Navajo Nation v. Usdoi

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NAVAJO NATION, No. 19-17088

Plaintiff-Appellant,

D.C. No.

v. 3:03-cv-00507-

GMS

U.S. DEPARTMENT OF THE INTERIOR;

DEB HAALAND, Secretary of the

Interior; UNITED STATES BUREAU OF OPINION

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.

2 NAVAJO NATION V. USDOI

Appeal from the United States District Court

for the District of Arizona

G. Murray Snow, Chief District Judge, Presiding

Argued and Submitted October 16, 2020

Pasadena, California

Filed April 28, 2021

Before: Ronald M. Gould, Marsha S. Berzon, and

Kenneth K. Lee, Circuit Judges.

Opinion by Judge Gould;

Concurrence by Judge Lee

SUMMARY *

Water Rights / Tribal Matters

The panel reversed the district court’s dismissal, based

on lack of jurisdiction, of Navajo Nation’s breach of trust

claim alleging that Federal Appellees failed to consider the

Nation’s as-yet-undetermined water rights in managing the

Colorado River.

The district court held that any attempt by the Nation to

amend its complaint was futile because the district court

lacked jurisdiction to decide the breach of trust claim due to

the Supreme Court reserving jurisdiction over allocation of

rights to the Colorado River in Arizona v. California

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

NAVAJO NATION V. USDOI 3

(Arizona I), 373 U.S. 546 (1963) (opinion); accord Arizona

v. California (1964 Decree), 376 U.S. 340, 353 (1964)

(decree).

The panel held that the district court erred in dismissing

the complaint because 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 did not seek a judicial quantification

of rights to the River, and therefore, the panel need not

decide whether the Supreme Court’s retained jurisdiction

was exclusive. The panel concluded it had jurisdiction to

consider the Nation’s claim, and the district court erred in

holding otherwise.

The panel held, contrary to the Intervenors’ arguments

on appeal, that the Nation’s claim was not barred by res

judicata, despite the federal government’s representation of

the Nation in Arizona I. The panel held that the Nation, here,

asserted a different claim than the water rights claim the

federal government could have asserted on the Nation’s

behalf in Arizona I. The federal government’s fiduciary duty

to the Nation was never at issue in Arizona I, and no final

judgment was ever entered on the merits of any question

concerning that subject.

Finally, the panel held that 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. At

this early stage of the litigation, the panel declined to address

whether the Nation’s Winters rights included rights to the

4 NAVAJO NATION V. USDOI

mainstream of the Colorado River or to any other specific

water resources. The panel remanded to the district court

with instructions to permit the Nation to amend its

complaint.

Judge Lee concurred. He wrote separately to emphasize

that the Nation’s proposed injunctive relief should not and

did not implicate the Supreme Court’s retained jurisdiction

in the 1964 Decree.

COUNSEL

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,

NAVAJO NATION V. USDOI 5

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.

OPINION

GOULD, Circuit Judge:

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-

6 NAVAJO NATION V. USDOI

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

(1963) (opinion); accord Arizona v. California (1964

Decree), 376 U.S. 340, 353 (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

NAVAJO NATION V. USDOI 7

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.

I

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

8 NAVAJO NATION V. USDOI

rulings; Supreme Court decrees; and interstate compacts.

Collectively, this legal regime is known as the “Law of the

River.”

A

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).

NAVAJO NATION V. USDOI 9

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.

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.

In 1952, still dissatisfied with its allotment, Arizona sued

California in the Supreme Court, invoking the Court’s

original jurisdiction. Id. at 550–51. Nevada and other Basin

States intervened, as did the United States. Id. at 551.

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 Colorado River system. Navajo I, 876 F.3d

at 1156 n.13. The Nation, along with other tribes, sought the

appointment of a Special Assistant Attorney General to

represent their interests, but their request was denied. The

Nation also sought to intervene in proceedings before the

Special Master, but its motion to intervene was denied at the

United States’ urging. See Response of the United States to

the Motion on Behalf of the Navajo Tribe of Indians for

1

The BCPA lowered the 1922 Compact’s ratification threshold: six

states would suffice for ratification as long as California was among

them and committed to a ceiling on its apportionment. See 43 U.S.C.

