Gerald Hawkins v. Debra Haaland

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 23, 2020 Decided March 19, 2021

No. 20-5074

GERALD H. HAWKINS, INDIVIDUALLY AND AS A TRUSTEE OF

THE CN HAWKINS TRUST AND GERALD H. HAWKINS AND

CAROL H. HAWKINS TRUST, ET AL.,

APPELLANTS

v.

DEBRA A. HAALAND, SECRETARY OF THE INTERIOR,

ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cv-01498)

David J. Deerson argued the cause for appellants. With

him on the briefs were Damien M. Schiff and Dominic M.

Carollo.

John L. Smeltzer, Attorney, U.S. Department of Justice,

argued the cause for appellees. With him on the brief were

Jeffrey Bossert Clark, Assistant Attorney General, Eric Grant,

Deputy Assistant Attorney General, and Erika Kranz and

Daron T. Carreiro, Attorneys.

2

Before: ROGERS, KATSAS and RAO, Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: Ranchers in the Upper Klamath

Basin region of the State of Oregon who hold irrigation water

rights, sued to prevent the exercise of water rights that interfere

with the irrigation of their lands. The district court dismissed

their lawsuit for lack of standing under Article III of the

Constitution. Viewing their standing to turn on whether the

Klamath Tribes can call upon state officials to implement their

superior instream water rights without the consent of the

federal government, the ranchers challenge a Protocol

Agreement executed by the United States and the Tribes. They

contend that the federal government, as trustee of those water

rights, unlawfully delegated its call-making authority to the

Tribes and that absent such delegation, the Tribes would be

unable to secure state implementation of their water rights. The

ranchers maintain that the economic, environmental, and

recreational injuries they suffered because of water cut offs

imposed to satisfy the Tribes’ superior water rights are fairly

traceable to the federal government’s delegation of its authority

and could be redressed by invalidation of the Protocol, which

would restore the federal government’s call-making authority.

We conclude that the Protocol does not delegate federal

authority to the Tribes but recognizes the Tribes’ preexisting

authority to control their water rights under a Treaty in 1864

with the United States. Accordingly, the ranchers have not

established the causation or redressability necessary for

standing, and the dismissal of their complaint is affirmed.

I.

The Klamath Tribes have hunted, fished, and lived in the

Klamath River watershed of Southern Oregon for over a

3

thousand years. See Oregon Dep’t of Fish & Wildlife v.

Klamath Indian Tribe, 473 U.S. 753, 766 (1985); United States

v. Adair, 723 F.2d 1394, 1397–98 (9th Cir. 1983). In 1864, the

Tribes entered into a treaty with the United States in which they

ceded most of their aboriginal territory, approximately 22

million acres, excluding approximately 1.9 million acres that

the parties agreed would be held for the Tribes “as an Indian

reservation.” Oregon Dep’t, 473 U.S. at 755 (internal

quotation marks omitted) (quoting Treaty Between the United

States of America and the Klamath and Moadoc Tribes and

Yahooskin Band of Snake Indians (“1864 Treaty”) art. I, Oct.

14, 1864, 16 Stat. 707, 707–08).1 The Tribes reserved “the

exclusive right of taking fish in the streams and lakes” on the

reservation, 1864 Treaty art. I, 16 Stat. at 708, and of

“gathering edible roots, seeds, and berries within its limits,” id.,

and the United States agreed to compensate the Tribes for the

ceded lands in the form of federal expenditures to promote the

Tribes’ well-being and “advance them in civilization . . .

especially agriculture,” id. art. II, 16 Stat. at 708.

After establishing the Klamath Reservation, Congress

enacted the General Allotment Act of 1887, which authorized

subdivision of the reservation and allotment of parcels granted

in fee to individual members of the Tribes, as part of a policy,

since repudiated, “to extinguish tribal sovereignty, erase

reservation boundaries, and force the assimilation of Indians

into the society at large.” Upper Skagit Indian Tribe v.

Lundgren, 138 S. Ct. 1649, 1652–53 (2018) (internal quotation

marks omitted) (quoting Cnty. of Yakima v. Confederated

1

The Klamath Tribes are federally recognized as a single tribal

entity, but that entity is composed of three historically distinct

groups: the Klamath tribe, the Modoc tribe, and the Yahooskin band

of Snake Indians. See 1864 Treaty preamble, 16 Stat. at 707. The

court follows the practice of the parties to refer to “the Tribes” while

some older sources refer to the Klamath as a single “tribe.”

4

Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251,

254 (1992)). Since then Congress has addressed the federal

government’s relationship to the Tribes in ways directly

relevant here. Nearly a century later, Congress ended the

federal government’s historical role as trustee while

reaffirming the Tribes’ reserved aboriginal water rights. By

1986, Congress had restored certain of its trustee services to the

Tribes, but again expressly left the Tribes’ aboriginal water

rights in the Tribes’ exclusive control.2

The Klamath Termination Act of 1954 terminated federal

supervision of the Tribes and provided for disposition of their

reservation land that had not been allotted. Pub. L. No. 83-587,

§ 1, 68 Stat. 718, 718. It closed the tribal roll and provided that

tribal members could elect to withdraw from the Tribes and

receive a cash payout of the individual’s interest in tribal

property. Termination Act §§ 3–5, 68 Stat. at 718–19. The

Tribes’ property could be appraised and sold to fund individual

cash payments. Id. § 5, 68 Stat. at 719. The property of the

remaining members of the Tribes would be managed by a

private trustee or corporation. Id. All restrictions on sale or

encumbrance of land owned by members of the Tribes would

be removed four years after the Act became effective. Id. § 8,

68 Stat. at 720. Specifically, the Termination Act provided:

Upon removal of Federal restrictions on the property

of the tribe and individual members thereof, the

2

Regarding the federal government’s trust relationship with Indian

tribes, see COHEN’S HANDBOOK OF FEDERAL INDIAN LAW

§§ 5.05(1)(b)–(2), 15.03, 19.06 (Nell Jessup Newton ed., 2017)

(hereinafter “COHEN’S HANDBOOK”); see also Reid Peyton

Chambers, Judicial Enforcement of the Federal Trust Responsibility

to Indians, 27 STAN. L. REV. 1213 (1975); Mary Christina Wood,

Indian Land and the Promise of Native Sovereignty: The Trust

Doctrine Revisited, 1994 UTAH L. REV. 1471.

