By Steve Shropshire, Water Law Attorney, and Marika Sita, Law ClerkThis article was originally published in the January 15, 2021 edition of The Water Report.
On June 22, 2020, the Supreme Court denied certiorari in the case of Baley v. United States, 134 Fed. Cl. 619 (2017), aff’d, 942 F.3d 1312 (Fed. Cir. 2019). The denial leaves a decision on the books that could have considerable implications for some of the core tenets of Western water law.
Baley arose in the Klamath Basin, which extends across the Oregon-California border and is synonymous with the classic Western water quandary: too many demands on too little water. In 2001, the U.S. Bureau of Reclamation (“Reclamation”) halted water deliveries to approximately 200,000 acres of cropland located on the west side of the Klamath Reclamation Project (“Klamath Project”) in order to meet Endangered Species Act (“ESA”) flow obligations and tribal trust obligations. Baley, 134 Fed. Cl. at 636-642. In response to this curtailment, a group of Klamath Project irrigators filed a lawsuit in the U. S. Court of Federal Claims in October 2001, alleging that halting the water deliveries without providing compensation amounted to an unconstitutional taking. Id. at 641. In 2017, the U.S. Court of Federal Claims ultimately ruled that although the plaintiff irrigators had asserted “cognizable property interests,” the Klamath, Yurok, and Hoopa Valley Tribes held superior water rights. Id. at 659-680. Because of these superior rights, the U.S. Court of Federal Claims reasoned that the irrigators were not entitled to receive water under their contracts with Reclamation. Id. at 680. In November 2019, the U.S. Court of Appeals for the Federal Circuit affirmed the decision by the U.S. Court of Federal Claims. Baley, 942 F.3d 1312 (2019). The Supreme Court subsequently denied certiorari.
This article will detail the circumstances that led to the Baley lawsuit and explain the water rights adjudication process as it applies to the Klamath Basin and to Western prior appropriation states. Next, it will summarize the decisions by the U.S. Court of Federal Claims and the Federal Circuit, and discuss the implications of the Baley decision for Western water rights adjudications and Western water law. Finally, the article will briefly describe the implications of Baley to Fifth Amendment takings jurisprudence and consider how Baley may come into play in future adjudications.
II. Beginning of the Baley Litigation (2001 Reclamation Action)
On May 7, 2001, thousands of people formed a line between Lake Ewauna and a Klamath Project irrigation canal, passing buckets of water from the lake to the canal. The aim of the “bucket brigade” was to draw attention to the plight of Klamath Basin irrigators in the wake of Reclamation’s decision not to deliver irrigation water. The story of the Klamath bucket brigade is familiar to those who work in the Western water world. The Baley case also has its roots in Reclamation’s 2001 decision.
Like other irrigation projects across the West, Reclamation operates and manages the Klamath Project, which serves land in Oregon and California. The Reclamation Act of 1902 focused on “reclaiming” land in the West for irrigated agriculture purposes by providing a funding mechanism for large water distribution projects. See Pub. L. No. 57-161, 32 Stat. 388, now codified in 43 U.S.C. § 371, et seq. (2018). California v. United States, 438 U.S. 645, 649 (1978) discussed the proliferation of small, privately funded irrigation projects across the west in the late 1800s and the subsequent public demand for large-scale, government-funded irrigation projects that culminated in the Reclamation Act.
Reclamation identified the Klamath Basin as an area to be reclaimed in the early 1900s. Baley, 134 Fed. Cl. at 626. In order to supply the Klamath Project, Reclamation secured water from existing water users in the area. Id. Between 1904 and 1905, water users around the Klamath Basin agreed to sell or give their rights to Reclamation. Oregon’s water code was not passed until 1909, meaning none of the water rights to which Reclamation was laying claim were officially recorded with any state administrative body. In 1905, the Oregon legislature also authorized the federal government to lay claim to unappropriated water for authorized reclamation projects, such as the Klamath Project, provided the government filed written notice with the Oregon State Engineer. Baley, 134 Fed. Cl. at 626, discussing 1905 Or. Gen. Laws 401-02. The Klamath Project water rights that Reclamation obtained were strictly consumptive use rights for use in irrigated agriculture. Section 8 of the Reclamation Act noted that nothing in the Act could be “construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation.” 43 U.S.C. § 383 (2018). Section 8 also stated that the right to use water acquired under the Act “shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right.” 43 U.S.C. § 372 (2018).