§ 617c(a).

10 NAVAJO NATION V. USDOI

Leave to Intervene, Arizona I, 373 U.S. 546 (No. 8,

Original).

The Supreme Court issued its decree in 1964. See 1964

Decree, 376 U.S. 340. The Court excluded the Little

Colorado River—and therefore the Nation’s claim—from

the adjudication, along with other tributaries in the river

system. See id. art. VIII(B), 376 U.S. at 352–53. It also

affirmed the apportionment of the first 7.5 mafy among the

Lower Basin States as specified in the BCPA and the

accompanying second compact. Id. art. II(B), 376 U.S. at

341–42. The Decree stated that in years where there is less

than 7.5 million acre-feet available in the Lower Basin,

Interior must first “provide[] for satisfaction of present

perfected rights in the order of their priority dates without

regard to state lines.” Id. art. II(B)(3), 376 U.S. at 342.

Then, “after consultation with the parties to major delivery

contracts and such representatives as the respective States

may designate, [the Secretary] may apportion the amount

remaining available for consumptive use in such manner as

is consistent with” the BCPA, the 1964 Decree, and other

applicable federal statutes. Id.

The 1964 Decree also determined the Winters rights of

the five tribes for whom the federal government asserted

federally reserved rights. See id. at 344–45. Under the

Winters doctrine, “when the Federal Government withdraws

its land from the public domain” for the purpose of

establishing an Indian reservation, “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

(1976); see Winters v. United States, 207 U.S. 564, 576

(1908).

NAVAJO NATION V. USDOI 11

Water is essential to life on earth, see Sandra Alters,

Biology: Understanding Life 39 (3d ed. 2000), and it is

particularly essential for healthy human societies. 2 Further,

beyond the general import of water for societies, in the

specific case of the Navajo Nation, news reports have

indicated that the Nation’s shortage of water have in part

caused exacerbation of the risks from COVID-19. Many

homes on the Reservation lack running water, making it

difficult for tribal members to wash their hands regularly.

See Ian Lovett et. al, Covid-19 Stalks Large Families in

Rural America, Wall St. J. (June 7, 2020),

https://www.wsj.com/articles/covid-19-households-spread-

coronavirus-families-navajo-california-second-wave-

11591553896. The Nation has as a result been particularly

affected by the current pandemic, with a death rate

significantly higher than that of many other parts of the

country. See id. 3

2

It is by no accident that many of the world’s ancient civilizations

were born in places such as the Tigris-Euphrates delta, and the valleys

of the Nile, Indus, and Yellow Rivers. Pierre-Louis Viollet, Water

Engineering in Ancient Civilizations9 (Forrest M. Holly trans., 2017).

The engineers of classical Rome built a vast network of aqueducts that,

at its peak, spanned over 250 miles in length. During the Last Gothic

War, King Vitiges led an army of Ostrogoths to the gates of Rome itself.

The invaders encircled the city and blocked off the aqueducts, keenly

aware that the Romans could not survive a prolonged siege without

access to water. See Peter J. Aicher, Guide to the Aqueducts of Ancient

Rome 6 (1995). In more recent times, Israel, faced with a paucity of

water, has developed techniques for managing wastewater and pioneered

desalinization techniques. In 2011, Israel desalinated 296 million cubic

meters (MCM) of water out of sea water, and forty-five MCM out of

brackish water. Water Policy in Israel 5 (Nir Becker ed., 2013).