5

Secretary [of the Interior] shall publish in the Federal

Register a proclamation declaring that the Federal

trust relationship to the affairs of the tribe and its

members has terminated. Thereafter individual

members of the tribe shall not be entitled to any of the

services performed by the United States for Indians

because of their status as Indians and, except as

otherwise provided in this Act, all statutes of the

United States which affect Indians because of their

status as Indians shall no longer be applicable to the

members of the tribe, and the laws of the several

States shall apply to the tribe and its members in the

same manner as they apply to other citizens or persons

within their jurisdiction.

Id. § 18(a), 68 Stat. at 722. Regarding water and fishing rights,

the Termination Act provided:

(a) Nothing in this Act shall abrogate any water

rights of the tribe and its members, and the

laws of the State of Oregon with respect to the

abandonment of water rights by nonuse shall

not apply to the tribe and its members until

fifteen years after the [termination of the

federal trust relationship to the tribe].

(b) Nothing in this Act shall abrogate any fishing

rights or privileges of the tribe or the members

thereof enjoyed under Federal treaty.

Id. § 14, 68 Stat. at 722.

About 78% of the Tribes’ members elected to withdraw

and receive a payout. Klamath & Modoc Tribes v. United

States, 436 F.2d 1008, 1012 (Ct. Cl. 1971). Reservation

property not set aside to pay their claims was transferred to a

6

private trustee. Id. In 1961, the Secretary of the Interior

published a notice in the Federal Register that “the Federal trust

relationship to the affairs of the tribe and its members is

terminated.” Termination of the Federal Trust Relationship to

the Property of the Klamath Tribe of Indians Located in the

State of Oregon, and of Federal Supervision Over the Affairs

of the Individual Members Thereof, 26 Fed. Reg. 7362, 7362

(Aug. 12, 1961).

In 1986, Congress unwound some of the effects of the

Termination Act. The Klamath Indian Tribe Restoration Act

of 1986 restored the Federal trust relationship with the Tribes.

It provided:

All rights and privileges of the tribe and the members

of the tribe under any Federal treaty, Executive order,

agreement, or statute, or any other Federal authority,

which may have been diminished or lost under the

[1954 Termination Act] are restored, and the

provisions of such Act, to the extent that they are

inconsistent with this Act, shall be inapplicable to the

tribe and to members of the tribe after the date of the

enactment of this Act.

Pub. L. No. 99-398, § 2(b), 100 Stat. 849, 849. The Tribes were

restored to the status of a federally recognized tribe. Id. § 2(a),

100 Stat. at 849. The Act specified that it did not “alter any

property right or obligation,” and thus did not restore

previously alienated lands to the Tribes’ land base. See id.

§§ 2(d), 6, 100 Stat. at 850. It also expressly provided that the

Act would not “affect in any manner any hunting, fishing,

trapping, gathering, or water right of the tribe and its

members.” Id. § 5, 100 Stat. at 850. The United States

presently recognizes the Tribes as a tribal sovereign, 25 U.S.C.

§§ 3601(3), 5123(h), with inherent powers of self-government,

7

including powers over land and water rights except as reserved

by Congress. See Kahawaiolaa v. Norton, 386 F.3d 1271, 1273

(9th Cir. 2004); Burlington N. R.R. Co. v. Blackfeet Tribe of the

Blackfeet Indian Rsrv., 924 F.2d 899, 902 (9th Cir. 1991),

overruled on other grounds by Big Horn Cnty. Elec. Co-op.,

Inc. v. Adams, 219 F.3d 944, 953 (9th Cir. 2000); see also

Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 788 (2014);

Oregon Dep’t, 473 U.S. at 765–66; United States v. Shoshone

Tribe of Indians of Wind River Rsrv., 304 U.S. 111, 116–17

(1938); Indian Entities Recognized by and Eligible to Receive

Services from the United States Bureau of Indian Affairs, 84

Fed. Reg. 1200, 1202 (Feb. 1, 2019).

A.

Prior to passage of the Restoration Act, the determination

of competing claims to water in the Klamath Basin was

underway in the federal courts and under Oregon law. The

Tribes’ reserved water rights arise as an exception to the

doctrine of prior appropriation governing rights to use water

from river systems in Oregon and other western states, based

on acknowledgement that the establishment of an Indian

reservation and other federal reservations impliedly reserves

then-unappropriated water “to the extent needed to accomplish

the purpose of the reservation.” Cappaert v. United States, 426

U.S. 128, 138 (1976).

