Shoshone-Bannock Tribes v. Reno
| Decision Date | 28 June 1995 |
| Docket Number | SHOSHONE-BANNOCK,No. 94-5073,94-5073 |
| Citation | 56 F.3d 1476 |
| Parties | TRIBES, Appellants, v. Janet RENO, Attorney General of the United States, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (93cv00581).
Jeanette Wolfley, Boulder, CO, argued the cause, for appellants. With her on the briefs was Reid P. Chambers.
Jacques B. Gelin, Atty., U.S. Dept. of Justice, Washington, DC, argued the cause, for appellee. With him on the brief were Lois J. Schiffer, Asst. Atty. Gen., Edward J. Shawaker and Edward J. Passarelli, Attys., U.S. Dept. of Justice. Albert M. Ferlo, Jr. entered an appearance.
Before: WALD, RANDOLPH, and ROGERS, Circuit Judges.
Opinion for the court filed by Circuit Judge RANDOLPH.
The district court dismissed an action brought by the Shoshone-Bannock Tribes of the Fort Hall Indian Reservation for lack of jurisdiction. The Tribes sought to compel the Attorney General to file claims on their behalf in the Snake River basin water rights adjudication in Idaho state court. We conclude that the Attorney General's refusal to represent the Tribes in the Idaho proceeding is committed to her discretion. Judicial review of the Tribes' claim is consequently unavailable.
On November 19, 1987, an Idaho state court sitting in Twin Falls, Idaho, issued an order commencing a general stream adjudication of water rights for the Snake River basin. The United States was joined pursuant to the McCarran Amendment, 43 U.S.C. Sec. 666, which waives sovereign immunity in state or federal actions for "the adjudication of rights to the use of water of a river system," including water rights held by the United States on behalf of Indian tribes. See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 810-13, 96 S.Ct. 1236, 1242-44, 47 L.Ed.2d 483 (1976). In 1990, the Shoshone-Bannock Tribes of the Fort Hall Indian Reservation, the United States, the State of Idaho, and other Idaho water users executed the Fort Hall Indian Water Rights Agreement, quantifying the claimed federal "reserved water rights" (of which more hereafter) not only within the boundaries of the Fort Hall Reservation, but also appurtenant to certain reserved lands outside the Reservation, held in trust for or owned by the Tribes and its members. 1 The Tribes took the lead in negotiating this agreement, although the federal government funded the studies connected with establishing these reserved water rights. Congress ratified the agreement in the Fort Hall Indian Water Rights Act of 1990, Pub.L. No. 101-602, 104 Stat. 3059. Currently, the United States is defending the claims embodied in the agreement against third-party objections and is seeking their approval in the Idaho state court.
The Fort Hall Indian Water Rights Agreement did not settle the Tribes' claim, central to the case before us, to other water rights in the Snake River basin beyond the Fort Hall Reservation's boundaries. The claim stems, according to the Tribes, from the Treaty of Fort Bridger of July 3, 1868, 15 Stat. 673, 674-75. Article IV of the Treaty gave the Tribes the right, outside the Reservation, "to hunt on the unoccupied lands of the United States so long as game may be found thereon, and so long as peace subsists among the whites and Indians on the borders of the hunting districts." In 1988, without taking a position on the merits of the Tribes' claim, the Bureau of Indian Affairs hired experts to conduct instream flow studies in the lower Snake, the Salmon, and the Clearwater River basins. The studies began in 1989, with the goal of quantifying the instream flows necessary to preserve fish and other natural resources potentially protected by treaties with various Idaho Indian tribes, including the Shoshone-Bannock Tribes. Quarterly meetings to review progress on the studies were held. Participants included a technical advisory committee comprising Bureau staff and members of the Shoshone-Bannock Tribes, the Nez Perce Tribe, and the Northwestern Band of the Shoshoni Nation; the experts hired by the Bureau of Indian Affairs; and legal representatives of the Department of the Interior, the Department of Justice and each of the Indian tribes.