When Reclamation made its decision in 2001, it was dealing with the same water sources and largely the same irrigation infrastructure it had been managing since 1905. However, this time it also had to make room for two new considerations: federal reserved water rights held in trust for Indian tribes and instream water supply needs for threatened or endangered species.
Heading into the 2001 irrigation season, forecasts predicted a dry year in the Klamath Basin. Reclamation incorporated this prediction into its annual operating plan, and assumed for the purposes of operation that it would be a “critical dry year.” Baley, 134 Fed. Cl. at 637. Reclamation also conducted two biological assessments to determine the impact of the Project’s operation on two species of endangered suckers and on the threatened Southern Oregon/Northern California Coast (“SONCC”) coho salmon. The biological assessments concluded that Klamath Project operations were likely to adversely affect each of the species. Under the ESA, such a finding requires a consultation with the National Marine Fisheries Service (“NMFS”) and the U.S. Fish and Wildlife Service (”USFWS”). Reclamation initiated the consultation process and notified the irrigation districts served by the Klamath Project that it would not divert any water for use by the irrigation district patrons pending the revision of the 2001 operations plan.
While the Biological Opinions were being developed, a NMFS fisheries biologist charged with implementing the ESA testified that the downstream Yurok and Hoopa Valley Tribes had a federally recognized fishery right for SONCC coho salmon. Id. at 637. Additionally, a 1995 memo prepared by the Department of the Interior Solicitor’s Office stated that the Yurok and Hoopa Valley Tribes held federal reserved fishing rights to take fish within their reservations in California. Id.
At the beginning of April, USFWS issued a Biological Opinion that determined the existing operations plan would likely jeopardize both sucker species and adversely modify the species’ proposed critical habitat. Id. at 639. The following day, NMFS issued a Biological Opinion that reached the same conclusion for the SONCC coho salmon. Id. The NMFS Biological Opinion noted that both species of suckers are considered a tribal trust species for the Klamath Tribes. Id. The NMFS Biological Opinion also concluded that Indian tribes in the Klamath Basin had tribal reserved water rights that “consist of an instream flow sufficient to protect the right to take fish within their reservations.” Id.
The reasonable and prudent alternatives (“RPAs”) listed by in the Biological Opinions placed severe restrictions on Reclamation’s ability to provide irrigation supply to Klamath Project irrigators. The USFWS Biological Opinion RPAs determined that Reclamation needed to enact minimum levels for Upper Klamath Lake in order to avoid jeopardy for the suckers. Id. at 638. Under the NMFS RPAs, Reclamation was required to release stored water from Upper Klamath Lake to ensure minimum flow levels in the Klamath River below Iron Gate Dam to prevent declines in the coho salmon population. Id. In light of these Biological Opinions and the RPAs, Reclamation revised its operating plan for 2001.
The revised plan was guided by four principles: (1) meeting the requirements of the ESA, (2) trust responsibility of the United States to federally recognized tribes within the Klamath River basin; (3) providing deliveries of Klamath Project water, and (4) conserving wetland and wildlife values. Id. at 639. Ultimately, Reclamation determined that it could not meet obligations beyond those required by the NMFS and USFWS Biological Opinion RPAs. Id. The operations plan stated that “the trust responsibly to Klamath Basin Tribes is shared by all federal agencies that undertake activities in the Klamath Basin…Reclamation’s Plan provides flow regimes and lake levels for protection of tribal trust resources within the limitations of the available water supply.” Id. Reclamation did release 70,000 acre-feet of water for irrigation use in July 2001, but this water delivery came too late for most farmers to save their dry crops.
