Joint Bd. of Control of Flathead, Mission v. US, CV-86-156-M-CCL.

• Decision Date: 16 October 1986
• Docket Number: No. CV-86-156-M-CCL.,CV-86-156-M-CCL.
• Citation: 646 F. Supp. 410
• Parties: The JOINT BOARD OF CONTROL OF the FLATHEAD, MISSION AND JOCKO IRRIGATION DISTRICT, Plaintiff, v. The UNITED STATES OF AMERICA; The United States Department of the Interior; The Honorable Donald Hodel, Secretary of the Interior; The Bureau of Indian Affairs, an agency within the Department of Interior; Stanley Speaks, Director, Portland Area Office, Bureau of Indian Affairs; and the Flathead Irrigation and Power Project, an agency within the Bureau of Indian Affairs; Defendants, and The Confederated Salish and Kootenai Tribes of the Flathead Reservation, Intervenor-Defendant.
• Court: U.S. District Court — District of Montana

646 F. Supp. 410

The JOINT BOARD OF CONTROL OF the FLATHEAD, MISSION AND JOCKO IRRIGATION DISTRICT, Plaintiff, v. The UNITED STATES OF AMERICA; The United States Department of the Interior; The Honorable Donald Hodel, Secretary of the Interior; The Bureau of Indian Affairs, an agency within the Department of Interior; Stanley Speaks, Director, Portland Area Office, Bureau of Indian Affairs; and the Flathead Irrigation and Power Project, an agency within the Bureau of Indian Affairs; Defendants and The Confederated Salish and Kootenai Tribes of the Flathead Reservation, Intervenor-Defendant.

No. CV-86-156-M-CCL.

United States District Court, D. Montana, Missoula Division.

October 16, 1986.

COPYRIGHT MATERIAL OMITTED

Stanley T. Kaleczyc, J. Daniel Hoven, Lisa Leckie, Browning, Kaleczyc, Berry & Hoven, P.C., Helena, Mont., for plaintiff.

Robert Brooks, Asst. U.S. Atty., Butte, Mont., for defendants.

James H. Goetz, Goetz, Madden & Dunn, P.C., Bozeman, Mont., Daniel F. Decker, Legal Dept., Confederated Salish & Kootenai Tribes, Pablo, Mont., for intervenor-defendant.

OPINION AND ORDER

LOVELL, District Judge.

INTRODUCTION

For the second consecutive year these same parties are before the Court quarreling over water allocation on the Flathead Indian Reservation.

In July 1985, the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation ("Tribes") commenced an action to enjoin the dewatering of streams and reservoirs on the Reservation for irrigation. The Tribes claimed that distribution of water by the Flathead Irrigation Project ("FIP" or the "Project") was threatening the existence and preservation of tribal fisheries, in violation of the Hell Gate Treaty of 1855, 12 Stat. 975. The United States was named as a defendant and appeared to defend the Project, which is administered by the Bureau of Indian Affairs, Department of the Interior (BIA). Upon motion, the Court permitted intervention of the Joint Board of Control of the Flathead, Mission and Jocko Valley Irrigation Districts ("JBC"), which represents the 2,600 water users served by FIP, and of the State of Montana, which claimed an interest arising from its statewide water adjudication process.

Following issuance of a temporary restraining order, the Court set hearing on the Tribes' motion for preliminary injunction. At the time of hearing, the Court was presented with a stipulation between the Tribes and the United States, setting forth certain procedures by which instream flows were to be established and providing designated minimum instream flows for particular streams and minimum levels for particular reservoirs. The agreement by its terms was to expire October 31, 1985.

Upon acceptance of the stipulation by all parties, the Court dismissed the action without prejudice as moot. See Confederated Salish and Kootenai Tribes v. Flathead Irrigation and Power Project, et al., 616 F.Supp. 1292 (D.Mont.1985).

On August 4, 1986, the JBC filed the present action for injunctive relief, claiming that in its efforts to develop a water management plan for the 1986 irrigation season, the BIA abused its discretion by wholly failing to consider the rights and interests of JBC members. Again, the United States and its pertinent agencies and officials were the only defendants named. The Court granted a motion to intervene by the Tribes and, after an ex parte hearing at which both sides appeared, on August 6, 1986, issued a Temporary Restraining Order enjoining the Project from continuing implementation of the 1986 interim flows established by the BIA.

Hearing on the JBC's motion for preliminary injunction commenced August 25, 1986, and continued until August 28. The court has considered fully the testimony presented at the hearing by witnesses for all parties, the extensive documentary evidence submitted, affidavits contained in the file, and the briefs aptly prepared and submitted by counsel.

JURISDICTION

The Court's jurisdiction to entertain this action is based upon 28 U.S.C. § 1331 and 5 U.S.C. § 702. The existence of jurisdiction is disputed by all defendants.¹ The United States asserts that neither the federal question statute nor the Administrative Procedure Act constitutes a waiver of its sovereign immunity, but that there must be an independent basis for federal jurisdiction and an independent ground showing consent to be sued.

