issue], which had not occurred by 2001.” Id. at
39. In making this argument, appellants cite Section 8 of
the Reclamation Act, which states that the Bureau is to
BALEY v. UNITED STATES 41
distribute water “in conformity with [state] laws.” See 43
U.S.C. § 383. The “state” law to which appellants point is
Or. Rev. Stat. § 540.045(4) (2017). In further support of
their argument, appellants cite United States v. Puerto
Rico, 287 F.3d 212 (1st Cir. 2002). Relatedly, appellants
contend that the Yurok and Hoopa Valley Tribes waived
their water rights because they did not participate in the
Klamath Adjudication. Appellants Br. 30. In addition, ap-
pellants urge that the water of parties with rights junior to
the Klamath farmers and irrigators should have been cur-
tailed first, in reverse order of priority, to satisfy any senior
rights of the Tribes. Appellants’ Br. 33–36. Finally, relying
on Gros Ventre Tribe v. United States, 469 F.3d 801 (9th
Cir. 2006), appellants argue that the Bureau’s compliance
with the ESA “discharged any trust responsibility it had to
the tribes.” Appellants’ Br. 41. Appellants assert that
“[b]ecause the Government’s fiduciary duty attached only
to tribal property that it holds in trust, [the Bureau of] Rec-
lamation lacked any authority to withhold Klamath farm-
ers’ water in 2001 to satisfy a nonexistent Hoopa/Yurok
water right in Klamath Project water, nor an as-yet-unde-
termined and unquantified Klamath Tribes’ water right.”
Id. at 42. 25
C.
In response to appellants’ first argument, appellees
contend that the minimum lake and flow levels the Bureau
of Reclamation imposed in the Plan were critical to the
25 Appellants also contend that the Court of Federal
Claims failed to address the rights of two entities, the Kla-
math Drainage District and the Klamath Hills District Im-
provement Company, whom they assert hold state water
rights for irrigation independent of the Klamath Project.
Appellants’ Br. 42–43. Those entities are no longer parties
to these proceedings, however. Therefore, this issue is
moot.
42 BALEY v. UNITED STATES
survival of the relevant fish, and therefore within the
Tribes’ federal reserved rights. Indeed, appellees argue,
avoiding jeopardy under the ESA is a lower threshold than
the “reasonable livelihood,” or “moderate living,” standard
for tribal trust resources. Federation’s Br. 17–18. Appel-
lees contend that the Klamath Tribes’ reserved rights are
based on the historical circumstances surrounding the im-
portance of the suckers to the tribes’ diets. That the Kla-
math Tribes no longer harvest suckers is irrelevant,
appellees assert, as the tribes’ inability to harvest the suck-
ers is because of ESA restrictions and population loss due
in part to the Klamath Project. Appellees also contend
that, in the Court of Federal Claims, appellants presented
no evidence that lower flow levels in the Klamath River
would protect the chinook salmon, which are also declining
in population, so as to afford the Yurok and Hoopa Valley
Tribes a “reasonable livelihood” or “moderate living.”
United States’ Br. 41–42.
Second, appellees respond that the Court of Federal
Claims correctly found that the retained waters of Upper
Klamath Lake and the Klamath River are within the scope
of federal reserved rights of the Tribes. Federation’s Br. 8–
13; United States’ Br. 33, 34–39. According to appellees,
the 1864 Klamath Treaty reserved rights in water neces-
sary to fulfill the fishing-related purposes of the Klamath
Tribes’ reservation, and this reservation of rights extends
to water in Upper Klamath Lake. Appellees point to the
FWS Biological Opinion as demonstrating that Upper Kla-
math Lake provides critical habitat for suckers that popu-
late the fisheries on the former Klamath reservation.
United States’ Br. 36. Similarly, appellees contend, in re-
serving lands for the purpose of preserving tribal subsist-
ence fishing, the United States reserved sufficient flow of
the Klamath River to preserve adequate habitat for salmon
for the benefit of the Yurok and Hoopa Valley Tribes. Fed-
eration’s Br. 12–13; United States’ Br. 37–39. Further,
once established, the Tribes’ rights exist, appellees urge,
BALEY v. UNITED STATES 43
even if the Klamath Project was developed at a later point
in time. Federation’s Br. 9–10.
