FIRST IN TIME SINCE TIME IMMEMORIAL: TRIBAL INSTREAM RIGHTS UNDERCUT WATER TAKING CLAIMS

Courts have held that American Indian tribal fishery rights can give rise to tribal instream flow rights. They have also held that the curtailment of rights of diversion to protect fisheries under the Federal Endangered Species Act may give rise to potential takings claims under the Fifth Amendment of the United States Constitution. In its 2019 decision in Baley v. United States the federal circuit court of appeals held that minimum instream flows under the ESA were needed to fulfill American Indian tribal fishery rights, and these rights carried a priority date of “time immemorial” that was senior to any competing appropriative rights to divert water out of stream. The Court in Baley v. United States, therefore, provided a new basis to quantify minimum instream flows needed to satisfy tribal instream water rights and held that senior tribal instream water rights insulate ESA-mandated minimum flows from takings claims.