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-cv19406-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-cv19414-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 Anderson 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., 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., All Plaintiffs. Also represented by NANCIE 

GAIL MARZULLA. Plaintiffs-appellants John Anderson 

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., 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 Fishermen's Associations. Also represented by STEPHANIE 

KATHLEEN TSOSIE. 

 CHARLES T. DUMARS, Law & Resource Planning Associates, 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, DelanoEarlimart Irrigation District, Exeter Irrigation District, 

Ivanhoe Irrigation District, Lindmore Irrigation District, 

Lindsay-Strathmore Irrigation District, Lower Tule River 

Irrigation District, Orange Cove Irrigation District, Porterville 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 Conservation District, Tea Pot Dome Water District, Fresno Irrigation District, Friant Water Authority. 

 DANIEL LUCAS, Office of the Attorney General, California Department of Justice, Los Angeles, CA, for amicus curiae 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, Portland, OR, for amici curiae Oregon Farm Bureau Federation, California Farm Bureau Federation, Idaho Farm 

Bureau Federation, New Mexico Farm and Livestock Bureau, Colorado Farm Bureau, Nevada Farm Bureau, Utah 

Farm Bureau Federation, Wyoming Farm Bureau Federation. 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, Salem, OR, for amicus curiae State of Oregon. Also represented by BENJAMIN N. GUTMAN, ELLEN F. ROSENBLUM. 

 ROBERT T. ANDERSON, University of Washington School 

of Law, for amici curiae Robert T. Anderson, Reed D. Benson, Michael C. Blumm, Barbara Cosens, Sarah Krakoff, 

John D. Leshy, Monte Mills, Joseph William Singer, A. Dan 

Tarlock, Charles F. Wilkinson, Jeanette Wolfley. Amici curiae 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. Glicksman, 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 Royalton, 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 reclamation 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 Project, and the Klamath River. The Klamath River rises at 

the south end of Upper Klamath Lake and flows from Oregon into California. The river eventually enters the Pacific 

Ocean near Klamath, California. The Project supplies water 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 Interior’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 deliveries 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 District v. United States, No. 1:01-cv-00591. In their second 

amended complaint, filed on January 31, 2005, the plaintiffs alleged that the Bureau of Reclamation’s action in 

temporarily halting their water deliveries in 2001 constituted a taking of their water rights without just compensation, 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 Compact”).1 The plaintiffs further alleged that the Bureau’s action breached certain water delivery contracts they had 

 

1 The Klamath Compact is a congressionally-approved 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 comprehensive development, use, conservation, and control [of 

the water resources of the Klamath River Basin] for various purposes” and to “further intergovernmental cooperation 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 irrigation purposes] within the Upper Klamath River Basin.” 

Id. at 507. However, this obligation is limited to rights acquired 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 immunities afforded under Federal treaty, agreement or statute.” 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 plaintiffs’ 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 plaintiffs’ breach of contract claims. See generally Klamath Irrigation 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 certified three questions to the Oregon Supreme Court. The 

questions related to the plaintiffs’ water rights under Oregon law. See Klamath Irrigation Dist. v. United States, 532 

F.3d 1376 (Fed. Cir. 2008) (“Certification Order”). We issued 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 Fishermen’s Associations (“the Federation”) to intervene as a 

defendant. Klamath Irrigation Dist. v. United States, 64 

Fed. Cl. 328, 331 (2005). The Federation represents approximately 3,000 small commercial fishing operators who 

derive income from Pacific salmon that spawn in the Klamath River Basin. Id.

3 The Federation joined the government’s motion for 

summary judgment on the breach of contract claims. Notice of Intervenor-Def. Pac. Coast Fed’n of Fishermen’s 

Ass’ns’ Joinder in Federal Defs.’ Mot. for Summ. J. on Contract 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 Oregon 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 certified 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 Federal Claims entered several orders relevant to the Klamath 

Irrigation District case. It also entered several orders relevant to a related case filed by individual water user plaintiffs, 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 jurisdiction. 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 government’s actions in the present cases ‘should be analyzed under 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 Klamath Compact. 

