Hawkins v. Bernhardt
| Decision Date | 31 January 2020 |
| Docket Number | Civil Action No. 19-1498 (BAH) |
| Citation | 436 F.Supp.3d 241 |
| Parties | Gerald H. HAWKINS, et al., Plaintiffs, v. David L. BERNHARDT, Secretary, U.S. Department of the Interior, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Damien M. Schiff, Pro Hac Vice, David J. Deerson, Pro Hac Vice, Pacific Legal Foundation, Sacramento, CA, Dominic M. Carollo, Yockim Carollo LLP, Roseburg, OR, for Plaintiffs.
Daron Tate Carreiro, Matthew M. Marinelli, U.S. Department of Justice, Washington, DC, for Defendants.
BERYL A. HOWELL, Chief Judge Plaintiffs, a group of landowners in the Upper Klamath Basin in Oregon, seek declaratory and injunctive relief against defendants, officials in the Bureau of Indian Affairs ("BIA") and the Department of the Interior, to prevent enforcement of the Klamath Tribes' reserved water rights.1 In particular, plaintiffs challenge two protocol agreements executed by the Klamath Tribes and the BIA, setting forth procedures for the enforcement of the tribes' water rights, arguing that in signing the agreements, the BIA unlawfully delegated federal power to the tribes and, additionally, violated the National Environmental Policy Act ("NEPA"). See Am. Compl. ¶¶ 41–53; Pl.'s Opp'n to Mot. to Dismiss ("Pl.'s Opp'n") at 1, ECF No. 19. Defendants move pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss the plaintiffs' amended complaint for lack of subject matter jurisdiction and for failure to state a claim. See Defs.' Mot. to Dismiss and Mem. Pts. and Auth. in Support ( ), ECF No. 17. The defendants are correct that the plaintiffs lack standing, and thus the amended complaint is dismissed under Rule 12(b)(1).2
The gravamen of this case is the repercussions to the plaintiffs of enforcement of tribal water rights. To provide context for resolution of the pending motion, the applicable treaty, laws and challenged protocol agreements are described below, followed by a summary of the plaintiffs' claims.
For more than a thousand years, the Klamath Tribes "hunted, fished, and foraged in the area of the Klamath Marsh and upper Williamson River," in southern Oregon. United States v. Adair , 723 F.2d 1394, 1397 (9th Cir. 1983).3 In 1864, the Tribes ceded approximately 12 million acres of land to the United States by treaty, and, in exchange, the United States reserved roughly 800,000 acres for the Tribes. Id. at 1398 ; Treaty with the Klamath ("Klamath Treaty"), 16 Stat. 707 (1864). Article I of the Klamath Treaty granted the tribes "the exclusive right to hunt, fish, and gather on their reservation."
Adair , 723 F.2d at 1398 ; 16 Stat. 708. Article II created a [trust fund] designed to "advance [the Tribes] in civilization ... especially in agriculture." Id.
In 1954, Congress terminated federal supervision of the Tribes. See Klamath Termination Act, 68 Stat. 718 (1954) (). "The express purpose of [the Klamath Termination Act] was to terminate federal supervision over the Klamath Tribe of Indians, to dispose of federally owned property acquired for the administration of Indian affairs, and to terminate the provision of federal services to the Indians solely because of their status as Indians." Kimball v. Callahan , 493 F.2d 564, 567 (9th Cir. 1974). The Termination Act did not, however, abrogate the Tribes' treaty rights to hunt, fish, and gather. Id. at 568–69 ; Adair , 723 F.2d at 1411–12. Indeed, the Termination Act states explicitly, "[n]othing in this Act shall abrogate any water rights of the tribe and its members" and "[n]othing in this Act shall abrogate any fishing rights or privileges of the tribe or the members thereof enjoyed under Federal Treaty." 68 Stat. at 722, 25 U.S.C. § 564m.
Pursuant to the Termination Act, certain tribal members elected to withdraw from the tribes in exchange for the cash value of their proportionate interest in the tribal property. Kimball , 493 F.2d at 567. Reservation lands were sold "to pay the withdrawn members," while a smaller portion was retained in trust under a "nongovernmental tribal management plan." Id.
In 1986, Congress restored the Klamath Tribes to federal recognition. See Klamath Indian Tribe Restoration Act, 100 Stat. 849 (1986) (codified at 25 U.S.C. § 566 ). The Restoration Act "restored the Tribes' federal services, as well as the government-to-government relationship between the Tribe and the United States," but "did not alter existing property rights," meaning previously sold reservation lands were not returned. Klamath Tribe Claims Committee v. United States , 106 Fed. Cl. 87, 90 (2012).