Third, appellees contend that the Tribes’ federal re-
served rights need not be quantified or adjudicated to be
enforced. Federation’s Br. 18–20; United States’ Br. at 46–
49. This requirement, appellees contend, pertains to state
rights, not federal reserved rights. Appellees argue that
state adjudications are limited to waters within a state and
cannot encompass water rights to bodies of water that run
through other states. For that reason, appellees claim, the
California-based Hoopa Valley and Yurok Tribes could not
have waived their federal reserved water rights by failing
to participate in Oregon’s Klamath Adjudication. Federa-
tion’s Br. 21–22; United States’ Br. at 48–49.
IV. Analysis
As the Court of Federal Claims noted, it is well-estab-
lished that the creation of a tribal reservation carries an
implied right to unappropriated water “to the extent
needed to accomplish the purpose of the reservation.” Ba-
ley, 134 Fed. Cl. at 669–70 (quoting Cappaert, 426 U.S. at
138); Crow Creek Sioux Tribe v. United States, 900 F.3d
1350, 1352, 1356 (Fed. Cir. 2018); see also United States v.
New Mexico, 438 U.S. 696, 702 (1978) (“Where water is nec-
essary to fulfill the very purposes for which a federal reser-
vation was created, it is reasonable to conclude, even in the
face of Congress’ express deference to state water law in
other areas, that the United States intended to reserve the
necessary water.”). Relevant to this case, courts have con-
cluded that the purposes of the Tribes’ reservations were to
secure to the Tribes a continuation of their traditional
hunting and fishing lifestyle. Adair, 723 F.2d at 1408–09
(Klamath); Parravano, 70 F.3d at 546 (Yurok and Hoopa
Valley).
We are not persuaded by appellants’ argument that the
Tribes’ entitlement to a “reasonable livelihood” or “moder-
ate living” did not require that the Bureau halt water
44 BALEY v. UNITED STATES
deliveries to the extent required to comply with the ESA.
Beginning with the suckers and the Klamath Tribes, ap-
pellants have not argued that the Court of Federal Claims
erred when it found that the “Lost River and short nose
suckers are tribal resources of the Klamath Tribes and un-
contested evidence presented at trial demonstrated that
the fish have played an important role in the Klamath
Tribes’ history.” Baley, 134 Fed. Cl. at 671. Given that the
standard of the ESA is to avoid jeopardizing the existence
of the suckers, we do not see how, in this case, the “reason-
able livelihood” or “moderate living” standard constitutes a
standard lower than the requirement that the very exist-
ence of this important tribal resource not be placed in jeop-
ardy.
We also do not agree with appellants that the Klamath
Tribes have no rights to the suckers because they do not
fish or use the suckers “for any purpose today.” That the
Tribes do not use endangered species cannot be held
against them. In fact, as appellants point out, if the Kla-
math Tribes’ members were to take the endangered suck-
ers, they would be committing a federal offense. Reply Br.
7 & n.23 (quoting 16 U.S.C. § 1538(a)(1)(B)). It does not
follow that by not fishing the endangered suckerfish, the
Klamath Tribes have abandoned their rights to fish them.
See Navajo Nation, 876 F.3d at 1155 (“Winters rights, un-
like water rights gained through prior appropriation, are
not lost through non-use.”) (citing Colville Confederated
Tribes v. Walton, 647 F.2d 42, 51 (9th Cir. 1981)).
Similarly, that the Yurok and Hoopa Valley Tribes
catch significantly more chinook salmon than SONCC coho
salmon does not necessarily mean that they can sustain a
“reasonable livelihood” or “moderate living” through the
chinook salmon alone. 26 This is particularly true since the
26 The amicus brief of the Hoopa Valley Tribe asserts
that “[e]ven the comparatively larger Chinook harvests in
BALEY v. UNITED STATES 45
NMFS Biological Opinion indicates that the habitat needs
of the chinook and SONCC coho salmon are similar and
that “populations of chinook salmon . . . have declined to
levels that have warranted their consideration for listing.”