Finally, at a pretrial conference on January 10, 2017, 

the court granted a motion for class certification. The certified 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 water4 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 commencing on January 30, 2017. Following the trial and posttrial 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 September 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 “appurtenant” 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 rulings. Three of those rulings disposed of the claims of various 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 under what are called “Warren Act Contracts.” Id. at 656–

 

5 The Van Brimmer Ditch Company is not an irrigation district, but an Oregon business corporation that delivers 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 resulted 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 November 6, 1909, the Van Brimmer Ditch Company contracted 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 Company during each and every irrigation season . . . a quantity of water, not to exceed fifty second feet.” Id. Named 

plaintiffs James and Cheryl Moore are landowner-shareholders 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 appurtenant 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 Wildlife Refuges that are located within the Klamath Project 

were barred from recovering damages from the government based upon the denial of water because of certain provisions 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 Compact 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 developed and contain language stating that water rights acquired 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 shortages, although this language takes two different forms. Id.

at 631. The contracts with individuals and certain irrigation 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” language 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 government 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 judgment 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 irrigation, 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 follow 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 application of water to a beneficial use constitute an appropriation, 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 water for irrigation are perfected and enforced in order of seniority, 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. Wyoming, 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 statute (“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 (repealed 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 certain previously unappropriated waters, the waters were 

“deemed to have been appropriated by the United States,” 

provided certain deadlines for the filing of plans and construction 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 Klamath Project irrigation works, “the Oregon legislature authorized 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 Service, 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. Baley, 134 Fed. Cl. at 626. The notice stated that “the United 

States intends to utilize . . . [a]ll of the waters of the Klamath Basin in Oregon, constituting the entire drainage basins of the Klamath River and Lost River, and all of the 

lakes, streams and rivers supplying water thereto or receiving 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 downstream 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 downstream from the Link River Dam, which is at the south end 

of Upper Klamath Lake. The last of these dams on the Klamath 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 interests 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 result, the water became appurtenant to their land. See Certification 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 Oregon [A]ct for the use and benefit of the landowners.” Certification 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 Klamath River Drainage Basin (“the Klamath Adjudication” or 

“the Adjudication”).10 Baley, 134 Fed. Cl. at 635. The Adjudication 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 federallyowned works downstream of the headgates of Upper Klamath 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 District and Tulelake Irrigation District, which distribute water 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 pursuant 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 allocated to holders of rights in a water source. See generally

A. Tarlock & J. Robison, Law of Water Rights and Resources §§ 1.1, 7.2 (2019).
16 BALEY v. UNITED STATES

rights not previously adjudicated, as well as federal reserved 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 Adjudication, 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 further detail below. The Tribes’ rights are non-consumptive, 

meaning that the Tribes are “not entitled to withdraw water 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 prevent other appropriators from depleting the streams[’] waters below a protected level in any area where the nonconsumptive 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 thousand 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 “relinquished [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 guaranteed 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 confirmed the continued existence of these rights.” Adair, 723 

F.2d at 1414 (collecting cases).

Until 1887, the Klamath Tribes lived on their reservation under the terms of the 1864 Treaty, holding the reservation 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, approximately 25% of the reservation passed from tribal to individual 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 Klamath 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. Thereafter, in 1973, the government condemned most of the remaining 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 Settlement 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. Indian 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 confluence with the Klamath River. See Karuk Tribe of California 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 California state courts have recognized that the right of the 

Yurok and Hoopa Valley Tribes to take fish from the Klamath 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 January 9, 1997 Memorandum by the Department of the Interior’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 requirements of the ESA. In addition, as we noted in the Remand 

Decision, the Ninth Circuit has declared the rights of Klamath Project water users to be subservient to the requirements 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 destruction 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 endangered 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 record.”). In response, the Bureau performed biological assessments of the Klamath Project’s operations on three 

species of fish that inhabit associated waters: the endangered 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 California 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 Washington v. Wash. State Commercial Passenger Fishing Vessel 

Ass’n, 443 U.S. 658, 662 (1979), modified sub nom. Washington 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 forwarded its biological assessment regarding the SONCC 

coho salmon to the NMFS, which has jurisdiction over marine 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 freshwater species. See id. The Bureau requested a formal consultation 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 consultations 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 operating plan was “likely to jeopardize the continued existence 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 water 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 adversely 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 “reasonable 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 elevations are anticipated to go below [certain minimum levels], regardless of inflow year type.” Baley, 134 Fed. Cl. at 

638 (alterations in original); J.A. 2919. The NMFS Biological Opinion’s reasonable and prudent alternative was to 

operate the Project in a manner that provided certain levels 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 Operations 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 alteration in original); J.A. 3177. The Plan also stated:

The United States has a trust responsibility to protect rights reserved by or for federally recognized 

Indian tribes by treaties, statutes and executive orders. 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 Federally Recognized Tribes Within the Klamath River 

Basin The trust responsibility to the Klamath Basin Tribes is shared by all federal agencies that undertake 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 regimes and lake levels for protection of tribal trust 

resources within the limitations of the available 

water supply. 