In 1975, the United States filed suit in Federal District Court in Oregon, seeking a declaratory judgment to determine the respective water rights of the Klamath Tribes and interested private land owners in Klamath County. See Am. Compl. At ¶ 15; Defs.' Mot. at 9. The Tribes intervened as a plaintiff, and Oregon intervened as a defendant. Defs.' Mot. at 9. The district court's finding that the Tribes had implied water rights "necessary to preserve their hunting and fishing rights," under the 1864 Klamath Treaty, United States v. Adair , 478 F. Supp. 336, 350 (D. Or. 1979), was affirmed, Adair , 723 F.2d at 1399 (). Specifically, the Ninth Circuit concluded that the Termination Act had not abrogated Tribes' water rights, id. at 1411–12, which took priority over those of private landowners and allowed the tribes to "prevent other appropriators from depleting the streams and waters below a protected level in any area where the[ir] non-consumptive right applies, id. at 1411.
While protecting the Tribes' water rights, the Ninth Circuit did not determine the precise water levels subject to protection. See United States v. Braren , 338 F.3d 971, 973 (9th Cir. 2003). Adjudication over protected water levels took place between 1976 and 2013 in lengthy state-run administrative proceedings in Oregon. The United States, the Tribes, and private landowners—including many of the plaintiffs in this case—filed thousands of claims in the state's administrative proceeding, known as the Klamath Basin Adjudication. See id.
At the close of the administrative phase of the Klamath Basin Adjudication, the Oregon Water Resources Department ("OWRD") issued findings of fact and an order of determination on March 7, 2013, which was amended on February 14, 2014. Am. Compl. ¶ 19; Defs.' Mot. at 11. OWRD's Amended and Corrected Findings of Fact and Order of Determination ("ACFFOD") provisionally determined more than 700 claims, including claims brought by the United States as trustee on behalf of the Klamath Tribes. Am. Compl. ¶ 20. These determinations quantified tribal water rights "for the Wood River and two of its tributaries, Fort Creek and Crooked Creek, the Sprague River and several of its tributaries, including Five Mile Creek, and the lower Williamson River and several of its tributaries, including Larkin Creek and Spring Creek." Id.
Under Oregon Revised Statute ("ORS") 539.150, parties subject to the ACFFOD may file exceptions to OWRD's determinations in Oregon state circuit court. Plaintiffs and the United States both filed exceptions, see Defs.' Mot. at 11, which remain pending and "are not likely to be resolved for several more years," Am. Compl. ¶ 20. Notwithstanding these appeals, determined claims under the ACFFOD are in effect, pursuant to ORS 539.130(4). See Am. Compl. ¶ 19. A watermaster appointed by the OWRD is tasked with enforcing such claims. See ORS 540.045(a)-(b). To enforce their rights under the ACFFOD, water users issue "calls" to the watermaster, who, upon investigation, regulates upstream usage to maintain necessary supply to satisfy senior downstream water rights. See Defs.' Mot. at 12.
In 2013, following OWRD's preliminary determination, the BIA and the Klamath Tribes entered into one of the two protocol agreements challenged in this lawsuit, in order to delineate procedures for the issuance of calls enforcing the Tribes' water rights. Am. Compl. ¶ 22; Defs.' Mot., Ex. 1, Protocol Agreement Between the Klamath Tribes and the Bureau of Indian Affairs (May 30, 2013) ("2013 Protocol Agreement"), ECF No. 17-1. The 2013 Protocol Agreement established that a representative of the Tribes would, when necessary, "contact[ ] OWRD to make calls for enforcement of the Tribal water rights." 2013 Protocol Agreement ¶ 1. Prior to making such a call, the Tribes would notify the BIA, two business days in advance, to provide "the reasons for making such a call, including: the Tribal water right not being met, the water source and amount for the call, and an assessment based on the Tribes' information and belief that water is currently being diverted from the source at issue and that a call would provide water for the Tribal water right." Id. ¶ 2. Pursuant to the agreement, the BIA would then "timely provide an email response to the call notice stating either (i) agreement with making the proposed call, (ii) changes to the scope of the proposed call, (iii) disagreement with making the proposed call and the reasons for that disagreement, or (iv) that BIA needs an additional business day to complete deliberations on the call notice." Id. ¶ 3.
In the event of disagreement, the 2013 Protocol Agreement established additional procedures for further discussion between the Tribal Chairman and the BIA's Regional Director. See id. at 4. Although this agreement authorized the United States to initiate calls on behalf of the tribes, should the Tribes not issue a call notice when necessary, see id. at 5, both the Tribes and the United States retained an "independent right...
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