J.A. 2983. Indeed, the NMFS Biological Opinion also indi-
cates that the Bureau’s proposed 2001 operating plan to
continue operating the Klamath Project would have re-
duced the spawning habitat for the chinook salmon. J.A.
2963, 2988, 2995. Moreover, appellants do not dispute the
importance of salmon, generally, to the Yurok and Hoopa
Valley Tribes. 27 Thus, we do not see how the requirement
that these tribes maintain a “reasonable livelihood” or a
“moderate living” from the fish can possibly be a lesser
2000–2001 cited by Plaintiff-Appellants equate to only 3 to
4 fish annually per member.” Amicus Br. of Hoopa Valley
Tribe Supporting Defendants-Appellees and Affirmance at
21 n.7.
27 The Court of Federal Claims cited Parravano with
respect to the general importance of salmon fisheries to the
Yurok and Hoopa Valley tribes. Baley, 134 Fed. Cl. at 671.
In Parravano, the Ninth Circuit determined that the Sec-
retary of Commerce had authority under the Magnuson
Fishery Conservation and Management Act, 16 U.S.C.
§ 1801 et seq., to reduce the ocean harvest rate of chinook
salmon by non-tribal commercial fishermen and fishing as-
sociations to protect the Yurok and Hoopa Valley Tribes’
federally-reserved fishing rights. 70 F.3d at 541, 547. Par-
ravano was decided in 1995; the coho salmon was identified
as being a threatened species in 1997. The Final Rule list-
ing the SONCC coho salmon as “threatened” indicates that
the population of SONCC coho salmon had been in decline
for years. See generally 62 Fed. Reg. 24,588. According to
the Final Rule, “[d]ue to concerns over declining population
status, directed harvest of coho salmon has been elimi-
nated since 1994.” Id. at 24,604.
46 BALEY v. UNITED STATES
standard than the requirement that the SONCC coho
salmon’s very existence not be placed in jeopardy.
It is not necessary for us to determine the amount of
fish that would constitute a “reasonable livelihood” or a
“moderate living” for the Tribes. At the bare minimum, the
Tribes’ rights entitle them to the government’s compliance
with the ESA in order to avoid placing the existence of their
important tribal resources in jeopardy. We therefore reject
appellants’ argument that the Court of Federal Claims
erred when it held that the Tribes had rights to an amount
of water that was at least equal to what was needed to sat-
isfy the Bureau of Reclamation’s ESA obligations.
We turn now to appellants’ second main argument
noted above: that there are geographic limitations on the
Tribes’ rights that exclude Upper Klamath Lake, and ac-
cordingly Klamath Project water, from the reach of those
rights.
The record on appeal is not clear as to whether the Kla-
math Tribes’ fishing rights include the right of tribe mem-
bers to take fish from Upper Klamath Lake while they
stand on former reservation lands. At the same time, ap-
pellants are correct that we do not have evidence before us
establishing that water from Upper Klamath Lake flows
upstream into the Williamson and Sprague rivers. How-
ever, there is evidence before us establishing that the Lost
River and shortnose suckers do travel upstream from Up-
per Klamath Lake into its tributaries. For example, in Ba-
ley, the Court of Federal Claims relied upon the
Determination of Endangered Status for Shortnose Sucker
and Lost River Sucker, which states:
The present or threatened destruction, modifica-
tion, or curtailment of its habitat or range. Initial
biological surveys of the Klamath Basin indicated
the presence of large populations of fishes, and
suckers in particular. Spawning runs of suckers
from Upper Klamath Lake were large enough to
BALEY v. UNITED STATES 47
provide a major food source for Indians and local
settlers. The shortnose sucker and Lost River
sucker were staples in the diet of the Klamath In-
dians for thousands of years. . . . Even through the
1960’s and 1970’s, runs of suckers moving from Up-
per Klamath Lake up into the Williamson and
Sprague Rivers were great enough to provide a ma-
jor sport fishery that annually attracted many peo-
ple from throughout the West. The primary species
was the larger Lost River sucker, locally known as
mullet, but significant numbers of shortnose suck-
ers also occurred in the runs. During the past
years, however, [t]he Klamath Tribe and local biol-
ogists have been so alarmed by the population de-
cline of both suckers that in 1987, the Oregon Fish
and Wildlife Commission closed the fishery for both
species and place[d] them on the State’s list of pro-
tected species.
