Navajo Nation v. Dep't of the Interior
| Decision Date | 04 December 2017 |
| Docket Number | No. 14-16864,14-16864 |
| Citation | 876 F.3d 1144 |
| Parties | NAVAJO NATION, Plaintiff-Appellant, v. DEPARTMENT OF THE INTERIOR; Ryan Zinke , Secretary of the Interior; United States Bureau of Reclamation; Bureau of Indian Affairs, Defendants-Appellees, State of Arizona; Central Arizona Water Conservation District; Arizona Power Authority; Salt River Project Agricultural Improvement and Power District; Salt River Valley Water Users' Association; Imperial Irrigation District; Metropolitan Water District of Southern California; Coachella Valley Water District; State of Nevada; Colorado River Commission of Nevada; Southern Nevada Water Authority; State of Colorado, Intervenor-Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Scott B. McElroy (argued) and Alice E. Walker, McElroy Meyer Walker & Condon P.C., Boulder, Colorado; M. Kathryn Hoover and Stanley M. Pollack, Navajo Nation Department of Justice, Window Rock, Arizona; for Plaintiff-Appellant.
Elizabeth Ann Peterson (argued), Edward S. Geldermann, Ellen J. Durkee, and William B. Lazarus, Attorneys; John C. Cruden, Assistant Attorney General; United States Department of Justice, Washington, D.C.; Scott Bergstrom and Robert F. Snow, Office of the Solicitor, United States Department of the Interior, Washington, D.C.; for Defendants-Appellees.
L. William Staudenmaier III (argued), Phoenix, Arizona, for Intervenor-Defendants-Appellees.
Michael J. Pearce, Maguire Pearce & Storey PLLC, Phoenix, Arizona; Kelly Brown and Kenneth C. Slowinski, Chief Counsel, Arizona Department of Water Resources, Phoenix, Arizona; for Intervenor-Defendants-Appellees State of Arizona and Arizona Power Authority.
John B. Weldon, Jr. and Lisa M. McKnight, Salmon Lewis & Weldon PLC, Phoenix, Arizona; for Intervenor-Defendants-Appellees Salt River Project Agricultural Improvement and Power District and Salt River Valley Water Users' Association.
Stuart Somach and Robert Hoffman, Somach Simmons & Dunn, Sacramento, California; for Intervenor-Defendant-Appellee Central Arizona Water Conservation District.
Lauren J. Caster, Special Deputy Counsel, and Gregory L. Adams, Fennermore Craig P.C., Phoenix, Arizona; Jennifer T. Crandell, Special Counsel Attorney General; Adam Paul Laxalt, Attorney General; Office of the Nevada Attorney General; for Intervenor-Defendant-Appellee State of Nevada; Colorado River Commission of Nevada; Southern Nevada Water Authority.
Adam C. Kear, Chief Deputy General Counsel; Joseph A. Venderhorst, Assistant General Counsel; Marcia Scully, General Counsel; The Metropolitan Water District of Southern California, Los Angeles, California; for Intervenor-Defendant-Appellee Metropolitan Water District of Southern California.
Steven B. Abbott, Redwine and Sherrill, Riverside, California, for Intervenor-Defendant-Appellee Coachella Valley Water District.
Joanna M. Smith Hoff, Assistant Counsel, Imperial Irrigation District, Imperial, California; Charles T. Dumars, Law & Resource Planning Associates P.C., Albuquerque, New Mexico; for Intervenor-Defendant-Appellee Imperial Irrigation District.
Steven G. Martin and Steven M. Anderson, Best Best & Krieger LLP, Riverside, California, for Intervenor-Defendants-Appellees Coachella Valley Water District and The Metropolitan Water District of Southern California.
Shanti Rosset, Assistant Attorney General; Karen M. Kwon, First Assistant Attorney General; Cynthia Coffman, Attorney General; Attorney General's Office, Denver, Colorado; for Intervenor-Defendant-Appellee State of Colorado.
Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and Marvin J. Garbis,*** District Judge.
The Department of the Interior ("Interior" or "the Secretary") oversees the control, storage, and delivery to the Western states of the waters of the Colorado River. In most years, each state in the Colorado River Basin receives a fixed amount of water from the river; in "surplus" and "shortage" years, that amount changes. In the face of unprecedented drought and ever-increasing demand for water, Interior published guidelines in 2001 and 2008 to clarify how it would make these "surplus" and "shortage" determinations from year to year. This case concerns challenges to those guidelines by the Navajo Nation ("Nation"), a federally recognized Indian tribe.