In early 1992, the Interior Department asked the Shoshone-Bannock Tribes to submit legal arguments, with relevant documentation, to support their claims to off-reservation water rights in the Snake River basin. The Tribes supplied information showing that Idaho courts had interpreted the Tribes' treaty-granted hunting rights to include fishing rights. They also offered to arrange a meeting with their anthropologist, an offer the Department of the Interior declined. On May 19, 1992, the Idaho district court ordered that all remaining federal claims, including claims made by or on behalf of Indians, be filed by March 25, 1993. Prompted by the order, the Interior Department intensified its efforts to assess the merits of the Tribes' claims to off-reservation water rights in the Snake River basin.
On November 16, 1992, the Interior Department's Regional Solicitor and other representatives of the United States met with the Fort Hall Business Council, the Tribes' governing body. The Regional Solicitor told the tribal council and its attorneys that, based on a preliminary analysis, he would recommend against the Justice Department's filing a claim for off-reservation instream flows on behalf of the Tribes. Nevertheless, he again invited the Tribes to support their claims with historical information and legal arguments. The Regional Solicitor also told the Tribes that the United States had hired a historical expert to investigate the basis of the Tribes' claim to water rights in the Snake River basin. Two more meetings and an exchange of information between the United States' and the Tribes' historical experts followed. On March 4, 1993, the Regional Solicitor recommended to the Interior Department's Acting Solicitor that the United States not file instream flow claims on behalf of the Tribes. The Acting Solicitor orally informed the Tribes, on March 22, 1993, that he had recommended against the Department of Justice's filing claims to off-reservation water rights on behalf of the Tribes. The next day he sent a letter to the Chairman of the Tribes' Business Council confirming his decision and explaining the legal rationale underlying it.
The Tribes then brought this suit against the Attorney General, seeking: (1) a declaratory judgment that the United States had violated its responsibility to the Tribes by refusing to file claims to off-reservation water rights in the Snake River basin proceeding; (2) an order compelling the Attorney General to file the claims on the Tribes' behalf; (3) an order directing the government to release all technical data in its possession relating to the Tribes' claims; and (4) an award of damages, costs and attorneys fees. On March 24, 1993, the district court granted a temporary restraining order requiring the United States to file the claims in the Idaho state court, and the United States complied.
The district court later denied the Tribes' motion for a preliminary injunction, finding that the Tribes had not shown they were likely to succeed on the merits of their claim or that they would suffer irreparable harm if the court did not grant their motion. The district court ultimately dismissed the Tribes' suit for lack of subject matter jurisdiction, a judgment from which the Tribes now appeal. The court concluded that the federal government's general trust responsibility toward the Tribes did not require the Attorney General to file suit and that the Tribes had not identified a "specific treaty, statute, or agreement" obligating the Attorney General to bring the water rights claims. Nor had the Tribes established an attorney-client relationship between themselves and the United States that might require the Attorney General to file their claims.
The United States creates reservations by withdrawing land from the public domain and reserving the land for a particular purpose, such as an Indian reservation or a national forest or a national park or monument. With respect to such reservations, courts have long applied the federal-reserved-water-rights doctrine, giving the United States the appurtenant unappropriated waters necessary to accomplish the purposes for which the government created the federal reservation. Cappaert v. United States, 426 U.S. 128, 138, 96 S.Ct. 2062, 2069, 48 L.Ed.2d 523 (1976); Arizona v. California, 373 U.S. 546, 601, 83 S.Ct. 1468, 1498, 10 L.Ed.2d 542 (1963); Winters v. United States, 207 U.S. 564, 575-78, 28 S.Ct. 207, 211-12, 52 L.Ed. 340 (1908). The doctrine rests on the idea that the reservation of public lands for a public purpose implies the reservation of unappropriated, and thus available, water appurtenant to the land to the extent necessary to fulfill that purpose. Because this is a federal right, derived from the federal reservation of the land, it does not depend on state law. With respect to reserved water rights on Indian reservations, these federally-created rights belong to the Indians rather than to the United States, which holds them only as trustee. Nevertheless, the United States may be joined in a general stream adjudication to file and defend Indian reserved water rights, as it was in the Idaho proceeding. Colorado River Water Conservation Dist. v. United States, 424 U.S. at 810-13, 96 S.Ct. at 1242-44.
The Tribes' claim to a water right in this case did not pertain to land within its Reservation boundaries nor, so far as we can tell, did the claim derive from the government's withdrawal of land from the public domain and its reservation for a...
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