The Government further claims that jurisdiction cannot be grounded on any nebulous fiduciary or trust duty owed by the BIA to the irrigators, because no such fiduciary relationship exists. The United States asserts that there is no other independent statutory or contractual basis for federal jurisdiction, and that the action must therefore be dismissed.

Finally, the government asserts that regardless of the Court's caution to avoid water rights adjudication, any order affecting the distribution of water will necessarily impact upon prioritization and quantification of water rights and thus that the Court should refrain from exercise of jurisdiction in the interests of wise judicial administration.

These arguments are without merit. The United States correctly asserts that the Administrative Procedure Act does not provide an independent basis of jurisdiction to review agency actions. Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 984, 51 L.Ed.2d 192 (1977). The Ninth Circuit Court of Appeals has held that section 702 of the APA does, however, waive sovereign immunity in non-statutory review actions for non-monetary relief brought under 28 U.S.C. § 1331. See Assiniboine and Sioux Tribes v. Board of Oil and Gas, 792 F.2d 782, 793 (9th Cir.1986), and cases cited therein.

Moreover, the APA permits judicial review of agency actions where the claim for relief is keyed to another federal statute and there is no specific provision in the statutory scheme that precludes review. See Presidio Bridge Co. v. Secretary of State, 486 F. Supp. 288, 293 n. 1 (W.D.Tex.1978). A right to judicial review is presumed unless a statute precludes review or the action is one committed to agency discretion. Assiniboine and Sioux Tribes v. Bd. of Oil and Gas, supra, 792 F.2d at 791; 5 U.S.C. § 701. The administration of Indian Irrigation Projects is governed by 25 U.S.C. § 381, et seq., and the regulations promulgated thereunder. There is no indication that Congress intended judicial review to be precluded under this scheme.

The "committed to agency discretion" exception to the presumption of reviewability has been narrowly construed, and applies only "in those very limited circumstances in which Congress has drafted a statute so that the courts have `no meaningful standard' against which to judge the agency's exercise of discretion.," Assiniboine and Sioux Tribes v. Bd. of Oil and Gas, supra, 792 F.2d at 791. The regulations under 25 U.S.C. § 381 provide sufficient standards by which to judge the BIA's actions herein; thus, the Court finds that neither exception to the presumption of reviewability applies to this case, and that jurisdiction is proper under 5 U.S.C. § 702 and the rule stated in Assiniboine and Sioux. See also, Northern Cheyenne Tribe v. Hodel, CV 82-116-BLG (D. Mont. Memorandum Opinion dated 5/28/85) slip op. at 8 (motion for reconsideration pending).

The United States also suggests that jurisdiction is improper because the plaintiff has failed to exhaust its administrative remedies. Unless application of the doctrine of exhaustion is statutorily mandated, its application rests within the discretion of the district court. Assiniboine and Sioux Tribes, supra, 792 F.2d at 790; Southeast Alaska Conservation Council v. Watson, 697 F.2d 1305, 1309 (9th Cir. 1983). More importantly,

exhaustion of administrative remedies is not required where administrative remedies are inadequate or not efficacious, where pursuit of administrative remedies would be a futile gesture, where irreparable injury will result unless immediate judicial review is permitted, or where the administrative proceeding would be void.

Watson, supra, 697 F.2d at 1309, citing Aleknagik Natives, Ltd. v. Andrus, 648 F.2d 496, 499 (9th Cir.1980). As in Watson, exhaustion will not be required in this case, where an immediate decision is required on the appropriateness of a preliminary injunction.

Finally, the Court rejects the Government's contention that exercise of jurisdiction should be deferred under Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 103 S.Ct. 3201, 77 L.Ed.2d 837 (1983). San Carlos, following the decision in Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), held that a federal district court should consider several factors, including whether the state has a comprehensive water rights adjudication and management system, and determine whether dismissal of the federal suit in favor of state proceedings is justified by wise judicial administration and efficiency. There is no rule that even a pending state action adjudicating water rights automatically deprives the district court of jurisdiction over issues implicating water. Kittitas Reclamation District v. Sunnyside Valley Irrigation District, 763 F.2d 1032, 1034-35 (9th Cir.1985).

Following this Court's opinion in Confederated Salish and Kootenai v. Flathead Irrigation & Power Project, supra, the Supreme Court of Montana handed down its ruling that the disclaimer language contained in Article I of the Montana Constitution of 1972 does not bar state jurisdiction to adjudicate Indian reserved water rights, and that the Montana Water Use Act, Title 85, ch. 2, Mont. Code Ann., is adequate on its face to adjudicate Indian and federal reserved water rights. State of Montana v. Confederated Salish and Kootenai Tribes, et al., Mont., 712 P.2d 754 (1985). The United States intimates that because the state supreme court has now held that Montana's water adjudication process will be applied to Indian and federal reserved...