53 Fed. Reg. at 27,130 (emphasis added, citations omitted);
see Baley, 134 Fed. Cl. at 636; FWS Biological Opinion,
§ III, Part 2, p.44, J.A. 2820 (noting spawning runs of the
Lost River suckers in the Williamson and Sprague Rivers).
As noted, the Klamath Tribes have an implied right to
water to the extent necessary for them to accomplish hunt-
ing, fishing, and gathering on the former reservation, a pri-
mary purpose of the Klamath reservation. See Adair, 723
F.2d at 1408–09. This entitlement includes the right to
prevent appropriators from utilizing water in a way that
depletes adjoined water sources below a level that damages
the habitat of the fish they have a right to take. Id. While
the Klamath Project did not exist at the time of the creation
of the Klamath Tribes’ reservation, Upper Klamath Lake
undisputedly did exist at that time, as it was the boundary
of the reservation as it was created. See Klamath Treaty,
Art. I, 16 Stat. 707. The FWS Biological Opinion indicated
that maintaining minimum levels in Upper Klamath Lake
was “necessary to avoid jeopardy and adverse modification
48 BALEY v. UNITED STATES
of proposed critical habitat” for the suckers. J.A. 2920. Ap-
pellants do not challenge the findings of the FWS Biological
Opinion. Thus, given the facts of record, the Court of Fed-
eral Claims did not err in finding that the Klamath Tribes’
implied water rights include Upper Klamath Lake.
As seen above, appellants cite Oregon Department of
Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. at 768,
for the proposition that “[t]he Supreme Court has ruled
that the Klamath Tribes’ treaty fishing right extends only
to lakes and streams within the Tribes’ former reserva-
tion.” Appellants’ Br. 31. Accordingly, and because the
Klamath Project and its additional stored water did not ex-
ist in 1864, appellants contend that the Court of Federal
Claims “lacked any basis, in law or in fact, to declare a wa-
ter right for the Tribes in Upper Klamath Lake.” Id. Ore-
gon Department of Fish & Wildlife does not stand for the
broad proposition that appellants assert, however. The
case did not involve water rights on the Klamath Tribes’
former reservation. Rather, the question before the Court
was whether the tribes retained hunting and fishing rights
on land the tribes had ceded to the United States from the
reservation under a 1901 agreement. See 473 U.S. at 764.
Even if the Klamath Tribes’ fishing rights extend only
to lakes and streams within their former reservation, this
does not mean their reserved water right is so limited. See
John v. United States, 720 F.3d 1214, 1230 (9th Cir. 2013)
(“No court has ever held that the waters on which the
United States may exercise its reserved water rights are
limited to the water within the borders of a given federal
reservation.”). Winters itself makes this clear. 207 U.S. at
568, 576–77. In addition, in Cappaert, the United States
had reserved Devil’s Hole Monument, which included an
underground pool that was the only habitat for a type of
desert pupfish, for the purpose of preserving the pool. 426
U.S. at 131–32, 141. The Supreme Court held that the
United States could enjoin the pumping of groundwater at
a ranch two and a half miles from Devil’s Hole. Id. at 133,
BALEY v. UNITED STATES 49
147. In reaching this conclusion, the Court held that the
“Reserved-Water-Rights Doctrine” was not limited to sur-
face water and could be extended to groundwater as it is
“based on the necessity of water for the purpose of the fed-
eral reservation.” Id. at 142–43. Likewise, water outside
the Klamath Tribes’ former reservation is necessary for the
purposes of the tribes’ reservation—to secure to the Tribes
a continuation of their traditional hunting and fishing life-
styles.
