Navajo Nation v. U.S. Dep't of the Interior
| Decision Date | 22 July 2014 |
| Docket Number | No. CV–03–00507–PCT–GMS.,CV–03–00507–PCT–GMS. |
| Citation | 34 F.Supp.3d 1019 |
| Court | U.S. District Court — District of Arizona |
| Parties | NAVAJO NATION, Plaintiff, v. UNITED STATES DEPARTMENT OF THE INTERIOR; et al., Defendants. |
Alice Elizabeth Walker, Scott Bowne McElroy, McElroy Meyer Walker & Condon PC, Boulder, CO, M. Kathryn Hoover, Stanley M. Pollack, Navajo Nation Department of Justice, Window Rock, AZ, for Plaintiff.
Edward S. Geldermann, U.S. Dept of Justice, Washington, DC, Michael A. Johns, U.S. Attorney's Office, Phoenix, AZ, for Defendants.
Pending before the Court are multiple related motions. They include: (1) Defendants United States Department of the Interior (the “Department”), Secretary of the Interior Sally Jewell, Bureau of Reclamation, and Bureau of Indian Affairs' (the “Federal Defendants”) Motion to Dismiss (Doc. 240), (2) Defendant–Inter State of Arizona's Motion to Dismiss (Doc. 242), (3) Defendant–Intervenors Metropolitan Water District of Southern California and Coachella Valley Water District's (the “Metropolitan Defendants”) Motion to Dismiss (Doc. 243), (4) Defendant–Intervenors Salt River Project Agricultural Improvement and Power District and the Salt River Water Users' Association's (the “SRP Defendants”) Motion to Dismiss and to Join Required Parties (Doc. 249), (5) Defendant–Intervenor Central Arizona Water Conservation District's Motion to Dismiss (Doc. 250), (6) Defendant–Intervenor Imperial Irrigation District's Motion to Dismiss (Doc. 251), (7) the Hopi Tribe's Motion to Intervene (Doc. 252), (8) the Hopi Tribe's Motion to Dismiss (Doc. 253), and (9) Defendant–Intervenors Colorado River Commission of Nevada, State of Nevada, and Southern Nevada Water Authority's (the “Nevada Defendants”) Motion to Dismiss (Doc. 254).
For the following reasons, the Federal Defendants' Motion to Dismiss is granted and the remaining Motions are denied as moot.
Plaintiff Navajo Nation (the “Nation”) is a federally recognized Indian Tribe. (Doc. 281, “Second Amended Complaint” (“SAC”) ¶ 10.) The Navajo Nation's Reservation (the “Reservation”) is the largest Indian reservation in the United States, with land spanning over 13 million acres located in Arizona, New Mexico, and Utah. (Id. ¶ 11.) The Reservation was originally established by the Treaty of June 1, 1868, 15 Stat. 667, and was expanded by a number of Executive Orders and Acts of Congress between 1868 and 1964. (Id. ¶ 12.) The Reservation is adjacent to the Colorado River and is located in both the Upper and Lower Basins of the Colorado River Basin. (Id. ) This case concerns only the lands located in the Lower Basin in Arizona (the “Lower Basin”). (Id. ¶ 5.)
The SAC alleges that by establishing the Reservation, “the United States impliedly reserved for the benefit of the Navajo Nation a sufficient amount of water to carry out the purposes for which the Reservation was created, specifically to make the Reservation a livable homeland for the Nation's present and future generations.” (Id. ¶ 14.) It further alleges that an effect of establishing the Reservation “was to create a trust relationship between the Navajo Nation and the United States,” (Id. ¶ 15), that “requires [the United States] to protect the Navajo Nation's land and the water necessary to make those lands livable as a permanent homeland for the Navajo Nation” (Id. ¶ 16).