In 1975, the United States sued in federal court for a

declaration of water rights in the Williamson River drainage in

the Klamath Basin. Adair, 723 F.2d at 1398. The Tribes

intervened as a plaintiff. Id. at 1399. The State of Oregon

intervened as defendant and moved unsuccessfully for the

federal court to abstain to state proceedings. Id. The Court of

Appeals for the Ninth Circuit concluded that the Tribes held a

right to “a quantity of the water flowing through the reservation

8

. . . for the purpose of maintaining the [Tribes’] treaty right to

hunt and fish on reservation lands.” Id. at 1410. The right is

“non-consumptive” in that the holder is not entitled to

withdraw water from the stream but has “the right to prevent

other appropriators from depleting the stream[’s] waters below

a protected level in any area where the non-consumptive right

applies.” Id. at 1411. Further, the right carried a priority date

of “time immemorial,” and the amount of water protected

under the right was not to the flows present at the 1864 Klamath

Treaty, but rather to “the amount of water necessary to support

its hunting and fishing rights as currently exercised to maintain

the livelihood of Tribe members.” Id. at 1414–15.

Additionally, the court concluded that:

[T]he [federal] [g]overnment has no ownership

interest in, or right to control the use of, the Klamath

Tribe’s hunting and fishing water rights. The hunting

and fishing rights from which these water rights arise

by necessary implication were reserved by the Tribe

in the 1864 treaty with the United States. The hunting

and fishing rights themselves belong to the Tribe and

may not be transferred to a third party. Because the

Klamath Tribe’s treaty right to hunt and fish is not

transferable, it follows that no subsequent transferee

may acquire that right of use or the reserved water

necessary to fulfill that use.

Id. at 1418 (citations omitted). The court proceeded to

determine the extent of the federal government’s own water

right, id. at 1418–19, while leaving the quantification of the

Tribes’ water right to be determined in the state proceeding, id.

at 1399, 1407. In 1952, Congress had adopted the McCarran

Amendment, 43 U.S.C. § 666(a), which waived the United

States’ sovereign immunity and granted consent to join the

9

United States in any suit for the adjudication of rights to use of

a river system or other source.

Under Oregon law, a call system is used to allocate water.

The process, as relevant, begins when the Oregon Water

Resources Department (“OWRD”) collects the water claims

submitted by various persons, resolves objections to them, and

as needed holds a hearing on the claims. Or. Rev. Stat.

§§ 539.021, .030, .100, .110. OWRD will issue “findings of

fact and an order of determination . . . establishing the several

rights to the waters of the stream.” Id. § 539.130(1). Upon

issuance of the order, OWRD’s administrative determination is

in “full force and effect.” Id. § 539.130(4). OWRD files its

findings and order, along with the administrative record, in

Oregon Circuit Court for a non-jury adjudication, where

exceptions can be filed. Id. § 539.130(1), .150. While the

matter is pending before the Circuit Court, the division of water

from the stream involved in the appeal is made in accordance

with the order of OWRD. Id. § 539.170. Upon the “final

determination” of water rights, OWRD will issue “a certificate

setting forth the name and post-office address of the owner of

the right; the priority of the date, extent and purpose of the

right, and if the water is for irrigation purposes, a description

of the legal subdivisions of land to which the water is

appurtenant.” Id. § 539.140. To administer determined water

rights, OWRD has established water districts, id. § 540.010,

whose “watermasters” allocate water in accordance with the

users’ existing water rights of record in the OWRD, id.

§§ 540.020, .045(1)(a), with authority — when a holder of

water rights has placed a “call” for water — to suspend

conflicting upstream usages, see Or. Admin. R. 690-025-0025.

In 1975, the Klamath Basin Adjudication began when

OWRD announced the intent to investigate usage of the

Klamath River. The Tribes and the federal government filed

10

the water enforcement claims at issue in 1997. The federal

government’s claims (Nos. 625–40) included claims on behalf

of the Tribes, whose trust relationship had by then been

restored; the Tribes filed their own claim (No. 612), which

incorporated the claims made by the federal government.

Following a lengthy administrative process, an administrative

law judge in 2011 issued a proposed order approving the claims

of the federal government and the Tribes and quantifying the

flows “necessary to establish a healthy and productive habitat

to allow the exercise of the Klamath Tribes’ hunting, fishing,

trapping, and gathering rights guaranteed by the treaty of

1864.”3 OWRD’s Administrative Determination largely

confirmed the ALJ’s proposal as to the federal government’s

claims, but dismissed the Tribes’ omnibus claim (No. 612) as

“duplicative of the United States’ claims, not additive,”

because “[t]he United States holds the rights recognized herein

in trust for the Klamath Tribes.” Administrative

Determination, supra note 3, at 4898, 5074 (citing Colorado

River Water Conservation Dist. v. United States, 424 U.S. 800,

810 (1976)). It also provisionally confirmed water rights

claimed by the ranchers with priority dates of 1864 or later,

including irrigation water rights acquired from reservation

allottees. See Am. Compl. ¶¶ 5, 8. OWRD filed its

Administrative Determination in the Oregon Circuit Court, Or.

Rev. Stat. § 539.130(1), and the parties here, and other

claimants, filed exceptions, id. § 539.150. The Oregon Circuit

Court recently issued an opinion on Phase 3, Part 1, Group C

Motions, In re Waters of the Klamath River Basin, No.

3

Amended Corrected Findings of Fact and Order of Determination

at 5153, Klamath River Basin General Stream Adjudication (Feb. 28,

2014), https://www.oregon.gov/owrd/programs/WaterRights/

Adjudications/KlamathRiverBasinAdj/Pages/ACFFOD.aspx

(hereinafter “Administrative Determination”).

11

WA1300001 (Or. Cir. Ct. Feb. 24, 2021) (“Or. Cir. Ct. Op.,

Feb. 24, 2021”).