3

The vast majority of deaths on the Reservation due to COVID-19

are among people aged sixty and older, including the hataałii, traditional

12 NAVAJO NATION V. USDOI

In Winters, the United States, acting as trustee of the Fort

Belknap Tribe, sought to enjoin upstream diversions on

Montana’s Milk River from interfering with the Fort

Belknap Reservation’s downstream diversions. See Winters,

207 U.S. at 565. Although the 1888 treaty that established

the Reservation made no express provision for tribal water

rights to the Milk River, the United States maintained that

the water had been impliedly reserved to fulfill the purpose

of the reservation as a “permanent home and abiding place”

for the Fort Belknap Tribe. Id. The Court agreed, noting

that the Reservation lands “were arid, and, without

irrigation, were practically valueless.” Id. at 576. The Court

applied the Indian canons of construction, under which

ambiguities in agreements and treaties with tribes “will be

resolved from the standpoint of the Indians,” and held that

the Tribe was entitled to federally reserved rights to the Milk

River. Id.; see id. at 576–77.

Winters set a “solid foundation” for later decisions that

reaffirmed the scope of Indian reserved water rights. Robert

T. Anderson, Indian Water Rights and the Federal Trust

Responsibility, 46 Nat. Res. J. 399, 414 (2006). Subsequent

decisions have established that these rights are determined

by federal, not state law. See 1 Cohen’s Handbook of

Federal Indian Law § 19.03 (Nell Jessup Newton ed., 2019)

(Cohen’s Handbook). Moreover, tribal water rights may

trump water rights of state users, even when those users have

medicine men and women entrusted with preserving the Nation’s

cultural heritage. Jack Healy, Tribal Elders Are Dying From the

Pandemic, Causing a Cultural Crisis for American Indians, N.Y. Times

(Jan. 12, 2021), https://www.nytimes.com/2021/01/12/us/tribal-elders-

native-americans-coronavirus.html.

NAVAJO NATION V. USDOI 13

been drawing from the water source for a longer time. See

id.

In awarding five tribes federally reserved water rights,

the Arizona Court reaffirmed the Winters doctrine, noting

that “most of the [reservation] lands were of the desert

kind—hot, scorching sands—and . . . water from the

[Colorado] river would be essential to the life of the Indian

people and to the animals they hunted and the crops they

raised.” Arizona I, 373 U.S. at 599. These five tribes

received rights to water commensurate with the “practically

irrigable acreage” within each tribe’s reservation. Id. at 600;

see 1964 Decree art. II(D), 376 U.S. at 343–45. However,

the Supreme Court declined to adjudicate the claims of the

twenty other tribes for whom the United States asserted

claims—including the Nation’s. Arizona I, 373 U.S. at 595

(“While the [Special] Master passed upon some of these

claims, he declined to reach others, particularly those

relating to tributaries. We approve his decision as to which

claims required adjudication . . . .”).

B

Federal Appellees, through Interior and its Secretary,

exercise pervasive control over the Colorado River pursuant

to the BCPA, the 1964 Decree, and other components of the

Law of the River. See id. at 593. The Secretary has

discretion to apportion shortfalls in years of shortage, see id.

at 593–94, and also has the authority to determine whether

there is a surplus or shortage of water each year, see 1964

Decree, art. II(B)(2)–(3), 376 U.S. at 342.

In 1968, Congress enacted the Colorado River Basin

Project Act (the “Basin Act”), which requires Interior to

manage Lake Mead, Lake Powell, and related facilities in

coordination and under long-range operating criteria.

14 NAVAJO NATION V. USDOI

43 U.S.C. § 1552(a). Each year, Interior must determine

whether there will be enough water to satisfy the 7.5 mafy

budgeted among the Lower Basin states, and whether and

how much “surplus” water will be available. See 73 Fed.

Reg. 19,873, 19,875 (Apr. 11, 2008). In 2001 and 2007,

Interior adopted “surplus” and “shortage” guidelines to

clarify how it determines whether a particular year was a

“shortage” or “surplus” year. See 66 Fed. Reg. 7772 (Jan.

25, 2001); 73 Fed. Reg. 19,873 (Apr. 11, 2008).

