Home » Case Summaries » 2017 » Navajo Nation v. Department of the Interior, 876 F.3d 1144 (9th Cir. 2017).

 
 

Navajo Nation v. Department of the Interior, 876 F.3d 1144 (9th Cir. 2017).

 

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The Department of the Interior (Interior or the Secretary) manages the waters of the Colorado River. In 2001 and 2008, Interior published guidelines clarifying how the Secretary makes water surplus and water shortage determinations from year to year. The Navajo Nation (Nation), a federally recognized Indian tribe, has repeatedly asserted rights to water from the Colorado River, but these rights have never been adjudicated. Following the passage of the guidelines, the Nation filed suit under the Administrative Procedure Act (APA).[1] First, the Nation alleged that Interior violated the National Environmental Policy Act (NEPA)[2] by failing to consider the impact of the guidelines on the Nation’s potential water rights in the Colorado River. Second, the Nation alleged that Interior breached its trust duties to the Nation by failing to account for or safeguard the Nation’s interests in and rights to Colorado River water. The United States District Court for the District of Arizona granted the motion to dismiss the Nation’s complaint[3] and denied the Nation’s motion for relief from the judgment.[4] The United States Court of Appeals for the Ninth Circuit affirmed in part and reversed in part, agreeing that the Nation lacked standing to pursue its NEPA claims but holding that the Nation’s breach of trust claim was not barred by sovereign immunity.

The Navajo Reservation is the largest Indian reservation in the United States and lies almost entirely within the drainage basin of the Colorado River. Aside from the federal government, the Nation is the largest riparian landowner along the Colorado, with the Nation’s tribal lands and resources held in trust by the United States. The waters of the Colorado River are allocated and managed according to a complex legal regime consisting of federal statutory law and regulations, Supreme Court decrees, interstate compacts, state and federal common law, and treaties. In 1964, the Supreme Court issued a decree clarifying rights to water from the Lower Basin of the Colorado.[5] The Decree parceled out the relative shares that Lower Basin states would receive in years in which, “as determined by the Secretary of the Interior,” there was surplus water available. The Decree also provided that if the Secretary determined in a given year that there was a shortage of water, the United States Bureau of Reclamation would first provide for satisfaction of present perfected rights in order of priority dates without regard to state lines. Then, after consultation with parties to major water contracts and State representatives, the Secretary may apportion the amount remaining available for consumptive use in such manner as is consistent with federal law. The 1964 Decree further adjudicated the federal reserved water rights of five Indian tribes under Winters v. United States,[6] but did not reach the claims of twenty other tribes, including the Navajo Nation’s. The Decree provided, however, that it did not affect the rights or priorities of any Indian reservation.

Aggrieved by its lack of enforceable rights to Colorado River water, the Nation filed its original complaint against Interior, the Bureau of Reclamation, and the Bureau of Indian Affairs in 2003, challenging Interior’s 2001 Surplus Guidelines. Various states and local government entities from California, Arizona, Nevada, and Colorado intervened as defendants. In 2004, the district court stayed proceedings to allow for settlement negotiations. In 2013, after almost a decade of unsuccessful negotiations, the district court lifted the stay. The Nation amended its complaint to add a challenge to Interior’s 2008 Shortage Guidelines. The district court then granted motions to dismiss the amended complaint without prejudice, holding that the Nation lacked standing to bring its NEPA claims and that its breach of trust claim was barred by sovereign immunity. The Nation filed a motion for relief from the final judgment pursuant to Federal Rules of Civil Procedure Rule 60(b)(6),[7] contending that because the relevant statute of limitations had run, the dismissal was effectively with prejudice. The district court denied that motion, and the Nation appealed both orders to the Ninth Circuit.

On appeal, the Ninth Circuit first addressed the question of standing to bring the NEPA claims. On this issue, the district court had reasoned that the alleged harm to the Nation’s unquantified Winters rights was too speculative to confer standing. The Ninth Circuit observed, however, that the Nation had proposed two discrete types of injuries: 1) the guidelines do not account for the Nation’s unquantified water rights, and 2) the guidelines disregard the Nation’s unmet needs for water. The former alleged injury arises out of the Nation’s potential reserved water rights, while the latter is an interest in an adequate water supply that exists regardless of the lack of a decreed right to water.