The Nation alleges that the United States has failed in its trust obligation to assert and protect the Nation's water rights by “expressly” leaving “open the question of the Navajo Nation's beneficial rights to the waters of the Colorado River.” (Id. ¶¶ 17–18, 20–22.) The Nation claims that it has asked the Department to address the extent of the Nation's rights to use, and its interest in, water from the Lower Basin, but that the Department has not done so. (Id. ¶ 25.) Further, the Federal Defendants “have never sought, through judicial or administrative means, to quantify or estimate the Navajo Nation's rights to water from the mainstream of the Colorado River in the Lower Basin.” (Id. ¶ 26.)
The Nation asserts that it has water rights in the Lower Basin of the Colorado River pursuant to Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908), and its progeny. Beginning with its decision in Winters, the Supreme Court “has long held that when the Federal Government withdraws its land from the public domain and reserves it for a federal purpose, the Government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation.” Cappaert v. United States, 426 U.S. 128, 138, 96 S.Ct. 2062, 48 L.Ed.2d 523 (1976). “In so doing the United States acquires a reserved right in unappropriated water which vests on the date of the reservation and is superior to the rights of future appropriators.” Cappaert, 426 U.S. at 138, 96 S.Ct. 2062. Further, this right “is not dependent on beneficial use” and “retains priority despite non-use.” In re Gen. Adjudication of All Rights to Use Water in Gila River Sys. & Source, 201 Ariz. 307, 310–11, 35 P.3d 68, 71–72 (2001). This doctrine applies to Indian reservations. Cappaert, 426 U.S. at 138, 96 S.Ct. 2062 ; Colo. River Water Cons. Dist. v. United States, 424 U.S. 800, 805, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) ; United States v. Dist. Court For Eagle Cnty., 401 U.S. 520, 522–23, 91 S.Ct. 998, 28 L.Ed.2d 278 (1971) ; Arizona v. California, 373 U.S. 546, 601, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963) [Arizona I ]; FPC v. Oregon, 349 U.S. 435, 75 S.Ct. 832, 99 L.Ed. 1215 (1955) ; United States v. Powers, 305 U.S. 527, 59 S.Ct. 344, 83 L.Ed. 330 (1939) ; Winters 207 U.S. 564, 28 S.Ct. 207.
In 1952, the State of Arizona brought suit against the State of California and seven of its public agencies, alleging that it was entitled to a certain quantity of water from the lower Colorado River under the Colorado River Compact of 1922 and the Boulder Canyon Project Act. (Doc. 240–1 at 9.) Arizona sought a decree confirming its title to that quantity of water. (Id. ) The United States sought and was granted leave to intervene in that action. Arizona v. California,
347 U.S. 985, 74 S.Ct. 848, 98 L.Ed. 1121 (1954). In the action, in its role as trustee, the United States claimed federally reserved Winters water rights in the Lower Colorado River on behalf of a number of entities, including the Nation. (Doc. 240–1 at 9.) However, the United States filed its Winters rights claim on behalf of the Nation only with respect to water from the Little Colorado River, a tributary of the Colorado. (Id. ) The Supreme Court referred all of the matters in the Arizona v. California litigation to a Special Master for evidentiary proceedings. (Id. ) The Special Master recommended that conflicting claims to the Little Colorado River not be adjudicated in Arizona v. California, and the Supreme Court, in its 1963 Opinion, affirmed that recommendation. 373 U.S. 546, 595, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963) (the “1963 Opinion”). Thus, while the United States did file and present a claim for rights to the Little Colorado River on behalf of the Nation, that claim was not ultimately adjudicated in that action. (Doc. 240–1 at 10.) Therefore no determination was made as to whether the Nation was entitled to any particular quantity of water coming from the Little Colorado River.
Following this 1963 Opinion, the Court issued the 1964 Decree. 376 U.S. 340, 84 S.Ct. 755, 11 L.Ed.2d 757 (1964). Under Article II of the 1964 Decree and the Boulder Canyon Project Act, 43 U.S.C. §§ 617 –617u, the Secretary is responsible for the allocation of the waters of the mainstream of the Colorado River among California, Arizona, and Nevada (the “Lower Basin States”), and for deciding which users in those Lower Basin States will be delivered water under the Act. (SAC ¶ 33.) The Secretary has undertaken various actions to do so which the Nation now challenges. These include:
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