Before adopting the shortage guidelines, the Secretary

published a draft environmental impact statement (EIS)

discussing Indian Trust Assets, which are defined as legal

interests in assets held in trust by the federal government for

federally recognized tribes. See Final Environmental Impact

Statement, Colorado River Interim Guidelines for Lower

Basin Shortages and Coordinated Operations for Lake

Powell and Lake Mead (Shortage Guidelines FEIS) 3-87

(Oct. 2007). The EIS acknowledges that under the Winters

doctrine, the federal government impliedly “reserved water

in an amount necessary to fulfill the purposes of an Indian

reservation” for the Navajo Reservation. Id. at 3-96. The

EIS also states that while “[t]he existence of a federally

reserved right for the Navajo Nation to mainstream

Colorado River has not been judicially determined at this

time[, u]nquantified water rights of the Navajo Nation are

considered an [Indian Trust Asset].” Id.

II

The Nation filed a complaint against Federal Appellees

under the Administrative Procedure Act (APA), 5 U.S.C.

§§ 701–706, challenging the 2001 Surplus Guidelines.

Navajo I, 876 F.3d at 1159. The Nation alleged that Federal

Appellees violated the National Environmental Policy Act

(NEPA), 42 U.S.C. § 4321 et seq., and breached its trust

NAVAJO NATION V. USDOI 15

obligations based on the Federal Appellees’ management of

the Colorado River without considering or meeting the

Nation’s unquantified federal reserved water rights and

unmet water needs, Navajo I, 876 F.3d at 1159. Several

parties—Arizona, Nevada, and various state water,

irrigation, and agricultural districts and authorities

(collectively, “Intervenors”)—intervened to protect their

interests in the Colorado’s waters. Id. The district court

dismissed the complaint, holding that the Nation lacked

standing to bring its NEPA claims and that its breach of trust

claim was barred by sovereign immunity.

On appeal, we agreed with the district court that the

Nation lacked standing to bring its NEPA claims but

reversed and remanded on the breach of trust claim. Id.

at 1174. We held that the waiver of sovereign immunity in

§ 702 of the APA “applie[d] squarely to the Nation’s breach

of trust claim.” Id. at 1173. Because the breach of trust

claim was not barred by sovereign immunity, we instructed

the district court to fully consider the claim on its merits,

“after entertaining any request to amend the claim more fully

to flesh it out.” Id.

On remand, the Nation twice moved for leave to file an

amended complaint. The Proposed Third Amended

Complaint (TAC) alleged that the Federal Appellees have

failed to (1) “determine the quantities and sources of water

required to make the Navajo Nation a permanent homeland

for the Navajo People,” and (2) “protect the sovereign

interests of the Navajo Nation by securing an adequate water

supply to meet those homeland purposes.” The Intervenors

opposed both motions to amend, arguing that because the

United States could have asserted the Nation’s claim to the

mainstream of the Colorado River in the Arizona v.

California litigation and the rights to the River were fully

16 NAVAJO NATION V. USDOI

adjudicated in that action, the Nation’s claim was barred by

res judicata.

The district court denied both motions to amend and

dismissed the Nation’s complaint with prejudice. The

district court held that although a general trust relationship

exists between the United States and the tribes, the Nation

failed to identify a specific trust-creating statute, regulation,

or other form of positive law that the federal government

violated. And though the Nation argued that such a specific

trust obligation is created under the Winters doctrine, the

district court held that a determination of whether Winters

rights attached to the mainstream of the Colorado River was

jurisdictionally barred by the Supreme Court’s reservation

of jurisdiction in Arizona v. California. We conclude that

the Nation’s claim does not implicate the Court’s reservation

of jurisdiction, and that it therefore was error for the district

court not to grapple with the scope of Winters rights

available to the Nation in connection with its current

requests.

The district court further reasoned that even if it could

decide the breach of trust claim, Winters rights alone do not

give rise to specific and enforceable trust duties on the

federal government. The district court also held that none of

the treaties, statutes, and regulations that the Nation cited in

support of its trust claim were “specific . . . trust-creating

statute[s] or regulation[s] that the Government violated.”