Relatedly, we do not agree with appellants that the ge-
ography of the Klamath Basin and the distance between
Upper Klamath Lake and the Yurok and Hoopa Valley
Tribes’ reservations mean that Klamath Project water is
not subject to those tribes’ reserved water rights. It is true
that, downstream from Upper Klamath Lake, between the
Iron Gate Dam and the Hoopa Valley reservation (and sub-
sequently, the Yurok reservation) there are other water
sources. Specifically, the Trinity River joins the Klamath
River at the Hoopa Valley reservation, and there are sev-
eral other tributaries to the Klamath River along the way.
However, appellants’ focus on the distance between the
tribes’ reservations, on the one hand, and the Project water
in Upper Klamath Lake and Iron Gate Dam, on the other
hand, is misplaced. In Winters, the Supreme Court held
that the 1888 treaty that established the Fort Belknap res-
ervation had also impliedly reserved water that was being
diverted upstream from the reservation. 207 U.S. at 576–
77; see also Cappaert, 426 U.S. at 133, 147. Not only does
the Klamath River flow from Upper Klamath Lake through
the Yurok and Hoopa Valley Tribes’ reservations, 28 but the
28 Although it is difficult to ascertain the position of
the Klamath River as it relates to the Hoopa Valley reser-
vation in the pertinent maps in the record, e.g., J.A. 3182,
the amicus brief of the Hoopa Valley Tribe asserts that the
Klamath River flows through the Hoopa Valley
50 BALEY v. UNITED STATES
river’s very path defines the borders of the Yurok reserva-
tion. Moreover, as set forth in the NMFS Biological Opin-
ion, the varying water flows at Iron Gate Dam were
designed to provide suitable habitat, and adequate water
temperatures and quality, to avoid the likelihood of jeop-
ardizing the existence of the SONCC coho salmon. They
also were designed to avoid the destruction or adverse mod-
ification of the critical habitat of the coho salmon. Thus,
while the fish may be taken by members of the Yurok and
Hoopa Valley Tribes as they stand on their reservations,
the habitat of the coho salmon includes waters both down-
stream from the reservations and also upstream from the
reservations to the Iron Gate Dam. The dam is the stop-
ping point for the salmon’s spawning migration because
there is no way for the fish to pass through the dam. J.A.
2109–10, J.A. 2616. In addition, the dam controls the wa-
ter of the Klamath River that flows to it from Upper Kla-
math Lake. As it is the habitat for the salmon they fish,
and as it flows through their reservations, the Yurok and
Hoopa Valley Tribes have an implied water right that in-
cludes the Klamath River and the flows therein as con-
trolled by the Iron Gate Dam. 29
reservation. Amicus Br. of Hoopa Valley Tribe Supporting
Defendants-Appellees and Affirmance at 1. Appellants do
not state otherwise.
29 Appellants argue that “[t]he Court of Federal
Claims . . . made no finding to support a conclusion that the
amount of water Reclamation released to maintain in-
stream flows was necessary to fulfill the salmon-fishing
rights of the Hoopa and Yurok Tribes.” Reply Br. 3. How-
ever, as noted above, the court based its conclusion on the
reasoning laid out by the NMFS Biological Opinion, which
indicated that a reasonable and prudent alternative was to
operate the Project in a manner that provided certain lev-
els of minimum water releases into the Klamath River
BALEY v. UNITED STATES 51
We thus conclude that the Court of Federal Claims did
not err when it determined that the Tribes’ reserved water
rights encompass Klamath Project water. We turn now to
the question of whether the Tribes’ rights were properly ex-
ercised.
As noted, appellants contend that it was contrary to
Oregon law, specifically, Or. Rev. Stat. § 540.045(4), and
thus the Reclamation Act, for Klamath Project water to be
“delivered” to anyone other than the Klamath farmers
without there first being a final adjudication and quantifi-
cation. Appellants’ Br. 38–40. We disagree.
