Navajo Nation v. U.S. Dep't of the Interior
| Decision Date | 28 April 2021 |
| Docket Number | No. 19-17088,19-17088 |
| Citation | 996 F.3d 623 |
| Parties | NAVAJO NATION, Plaintiff-Appellant, v. U.S. DEPARTMENT OF THE INTERIOR; Deb Haaland, 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 |
M. Kathryn Hoover (argued) and Stanley M. Pollack, Navajo Nation Department of Justice, Window Rock, Arizona; Alice E. Walker and Gregg H. DeBie, Meyer Walker Condon & Walker P.C., Boulder, Colorado; for Plaintiff-Appellant.
John L. Smeltzer (argued), Mary Gabrielle Sprague, and Thomas Snodgrass, Attorneys; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Robert Snow and Sarah Foley, Attorneys, Solicitor's Office, United States Department of the Interior, Washington, D.C.; for Defendants-Appellees.
Rita P. Maguire (argued), Rita P. Maguire PLLC, Phoenix, Arizona; Steven B. Abbott, Redwine and Sherrill LLP, Riverside, California; Kenneth C. Slowinski, Arizona Department of Water Resources, Phoenix, Arizona; Marcia Scully and Catherine M. Stites, Metropolitan Water District of Southern California, Los Angeles, California; Charles T. DuMars, Law & Resource Planning Associates P.C., Albuquerque, New Mexico; John B. Weldon Jr. and Lisa M. McKnight, Salmon Lewis & Weldon P.L.C., Phoenix, Arizona; Stuart L. Somach and Robert B. Hoffman, Somach Simmons & Dunn APC, Sacramento, California; Jay M. Johnson, Central Arizona Water Conservation District, Phoenix, Arizona; Aaron Ford, Attorney General; Christine Guerci-Nyhus, Special Counsel to the Colorado River Commission of Nevada; State of Nevada and Colorado River Commission of Nevada, Las Vegas, Nevada; Gregory J. Walch, General Counsel, Southern Nevada Water Authority, Las Vegas, Nevada; Lauren J. Caster and Bradley J. Pew, Fennemore Craig P.C., Phoenix, Arizona; for Intervenor-Defendants-Appellees.
Monte Tyler Mills, Associate Professor and Director, Margery Hunter Brown Indian Law Clinic, Alexander Blewett III School of Law, University of Montana, Missoula, Montana, for Amici Curiae Law Professors.
David L. Gover, Joe M. Tenorio, and Matthew Campbell, Native American Rights Fund, Boulder, Colorado; Daniel D. Lewerenz, Native American Rights Fund, Washington, D.C.; Derrick Beetso, National Congress of American Indians, Washington, D.C.; for Amicus Curiae NCAI Fund.
Before: Ronald M. Gould, Marsha S. Berzon, and Kenneth K. Lee, Circuit Judges.
In 2003, the Navajo Nation (the Nation) sued the Department of the Interior (Interior), the Secretary of the Interior (the Secretary), the Bureau of Reclamation, and the Bureau of Indian Affairs (collectively, the Federal Appellees), bringing claims under the National Environmental Policy Act (NEPA) and a breach of trust claim for failure to consider the Nation's as-yet-undetermined water rights in managing the Colorado River. Several parties, including Arizona, Nevada, and various state water, irrigation, and agricultural districts and authorities (collectively, the Intervenors), intervened to protect their interests in the Colorado's waters. In a prior appeal, we held that while the Nation lacked Article III standing to bring its NEPA claims, its breach of trust claim was not barred by sovereign immunity, and we remanded to the district court. Navajo Nation v. Dep't of Interior (Navajo I ), 876 F.3d 1144, 1174 (9th Cir. 2017). After re-considering the breach of trust claim, the district court dismissed the Nation's complaint because of its view that any attempt to amend the complaint was futile. The district court held that it lacked jurisdiction to decide the claim because the Supreme Court reserved jurisdiction over allocation of rights to the Colorado River in Arizona v. California (Arizona I ), 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963) (opinion); accord Arizona v. California (1964 Decree ), 376 U.S. 340, 353, 84 S.Ct. 755, 11 L.Ed.2d 757 (1964) (decree). The district court also held that the Nation did not identify a specific treaty, statute, or regulation that imposed an enforceable trust duty on the federal government that could be vindicated in federal court. The Nation appealed.