Finally, the district court held that the Nation could not

allege a common law cause of action for breach of trust that

is “wholly separate from any statutorily granted right.”

We disagree with the district court as to the role of

Winters rights in establishing enforceable trust duties.

Winters rights are necessarily implied in each treaty in which

the government took land from Native Americans and

NAVAJO NATION V. USDOI 17

established reservations that were to be permanent homes for

them. That was the case with the Nation’s reservation.

Federal Appellees have an irreversible and dramatically

important trust duty requiring them to ensure adequate water

for the health and safety of the Navajo Nation’s inhabitants

in their permanent home reservation.

Because the district court concluded that the Nation’s

attempts to amend its complaint were futile, the district court

denied the motion to amend and dismissed the complaint.

The Nation timely appealed. Although the district court did

not decide the res judicata issue in dismissing the Nation’s

complaint, Intervenors assert that res judicata defense on

appeal.

This appeal presents three issues. First, we determine

whether the Nation’s breach of trust claim falls within the

Supreme Court’s reserved jurisdiction in Arizona v.

California. If it does, we decide whether that jurisdiction is

not only reserved, but also exclusive. Second, we determine

whether the Nation’s claim is barred by res judicata. Third,

we decide whether the Nation could properly state a claim

for breach of trust such that amendment was not futile.

III

We review a district court’s denial of a motion to amend

a complaint for abuse of discretion. Wheeler v. City of Santa

Clara, 894 F.3d 1046, 1051 (9th Cir. 2018). “A district

court’s exercise of discretion based on an erroneous

interpretation of the law constitutes an abuse of discretion.”

Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1055

(9th Cir. 2009). Moreover, “[d]ismissal without leave to

amend is improper unless it is clear, upon de novo review,

that the complaint could not be saved by any amendment.”

Polich v. Burlington N., Inc., 942 F.2d 1467, 1472 (9th Cir.

18 NAVAJO NATION V. USDOI

1991). Finally, we review a district court’s decision to

dismiss for lack of subject matter jurisdiction de novo.

DaVinci Aircraft, Inc. v. United States, 926 F.3d 1117, 1122

(9th Cir. 2019).

IV

A

We begin with the jurisdictional question. The district

court determined it could not decide the Nation’s breach of

trust claim because it falls within the Supreme Court’s

reserved jurisdiction under Article IX of the 1964 Decree.

Article IX provides that:

Any of the parties may apply at the foot of

this decree for its amendment or for further

relief. The Court retains jurisdiction of this

suit for the purpose of any order, direction, or

modification of the decree, or any

supplementary decree, that may at any time

be deemed proper in relation to the subject

matter in controversy.

1964 Decree, art. IX, 376 U.S. at 353. The parties and the

district court assumed that this provision reserves the

Supreme Court’s exclusive jurisdiction over—and strips

lower courts of jurisdiction to determine—whether the

Nation has water rights to a specific allocation from the

mainstream of the Colorado River. But in attempting to

avoid Article IX’s jurisdictional bar, the Nation represents

that it does not seek a judicial determination of its rights to

the Colorado. The Nation argues that it merely seeks an

injunction ordering the Federal Appellees to investigate the

Nation’s needs for water, to develop a plan to meet those

needs, and to exercise its authority over the management of

NAVAJO NATION V. USDOI 19

the Colorado River consistent with that plan. Under this

reading of the Nation’s claim, the district court only had to

consider whether the Nation needs water to fulfill the

promise of establishing the Navajo Reservation as a

homeland for the Nation’s people.

We agree with the Nation’s characterization of its claim.

A plain reading of the Nation’s complaint makes clear that it

does not seek a quantification of its rights in the Colorado

River. The Nation seeks an injunction “[r]equiring the

Federal Appellees . . . (1) to determine the extent to which

the Navajo Nation requires water . . . (2) to develop a plan to

secure the water needed; (3) to exercise their authorities,

including those for the management of the Colorado River,

in a manner that does not interfere with the plan to secure the

water needed . . . and (4) to require the Federal Appellees to

analyze their actions . . . and adopt appropriate mitigation

measures to offset any adverse effects from those actions.”