In October 2001, Klamath Basin farmers and irrigation districts filed suit against Reclamation in the U.S. Court of Federal Claims, alleging that Reclamation’s action constituted an unconstitutional taking. Id. at 640. The group of claimants consisted of fourteen irrigation districts and thirteen individual farms. Baley, 942 F.3d at 1316. In 2005, the U.S. Court of Federal Claims granted summary judgment to the United States on the plaintiffs’ claims under the takings clause and under the Klamath Compact. Baley, 134 Fed. Cl. at 642. The plaintiffs appealed. In 2008, the U.S. Court of Appeals for the Federal Circuit certified three questions to the Oregon Supreme Court. Id. The questions all related to the plaintiffs’ rights to use water under state law. Id. The U.S. Court of Appeals withheld a decision pending the Oregon Supreme Court’s answers to the questions. Id. In 2010, the Oregon Supreme Court answered the questions, concluding that the 1905 Oregon legislative action precluded plaintiffs from acquiring an equitable or property interest in a water right to which the United States holds legal title. Klamath Irr. Dist. v. United States, 227 P.3d 1145, 1169 (2010). The Oregon Supreme Court also concluded that to the extent plaintiffs assert an equitable or beneficial property interest in a water right to which the United States claims legal title to in the Klamath Basin Adjudication, the plaintiffs are not “claimants” who must appear in the adjudication or lose the right. Id. Finally, the Oregon Supreme Court outlined a three-factor test to determine whether plaintiffs had acquired an equitable or beneficial property interest in the water right. Id. The Federal Circuit Court of Appeals subsequently vacated the U.S. Court of Federal Claims’ judgment and remanded the case for further proceedings. Baley, 134 Fed. Cl. at 643. In 2017, the U.S. Court of Federal Claims granted a consolidated class certification, which consisted of all owners or lessees of land who had a claim to an appurtenant water right to receive and beneficially use water from the Klamath Project in 2001 and who alleged a Fifth Amendment takings claim. Id. at 643-44. On September 29, 2017, the consolidated class filed suit in the U.S. Court of Federal Claims. Id.at 644. The 2017 and 2019 Baley opinions by the U.S. Court of Federal Claims and the U.S. Court of Appeals for the Federal Circuit, respectively, are the direct result of this filing.
III. State Water Rights Adjudications and the Federal Government
When Reclamation decided to curtail water deliveries to Klamath Project irrigators in 2001, the Klamath Basin was twenty-six years into an Oregon general stream adjudication that included state and federal water claims. Understanding the adjudication process in the Klamath Basin and in other western states is critical to understanding the impact of the Baley case. This section will discuss the general goals of an adjudication, the Klamath Basin adjudication specifically, and the avenues for federal involvement in state adjudications as identified by the McCarran Amendment and the Colorado River abstention doctrine.
A general stream adjudication is a distinctly state undertaking. Adjudications are conducted at the basin scale, and they provide an opportunity for water users in the basin to assert pre-water right code surface water rights claims and federal reserved water rights claims, and to have those claims recognized and quantified. Adjudications across all Western prior appropriation states operate under these basic principles, though each state has its own variations dictated by statute.
A “pre-code” surface water right claim describes a surface water use that was established before the state had an official administrative process to obtain a water right. In Oregon, the 1909 Water Rights Act established an administrative process for issuance of a surface water right. If a water user or water rights holder seeks official recognition of an appropriation that occurred before the enactment of the 1909 water code, the individual or entity must assert that right during an adjudication process by filing a claim with the Oregon Water Resources Department (“OWRD”). ORS 539.005 et. seq. The claim deadline is jurisdictional. Failure to file by the claim deadline, precludes an appropriator from pursuing a claim in later stages of the adjudication. OWRD reviews claims to determine their validity. ORS 539.021. After reviewing the claims and holding administrative hearings, OWRD issues a final order, known as a Findings of Fact and Order of Determination (“FFOD”), which contains its findings and its determination of the validity of all filed claims. ORS 539.130. The FFOD then moves from the administrative realm into the judicial realm, where a circuit court in the basin at issue reviews the FFOD. ORS 539.150. Once the FFOD reaches the court, any interested party wishing to challenge the FFOD must file an exception. Id. After reviewing the FFOD and the exceptions, the circuit court issues a water rights decree that may affirm or modify the FFOD. ORS 539.150(4). The result is a new set of “decreed water rights” that OWRD recognizes by issuing water rights certificates. ORS 539.140.
Adjudications play an important role in prior appropriation water allocation systems. All western states operate under some form of the prior appropriation system, which recognizes the priority of “senior” water right holders over “junior” water right holders. The state system is designed to protect the interests of senior rights holders who hold state certificated or decreed water rights that have older priority dates than junior rights holders. During times of water shortage, OWRD limits or shuts down water users in order of priority. In Oregon, senior water rights users have water rights that pre-date the 1909 Water Code. The adjudication process provides a pathway for OWRD to recognize those rights and enforce them.
