Hopi Tribe v. Watt, CIV 81-272 PCT-EHC.
| Decision Date | 21 January 1982 |
| Docket Number | No. CIV 81-272 PCT-EHC.,CIV 81-272 PCT-EHC. |
| Citation | 530 F. Supp. 1217 |
| Parties | The HOPI TRIBE, Plaintiff, v. James G. WATT, Secretary of the Interior, and The United States Department of the Interior, Defendants, and The Navajo Tribe, Defendant-Intervenor. |
| Court | U.S. District Court — District of Arizona |
Stephen G. Boyden, Boyden Kennedy & Romney, John Paul Kennedy, Scott C. Pugsley, Richard M. Hymas, Salt Lake City, Utah, for plaintiff.
Richard S. Allemann, Asst. U. S. Atty., Phoenix, Ariz., Steven E. Carroll, Dept. of Justice, Land & Natural Resources Division, Washington, D. C., for defendants.
George P. Vlassis, Vlassis & Ott, Phoenix, Ariz., for defendant-intervenor The Navajo Tribe.
Plaintiff Hopi Tribe brought this action against James G. Watt, Secretary of the Interior, and the United States Department of the Interior for declaratory and injunctive relief. Specifically, the Hopi Tribe seeks an order of this Court which would declare void and invalid a portion of Secretarial Order No. 3057, signed by the Secretary of the Interior on October 9, 1980. The challenged portion requires the Interior Department and the Bureau of Indian Affairs to administer grazing and range restoration matters on Hopi partitioned area of the former Joint Use Area in accordance with 25 C.F.R. Parts 12 and 153. The Hopis contend that to the extent that the Secretarial Order establishes or continues procedures for conservation practices on Hopi partitioned lands without coordinating with and obtaining the concurrence of the Hopi Tribe, such order violates Section 3 of the Navajo-Hopi Indian Relocation Amendments Act of 1980, P.L. 96-305, 94 Stat. 929, codified as a part of 25 U.S.C. § 640d et seq. (hereafter "1980 Amendments Act").
The Navajo Tribe sought intervention in order to protect the interests of its tribal members who presently live on the Hopi portion of the partitioned Joint Use Area. On June 8, 1981, the Court granted the Navajo's April 8, 1981, motion to intervene.
On May 21, 1981, plaintiff filed a motion for summary judgment, which was opposed by the defendants and the Navajo Tribe.
Oral arguments on the summary judgment motion and the evidentiary hearing on the preliminary injunction motion were held on June 19, 1981, and both motions were taken under advisement.
The following discussion will assist in understanding the issues before the Court.
I. FACTUAL BACKGROUND
In 1974 Congress enacted legislation intended to provide for the settlement of the Navajo-Hopi dispute concerning the Joint Use Area, comprised of approximately 2,000,000 acres of reservation lands located in Northeastern Arizona. See Navajo-Hopi Settlement Act of December 22, 1974, P.L. 93-531, 88 Stat. 1712, 25 U.S.C. 640d et seq. hereafter "1974 Settlement Act". The 1974 Settlement Act provided for court partition of the disputed land and for the eventual relocation of over 800 Indian families most of whom were Navajos. The partition of the Joint Use Area and the relocation of displaced Indian families was intended to ultimately make each tribe autonomous with respect to their reservation lands.
Following the passage of this act, and entry of the Court's Judgment of Partition in February, 1977, regulations were promulgated in 1977 by the Secretary of the Interior. Specifically, 25 C.F.R. Part 153, sets forth grazing regulations for the former Navajo-Hopi Joint Use Area (JUA) lands. A Project Officer of the Bureau of Indian Affairs, Administrative Office at Flagstaff, Arizona (BIA) was delegated specific responsibilities for issuance of grazing permits to persons in the JUA awaiting relocation. 25 C.F.R. Part 12 was captioned "Code of Offenses for Navajo-Hopi Settlement Act Secretarial Responsibilities". Regulations embodied in Part 12 set up a code of offenses for various acts occurring in the former JUA, as well as a court and jury system — with jurors who were residents of the JUA — to try such offenses.
Both tribes were dissatisfied with provisions of the 1974 Act, and each attempted to obtain congressional amendments favorable to their respective interests. In 1980, the Senate and the House each passed bills to amend the 1974 Act.
The House made certain amendments to the Senate bill (S.751), and after the Senate failed to concur in such amendments, a Committee of Conference of both bodies met and ultimately submitted a conference report (H.Rep. No. 96-1094). The Committee recommended certain amendments to the 1974 Act — to be cited as the "Navajo and Hopi Indian Relocation Amendments Act of 1980." Cong.Rec. Vol. 126, H. 5045-5048.
The Conference Report on S. 751, was a compromise between the Senate and House bills. One of the conferees stated that "the initial Senate and House versions of these amendments could be fairly described as pro-Navajo and pro-Hopi, respectively". Cong.Rec. Vol. 126, H. 5661. The process of amalgamating these two philosophies into S-751 underlies the dispute now before this Court.
Prior to the 1980 Amendments Act, the 1974 Act, 25 U.S.C. § 640d-18(a) "authorized and directed" the Secretary:
... to immediately commence reduction of the numbers of all the livestock now being grazed upon the lands within the joint use area and complete such reductions to carrying capacity of such lands, as determined by the usual range capacity standards as established by the Secretary after December 22, 1974. The Secretary is directed to institute such conservation practices and methods within such area as are necessary to restore the grazing potential of such area to the maximum extent possible.
See in this regard, Sekaquaptewa v. MacDonald, 544 F.2d 396 (9th Cir. 1976).
Section 640d-18(b) also directed the Secretary upon issuance of the partition order for the joint use lands (entered February 10, 1977 in Cause No. Civ. 759 PCT-JAW) to "provide for the survey location of monuments, and fencing of boundaries of any lands partitioned".
Section 3 of the 1980 Amendments Act, codified at 25 U.S.C. § 640d-9(c)-(f), provides in pertinent part as follows:
The 1980 Act did not amend § 640d-18(a) and (b) which concerned the Secretary's authorization to undertake certain activities in the JUA. Rather, the 1980 Act added subsection (c) to section 18. This subsection required the Secretary to complete the surveying, monumenting, fencing operations, and livestock reduction program authorized under (a) and (b), by certain dates. Specifically, subsection (c) provides as follows:
The 1980 Amendments Act changed and liberalized the life estate provisions for Navajos on Hopi partitioned land, as well as authorized additional land to be acquired by the Navajos from the Bureau of Land Management (BLM) and by purchase of private lands.
The Hopi Tribe — The Hopis contend that the 1980 Amendments Act precludes the Secretary:
... from implementing any conservation practice, including grazing control and range restoration activities, on any and all parts of the Hopi partitioned area without first coordinating with and obtaining the concurrence of the Hopi Tribe as to the appropriateness of such conservation practices, ...
The Hopis contend that effective April 18, 1981, tribal concurrence is required for impoundment and fencing activities and issuance of grazing permits to Navajos eligible for relocation, i.e., "... any regulation that the Secretary proposes to adopt following ...
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