Granting this scope of relief would not require a judicial

quantification of the Nation’s rights to water from the River.

Nor would it require any modification of the Arizona Decree.

Furthermore, Article VIII(C) of the Decree provides that the

Decree does not affect “[t]he rights or priorities, except as

specific provision is made herein, of any Indian

Reservation.” 1964 Decree, 376 U.S. at 353. As discussed

infra, the Nation’s claim is not determined by any specific

provision in the 1964 Decree, as none addresses the Navajo

Nation’s water rights. The Nation’s breach of trust claim

thus falls outside the scope of the Decree, and our

jurisdiction is proper.

Because the Nation does not seek a judicial

determination of its rights to the waters of the Colorado

River, we need not resolve the scope of the Supreme Court’s

reserved jurisdiction under Article IX. But we note that the

20 NAVAJO NATION V. USDOI

Supreme Court’s own interpretation of the Decree does not

expressly state whether Article IX’s reserved jurisdiction is

exclusive. In the sequel to Arizona I, the federal government

sought to increase the water allotments for the five tribes that

were awarded federally reserved water rights in the original

litigation, arguing that the earlier calculations of the

practicably irrigable acreage within the reservations were

inaccurate. Arizona v. California (Arizona II), 460 U.S. 605,

608 (1983). The Court denied the request, and stated that if

not for Article IX, the Court would have been barred by res

judicata from re-opening the matter. Id. at 617–18. The

Court explained that Article IX was “mainly a safety net

added to retain jurisdiction and to ensure that we had not, by

virtue of res judicata, precluded ourselves from adjusting the

Decree in light of unforeseeable changes in circumstances.”

Id. at 622. Because the Supreme Court is best positioned to

interpret its own Decree, we defer to the interpretation it laid

out in Arizona II and understand Article IX primarily as an

authorization of jurisdiction, rather than a limitation on it.

Because the Nation neither seeks modification of the

Decree nor seeks to relitigate any issues resolved in the

Arizona cases, see infra, however, we need not resolve the

scope of the Supreme Court’s jurisdiction under Article IX.

We have jurisdiction to consider the Nation’s claim, and the

district court erred in holding otherwise.

B

Having established that we have jurisdiction, we turn to

the Intervenors’ argument that res judicata bars the Nation’s

claim. Intervenors argue that the Nation’s breach of trust

claim is barred by res judicata because the Nation

effectively seeks a judicial determination of its rights to the

Colorado River, which is a claim that the federal government

could have asserted on the Nation’s behalf in Arizona I, but

NAVAJO NATION V. USDOI 21

did not. We reject the Intervenors’ argument because the

Nation’s claim is not barred by res judicata.

In Nevada v. United States, 463 U.S. 110 (1982), the

Supreme Court held that res judicata barred the federal

government from seeking additional water rights for the

Pyramid Lake Tribe beyond the rights the tribe obtained in

previous water rights litigation, id. at 113, 145. The Nevada

Court considered “first if the cause of action which the

Government now seeks to assert is the same cause of action

that was asserted” in previous litigation, and then “whether

the parties in the instant proceeding are identical to or in

privity with” the parties in the previous litigation. Id. at 130

(internal quotation marks omitted). The Court held that the

federal government, in a decades-long adjudication that

began in 1913, sought to “assert . . . the Reservation’s full

water rights.” Id. at 132. Because Nevada involved the same

parties “asserting the same reserved right” as that

adjudicated by the previous litigation, id. at 134, the later

claim was barred.

