Brief of Amici Curiae Professors Ronald A. Cass, David F. Forte, James L. Huffman, Donald J. Kochan, Jesse J. Richardson and Reed Watson in Support of Petitioners

The Court of Federal Claims ruled that the Klamath, Yurok and Hoopa (hereafter Tribes) reserved water rights in the Klamath River Basin are of a volume at least equal to the amount of water the Environmental Protection Agency has determined to be necessary to trigger endangered species protection. In the absence of an adjudication in state or federal court and contrary to the long history of federal deference (both by Congressional enactment and judicial precedent) to state adjudication of water rights, the Federal Circuit affirmed and thus preempted, without the participation of affected parties including petitioners, the State of Oregon’s ongoing adjudication of Klamath Basin water rights. Independent of the 5th Amendment takings issue at the root of this case, the Federal Circuit’s decision raises serious federalism issues that this Court should address. Few matters are of more importance to western states like Oregon than the allocation of scarce water resources. For a century and a half this Court and Congress have mandated federal court deference to the states’ administration and adjudication of water rights. Deference is particularly important to the wise administration of this scarce resource where there is an ongoing state court adjudication and where no federal interest will be compromised. As with asserting any reserved rights claims of its own, the federal government has every opportunity to exercise its role as trustee for the Tribes in the state court adjudication