We conclude that the district court erred in dismissing the complaint because, in contrast to the district court's determination, the amendment was not futile. Although the Supreme Court retained original jurisdiction over water rights claims to the Colorado River in Arizona I , the Nation's complaint does not seek a judicial quantification of rights to the River, so we need not decide whether the Supreme Court's retained jurisdiction is exclusive. And contrary to the Intervenors’ arguments on appeal, the Nation's claim is not barred by res judicata , despite the federal government's representation of the Nation in Arizona I . Finally, the district court erred in denying the Nation's motion to amend and in dismissing the Nation's complaint, because the complaint properly stated a breach of trust claim premised on the Nation's treaties with the United States and the Nation's federally reserved Winters rights, especially when considered along with the Federal Appellees’ pervasive control over the Colorado River. We remand to the district court with instructions to permit the Nation to amend its complaint.
The Nation is a federally recognized Indian tribe that has signed two treaties with the United States. In ratifying the first treaty in 1849, the United States placed the Navajo people "under the exclusive jurisdiction and protection of the ... United States," providing "that they are now, and will forever remain, under the aforesaid jurisdiction and protection." Treaty with the Navaho, 1849 art. I (Sep. 9, 1849), 9 Stat. 974. The Navajo Reservation (the "Reservation") was established as the "permanent home" of the Nation by the 1868 Treaty between the United States of America and the Navajo Tribe of Indians, 1868 art. XIII (June 1, 1868), 15 Stat. 667 (1868 Treaty). The Reservation was later expanded by executive orders and acts of Congress.
The Reservation sprawls across Arizona, New Mexico, and Utah, and lies almost entirely within the drainage basin of the Colorado River. The Colorado River flows along and defines a significant part of the Reservation's western border. Because much of the land in the Colorado River drainage basin is arid, competition for water from the Colorado River and its tributaries is fierce.
To resolve disputes arising from water scarcity, rights to the Colorado River's waters are allocated through a series of federal treaties, statutes, regulations, and common law rulings; Supreme Court decrees; and interstate compacts. Collectively, this legal regime is known as the "Law of the River."
The Law of the River begins with the 1922 Colorado River Compact (1922 Compact), which split the Colorado River water equally between two groups of states: the "Upper Basin" states, consisting of Colorado, New Mexico, Utah, and Wyoming, and the "Lower Basin" states: Arizona, California, and Nevada. 1922 Compact art. II, reprinted in 70 Cong. Rec. 324 (Dec. 10, 1928). Each group collectively received 7.5 million acre-feet per year (mafy) of water. Id . art. III. The 1922 Compact did not, however, apportion the 7.5 mafy among the individual states in either the Upper or Lower Basin. See id . art. VIII. Nor did it "affect[ ] the obligations of the United States of America to Indian tribes." Id . art. VII.
Six years later, Congress conditionally approved the 1922 Compact through the Boulder Canyon Project Act (BCPA). 43 U.S.C. § 617 et seq . The BCPA allowed Interior to construct the Hoover Dam and a reservoir at Lake Mead. See id . § 617. It empowered the Secretary to contract for the storage and delivery of water in Lake Mead. See id . The BCPA also authorized construction of the Central Arizona Project (CAP), which consists of an extensive canal system that diverts water from Lake Havasu to municipalities, irrigation districts, and Indian tribes in central Arizona. See 43 U.S.C. § 1521. Finally, it authorized the Lower Basin States to negotiate a second compact dividing their 7.5 mafy share: 4.4 mafy to California, 2.8 to Arizona, and 0.3 to Nevada. See 43 U.S.C. § 617c(a).
The 1922 Compact—including the second compact apportionment—was to take effect once all three Lower Basin states ratified it. See id . But Arizona, displeased with the Compact's terms, failed to ratify it. So the issue of how to share the Lower Basin States’ apportionment went unresolved.
See Arizona I, 373 U.S. at 561–62, 83 S.Ct. 1468. Nonetheless, because six of the seven Basin states ratified the BCPA, the Secretary began contracting for water with the Lower Basin states.1 Id . at 562, 83 S.Ct. 1468.
In 1952, still dissatisfied with its allotment, Arizona sued California in the Supreme Court, invoking the Court's original jurisdiction. Id . at 550–51, 83 S.Ct. 1468. Nevada and other Basin States intervened, as did the United States. Id . at 551, 83 S.Ct. 1468.
In proceedings before a Special Master, the United States asserted claims to various water sources in the Colorado River Basin on behalf of twenty-five tribes. But the United States only asserted claims to the Colorado River mainstream on behalf of five tribes, and the Nation was not among them. Instead, the United States at that time limited the Nation's claim to the Little Colorado River, one of the tributaries in the...
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...reliance. ENVIRONMENTAL JUSTICE & LABOR LAW National Environmental Policy Act (NEPA) Navajo Nation v. U.S. Department of the Interior, 996 F.3d 623 (9th Cir. The Navajo Nation (Nation) sued the Department of the Interior (DOI), the Secretary of the Interior (Secretary), the Bureau of Re......