In this case, by contrast, the Nation asserts a different

claim than the water rights claim the federal government

could have asserted on the Nation’s behalf in Arizona I. The

Nation’s claim, properly understood, is an action for breach

of trust—not a claim seeking judicial quantification of its

water rights. The federal government’s fiduciary duty to the

Navajo Nation was never at issue in Arizona v. California,

and no final judgment was ever entered on the merits of any

question concerning that subject. Cf. Nevada, 463 U.S.

at 129–30. As the Decree does not affect “[t]he rights or

priorities” of Indian Reservation beyond those specifically

enumerated, 1964 Decree, 376 U.S. at 353, the federal

government’s fiduciary duty to the Nation remains unaltered

by the Arizona litigation.

22 NAVAJO NATION V. USDOI

The Nation’s breach of trust claim is not barred by res

judicata.

C

1

Finally, we address whether the Nation’s attempts to

amend its complaint to plead their substantive breach of trust

claim were futile. The Federal Appellees and the Intervenors

argue that the district court correctly denied the Nation’s

motion for leave to amend its complaint, because it could not

point to any specific treaty provision, statute, or regulation

that imposed a trust obligation on the Federal Appellees. We

disagree and hold that the district court should have allowed

the Nation to amend its complaint.

This circuit first considered the requirements a tribe must

meet to bring a breach of trust action for non-monetary relief

in Morongo Band of Mission Indians v. F.A.A., 161 F.3d 569

(9th Cir. 1998). There, the Morongo Tribe challenged a

Federal Aviation Administration (FAA) proposal that would

have increased air traffic over reservation lands. Id. at 572–

73. The Tribe sought non-monetary relief under the APA,

alleging violations of various statutes and FAA regulations.

Id. at 572. We held that “unless there is a specific duty that

has been placed on the government with respect to Indians,

this responsibility is discharged by the agency’s compliance

with general regulations and statutes not specifically aimed

at protecting Indian tribes.” Id. at 574.

We addressed this issue again in Gros Ventre Tribe v.

United States, 469 F.3d 801 (9th Cir. 2006). There, the Gros

Ventre Tribe alleged that the federal government breached

its trust obligations “by approving, permitting, and failing to

reclaim” two cyanide heap-leach gold mines upriver from

NAVAJO NATION V. USDOI 23

the Tribe’s reservation. Id. at 806. The panel explained 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 810 (emphasis

added) (quoting Shoshone-Bannock Tribes v. Reno, 56 F.3d

1476, 1482 (D.C. Cir. 1995)). In holding that the Tribe

failed to identify a treaty, statute, or regulation that would

create an enforceable trust duty, we observed that the Tribe’s

treaties with the federal government “at most . . . merely

recognize[d] a general or limited trust obligation to protect

the Indians against depredations on Reservation lands.” Id.

at 812 (emphasis added). Because the Tribe sought an

injunction requiring the federal government to “manage

resources that exist off of the Reservation,” we held that no

treaty provision imposed an enforceable trust duty that could

be vindicated through injunctive relief. Id. at 812–13

(emphasis added).

Morongo and Gros Ventre establish the governing

standard here. Although Federal Appellees rely on another

strain of cases concerning the need to identify specific

statutory bases for obtaining monetary relief under the

Tucker Act, 28 U.S.C. § 1491, those cases are not apposite.

The fiduciary claim in this case is one for injunctive

relief under § 702 of the APA. In United States v. Mitchell

(Mitchell I), 445 U.S. 535 (1980), individual members of the

Quinault Tribe sued the federal government through the

Tucker Act, 28 U.S.C. § 1491, over alleged mismanagement

of timber resources on their allotted reservation lands,

445 U.S. at 537, 539. The timber was managed by the

Secretary of Interior under the General Allotment Act

(GAA). Id. at 537. The Supreme Court rejected the tribal

allottees’ argument that the GAA imposed enforceable trust

duties on the federal government to manage tribal timber

24 NAVAJO NATION V. USDOI

resources in a fiduciary capacity. Id. at 546. The Court

explained that when Congress enacted the GAA, it intended

that the federal government hold the land in trust “not

because it wished the Government to control use of the land

and be subject to money damages for breaches of fiduciary

duty, but simply because it wished to prevent alienation of

the land and to ensure that allottees would be immune from

the state taxation.” Id. at 544. The Court remanded the case

to the Court of Claims to consider whether the federal

government could be held liable for breach of trust based on

any other statutes. Id. at 546.

