United States Court of Appeals for the Federal Circuit ______________________

UNITED WATER CONSERVATION DISTRICT, Plaintiff-Appellant

v.

UNITED STATES, Defendant-Appellee ______________________

2023-1602 ______________________

Appeal from the United States Court of Federal Claims in No. 1:22-cv-00542-CFL, Senior Judge Charles F. Lettow. ______________________

Decided: April 2, 2025 ______________________

FRANK S. MURRAY, Foley & Lardner LLP, Washington, DC, argued for plaintiff-appellant. Also represented by DAVID THOMAS RALSTON, JR.; MICHAEL P. CALABRESE, Los Angeles, CA.

TAMARA N. ROUNTREE, Appellate Section, Environment and Natural Resources Division, United States Depart- ment of Justice, Washington, DC, argued for defendant-ap- pellee. Also represented by TODD KIM. ______________________ Case: 23-1602 Document: 46 Page: 2 Filed: 04/02/2025

2 UNITED WATER CONSERVATION DISTRICT v. US

Before LOURIE and HUGHES, Circuit Judges, and GILSTRAP, District Judge.1 LOURIE, Circuit Judge. United Water Conservation District (“United”) appeals from a decision of the U.S. Court of Federal Claims (“the Claims Court”) dismissing its complaint for lack of subject matter jurisdiction. United Water Conservation Dist. v. United States, 164 Fed. Cl. 79 (2023) (“United Decision”). United’s suit against the United States (“the govern- ment”) seeks just compensation for an alleged taking under the Fifth Amendment of the U.S. Constitution. The Claims Court dismissed United’s complaint because it determined that United’s claim should be evaluated as a regulatory taking and, because United had yet to exhaust its admin- istrative remedies, its claim was “not yet viable for adjudi- cation.” United Decision, at 91. For the following reasons, we affirm. BACKGROUND United is a water conservation district, created pursu- ant to California law to serve as the water management agency for the Santa Clara River and the Oxnard coastal plain. Id. at 82. The California State Water Resources Control Board (“the State Board”) issued United a license in 1958 and a permit in 1983, providing United the right to appropriate and divert water from the Santa Clara River for United’s beneficial use, i.e., to recharge groundwater aquifers, deliver surface water to groundwater users, and

1 Honorable Rodney Gilstrap, District Judge, United States District Court for the Eastern District of Texas, sit- ting by designation. Case: 23-1602 Document: 46 Page: 3 Filed: 04/02/2025

UNITED WATER CONSERVATION DISTRICT v. US 3

stabilize the riverbed.2 Id. at 82–83. In 1987, United’s per- mit was amended to allow for the construction of the Vern Freeman Diversion dam (“Diversion dam”), which diverts water from the Santa Clara River into the Freeman Canal. Id. Water that the Diversion dam does not divert into the Freeman Canal remains in the Santa Clara River and flows into the Pacific Ocean. Id. at 83. In 1997, the National Marine Fisheries Service (“NMFS”), an office of the National Oceanic and Atmos- pheric Administration within the Department of Com- merce, designated the Southern California steelhead trout in the Santa Clara River as an “endangered species” under the Endangered Species Act (“ESA”). Id.; see 16 U.S.C. §§ 1531–44. Section 9 of the ESA prohibits taking species that are designated as endangered or threatened under the Act. United Decision, at 83; see 16 U.S.C. § 1538(a)(1)(B). The government, however, may allow a taking of steelhead trout otherwise prohibited by the ESA by issuing an inci- dental-take permit under Section 1