The Tribes and the federal government executed a

Protocol Agreement following OWRD’s Administrative

Determination in order “to position themselves to make [water

rights] calls in a timely and effective manner.” Protocol at 1

(May 2013). It provided that “[e]ach Party retains its

independent right to make a call” and that if after following a

consultation procedure “the Parties cannot agree on whether to

make a call, either Party may independently make a call and

the other will not object to the call.” Id. at 3. As amended in

2019, the Protocol extends some consultation deadlines and

adds that “the United States retains the right not to concur with

any call for water that is inconsistent with the [Administrative

Determination] or other legal obligations.” Protocol at 4 (Mar.

2019).

In June 2013, the Tribes issued enforcement calls to

OWRD. Am. Compl. ¶ 25. Oregon, the Tribes, and

landowners including most of the ranchers here then entered

into the Upper Klamath Basin Comprehensive Agreement (the

“Upper Basin Agreement”). Id. ¶ 26. The Tribes agreed to

forbear from enforcing the full extent of their reserved instream

water rights in exchange for commitments by the other parties

as to water use, riparian protection, and economic

development. Notice Regarding Upper Klamath Basin

Comprehensive Agreement, 82 Fed. Reg. 61,582, 61,582–83

(Dec. 28, 2017) (“Notice”). During 2014–16, the Tribes made

calls for flows at these lower levels. Am. Compl. ¶ 29. But, in

2017, citing a lack of progress in implementing the promised

benefits, the Tribes reverted to the higher water levels under

OWRD’s Administrative Determination. Id. ¶ 30. The federal

government terminated the Upper Basin Agreement in view of

Congress’s failure to approve the necessary funding. Notice,

12

82 Fed. Reg. at 61,583–84. In 2018 and 2019, the Tribes again

issued calls for the full enforcement of their water rights. Am.

Compl. ¶¶ 31–32.

B.

The ranchers filed the instant lawsuit against the federal

government in May 2019. In their amended complaint, they

alleged that after termination of the Upper Basin Agreement,

the Tribes “by and through the power and authority delegated

by” the federal government issued calls for enforcement of the

full extent of their instream flow water rights. Am. Compl.

¶¶ 31–32. OWRD’s enforcement of these calls, they alleged,

resulted in “widespread and severe curtailment” of water rights

for irrigation use on their lands, resulting in environmental and

economic injury, and that similar injury will result from future

calls. Id. ¶¶ 31–38. Specifically, the ranchers alleged they

have suffered and will continue to suffer the following injuries:

(1) reduction of wildlife on their ranches, (2) infestation of

undesirable plants, (3) the loss of plant communities, (4) lost

revenues, and (5) reduced property values. Id. ¶¶ 36–37. The

ranchers argued that the Protocol constitutes an unlawful

delegation to the Tribes of the federal government’s authority

to decide whether to concur in a call. Id. ¶¶ 41–46. Further,

they argued that the calls made in 2013 and 2017–19

constituted major federal actions for which an environmental

impact statement should have been prepared under the National

Environmental Policy Act (“NEPA”). Id. ¶¶ 47–53. As a

remedy, they asked the district court to set aside the Protocol,

all previous calls, and to enjoin any future calls by the federal

government until it “fully complied with the law,” including

“to make a final, independent decision on the propriety of a

call, having taken into account the general public interest and

welfare, as well as NEPA.” Id.

13

The district court dismissed the complaint for lack of

Article III standing. The court determined that the Klamath

Tribes “are entitled to enforce their senior water rights . . .

regardless of whether the Protocol . . . stand[s].” Mem. Op. 18

(Jan. 31, 2020). The ranchers thus could not demonstrate that

their injuries were traceable to the challenged Protocol or to

any action of the federal government. Id. at 10–15. Nor could

they show redressability because even if the federal

government were prohibited from enforcing the Tribes’ rights,

the district court concluded, the Tribes would do so themselves,

resulting in the same hardships to the ranchers. Id. at 15–21.

The ranchers appeal.

II.

To establish standing to litigate in the federal courts,

Article III of the Constitution requires a plaintiff to “present an

injury that is concrete, particularized, and actual or imminent;

fairly traceable to the defendant’s challenged behavior; and

likely to be redressed by a favorable ruling.” Dep’t of

Commerce v. New York, 139 S. Ct. 2551, 2565 (2019) (internal

quotation marks omitted) (quoting Davis v. Fed. Election

Comm’n, 554 U.S. 724, 733 (2008)). Causation requires a

“fairly traceable connection between the plaintiff’s injury and

the complained-of conduct of the defendant.” Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 103 (1998). And

redressability requires a litigant to demonstrate “a likelihood

that the requested relief will redress the alleged injury.” Id.

The ranchers frame their claims in terms of procedural

injury. They concede that as junior appropriators they have no

right to water that infringes the Tribes’ instream rights,

Appellants’ Br. 5–7, and priority enforcement of water rights

through a call system is in accordance with the nature of those

rights under Oregon law, see Montana v. Wyoming, 563 U.S.

14

368, 375–76 (2011); Klamath Irrigation Dist. v. United States,

227 P.3d 1145, 1150 (Or. 2010).

To establish traceability in a procedural-injury case, “an

adequate causal chain must contain at least two links:” (1) a

connection between the omitted procedure and a government

decision and (2) a connection between the government decision

and the plaintiff’s particularized injury. WildEarth Guardians

v. Jewell, 738 F.3d 298, 306 (D.C. Cir. 2013) (internal

quotation marks omitted) (quoting Fla. Audubon Soc’y v.

