Navajo Nation v. Office of Navajo & Hopi Indian Relocation

• Decision Date: 29 September 2022
• Docket Number: CV-21-08190-PCT-DWL
• Parties: Navajo Nation, Plaintiff, v. Office of Navajo and Hopi Indian Relocation, et al., Defendants.
• Court: U.S. District Court — District of Arizona

Navajo Nation, Plaintiff, v. Office of Navajo and Hopi Indian Relocation, et al., Defendants.

No. CV-21-08190-PCT-DWL

United States District Court, D. Arizona

September 29, 2022

ORDER

Dominic W. Lanza United States District Judge

INTRODUCTION

The Ninth Circuit previously observed that the “more-than-a-century-old dispute between members of the Hopi Tribe and the Navajo Nation over the use of approximately 2.5 million acres in northern Arizona . . . has been the subject of extensive litigation and legislation including at least eighteen opinions of this court.” Clinton v. Babbitt, 180 F.3d 1081, 1083 (9th Cir. 1999). This lawsuit represents another instance of such litigation.

The background details are as follows. In 1882, President Chester A. Arthur signed an executive order that “created a 2.5 million acre reservation for the Hopi Tribe and for ‘such other Indians as the Secretary of Interior may see fit to settle thereon.'” Id. (citation omitted). “Over the next several years, the Hopi Tribe enjoyed the right to use and occupy the 2.5 million acre reservation, but the Navajo population in the area grew substantially. Conflicting claims to exclusive use arose between the Hopi Tribe and the Navajo Nation, producing what became known as ‘the greatest title problem in the West.'” Id. (citation omitted). “In 1958, to quiet title to the area, Congress authorized litigation between the Hopi Tribe and the Navajo Nation. Pursuant to that litigation, a federal district court determined that 650,000 acres of the disputed area belonged exclusively to the Hopi Tribe, and that the Hopi Tribe and Navajo Nation had joint and undivided interests in the remaining approximately 1.8 million acres, an area thereafter referred to as the ‘Joint Use Area.' Congress then directed the partitioning of the Joint Use Area in the Navajo and Hopi Indian Land Settlement Act of 1974.” Id. (citations omitted). Among other things, “[t]he 1974 Settlement Act required members of each tribe to move from lands partitioned to the other tribe by 1986 and created a commission to pay for the major costs of such relocations. As of 1996, the United States had spent more than $330 million to relocate more than 11,000 tribal members.” Id. (citations omitted).

In this action, Plaintiff Navajo Nation (“the Nation”) has sued the Office of Navajo and Hopi Indian Relocation (“ONHIR”) and the U.S. Department of the Interior (“DOI”) (together, “Defendants”) for failing to comply with various provisions of the Settlement Act and subsequent enactments, which the Nation refers to collectively as “the Relocation Act.” (Doc 1.)^[1] More specifically, the Nation seeks (1) declaratory relief that ONHIR “has failed to provide necessary community facilities for Navajo relocatees in violation of fiduciary obligations under the Relocation Act” and “injunctive relief to compel the performance of that legal obligation” (id. ¶¶ 120-28); (2) declaratory relief that “ONHIR has unreasonably delayed completion of relocation of Navajo citizens” and “injunctive relief to advance prompt, proper completion of Navajo relocation” (id. ¶¶ 129-37); (3) declaratory relief “confirming that ONHIR has not fully discharged its functions, and injunctive relief to prevent ONHIR from closing before the President determines that ONHIR has full[y] discharged its functions” (id. ¶¶ 138-42); and (4) declaratory relief “confirming that ONHIR must obtain and DOI must provide reasonable assistance to implement the Relocation Plan, and injunctive relief to require performance of those obligations” (id. ¶¶ 143-48). Defendants have, in turn, moved to dismiss the Nation's complaint for lack of subject-matter jurisdiction and/or for failure to state a claim. (Doc. 20.) For the following reasons, the motion is granted in part and Defendants are granted leave to file a second motion to dismiss with respect to Count One.

BACKGROUND

I. Legal Developments

As noted, the Settlement Act of 1974 “required members of each tribe to move from lands partitioned to the other tribe by 1986 and created a commission,” now known as ONHIR,^[2] “to pay for the major costs of such relocations.” Clinton, 180 F.3d at 1084. “The Act also provided for various payments to be made to the heads of households that were relocated,” including “the fair market value of the habitation and improvements owned in the area,” “actual reasonable moving expenses,” “the cost of a ‘decent, safe and sanitary' replacement dwelling,” and “‘bonus' payments to families who contracted to relocate within certain time periods after the effective date of the relocation plan.” Begay v. United States, 16 Cl. Ct. 107, 111 (1987), aff'd, 865 F.2d 230 (Fed. Cir. 1988).^[3]

