Hawkins v. Haaland

• Decision Date: 19 March 2021
• Docket Number: No. 20-5074,20-5074
• Citation: 991 F.3d 216
• Parties: Gerald H. HAWKINS, Individually and as a Trustee of the CN Hawkins Trust and Gerald H. Hawkins and Carol H. Hawkins Trust, et al., Appellants v. Debra A. HAALAND, Secretary of the Interior, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

991 F.3d 216

Gerald H. HAWKINS, Individually and as a Trustee of the CN Hawkins Trust and Gerald H. Hawkins and Carol H. Hawkins Trust, et al., Appellants

v.Debra A. HAALAND, Secretary of the Interior, et al., Appellees

No. 20-5074

United States Court of Appeals, District of Columbia Circuit.

Argued November 23, 2020

Decided March 19, 2021

David J. Deerson argued the cause for appellants. With him on the briefs were Damien M. Schiff, Sacramento, and Dominic M. Carollo.

John L. Smeltzer, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Jeffrey Bossert Clark, Assistant Attorney General, Eric Grant, Deputy Assistant Attorney General, and Erika Kranz and Daron T. Carreiro, Attorneys.

Before: Rogers, Katsas and Rao, Circuit Judges.

Rogers, Circuit Judge:

Ranchers in the Upper Klamath Basin region of the State of Oregon who hold irrigation water rights, sued to prevent the exercise of water rights that interfere with the irrigation of their lands. The district court dismissed their lawsuit for lack of standing under Article III of the Constitution. Viewing their standing to turn on whether the Klamath Tribes can call upon state officials to implement their superior instream water rights without the consent of the federal government, the ranchers challenge a Protocol Agreement executed by the United States and the Tribes. They contend that the federal government, as trustee of those water rights, unlawfully delegated its call-making authority to the Tribes and that absent such delegation, the Tribes would be unable to secure state implementation of their water rights. The ranchers maintain that the economic, environmental, and recreational injuries they suffered because of water cut offs imposed to satisfy the Tribes’ superior water rights are fairly traceable to the federal government's delegation of its authority and could be redressed by invalidation of the Protocol, which would restore the federal government's call-making authority. We conclude that the Protocol does not delegate federal authority to the Tribes but recognizes the Tribes’ preexisting authority to control their water rights under a Treaty in 1864 with the United States. Accordingly, the ranchers have not established the causation or redressability necessary for standing, and the dismissal of their complaint is affirmed.

I.

The Klamath Tribes have hunted, fished, and lived in the Klamath River watershed of Southern Oregon for over a thousand years. See Oregon Dep't of Fish & Wildlife v. Klamath Indian Tribe , 473 U.S. 753, 766, 105 S.Ct. 3420, 87 L.Ed.2d 542 (1985) ; United States v. Adair , 723 F.2d 1394, 1397–98 (9th Cir. 1983). In 1864, the Tribes entered into a treaty with the United States in which they ceded most of their aboriginal territory, approximately 22 million acres, excluding approximately 1.9 million acres that the parties agreed would be held for the Tribes "as an Indian reservation." Oregon Dep't , 473 U.S. at 755, 105 S.Ct. 3420 (internal quotation marks omitted) (quoting Treaty Between the United States of America and the Klamath and Modoc Tribes and Yahooskin Band of Snake Indians ("1864 Treaty") art. I, Oct. 14, 1864, 16 Stat. 707, 707–08).¹ The Tribes reserved "the exclusive right of taking fish in the streams and lakes" on the reservation, 1864 Treaty art. I, 16 Stat. at 708, and of "gathering edible roots, seeds, and berries within its limits," id. , and the United States agreed to compensate the Tribes for the ceded lands in the form of federal expenditures to promote the Tribes’ well-being and "advance them in civilization ... especially agriculture," id. art. II, 16 Stat. at 708.

After establishing the Klamath Reservation, Congress enacted the General Allotment Act of 1887, which authorized subdivision of the reservation and allotment of parcels granted in fee to individual members of the Tribes, as part of a policy, since repudiated, "to extinguish tribal sovereignty, erase reservation boundaries, and force the assimilation of Indians into the society at large." Upper Skagit Indian Tribe v. Lundgren , ––– U.S. ––––, 138 S. Ct. 1649, 1652–53, 200 L.Ed.2d 931 (2018) (internal quotation marks omitted) (quoting Cnty. of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation , 502 U.S. 251, 254, 112 S.Ct. 683, 116 L.Ed.2d 687 (1992) ). Since then Congress has addressed the federal government's relationship to the Tribes in ways directly relevant here. Nearly a century later, Congress ended the federal government's historical role as trustee while reaffirming the Tribes’ reserved aboriginal water rights. By 1986, Congress had restored certain of its trustee services to the Tribes, but again expressly left the Tribes’ aboriginal water rights in the Tribes’ exclusive control.²

