The Federal Circuit Court of Appeals has vacated and remanded a Court of Federal Claims ruling for a determination as to whether the Endangered Species Act (ESA) can alter water rights. Klamath Irrigation Dist. v. United States, No. 07-5115 (Fed. Cir. 2/17/11). The ruling overturns a prior judgment in favor of the United States based on two separate summary judgment decisions that dismissed Fifth Amendment takings, Klamath River Basin Compact and breach of contract claims. Klamath Irrigation Dist. v. United States, 67 Fed. Cl. 504 (2005); Klamath Irrigation Dist. v. United States, 75 Fed. Cl. 677 (2007).

The case involves Klamath River Basin water rights and the federal government’s 2001 decision under the ESA not to deliver water to the Klamath Project for the protection of Coho salmon, the short-nose sucker fish and the Lost River sucker fish. The Federal Circuit remanded the lawsuit to the Court of Federal Claims with instructions to apply Oregon water rights law in deciding whether the ESA can apply to water.