States have an important and powerful role in water allocation. Prior appropriation defines water management in the West, and federal ownership defines public lands in the West. So where do federal water rights, and the federal government, fit into the picture? The McCarran Amendment (43 U.S.C. § 666 (1952)), passed by Congress in 1952, helped define the role of the federal government in state water rights adjudication actions. In 1976, the Supreme Court clarified the principles of the McCarran Amendment in Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). The statute and the extensive body of case law interpreting it, set expectations for how the federal government can participate in state adjudications.
Colorado River Water Conservation District also addressed a specific type of federal reserved water right: a reserved water right held in trust by the federal government on behalf of Indian tribes. The Supreme Court first recognized tribal reserved water rights in Winters v. United States, 207 U.S. 564 (1908), finding that the federal government had impliedly reserved water in an amount sufficient to fulfill the purposes of the Fort Belknap Indian Reservation when it established the reservation. Colorado River Water Conservation District clarified that tribal reserved water rights asserted by the federal government as a trustee of a tribe fell within the purview of the McCarran Amendment and that the state court could exercise jurisdiction over the claims. Id. at 809.
The McCarran Amendment waives the sovereign immunity of the United States government to participate in state adjudications to determinate federal reserved water rights. It also waives authority for the purpose of regulation and administration of those rights. Under the McCarran Amendment, the United States may be joined as a defendant in a suit “for the adjudication of rights to the use of water or a river system or other source, or for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit.” 42 U.S.C. 666(a) (1952). The Amendment provides that when the United States is a party to such a suit, it “shall be subject to the judgments, orders, and decrees of the court having jurisdiction.” Id.
The McCarran Amendment allows state and federal claims to be evaluated in concert during a state-run general stream adjudication. However, the McCarran Amendment does not prohibit federal jurisdiction over federal water right claims, meaning states and the federal government have concurrent jurisdiction over the adjudication of federal reserved water right claims. The McCarran Amendment also does not address the appropriateness of federal versus state jurisdiction or provide any sort of framework to determine when a water rights proceeding is proper in one venue versus the other. In 1976, the Supreme Court’s opinion in Colorado River Water Conservation District sheds some light on how to determine the “appropriateness” of jurisdiction over water rights claims.
In Colorado River Water Conservation District, the United States filed a lawsuit against approximately 1,000 water users in Colorado Water Division 7 in U.S. District Court, seeking to declare federal reserved water rights on behalf of the United States and Indian tribes. Colorado is a prior appropriation state that is notable for its system of state water courts that continuously adjudicate water rights. One of the defendants in the federal District Court case sought an order from the Division 7 state court to make the United States a party to the Division 7 adjudication process under the authority of the McCarran Amendment. The defendants also filed for dismissal of the federal District Court case, which the court granted. The case made its way to the Supreme Court, where the justices considered whether the District Court had properly dismissed the lawsuit.
The Supreme Court asked whether the District Court’s dismissal was appropriate under the doctrine of abstention. It concluded that it was not appropriate under any existing abstention frameworks, but it was nevertheless appropriate under the circumstances articulated by the District Court. This new approach became known as the Colorado River abstention doctrine. The Colorado River abstention doctrine goes hand in hand with the McCarran Amendment. The doctrine establishes a strong preference against federal courts asserting jurisdiction over issues traditionally left to state courts when such jurisdiction would result in duplicative and piecemeal litigation. 424 U.S. 819-820.
Based on these legislative and judicial precedents, the federal government is expected to assert any federal reserved water right claims it may have during a comprehensive McCarran-compliant, state-initiated adjudication. Through such an adjudication, federal reserved water rights are evaluated in the same manner as any other water right. All parties, including the federal government, must assert any and all water rights claims at the beginning of the adjudication process in order to have those claims evaluated and potentially recognized.
The Klamath Basin adjudication includes federal reserved water right interests asserted by the federal government on behalf of the Klamath Tribes, Reclamation, the Bureau of Land Management, the USFWS, and the U.S. National Park Service. Notably, the federal government did not assert federal reserved water right interests on behalf of the Yurok Tribe or the Hoopa Valley Tribe, whose reservations are located in the lower portions of the Klamath River basin. The administrative review phase of the Klamath Basin Adjudication ended with the issuance of an FFOD on March 7, 2013, followed by an amended final order issued by OWRD on February 28, 2014, known as the Amended and Corrected Findings of Fact and Order of Determination (“ACFFOD”). The ACFFOD is currently under review by the Klamath County Circuit Court.