Bentsen, 94 F.3d 658, 668 (D.C. Cir. 1996)). The plaintiff is

not required to “show that but for the alleged procedural

deficiency the agency would have reached a different

substantive result. ‘All that is necessary is to show that the

procedural step was connected to the substantive result.’” Id.

(citations omitted) (quoting Massachusetts v. EPA, 549 U.S.

497, 518 (2007)). Claims for procedural violations also receive

a “relaxed redressability requirement” in which the plaintiff

need only show that “correcting the alleged procedural

violation could still change the substantive outcome in the

[plaintiff’s] favor” not “that it would effect such a change.”

Narragansett Indian Tribal Historic Pres. Office v. FERC, 949

F.3d 8, 13 (D.C. Cir. 2020). These relaxed standards do not

apply to the link between the government decision and the

plaintiff’s injury. See WildEarth Guardians, 738 F.3d at 306.

“[Alt]hough the plaintiff in a procedural-injury case is relieved

of having to show that proper procedures would have caused

the agency to take a different substantive action, the plaintiff

must still show that the agency action was the cause of some

redressable injury to the plaintiff.” Arpaio v. Obama, 797 F.3d

11, 21 (D.C. Cir. 2015) (internal quotation marks omitted)

(quoting Renal Physicians Ass’n v. U.S. Dep’t of Health &

Human Servs., 489 F.3d 1267, 1279 (D.C. Cir. 2007)).

15

Notably here, “[w]here traceability and redressability

depend on the conduct of a third party not before the court

‘standing is not precluded, but it is ordinarily substantially

more difficult to establish.’” Competitive Enter. Inst. v. FCC,

970 F.3d 372, 381 (D.C. Cir. 2020) (quoting Lujan v. Defs. of

Wildlife, 504 U.S. 555, 562 (1992)). “The party invoking our

jurisdiction must show that the third party will act ‘in such

manner as to produce causation and permit redressability of

injury.’” Id. A permissible theory of standing “does not rest

on mere speculation about the decisions of third parties; it relies

instead on the predictable effect of Government action on the

decisions of third parties.” Dep’t of Commerce, 139 S. Ct. at

2566.

The ranchers trace their alleged injuries to OWRD orders

that compelled them to curtail irrigation of their lands. Am.

Compl. ¶¶ 25, 30–32. Those orders follow from the Tribes’

calls for enforcement of their reserved water rights. Id. ¶¶ 22–

25, 29–33. The Tribes and OWRD are third parties not joined

as defendants in the ranchers’ lawsuit here. Instead, the

ranchers sued only the federal government on the premise that

the Tribes would be unable to obtain enforcement of their calls

for water in the absence of concurrence by the federal

government. Am. Compl. ¶¶ 2, 38. To determine whether the

ranchers have standing, the court must determine whether the

federal government’s concurrence in or non-objection to the

Tribes’ enforcement calls will have a predictable effect on the

OWRD watermaster’s issuance of orders that require the

ranchers to curtail irrigation of their lands. For the following

reasons, we conclude that no such concurrence requirement

exists under federal or Oregon law, and that, consequently, the

ranchers cannot establish the causation or redressability

necessary for standing.

16

A.

The Tribes’ water rights have their source in federal law.

The 1864 Klamath Treaty extinguished the Tribes’ title to

ceded lands while preserving their “exclusive right” to hunt and

fish on reservation land. Art. I, 16 Stat. at 707–08. The scope

of the Tribes’ water rights under the Treaty is a question of

federal law. Under the “reserved water rights” doctrine, when

the federal government creates an Indian reservation, it

impliedly reserves “that amount of water necessary to fulfill the

purpose of the reservation.” Cappaert, 426 U.S. at 141. The

1864 Treaty thus reserved to the Tribes “a quantity of the water

flowing through the reservation . . . for the purpose of

maintaining [their] treaty right to hunt and fish on reservation

lands.” Adair, 723 F.2d at 1410. The nature of the federal

government’s trust relationship with the Tribes is also

governed by federal law, and the ranchers’ understanding of

the federal government’s role and the Protocol is

“fundamentally in error.” Appellees’ Br. 24.

The principles announced by the Supreme Court disfavor

the ranchers’ assertion of standing. In United States v. Mitchell

(“Mitchell I”), 445 U.S. 535 (1980), individual Indians who

had been allotted former reservation land sought damages from

the federal government for failing its fiduciary duties to

maximize the value of timber on the allotted land. Id. at 537.

The Supreme Court concluded that under the General

Allotment Act “the trust Congress placed on allotted lands is of

limited scope,” and held, therefore, that the Act did not give

rise to a claim for breach of fiduciary duty of timber

management. Id. at 542–43, 546. On remand, the U.S. Court

of Claims interpreted various statutes and regulations related to

timber management to impose fiduciary duties on the federal

government as trustee. The Supreme Court affirmed, holding

in United States v. Mitchell (“Mitchell II”), 463 U.S. 206

17

(1983), that the cited statutes and regulations vested in the

federal government “full responsibility to manage Indian

resources and land for the benefit of the Indians” and thereby

“establish[ed] a fiduciary relationship and define[d] the

contours of the United States’ fiduciary responsibilities.” Id.

at 224. Although this conclusion was “reinforced by the

undisputed existence of a general trust relationship between the

United States and the Indian people,” the Court principally

grounded its holding on the text of the statues and regulations,

which “clearly establish[ed] fiduciary obligations of the

[federal government] in the management” of the lands and

resources at issue. Id. at 224–26; see also COHEN’S HANDBOOK

§ 5.05(1)(b).