. . .

Prior to listing of endangered and threatened species and the increased scientific understanding of 

the needs of ESA-listed species and tribal trust resources, the Project was operated to optimize irrigation diversions . . . .

. . .

. . . Under the current hydrology, the [Upper Klamath Lake] levels and river flows under this Plan 

are consistent with requirements of the ESA and 

Reclamation’s obligation to protect Tribal trust resources. 

J.A. 3176–78. As a result, the Bureau ceased water deliveries from the Project until July 2001, when it released approximately 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 dismissed their taking, Compact, and breach of contract 

claims, the plaintiffs appealed to this court. Thereafter, as 

noted, in the Certification Order, we certified three questions 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 injunction, 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 districts and landowners from acquiring a beneficial 

or equitable property interest in the water right acquired 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 property 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 Decision.17 Following receipt of the Certification Decision, we 

 

irrigation districts that receive water from the Klamath Basin Reclamation Project have a beneficial 

or equitable property interest in the water right acquired 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 subject to adjudication in the Klamath Basin Adjudication?

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 question. Certification Decision, 227 P.3d at 1157, 1166. The 

Court’s answer to our second certified question was not definitive:

2. Under Oregon law, whether plaintiffs acquired 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 relationship. In this case, the first two factors suggest 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 Certification Decision, on a case-by-case basis, of any outstanding 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 property 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 plaintiffs have put Klamath Project water to beneficial 

use and that the United States acquired the pertinent water rights for plaintiffs’ use and benefit. As 

far as the third part of the three-part test is concerned, the court should address whether contractual 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 purposes of their takings and Compact claims.

Remand Decision, 635 F.3d at 519.

 

second question because all the agreements between 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 Company. It did so because the court determined that a November 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 derived 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 Contracts. 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 putting to beneficial use Klamath Project water “so as to deprive 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 Supreme 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 shortage 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 compensation 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 language 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 request 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 arguments, 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 physical taking. Id. at 668.

Finally, turning to the issue of tribal water rights, the 

Court of Federal Claims determined those rights to be federal reserved rights. Id. at 669–70 (quoting Cappaert v. 

United States, 426 U.S. 128, 138 (1976) (“[W]hen the Federal Government withdraws its land from the public domain 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 stemming 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 (“Cohen”) § 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 Cohen § 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 previously 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 plaintiffs. Id.

Continuing, the court stated that the Klamath Tribes’ 

non-consumptive rights entitle them to “prevent other appropriators 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 suckers.” 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 Klamath River in amounts that would cause the endangerment and extinction of the SONCC coho salmon. Id. at 672.

Rejecting the plaintiffs’ argument that, absent quantification of the Tribes’ water rights, the government could 

not show that all or any portion of the water in Upper Klamath Lake belonged to the Tribes, the court pointed to the 
BALEY v. UNITED STATES 31

FWS and NMFS Biological Opinions, which set forth minimum 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 necessary 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 Opinion, including that the release of certain minimum flows of 

Klamath Project water . . . were necessary to avoid jeopardizing the continued existence of the SONCC coho 

salmon.” Id. Next, the court rejected the plaintiffs’ argument 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 Bureau’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 violation 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 defendant to satisfy its obligations under the [ESA]

concerning the Lost River and shortnose suckers 

and the coho salmon in 2001, plaintiffs had no entitlement to receive any water before the government had satisfied what it determined to be its 

obligations under the [ESA] and its Tribal Trust responsibilities.

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 determinations.” Stockton East Water Dist. v. United States, 761 F.3d 

1344, 1349 (Fed. Cir. 2014) (quoting Dairyland Power Coop v. United States, 645 F.3d 1363, 1368–69 (Fed. Cir. 