IV. Overview of the Federal Circuit Court of Appeals Baley Decision and Impacts
Against the backdrop of the ongoing adjudication process in the Klamath Basin, the Federal Circuit made four findings that undermine the recognized state role in water allocation decisions and administration. First, the Federal Circuit held that federal reserved water right holders do not waive their water rights by failing to participate in a state adjudication process. Baley, 942 F.3d at 1341. This is true even when, as in the Klamath Basin Adjudication, the United States is actively participating in a basin adjudication process on behalf of all other federal reserved rights claims, including those of Indian tribes. Second, the Federal Circuit determined that federal reserved water right holders may effectively confirm and quantify their own water rights and that these water right holders are not beholden to administrative or judicial oversight. Id. at 1339-40. Third, the Federal Circuit maintained that federal reserved water right holders may self-regulate. Id. at 1340 n. 30. This could include shutting off one federal right holder (here, the Klamath Project) in order to serve another federal right holder without regard to its seniority or that of other rights on the stream system in a prior appropriation scheme. Finally, the Federal Circuit acknowledged that the United States government has the power to enforce its own water rights outside the state administrative process and without the due process embedded in that procedure. Id. at 1339-40.
The Federal Circuit’s decision signals a significant departure from Supreme Court precedent, effectively allowing the United States to assert federal reserved water rights outside of a comprehensive, McCarran-compliant state adjudication process. The Federal Circuit established that Reclamation’s 2001 operational decision, which recognized tribal water rights that had not been adjudicated and had not been asserted by the federal government in the Klamath Basin Adjudication, was appropriate. Id. at 1340. In its affirmation of the U.S. Court of Federal Claims’ decision, the Federal Circuit stated, “Nor do we believe that the Yurok and Hoopa Valley Tribes waived their rights because they did not participate in the Klamath Basin Adjudication. For the reasons discussed above, their rights are federal reserved water rights not governed by state law.” Id. at 1341.
Under Baley, the federal government could seemingly circumvent the lengthy, complex state adjudication process and take unilateral action to recognize and quantify unasserted federal reserved water rights. The Federal Circuit’s holding is directly contrary to the U.S. Supreme Court’s holding in Cappaert v. United States, 426 U.S. 128 (1976), which instructs that “[t]he McCarran Amendment waives the United States’ sovereign immunity should the United States be joined as a party in state-court general water rights adjudication. Colorado River and the policy evinced by the Amendment may, in the appropriate case, require the United States to adjudicate its water rights in state forums.” 426 U.S. at 146. The Federal Circuit’s decision is directly at odds with the Supreme Court’s precedent in Colorado River and the Colorado River abstention doctrine. Rather than abstaining from jurisdiction, the U.S. Court of Federal Claims and the Federal Circuit issued judgments that are inconsistent with the pending state Klamath Basin Adjudication, underscoring the Supreme Court’s reasons for federal abstention in the adjudication context.
The Federal Circuit’s decision further throws a wrench in the state-centric water allocation system by noting that a water right holder’s seniority under a prior appropriation scheme does not protect their right from federal actions that may halt delivery of that right. Baley, 942 F.3d at 1340 n.30. The Federal Circuit affirmed the U.S. Court of Federal Claims’ finding that “the government’s decision in 2001 to withhold water from plaintiffs in order to satisfy its Endangered Species Act and Tribal Trust obligations did not constitute an improper taking of plaintiffs’ water rights or an impairment of plaintiffs’ water rights because plaintiffs’ junior water rights did not entitle them to receive any Klamath Project water in 2001.” Baley, 134 Fed. Cl. at 680. Essentially, Baley allows federal agencies to enforce their own water rights and perform a regulatory function historically reserved to the states.
Adjudications have numerous junctures that require public notice and invite public participation. See ORS 539.030; ORS 539.040; ORS 539.090; ORS 539.130. They are designed to give all individuals who assert a water right claim the chance to make a case for the validity of that claim. The Federal Circuit supported Reclamation’s unilateral allocation decision, writing, “[a]t the bare minimum, the Tribes’ rights entitle them to the government’s compliance with the ESA in order to avoid placing the existence of their important tribal resources in jeopardy.” Baley, 942 F.3d at 1337. Because this decision happened outside the bounds of the active adjudication, water users in the Klamath Basin were not on notice of these downstream tribal reserved water right claims. If a federal agency recognizes a federal reserved water right outside of an adjudication proceeding, there is no guarantee that other water rights claimants in the basin will be made aware of such a recognition until the agency enforces the right.