This court applied these principles in Shoshone-Bannock

Tribes v. Reno, 56 F.3d 1476 (D.C. Cir. 1995). There, as here,

a state had commenced a general stream adjudication and

joined the United States. Id. at 1478. The Shoshone-Bannock

Tribes argued that they were entitled to water rights beyond

their reservation’s boundaries based on a treaty provision

granting them the right to hunt on unoccupied land outside the

reservation. Id. When the federal government declined to

assert the off-reservation claims on their behalf, the tribes filed

suit seeking to compel the U.S. Attorney General to file their

claims. Id. at 1479. This court acknowledged that under the

federal doctrine reserved water rights on Indian reservations

“belong to the Indians rather than to the United States, which

holds them only as trustee.” Id. Recognizing that the Attorney

General generally retained discretion to conduct litigation on

behalf of the United States, the court noted that the tribes had

identified no statute or other restriction limiting that discretion.

Id. at 1480–82. Explaining, the court stated:

While it is true that the United States acts in a

fiduciary capacity in its dealings with Indian tribal

18

property, it is also true that the government’s fiduciary

responsibilities necessarily depend on the substantive

laws creating those obligations. We agree with the

district court that an Indian tribe cannot force the

government to take a specific action unless a treaty,

statute or agreement imposes, expressly or by

implication, that duty.

Id. at 1482 (citations omitted). The “‘mere existence’ of the

Treaty [did not] require[] the federal government to protect

whatever [water claims] the Tribes may wish to advance.” Id.

Neither the 1864 Klamath Treaty, nor the 1954

Termination Act, nor the 1986 Restoration Act establish a trust

relationship between the federal government and the Tribes

that requires the federal government to concur in the Tribes’

calls for enforcement of their reserved instream water rights.

Article I of the Treaty guaranteed the Tribes’ “exclusive”

hunting and fishing rights on the reservation. That exclusive

right was expressly acknowledged by Congress as to the

reserved water rights in both the Termination Act and the

Restoration Act. Those Acts provided as well that nothing in

their provisions would “affect in any manner any . . . water right

of the tribe and its members,” Restoration Act § 5, 100 Stat. at

850, or “abrogate any water rights of the tribe and its

members,” Termination Act § 14(a), 68 Stat. at 722. Despite

restoring federal recognition to the Tribes and the “rights and

privileges” that might have been diminished under the

Termination Act, section 5 of the Restoration Act expressly

carved out the Tribes’ exclusive rights guaranteed by the

Treaty. The federal government’s historical trustee

relationship with Indian tribes was thereby limited so as not to

interfere with the Tribes’ exclusive rights under Article I of the

1864 Treaty.

19

In short, as was true before the Restoration Act, the federal

government has “no ownership interest in, or right to control

the use of, the Klamath Tribe’s hunting and fishing” rights and

attendant reserved water rights. Adair, 723 F.2d at 1418; see

Oregon Dep’t, 473 U.S. at 765–68. Neither statutory text nor

the historical trusteeship that existed prior to the Termination

Act indicate that Congress intended in the Restoration Act to

require the federal government’s concurrence for the Tribes’

instream calls to be effective. They do not require the federal

government to assume “elaborate control,” Mitchell II, 463

U.S. at 224–25, over the Tribes’ water rights. Nor would such

a requirement be a “right,” “privilege,” “service,” or “benefit”

within the meaning of section 2 of the Restoration Act, 100

Stat. at 849. To the contrary, such a concurrence requirement

would directly interfere with the Tribes’ exercise of their

sovereignty, here their assertion and control of their reserved

water rights. See Restoration Act § 5, 100 Stat. at 850. See

generally COHEN’S HANDBOOK § 19.06. Indeed the federal

government maintains that it was obligated, if asked, to concur

in lawful water calls proposed by the Tribes. This court

previously held that despite the existence of a trust relationship

“an Indian tribe cannot force the government to take a specific

action unless a treaty, statute, or agreement imposes, expressly

or by implication, that duty.” Shoshone-Bannock Tribes, 56

F.3d at 1482. The court need not consider whether that

standard was met here given our conclusion that the Tribes

were free to make calls in the exercise of their treaty rights.

B.

The heart of the ranchers’ argument is that a concurrence

requirement is found in Oregon law, which is made applicable

to the Klamath Basin Adjudication by the McCarran

20

Amendment of 1952, 43 U.S.C. § 666(a).4 Appellants’ Br. 13–

24. In Colorado River Water Conservation District v. United

States, 424 U.S. 800 (1976), the Supreme Court held that the

McCarran Amendment is properly understood to reach Indian

reserved water rights held in trust on behalf of Indians. Id. at

809. The Supreme Court emphasized that in “resolv[ing]

conflicting claims to a scarce resource,” id. at 812, such state

jurisdiction “in no way abridges any substantive claim on

behalf of Indians under the doctrine of reserved rights,” id. at

813. The McCarran Amendment, then, does not change the

fact that the substance and scope of tribal water rights is

governed by federal law. Arizona v. San Carlos Apache Tribe

of Ariz., 463 U.S. 545, 571 (1983). Necessarily, “[s]tate courts,

as much as federal courts, have a solemn obligation to follow

federal law.” Id. Still, in submitting federal water right

4

The McCarran Amendment provides:

Consent is given to join the United States as a defendant in

any suit (1) for the adjudication of rights to the use of water

of a river system or other source, or (2) for the

administration of such rights, where it appears that the

United States is the owner of or is in the process of

acquiring water rights by appropriation under State law, by

purchase, by exchange, or otherwise, and the United States

is a necessary party to such suit. The United States, when

a party to any such suit, shall (1) be deemed to have waived

any right to plead that the State laws are inapplicable or

that the United States is not amenable thereto by reason of

its sovereignty, and (2) shall be subject to the judgments,

orders, and decrees of the court having jurisdiction, and

may obtain review thereof, in the same manner and to the

same extent as a private individual under like

circumstances: Provided, That no judgment for costs shall

be entered against the United States in any such suit.