To begin with, the statute appellants cite simply de-
fines the term “existing water rights of record,” as it relates
to water to be distributed by a water district’s watermas-
ter, to include “all completed permits, certificates, licenses
and ground water registration statements filed under [Or.
Rev. Stat. § 537.605] and related court decrees.” Or. Rev.
Stat. § 540.045(1), (4); see also Or. Rev. Stat. §§ 540.010
(stating that the state shall be divided into water districts),
540.020 (explaining that each water district shall have an
appointed watermaster). We fail to see how this statute
relates to the issue of tribal rights that is before us in this
case.
More importantly, federal courts have consistently
held that tribal water rights arising from federal reserva-
tions are federal water rights not governed by state law.
Arizona v. California, 373 U.S. at 597; see also Cappaert,
426 U.S. at 145; Colville Confederated Tribes v. Walton, 752
F.2d 397, 400 (9th Cir. 1985).
between April and September of 2001 that, in NMFS’s
judgment, would be “sufficient to avoid jeopardizing the
species.” J.A. 2997–99. We see no clear error in this fac-
tual determination.
52 BALEY v. UNITED STATES
As the “volume and scope of particular reserved
rights . . . are federal questions,” Colorado River Water
Conservation District v. United States, 424 U.S. 800, 813
(1976), there is no need for a state adjudication to occur
before federal reserved rights are recognized. See Agua Ca-
liente Band of Cahuilla Indians v. Coachella Valley Water
Dist., 849 F.3d 1262, 1272 (9th Cir. 2017) (“[S]tate water
rights are preempted by federal reserved rights.”). Thus,
given the facts of record in this case, it was not necessary
for the Tribes’ rights to have been adjudicated before the
Bureau acted. 30
30 In support of their argument that parties whose
water rights are junior to theirs should have been curtailed
first, appellants point us to websites for executing water
rights queries directed to Oregon’s Water Resource Depart-
ment and to the California State Water Resource Control
Board. Appellants’ Br. 34 nn.131 & 132. A user selecting
the relevant time period for the Klamath Basin watersheds
on these websites is presented with lists of over a thousand
entities claiming water rights. Given that there are hun-
dreds of plaintiffs in this case, to determine (1) which enti-
ties were junior to which appellants, and (2) the basis for
those entities’ junior status, is beyond the purview of this
court, particularly when it is not clear from the record that
this information was before the Court of Federal Claims.
See Pullman-Standard v. Swint, 456 U.S. 273, 291–92
(1982) (“[A] Court of Appeals should not . . . resolve[] in the
first instance [a] factual dispute which [was not] considered
by the District Court.”) (citing DeMarco v. United States,
415 U.S. 449, 450 n.* (1974)).
Further, given the ongoing, unfinished status of the
Klamath Adjudication in 2001, we see no reason for the Bu-
reau to have curtailed junior users’ water before curtailing
appellants’ water, particularly when it is not evident that
BALEY v. UNITED STATES 53
Appellants’ reliance on United States v. Puerto Rico is
misplaced. Puerto Rico involved the McCarran Amend-
ment, 43 U.S.C. § 666, a law that waived the sovereign im-
munity of the United States in suits for the general
adjudication or administration of water rights. 287 F.3d at
213. The issue before the court was whether the statute
divested the United States of its sovereign immunity so as
to compel the United States Navy to participate in admin-
istrative proceedings concerning the Commonwealth of
Puerto Rico’s efforts to impose restrictions on the extrac-
tion of water from the Rio Blanco River. Id. The court held
that the McCarran Amendment did not waive sovereign
immunity with respect to the proceedings because the pro-
ceedings did not involve a “suit” within the meaning of the
McCarran Amendment. Id. at 214. In arriving at its deci-
sion, the court discussed United States v. Oregon, 44 F.3d
758 (9th Cir. 1994), relied upon by Puerto Rico. In that
case, the court considered a statutory scheme having both
administrative and judicial components. Oregon, 44 F.3d
at 767. The Puerto Rico court found that the Oregon law
in that case “construct[ed] a seamless proceeding, pos-
sessing both administrative and judicial components. 287
F.3d at 219 (citing Oregon, 44 F.3d at 764). Puerto Rico’s
administrative scheme, the court determined, did not “es-
tablish a seamless process with both administrative and
judicial components. Rather, it contemplates a purely ad-
ministrative proceeding.” Id. We are unable to see how
Puerto Rico is pertinent to this case.
