By Dennis Crouch
In addition to its patent law jurisprudence, the Federal Circuit also handles appeals from the US Court of Federal Claims (CFC). The CFC hears monetary claims against the U.S. Government – including breach of contract, takings, and unlicensed patent use under 28 U.S.C. Section 1498. The CFC also meets in the same Madison Place building as the Federal Circuit.
The Federal Circuit’s new decision in Crow Creek Sioux Tribe v. United States, App. No. 2017-2340 (Fed. Cir. August 17, 2018), revolves around a water-rights takings claim against the U.S. Government. The particular claim stems from two dams across the upper Missouri River that limit the Tribe’s ability to use and enjoy river water. The tribe sued in 2016. However, the case was dismissed for failure to state a claim. The Federal Circuit has now affirmed that decision – holding that the tribal water rights are only a weak form of property. In particular, the appellate held that the tribal property right in the water flow only extends to the amount of “to the extent needed to accomplish the purpose of the reservation.” Quoting Winters v. United States, 207 U.S. 564 (1908) (known as “Winters rights” to water). In Cappaert v. United States, 426 U.S. 128, 138 (1976), the court reiterated the winters rule – noting that Winters rights entitle a tribe to “that amount of water necessary to fulfill the purpose of the reservation, no more.”
Although so-called Winters rights are fully vested, the rights are only offended by government (or third-party) uses that impinge upon the Tribe’s needs for the water. There is no property right violation if the Tribe still has enough water for Reservation uses. The complaint in this case does not allege that the water flow limits block any necessary Tribal function – as such the complaint fails to assert any legally cognizable harm.
The tribal rights here are greater than prior-appropriation rights common to Western-America states. Notably, Waters rights are set-aside for the reservation and are not abandoned by mere non-use. In addition, because they were established pre-statehood, they are prior in time to almost all other nearby claims.
In many ways patents are treated as the complete opposite of the tribal water rights and serve as a speculative resource rather than a limited natural resource. A patentee has an exclusive right to control almost any non-licensed use – regardless of whether that use causes any direct harm to the patentee. The one area where the water rights rules overlap is in equity – an injunction must be predicated by harm felt by the patent owner.