43 U.S.C. § 666(a).

21

controversies to state courts for “adjudication” or

“administration,” the Supreme Court concluded that state

procedural rules apply because the McCarran Amendment

“bespeaks a policy that recognizes the availability of

comprehensive state systems for adjudication of water rights,”

which advance the goal of avoiding piecemeal proceedings and

inconsistent dispositions. Colorado River, 424 U.S. at 819; see

United States v. Idaho ex rel. Idaho Dep’t of Water Res., 508

U.S. 1, 6–8 (1993).

The ranchers maintain that requiring the concurrence of

the legal title holder (i.e., the trustee) is a state procedural rule

to which the McCarran Amendment subjects the Tribes’

reserved water rights. The federal government suggests that

even if there were such a rule, it would be a substantive one

that flows from the nature of the trust relationship, not state

procedure. Appellees’ Br. 32–33. We need not resolve that

question because none of the four sources of an Oregon-law

concurrence requirement offered by the ranchers show that

Oregon law requires the federal government to concur in the

Tribes’ calls for their reserved water rights held in trust.

(1) Fort Vannoy Irrigation District v. Water Resources

Commission, 188 P.3d 277 (Or. 2008). The ranchers

characterize Fort Vannoy as establishing a general rule that “a

call for the implementation of water rights that are held in trust

must be approved by the holder of legal title.” Appellants’ Br.

16. No such broad proposition is found in Fort Vannoy. There,

Ken-Wal Farms had filed an application to change the points

of diversion for water under two water rights certificates, which

had been issued to the Fort Vannoy Irrigation District. Fort

Vannoy, 188 P.3d at 280–81. By Oregon statute, the “holder

of any water use subject to transfer” is given the authority to

seek a change of the point of diversion. Id. at 281 (quoting Or.

Rev. Stat. § 540.510(1)). An irrigation district to facilitate the

22

construction of irrigation works is formed upon proposal of

landowners, governed by an elected board of directors, and has

the power to acquire lands for reservoirs or other purposes. Id.

at 286. The “legal title to all such property ‘vests in the

irrigation district and is held by it in trust.’” Id. (alterations

omitted) (quoting Or. Rev. Stat. § 545.253). The narrow

question in Fort Vannoy was whether such a district is the

“holder of any water use subject to transfer,” when it receives

the certificate to a particular water right. Id. at 286, 288.

In identifying the “holder,” the court in Fort Vannoy

examined the trust relationship between the irrigation district

and its members. Id. at 295. The trust relationship was not

governed by federal Indian law; instead, a state statute

established that property acquired by the district would be held

in trust and the board was empowered “to hold, use, acquire,

manage, occupy, possess and dispose of the property as

provided in the Irrigation District Law.” Id. (quoting Or. Rev.

Stat. § 545.253). Relying in part on the Oregon law of private

trusts, the court in Fort Vannoy concluded that “the phrase

‘holder of any water use subject to transfer’ cannot be

construed as referring to Ken–Wal, because such a construction

would run afoul of the trust relationship by permitting a

beneficiary to manage the trust property.” Id. at 295–96.

As is evident, Fort Vannoy did not establish a general

procedural rule governing calls to enforce water rights held in

trust and its construction of the state statutes governing

irrigation districts has nothing to say about a trust relationship

created by federal Indian law.

(2) State statutes related to water rights certificates. The

ranchers urge that the necessity of a concurrence by the legal

title holder is reflected in Oregon’s procedures for stream

adjudication. Appellants’ Br. 17. At the conclusion of a stream

23

adjudication, they state, OWRD issues a certification listing the

owner of the right, which original certificate is sent to the

owner and used by the watermasters to determine whether

action should be taken. See Or. Rev. Stat. § 539.140. The

owner of an equitable interest, they continue, does not receive

a certificate. Appellants’ Br. 17–18. The ranchers maintain

that the reasonable inference from this administrative process

is that implementation of water rights is “keyed” to the

certification, and implementation of the Tribes’ equitable water

right depends at least in part on the federal government’s say.

Id. at 18. Even were the court to assume for purposes of

argument that the ranchers have accurately described the

process, they do not demonstrate that OWRD regulations

authorizing enforcement of the Administrative Determination

require such a certificate. The OWRD watermasters are to

allocate water in accordance with the claims determined in the

Determination. See Or. Admin. R. 690-025-0020(1)–

(2), -0025(1). Those claims list rights in the name of both the

Tribes and the federal government. See, e.g., Administrative

Determination at 5076 (listing the Tribes as the “claimants”

and the federal government as “trustee” for the Tribes).

Nothing in the ranchers’ cited authority on certificates imposes

a concurrence requirement here.

(3) Denial of the Tribes’ independent claim in OWRD’s

Administrative Determination. As noted, OWRD reasoned

that the Tribes’ composite claim (No. 612) was “duplicative of

the [federal government’s] claims, not additive. The [federal

government] holds the rights recognized herein in trust for the

Klamath Tribes. Colorado River Water Conservation Dist. v.

