The Liberty Justice Center filed an amicus brief in United Water Conservative District v. United States, asking the U.S. Supreme Court to make clear that when the government takes private property—including water rights—it is a physical taking that requires fair payment under the Fifth Amendment.
This case is about actions by the federal government that, according to the United Water Conservation District (UWCD), limited its access to and use of water it had a legal right to take. A lower court said that because the government did not totally cut off UWCD’s water or make UWCD give back water it had already taken, the case should use a complex “regulatory takings” test. That test focuses on money impacts and expectations, not on whether the government actually took or used the property. This could mean property owners get no payment even when the government physically takes a protected property right.
The Liberty Justice Center’s brief argues that physical takings are always takings under Supreme Court law. It also states that treating physical takings like regulatory ones wrongly adds a tough, multi-part test that can leave property owners with no payment.
“There’s no greater intrusion on private property rights than the government literally physically taking the property, and we hope the court clarifies that, where the government engages in physical appropriation, that is a taking under the law requiring just compensation,” said Reilly Stephens, senior counsel at the Liberty Justice Center.
The lower court’s decision shows why the Supreme Court’s guidance is needed, especially for water rights. The size, length, and timing of a government invasion should decide how much payment is owed—not whether a taking happened.
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