Nor do we believe that the Yurok and Hoopa Valley
Tribes waived their rights because they did not participate
in the Klamath Adjudication. For the reasons discussed
above, their rights are federal reserved water rights not
governed by state law. Moreover, states have the ability to
doing so would have been sufficient to satisfy the Tribes’
reserved water rights.
54 BALEY v. UNITED STATES
adjudicate rights in a water or river system within their
jurisdiction, but they cannot adjudicate water rights in an-
other state. United States v. Dist. Court for Eagle County,
Colo., 401 U.S. 520, 523 (1971) (“No suit by any State could
possibly encompass all of the water rights in the entire Col-
orado River which runs through or touches many states.
The ‘river system’ must be read as embracing one within
the particular State’s jurisdiction.”). Thus, the Yurok and
Hoopa Valley Tribes’ lack of participation in the state of
Oregon’s Klamath Adjudication did not preclude their en-
titlement to water that flows in the Klamath River below
the Iron Gate Dam in California.
Finally, we are not persuaded by appellants’ argument,
relying upon Gros Ventre v. United States, that the Bureau
of Reclamation lacked authority in 2001 to withhold Kla-
math Project water. In the first place, as noted above, in
making this argument, appellants refer to “a nonexistent
Hoopa/Yurok water right in Klamath Project water” and
“an as-yet-undetermined and unquantified Klamath
Tribes’ water right.” As just seen, however, the Yurok and
Hoopa Valley Tribes did in fact have reserved rights in Kla-
math Project water, while the Klamath Tribes also had re-
served rights in Klamath Project water. Furthermore, as
we have just demonstrated, none of these rights had to be
quantified. Beyond that, appellants’ reliance on Gros Ven-
tre is misplaced. In that case, the Ninth Circuit determined
that the Gros Ventre Tribe, Assiniboine Tribe, and Fort
Belknap Indian Community Council did not have a cause
of action for breach of the government’s tribal trust obliga-
tions separate from any cause of action arising from a stat-
utorily granted right. 469 F.3d at 807, 809–14. Here, the
Bureau’s actions to comply with the ESA and to protect
tribal resources were one and the same. Whether the
Tribes would have had a separate cause of action against
the United States had the Bureau not complied with the
ESA is not before us.
BALEY v. UNITED STATES 55
In sum, given the facts of this case, the federal reserved
rights of the Tribes need not have been adjudicated or
quantified before they were asserted to protect the Tribes’
fishing rights.
CONCLUSION
For the foregoing reasons, we agree with the Court of
Federal Claims that appellants’ water rights were subordi-
nate to the Tribes’ federal reserved water rights. We there-
fore see no error in the court’s holding that the Bureau of
Reclamation’s action in temporarily halting deliveries of
Klamath Project water in 2001 did not constitute a taking
of appellants’ property. Because the parties agree this rul-
ing is dispositive of the case, we need not reach appellants’
remaining arguments on appeal noted above. 31
AFFIRMED
COSTS
Each party shall bear its own costs.
31 In addition, in view of our disposition of the case, it
is not necessary for us to address appellees’ argument that
the Court of Federal Claims erred in employing a physical,
instead of a regulatory, taking analysis. We therefore ex-
press no view on the issue.
56 BALEY v. UNITED STATES
APPENDIX
U.S. Fish & Wildlife Serv., Map of the Klamath River Basin
(2003), available at https://www.fws.gov/yreka/Maps/Kla-
mathRvBasinV4.jpg.