The Nation occupies vast reservation lands along the Colorado River but has no judicially decreed right to its waters. Aggrieved by its lack of enforceable rights to Colorado River water, the Nation filed suit to challenge the surplus and shortage guidelines, alleging principally that Interior neglected to consider the guidelines' impact on its potential, but as-yet unadjudicated, water rights in the Colorado River and so violated the National Environmental Policy Act ("NEPA"). The Nation also charged Interior with more broadly breaching the trust duties the government owes the Nation by failing to account for or safeguard the tribe's interests in and rights to water in the river. The district court rejected all of the Nation's challenges, which are now raised anew here.
The Nation is a federally recognized Indian tribe whose reservation lands sprawl over 13 million acres in the American Southwest.1 The Navajo Reservation ("Reservation"), the largest Indian reservation in the United States, was established by treaty in 1868 and grew piecemeal between 1868 and 1934, as lands were added to it by treaty, executive order, and statute. The Reservation covers parts of Arizona, New Mexico, and Utah, and lies almost entirely within the drainage basin of the Colorado River,2 which demarcates much of the Reservation's western boundary. Aside from the federal government, the Nation is the largest riparian landowner along the Colorado.
The United States is trustee of the Nation's tribal lands and resources. United States v. Mitchell , 463 U.S. 206, 225, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). The Nation's claims in this action arise either directly or derivatively from the alleged breach of fiduciary responsibilities created by this trust relationship.
The Colorado River begins in the mountains of Colorado and flows nearly 1,300 miles to the Sea of Cortez, adjacent to the Sonoran Desert in Mexico, draining an area amounting to almost one-twelfth of the continental United States. Arizona v. California , 373 U.S. 546, 552, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963). "Much of this large basin is so arid that it is, as it always has been, largely dependent upon managed use of the waters of the Colorado River System to make it productive and inhabitable." Id.
Because of the Colorado's importance to the West, river water is pervasively managed, regulated, and contested. Interior, through the Bureau of Reclamation, operates large dams and reservoirs that control the flow of the Colorado's waters. Additionally, federal statutory law and regulations, Supreme Court decrees, interstate compacts, state and federal common law, and treaties foreign and domestic affect the allocation and management of the River's waters. This byzantine legal regime is known as "The Law of the River," the relevant portions of which we summarize below.
In 1922, seven states entered into an interstate compact to govern the gross allocation of water from the Colorado River. The states wanted to assure that the Colorado became a regular, dependable source of water; they recognized that doing so would require a regional or national solution.4
The Colorado River Compact ("1922 Compact") entered into by the affected states divided the river in two at Lee Ferry, Arizona. 1922 Compact art. II, reprinted in 70 Cong. Rec. 324 (Dec. 10, 1928). The "Upper Basin" States5 (Colorado, New Mexico, Utah, and Wyoming) and the "Lower Basin" States (Arizona, California, and Nevada) would each be entitled to 7.5 million acre-feet per year ("mafy") of water.6 Id. arts. II–III. This suit concerns water in the Lower Basin only. The Compact stated that it did not establish, alter, or impair any present perfected rights within the States, id. art VIII, nor "affect[ ] the obligations of the United States of America to Indian tribes," id. art VII. Commissioners from each state signed the compact, but it became effective under its terms only if ratified by Congress and the legislature of each signatory state. Id. art XI.
In 1928, Congress addressed the management of the Colorado River through the Boulder Canyon Project Act, 43 U.S.C. § 617 et seq. The Act conditionally approved the 1922 Compact and authorized the Secretary of the Interior to construct a massive dam at Boulder Canyon (now the Hoover Dam) and the attendant water delivery infrastructure (a reservoir, now Lake Mead, and delivery canals) to effectuate the allocations laid out in the 1922 Compact. 43 U.S.C. § 617. The Act also allowed the Secretary to enter into contracts with users for the storage and delivery of water in the Project's reservoir. Id. § 617d.
Most relevant for our purposes, the Act authorized the three Lower Basin States to negotiate a second compact divvying up their 7.5 mafy share of the Colorado's water—4.4 to California, 2.8 to Arizona, and 0.3 (i.e., 300,000 afy) to Nevada. If entered into, this agreement would take effect once all three states had ratified the 1922 Compact. Id. § 617c(a).
The Boulder Canyon Project Act became effective in 1929, after six of the seven states ratified the Compact, see id. , and California "irrevocably and unconditionally" covenanted to limit its consumption to 4.4 mafy.7 Arizona did not ratify the 1922 Compact, so the Lower Basin states never agreed to the second compact that would have apportioned the 7.5 mafy among the three states. See Arizona v. California , 373 U.S. at 561–62, 83 S.Ct. 1468. The Secretary nonetheless entered into water contracts with the Lower Basin states.8 Id. at...
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