United States, 424 [U.S.] 800, 810 (1976).” Administrative

Determination at 4898, 5074. The citation to Colorado River

reveals this ruling was grounded in OWRD’s understanding of

federal law. Right or wrong, OWRD’s decision to deny the

24

Tribes’ claim cannot reasonably be understood to impose a

state law concurrence requirement.

The ranchers’ view is that recognizing the Tribes’

authority to exercise their own water rights is inconsistent with

OWRD’s determination that the federal government “holds”

the water rights “in trust” for the Tribes. See Appellants’ Br.

21–23. The ranchers also point to the recent decision of the

Oregon Circuit Court indicating that the Tribes’ water rights

are held by the United States “in trust,” and declining to disturb

the Administrative Determination on this point. Or. Cir. Ct.

Op., Feb. 24, 2021, at 8–9; Appellants’ FED. R. APP. P. 28(j)

Ltr. of Mar. 3, 2021. This misunderstands the nature of the

limited trust involved. Although Congress may abrogate or

diminish treaty rights by clearly expressed intent, Minnesota v.

Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 202

(1999), the Termination Act abrogated the Tribes’ land rights

but it did not abrogate any reserved water rights of the Tribes.

The Restoration Act restored the federal trust relationship with

the Tribes while expressly stating in section 5 that it would not

“affect in any manner any . . . water right of the [Tribes].” 100

Stat. at 850. Unlike in Mitchell II, where federal statutes and

regulations “establish[ed] ‘comprehensive’ responsibilities” in

the federal government for managing the harvesting of Indian

timber, 463 U.S. at 222 (quoting White Mountain Apache Tribe

v. Bracker, 448 U.S. 136, 145 (1980)), the relevant federal

statutes have preserved the Tribes’ instream water rights

impliedly reserved in the 1864 Treaty for tribal fisheries and

fishing rights. Absent a treaty or statutory provisions clearly

abrogating or diminishing the Tribes’ exclusive instream

rights, their beneficial ownership of reservation lands includes

“all rights normally associated with ‘fee simple absolute title.’”

Blackfeet Tribe, 924 F.2d at 902 (quoting Shoshone Tribe of

Wind River, 304 U.S. at 117). In denying the Tribes’

independent claim, OWRD relied on the principle of federal

25

law that water rights reserved for Indians are held in trust by

the federal government, whose limited trust designation does

not imply federal authority or obligations to control or manage

the trust resource. Given the specific text of the Termination

Act and the Restoration Act, the Tribes retain full authority to

control the use of their water right. See Oregon Dep’t., 473

U.S. at 765–67; Adair, 723 F.2d at 1418; Blackfeet Tribe, 924

F.2d at 902. Nothing in the recent opinion of the Oregon

Circuit Court could alter the federal law that defines and

determines the scope of the Tribes’ reserved water rights. The

ranchers do not contest the well-established legal federal

precedent that the substance of the Tribes’ reserved water

rights remains governed by federal law even in state water

adjudicatory proceedings. See Appellants’ Br. 13.

(4) Emails from OWRD employees suggesting the federal

government’s concurrence was necessary. The ranchers’

reliance on informal communications between OWRD

employees is unavailing. In 2017, upon receiving a call from

the Tribes, an OWRD employee emailed another employee,

“[W]e need to await concurrence from [the Bureau of Indian

Affairs] on this.” In 2018, an OWRD employee inquired about

whether the federal government would again provide an

“official concurrence.” Even assuming the emails indicate

these employees thought the federal government’s concurrence

was needed for an effective Tribal call, in the absence of a legal

basis for a concurrence requirement these emails are

insufficient to show that OWRD would predictably decline to

enforce the Tribes’ instream rights without a concurrence by

the federal government. Insofar as the emails reflect a

misunderstanding of the federal trust relationship, that would

presumably be corrected by today’s decision, which explains

that there is no federal law concurrence requirement for the

Tribes’ water rights. State agency adjudicators, like the state

courts reviewing their decisions, can be expected to discharge

26

their “solemn obligation to follow federal law.” San Carlos

Apache Tribe, 463 U.S. at 571.

Moreover, to the extent the ranchers point to the clause in

the 2019 Protocol that the parties would not “withhold any

required concurrence” in a call made by the other party after

following the consultation procedures, they overlook a key

word. The Protocol states that “either Party may independently

make a call and the other party will not withhold any required

concurrence or object to the call,” except that the United States

reserves the right not to concur in a call that is inconsistent with

the Administrative Determination or other legal obligations.

Protocol at 4. Inclusion of the word “any” belies the ranchers’

suggestion that the federal government had concluded such

concurrence was “required.”

In sum: There is no concurrence requirement imposed by

federal law on the Tribes’ reserved instream water rights,

whether by the 1864 Klamath Treaty or the federal

government’s trust relationship. The McCarran Amendment

subjects the Tribes’ reserved water rights to state procedural

rules in its quantification proceedings, but the substance and

scope of the Tribes’ rights remain governed by federal law.

Oregon law does not require federal government concurrence

to enforce the Tribes’ water rights, and we leave for another

day the question of what, if any, legal effect such a state

requirement could have. Therefore, invalidating the Protocol,

and requiring the federal government to independently assess

whether it would concur in the Tribes’ calls, would not remedy

the ranchers’ injuries. The Tribes would continue to make calls

in the exercise of their Treaty rights, and OWRD would enforce

the calls. Because the ranchers fail to show their alleged

injuries are fairly traceable to federal government action or

inaction, or would be redressed by striking the Protocol, they

27

lack Article III standing. Accordingly, the dismissal of the

ranchers’ complaint for lack of standing is affirmed.