With respect to the alleged injury to the Nation’s reserved rights, the Ninth Circuit stated that Winters rights are sufficiently concrete interests which may give rise to standing under NEPA if such rights are impaired by a procedural violation. The precise scope and status of possible Winters rights are irrelevant; it is enough to demonstrate that the rights are threatened. On this occasion, the Ninth Circuit concluded that the Nation could not make this demonstration. Noting that the guidelines do not act directly upon the Nation’s unquantified water rights, the court rejected the Nation’s argument that the guidelines foster third-party reliance on these waters, creating controversies that then frustrate the future development of Indian water rights. The Ninth Circuit found this theory of standing too speculative and emphasized that the Nation did not allege that the guidelines legally impaired any rights it may have in the Lower Basin water.

Addressing the alleged injury to the Nation’s unmet needs for water, the Ninth Circuit observed that a generalized interest in the availability of water for use on one’s land can qualify as a sufficiently concrete interest for standing purposes. The Ninth Circuit held, however, that the Nation failed to trace a reasonably probable link between its interest in water availability and the guidelines and so lacked standing under that theory of injury as well. Even construed as liberally as possible in the Nation’s favor, the complaint did not show how the guidelines threatened injury to the interest in water availability; the court found the Nation’s references to the “risk of overlooking harmful effects”[8] and the effect on the outcome of the efforts of the Nation to secure water to be too general. Thus, the Ninth Circuit affirmed the dismissal of the NEPA claims, holding that the Nation lacked standing because it failed to show that it was reasonably probable that the new Guidelines threatened its reserved rights or its interest in obtaining adequate water.

The Ninth Circuit next addressed the breach of trust claim, which the district court had dismissed on the grounds that the United States had not waived sovereign immunity for that claim.[9] The Nation alleged that Interior breached its trust duties by failing to determine the extent and quantity of water rights or otherwise determine the amount of water which the Nation required from the Lower Basin to meet its needs. The Ninth Circuit observed that the breach of trust claim was thus predicated on a failure to act, not an affirmative action. In this case, the waiver at issue appears in APA § 702, which provides that an “action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity . . . shall not be dismissed nor relief therein be denied on the ground that it is against the United States.”[10] Resolving confusing precedent as to the proper interpretation of § 702, the Ninth Circuit construed the statute in line with Veterans for Common Sense v. Shinseki,[11] holding that § 702 waives sovereign immunity for all non-monetary claims.[12] Because the Nation’s breach of trust claim against Interior seeks relief other than money damages in its failure to act claim, the court found that the waiver of sovereign immunity in § 702 therefore applies. The Ninth Circuit thus remanded to the district court for consideration of the breach of trust claim on the merits.

Finally, the Ninth Circuit addressed the district court’s denial of the Nation’s motion for relief from the final judgment. Because the Ninth Circuit reversed the dismissal of the breach of trust claim, the appeal from the denial of the Rule 60(b) motion was moot to the extent that the Nation sought to amend its complaint to plead additional or alternative waivers of sovereign immunity. As to the NEPA claims, the Ninth Circuit determined that the district court did not abuse its discretion in denying leave to amend the complaint, as the Nation had ample opportunity to correct the deficiencies.

Thus, the Ninth Circuit affirmed that the Nation lacked standing for its NEPA claims but reversed the dismissal of the breach of trust claim on the grounds that the claim was not barred by sovereign immunity under § 702 of the APA. Since the dismissal was unwarranted, the Ninth Circuit remanded to the district court for further consideration.

Footnotes    (↵ returns to text)

  1. 5 U.S.C. §§ 551–559, 701–706, 1305, 3344, 4301, 5335, 5372, 7521 (2012).
  2. 42 U.S.C. §§ 4321–4370h (2012).
  3. Navajo Nation v. U.S. Dep’t of the Interior, 34 F. Supp. 3d 1019, 1021 (D. Ariz. 2014).
  4. Navajo Nation v. U.S. Dep’t of the Interior, No. CV-03-00507-PCT-GMS, 2014 WL 12796200, at *1 (D. Ariz. Oct. 1, 2014).
  5. See Arizona v. California, 376 U.S. 340 (1964).
  6. Winters v. United States, 207 U.S. 564 (1908).
  7. Navajo Nation, 2014 WL 12796200, at *1.
  8. Navajo Nation v. U.S. Dep’t of the Interior, 876 F.3d 1144, 1166 (9th Cir. 2017).
  9. Navajo Nation, 34 F. Supp. 3d at 1029–30.
  10. APA, 5 U.S.C. § 702 (2012).
  11. Veterans for Common Sense v. Shinseki, 644 F.3d 845 (9th Cir. 2011).
  12. See 5 U.S.C. § 704, which requires final agency action and constrains only actions brought under the APA.
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