2011)). “We review the Court of Federal Claims’ legal conclusions 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 erroneous 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 plaintiffs as “appellants.”
BALEY v. UNITED STATES 33

The Fifth Amendment to the United States Constitution proscribes the taking of private property ‘‘for public 

use, without just compensation.’’ U.S. CONST. amend. V, cl. 

4. When evaluating whether governmental action constitutes 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 asserted to be the subject of the taking. Second, if the court 

concludes that a cognizable property interest exists, it determines whether the government’s action amounted to a 

compensable taking of that property interest. See Alimanestianu 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 remand 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’ cursory mention of the Klamath Compact is insufficient to preserve 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 Refuge 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 arguments 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 perfunctory manner, unaccompanied by some effort at developed 

argumentation, are deemed waived.”). We therefore decline 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 Company date back to 1883, which they claim makes them senior to the “alleged 1891 Hoopa Valley and Yurok tribes’ 

water rights.” Appellants’ Br. 36. For its part, the government 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 appellants 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, “appellees”) 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 Wildlife Refuge leases, claims arising from Warren Act contracts 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 regulatory, 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 temporarily 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 Accordingly, 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’ property 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) (holding that a tribe’s senior, federally-protected right had priority 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, however, the court also ruled that those property interests were 

inferior to the Tribes’ non-consumptive water rights—another property interest. It therefore held that appellants 

could not establish their taking or Compact claims and entered 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. Appellants’ 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.” Appellants’ 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 confer any property rights, including water rights, upon the 

Yurok and Hoopa Valley tribes. Appellants’ Br. 27–28; Reply 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, compensable 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 entitled them to a catch that was adequate to support a “reasonable livelihood” or a “moderate living,” as stated in

Washington v. Washington State Commercial Passenger 

Fishing Vessel Association, 443 U.S. at 685, 686. Appellants’ 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 really intend that [Upper Klamath Lake], 200 miles away, 

which might supply . . . one percent, two percent, no percent 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 Baley, 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; Citation 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 harvest 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 Project and therefore do not include a right to the then nonexistent 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. Appellants 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 Klamath Lake.24 Appellants maintain there is no evidence 

 

24 In Adair, the Ninth Circuit affirmed a decision declaring that the “Klamath Tribe” and its members have water 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 upstream into these rivers. On these grounds, appellants assert 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 concerned, appellants argue that the tribes have waived any 

rights they have to Klamath Project water because they declined to participate in the Klamath Adjudication. In addition, appellants contend, because the reservations of those 

tribes lie approximately 200 miles downstream of Upper 

Klamath Lake, Klamath Project water is not “appurtenant” 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 upstream 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 reservation, 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 permanent injunction of the district court that prevented the irrigators 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 Doctrine” as follows: 

This Court has long held that when the Federal 

Government withdraws its land from the public domain 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.

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, intended to deal fairly with the Indians by reserving for them 

the waters without which their lands would have been useless.”). 

Appellants’ argument is that the distance of their respective reservations from Upper Klamath Lake prevents 

the Yurok and Hoopa Valley Tribes from claiming Winters

rights with respect to Klamath Project water. Any reserved 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, according 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, appellants urge that the water of parties with rights junior to 

the Klamath farmers and irrigators should have been curtailed 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] Reclamation lacked any authority to withhold Klamath farmers’ water in 2001 to satisfy a nonexistent Hoopa/Yurok 

water right in Klamath Project water, nor an as-yet-undetermined 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 Klamath Drainage District and the Klamath Hills District Improvement 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. Appellees contend that the Klamath Tribes’ reserved rights are 

based on the historical circumstances surrounding the importance of the suckers to the tribes’ diets. That the Klamath Tribes no longer harvest suckers is irrelevant, 

appellees assert, as the tribes’ inability to harvest the suckers 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 necessary 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 Klamath Lake provides critical habitat for suckers that populate the fisheries on the former Klamath reservation. 

United States’ Br. 36. Similarly, appellees contend, in reserving lands for the purpose of preserving tribal subsistence 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. Federation’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 reserved 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. Federation’s Br. 21–22; United States’ Br. at 48–49. 