V. Baley Implications for Takings Jurisprudence
Baley is revelatory for Western water law in the context of general stream adjudications, but it bears mention that the final opinion also has ramifications for takings claims like the one made by the Klamath Project irrigators. Baley was accepted into the U.S. Court of Federal Claims as a takings case, and the Court found that Reclamation’s actions constituted a permanent, physical taking of the plaintiffs’ water. By affirming the decision, the Federal Circuit made a noteworthy conclusion about takings jurisprudence and usufructuary water rights. Despite the defendant’s arguments that the 2001 action should be analyzed as a regulatory taking, the pair of opinions in the Baley case make clear that the ESA regulatory action taken by Reclamation should be analyzed as a physical taking. While this portion of the Baley opinion will likely prove advantageous for future cases with similar fact patterns, the remainder of the opinion undermines several long-held tenets of Western water law and United States Supreme Court precedent.
VI. Future of Adjudications and Western Water Law in Light of Baley
Currently, the Klamath County Circuit Court is evaluating more than 700 claims and 5,000 challenges to the claims as part of the Klamath Basin Adjudication. In the ongoing briefing now underway on threshold legal issues, the federal and Tribal parties have cited Baley repeatedly, urging the court to adhere to the Federal Circuit’s conclusions regarding state and federal water law issues. This is problematic for two reasons. First, Baley was at its heart, a takings suit, and the Federal Circuit appropriately spent the majority of its analysis on that familiar territory. However, ignoring the Colorado River abstention doctrine, the court also chose to wade into the water rights issues currently subject to the Klamath Basin Adjudication. Despite the dispositive nature of the Federal Circuit’s decision regarding the existence of downstream reserved tribal water rights, the court dedicated only a fraction of its analysis to those issues. As a result, the reasoning behind that portion of the decision is lacking in important analytical detail. Second, the Federal Circuit failed to draw a meaningful distinction between the federal reserved water rights held by the upstream Klamath Tribes and the downstream Hoopa Valley and Yurok Tribes. This leads to a muddied and incomplete set of findings that further render the case of dubious precedential or persuasive value with respect to the ongoing Klamath Adjudication proceedings involving the claims of the Klamath Tribes.
Outside of Oregon, the handful of cases that have cited Baley since November 14, 2019, primarily focus on Baley’s determination that takings claims should be evaluated under the physical takings framework.
Baley is troubling because it impacts another scarce commodity in the Western water world—predictability. In the West, a drier-than-expected year can be devasting for all stakeholders, but especially for irrigators. In the face of climate change, increased instances of drought and shifts in seasonal precipitation patterns will exacerbate this inherent unpredictability. Under these conditions, state adjudication and administrative processes ensure that water users have some degree of structure and certainty in relation to water allocation. The Baley court has endorsed the idea that federal agencies may step far beyond the established bounds of state adjudications and regulatory procedures to make their own determinations about the existence, scope, and priority of their federal reserved water rights. This will disrupt the value and certainty that the West has come to expect from McCarran-compliant state adjudications, and will inevitably lead to more time consuming and costly jurisdictional battles between state and federal courts over federal reserved water rights.
Steven L. Shropshire is a member of the Jordan Ramis PC Dirt Law® and Environmental & Natural Resources teams, focusing his practice on water rights, natural resources, and real property matters. Steve can be reached at (541) 647-2979 or email@example.com.
Marika Sitz is a law clerk with the Jordan Ramis PC Environmental & Natural Resources team and is a 3L at the University of Oregon (J.D. expected May 2021). Marika can be reached at (503) 598-5542 or firstname.lastname@example.org.
 Oregon law also provides for the adjudication of pre-code water groundwater claims, but the Klamath Basin Adjudication is limited to surface water.
 In this context, abstention refers to a federal court’s decision to abstain from exercising its otherwise valid jurisdiction over a particular matter by deferring to a parallel proceeding in a state court.
 The takings implications of the Baley decision extend beyond the scope of this article.