ONHIR was established “as an independent entity in the executive branch.” P.L. 93-531 § 12(a); 25 U.S.C. § 640d-11(a). The Settlement Act directed ONHIR to “prepare and submit to the Congress a report concerning the relocation of households and members thereof of each tribe.” P.L. 93-531 § 13(a); 25 U.S.C. § 640d-12(a). ONHIR was instructed that the report “shall include a detailed plan providing for the relocation” and shall (1) “be developed . . . in consultation with the persons involved in such relocation and appropriate representatives of their tribal councils”; (2) “avoid or minimize, to the extent possible,” the “adverse social, economic, cultural, and other impacts of relocation”; (3) “identify the sites to which such households shall be relocated”; and (4) “assure that housing and related community facilities and services, such as water, sewers, roads, schools and health facilities, . . . [are] available at their relocation sites.” P.L. 93-531 § 13(c)(1)-(4). Congress provided that “[t]he relocation shall take place in accordance with the relocation plan and shall be completed by the end of five years from the date on which the relocation plan takes effect.” P.L. 93-531 § 14(a); 25 U.S.C. § 640d-13(a). Congress also provided that ONHIR “shall cease to exist when the President determines that its functions have been fully discharged.” P.L. 93-531 § 12(i); 25 U.S.C. § 640d-11(f).

The relocation plan was submitted in April 1981 and took effect in July 1981.^[4] Thus, ONHIR's relocation efforts were expected to be completed by July 1986.

Congress has amended the Settlement Act several times. In 1980, Congress passed the Navajo and Hopi Indian Relocation Amendments Act, which, among other things, “authorized” ONHIR to “call upon any department or agency of the United States to assist [ONHIR] in implementing its relocation plan and completing relocation within the time required by law, except that the control over and responsibility for completing relocation shall remain in [ONHIR].” P.L. 96-305 § 5(3)(i); 25 U.S.C. § 640d-11(e). This law also provided that “[i]n any case in which [ONHIR] calls upon any such department or agency for assistance . . ., such department or agency shall provide reasonable assistance so requested,” and “[o]n failure of any agency to provide reasonable assistance . . . [ONHIR] shall report such failure to the Congress.” Id.

In 1988, Congress passed the Navajo and Hopi Indian Relocation Amendments, which, in relevant part, directed ONHIR to submit to Congress a new relocation report.

P.L. 100-666 § 4(d). This law did not include the original language from the Settlement Act that directed ONHIR, when formulating the relocation report, to “assure that . . . community facilities and services, such as water, sewers, roads, schools and health facilities . . . [would] be available at [the] relocation sites.” Compare P.L. 100-666 § 4(d) (“Section 13 of Public Law 93-351 (25 U.S.C. § 640d-12) is amended to read as follows ....”), with P.L. 93-531 § 13(c)(4). However, the law did retain language that ONHIR was authorized to call upon any department or agency “to assist . . . in implementing the relocation plan” and that “[n]otwithstanding any other provisions of law or any amendment made by this Act . . . [ONHIR] shall . . . have the same structure, powers and responsibilities [ONHIR] had before enactment of this Act ....” P.L. 100-666 § 4(a)-(c).

In 1996, Congress passed the Navajo-Hopi Land Dispute Settlement Act, which, in relevant part, ratified a 1995 settlement agreement between the United States and the Hopi Tribe and provided the necessary “authority for the [Hopi] Tribe to enter agreements with eligible Navajo families in order for those families to remain residents of the Hopi Partitioned Lands for a period of 75 years.” See P.L. 104-301; S. REP. 104-363, 104th Cong. 2nd Sess. (1996).

II. Procedural History

On August 24, 2021, the Nation initiated this action by filing a complaint. (Doc. 1.) On December 28, 2021, Defendants filed the pending motion to dismiss. (Doc. 20.) On March 30, 2022, the Nation filed a response. (Doc. 25.)

On May 16, 2022, Defendants filed a reply. (Doc. 28.)

On September 14, 2022, the Court issued a tentative ruling. (Doc. 30.)

On September 23, 2022, the Court heard oral argument. (Doc. 31.)

DISCUSSION

I. Legal Standards

A. Dismissal Under Rule 12(b)(1)

Courts “have an independent obligation to determine whether subject-matter jurisdiction exists.” Arbaugh v Y&H Corp., 546 U.S. 500, 514 (2006). See also Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). “Under Rule 12(b)(1), a defendant may challenge the plaintiff's jurisdictional allegations in one of two ways. A ‘facial' attack accepts the truth of the plaintiff's allegations but asserts that they are insufficient on their face to invoke federal jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (citation omitted). “A ‘factual' attack, by contrast,...