IV. Analysis

As the Court of Federal Claims noted, it is well-established 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.” Baley, 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 necessary to fulfill the very purposes for which a federal reservation 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 concluded 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 “moderate 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, appellants 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 uncontested 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 “reasonable livelihood” or “moderate living” standard constitutes a 

standard lower than the requirement that the very existence of this important tribal resource not be placed in jeopardy. 

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 Klamath Tribes’ members were to take the endangered suckers, 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, unlike 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 indicates that the Bureau’s proposed 2001 operating plan to 

continue operating the Klamath Project would have reduced 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 Secretary 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 associations to protect the Yurok and Hoopa Valley Tribes’ 

federally-reserved fishing rights. 70 F.3d at 541, 547. Parravano was decided in 1995; the coho salmon was identified 

as being a threatened species in 1997. The Final Rule listing 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 eliminated 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 satisfy 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 accordingly Klamath Project water, from the reach of those 

rights. 

The record on appeal is not clear as to whether the Klamath Tribes’ fishing rights include the right of tribe members to take fish from Upper Klamath Lake while they 

stand on former reservation lands. At the same time, appellants 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. However, there is evidence before us establishing that the Lost 

River and shortnose suckers do travel upstream from Upper Klamath Lake into its tributaries. For example, in Baley, 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, modification, 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 Indians for thousands of years. . . . Even through the 

1960’s and 1970’s, runs of suckers moving from Upper Klamath Lake up into the Williamson and 

Sprague Rivers were great enough to provide a major sport fishery that annually attracted many people from throughout the West. The primary species 

was the larger Lost River sucker, locally known as 

mullet, but significant numbers of shortnose suckers also occurred in the runs. During the past 

years, however, [t]he Klamath Tribe and local biologists have been so alarmed by the population decline 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 protected 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 hunting, fishing, and gathering on the former reservation, a primary 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. Appellants do not challenge the findings of the FWS Biological 

Opinion. Thus, given the facts of record, the Court of Federal 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 reservation.” Appellants’ Br. 31. Accordingly, and because the 

Klamath Project and its additional stored water did not exist in 1864, appellants contend that the Court of Federal 

Claims “lacked any basis, in law or in fact, to declare a water right for the Tribes in Upper Klamath Lake.” Id. Oregon 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 surface water and could be extended to groundwater as it is 

“based on the necessity of water for the purpose of the federal 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 lifestyles.

Relatedly, we do not agree with appellants that the geography 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 subsequently, the Yurok reservation) there are other water 

sources. Specifically, the Trinity River joins the Klamath 

River at the Hoopa Valley reservation, and there are several 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 reservation 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 reservation 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 reservation. Moreover, as set forth in the NMFS Biological Opinion, 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 jeopardizing the existence of the SONCC coho salmon. They 

also were designed to avoid the destruction or adverse modification 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 downstream from the reservations and also upstream from the 

reservations to the Iron Gate Dam. The dam is the stopping 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 water of the Klamath River that flows to it from Upper Klamath 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 includes the Klamath River and the flows therein as controlled 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 instream flows was necessary to fulfill the salmon-fishing 

rights of the Hoopa and Yurok Tribes.” Reply Br. 3. However, 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 levels 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 exercised. 

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 quantification. Appellants’ Br. 38–40. We disagree. 

To begin with, the statute appellants cite simply defines the term “existing water rights of record,” as it relates 

to water to be distributed by a water district’s watermaster, 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 reservations 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 factual 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 Caliente 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 Department 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 hundreds of plaintiffs in this case, to determine (1) which entities 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 Bureau 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 Amendment, 43 U.S.C. § 666, a law that waived the sovereign immunity 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 administrative proceedings concerning the Commonwealth of 

Puerto Rico’s efforts to impose restrictions on the extraction 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 proceedings did not involve a “suit” within the meaning of the 

McCarran Amendment. Id. at 214. In arriving at its decision, 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, possessing 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 “establish a seamless process with both administrative and 

judicial components. Rather, it contemplates a purely administrative 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 another 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 Colorado 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 entitlement 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 Klamath 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 Klamath Project water, while the Klamath Tribes also had reserved 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 Ventre 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 obligations separate from any cause of action arising from a statutorily 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 subordinate to the Tribes’ federal reserved water rights. We therefore 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 ruling 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 express 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/KlamathRvBasinV4.jpg.