The Klamath Termination Act of 1954 terminated federal supervision of the Tribes and provided for disposition of their reservation land that had not been allotted. Pub. L. No. 83-587, § 1, 68 Stat. 718, 718. It closed the tribal roll and provided that tribal members could elect to withdraw from the Tribes and receive a cash payout of the individual's interest in tribal property. Termination Act §§ 3–5, 68 Stat. at 718–19. The Tribes’ property could be appraised and sold to fund individual cash payments. Id. § 5, 68 Stat. at 719. The property of the remaining members of the Tribes would be managed by a private trustee or corporation. Id. All restrictions on sale or encumbrance of land owned by members of the Tribes would be removed four years after the Act became effective. Id. § 8, 68 Stat. at 720. Specifically, the Termination Act provided:

Upon removal of Federal restrictions on the property of the tribe and individual members thereof, the Secretary [of the Interior] shall publish in the Federal Register a proclamation declaring that the Federal trust relationship to the affairs of the tribe and its members has terminated. Thereafter individual members of the tribe shall not be entitled to any of the services performed by the United States for Indians because of their status as Indians and, except as otherwise provided in this Act, all statutes of the United States which affect Indians because of their status as Indians shall no longer be applicable to the members of the tribe, and the laws of the several States shall apply to the tribe and its members in the same manner as they apply to other citizens or persons within their jurisdiction.

Id. § 18(a), 68 Stat. at 722. Regarding water and fishing rights, the Termination Act provided:

(a) Nothing in this Act shall abrogate any water rights of the tribe and its members, and the laws of the State of Oregon with respect to the abandonment of water rights by nonuse shall not apply to the tribe and its members until fifteen years after the [termination of the federal trust relationship to the tribe].

(b) Nothing in this Act shall abrogate any fishing rights or privileges of the tribe or the members thereof enjoyed under Federal treaty.

Id. § 14, 68 Stat. at 722.

About 78% of the Tribes’ members elected to withdraw and receive a payout. Klamath & Modoc Tribes v. United States , 436 F.2d 1008, 1012 (Ct. Cl. 1971). Reservation property not set aside to pay their claims was transferred to a private trustee. Id. In 1961, the Secretary of the Interior published a notice in the Federal Register that "the Federal trust relationship to the affairs of the tribe and its members is terminated." Termination of the Federal Trust Relationship to the Property of the Klamath Tribe of Indians Located in the State of Oregon, and of Federal Supervision Over the Affairs of the Individual Members Thereof, 26 Fed. Reg. 7362, 7362 (Aug. 12, 1961).

In 1986, Congress unwound some of the effects of the Termination Act. The Klamath Indian Tribe Restoration Act of 1986 restored the Federal trust relationship with the Tribes. It provided:

All rights and privileges of the tribe and the members of the tribe under any Federal treaty, Executive order, agreement, or statute, or any other Federal authority, which may have been diminished or lost under the [1954 Termination Act] are restored, and the provisions of such Act, to the extent that they are inconsistent with this Act, shall be inapplicable to the tribe and to members of the tribe after the date of the enactment of this Act.

Pub. L. No. 99-398, § 2(b), 100 Stat. 849, 849. The Tribes were restored to the status of a federally recognized tribe. Id. § 2(a), 100 Stat. at 849. The Act specified that it did not "alter any property right or obligation," and thus did not restore previously alienated lands to the Tribes’ land base. See id. §§ 2(d), 6, 100 Stat. at 850. It also expressly provided that the Act would not "affect in any manner any hunting, fishing, trapping, gathering, or water right of the tribe and its members." Id. § 5, 100 Stat. at 850. The United States presently recognizes the Tribes as a tribal sovereign, 25 U.S.C. §§ 3601(3), 5123(h), with inherent powers of self-government, including powers over land and water rights except as reserved by Congress. See Kahawaiolaa v. Norton , 386 F.3d 1271, 1273 (9th Cir. 2004) ; Burlington N. R.R. Co. v. Blackfeet Tribe of the Blackfeet Indian Rsrv. , 924 F.2d 899, 902 (9th Cir. 1991), overruled on other grounds by Big Horn Cnty. Elec. Co-op., Inc. v. Adams , 219 F.3d 944, 953 (9th Cir. 2000) ; see also Michigan v. Bay Mills Indian Cmty. , 572 U.S. 782, 788, 134 S.Ct. 2024, 188 L.Ed.2d 1071 (2014) ; Oregon Dep't , 473 U.S. at 765–66, 105 S.Ct. 3420 ; United States v. Shoshone Tribe of Indians of Wind River Rsrv. , 304 U.S. 111, 116–17, 58 S.Ct. 794, 82 L.Ed. 1213 (1938) ; Indian Entities Recognized by and Eligible to Receive Services from the United States Bureau of Indian Affairs, 84 Fed. Reg. 1200, 1202 (Feb. 1, 2019).

A.

Prior to passage of the Restoration Act, the determination of competing claims to water in the Klamath Basin was underway in the federal courts and under Oregon law. The...