On remand, the Court of Claims held that the

government was subject to suit for money damages based on

various statutes and regulations detailing the federal

government’s responsibilities in managing the tribal timber

resources. United States v. Mitchell (Mitchell II), 463 U.S.

206, 211 (1983). The Supreme Court affirmed, holding that

the regulations and statutes created an enforceable trust

obligation because they accorded the Secretary a “pervasive

role in the sales of timber from Indian lands.” Id. at 219.

The Court observed that a substantive right to sue under the

Tucker Act “must be found in some other source of law, such

as ‘the Constitution, or any Act of Congress, or any

regulation of an executive department.’” Id. at 216 (quoting

28 U.S.C. § 1491). “[T]he claimant must demonstrate that

the source of substantive law he relies upon ‘can fairly be

interpreted as mandating compensation by the Federal

Government for the damages sustained.’” Id. at 216–17

(quoting United States v. Testan, 424 U.S. 392, 400 (1976)).

These Supreme Court decisions concerned suits brought

for money damages under the Tucker Act, 28 U.S.C. § 1491,

and the Indian Tucker Act, 28 U.S.C. § 1505. But this case

NAVAJO NATION V. USDOI 25

involves a claim for injunctive relief brought under § 702 of

the APA, so we are not bound by those decisions.

A more recent decision, United States v. Jicarilla,

564 U.S. 162 (2011), concerned a breach of trust claim in a

discovery context and imported requirements similar to

those stated in the Tucker Act and Indian Tucker Act cases.

In Jicarilla, the Court decided whether the Jicarilla Apache

Nation (the “Tribe”) could assert the “fiduciary exception”

to the attorney-client privilege in a suit against the federal

government, id. at 165. At first, the Tribe sued the

government for breach of trust, seeking monetary damages

for alleged mismanagement of tribal funds. Id. at 166. Then

the parties participated in alternative dispute resolution,

wherein the government refused to produce certain

documents, claiming the attorney-client privilege. Id. So

the Tribe moved to compel production of those documents.

Id. at 167. It asserted the “fiduciary exception” to the

attorney-client privilege, which states that a trustee cannot

assert the privilege against a beneficiary after obtaining legal

advice on how to execute its fiduciary obligations. Id.

The Court held that the Tribe could not compel the

federal government to produce privileged documents in

discovery based on the fiduciary exception, because it failed

to “point to a right conferred by statute or regulation in order

to obtain otherwise privileged information from the

Government against its wishes.” Id. at 178. In doing so, the

Court observed that it had previously “found that particular

‘statutes and regulations . . . clearly establish fiduciary

obligations of the Government’ in some areas.” Id. at 177

(ellipsis in original) (quoting Mitchell II, 463 U.S. at 226).

But the Court also explained that “[o]nce federal law

imposes such duties, the common law ‘could play a role’” in

defining the scope of those duties. Id. (quoting United States

26 NAVAJO NATION V. USDOI

v. Navajo Nation, 556 U.S. 287, 301 (2009)). Again,

Jicarilla was at bottom a suit for monetary relief. Its ruling

must be understood against that background.

2

Federal Appellees contend that under these precedents,

the Nation has failed to state a breach of trust claim because

it cannot point to any treaty, statute, or regulation that

imposes an affirmative trust duty on the federal government

to ensure that the Nation has an adequate water supply. We

disagree.

Here, the injunctive relief the Nation seeks would not

require the federal government to manage off-reservation

resources. Instead, the Nation seeks an injunction

compelling the Secretary to determine the extent to which

the Reservation requires water from sources other than the

Little Colorado River to fulfill the Reservation’s purpose of

establishing a permanent homeland for the Nation. The

mainstream of the Colorado River is appurtenant to the

Nation and defines a significant segment of the

Reservation’s western boundary.

Moreover, neither Morongo nor Gros Ventre nor

Jicarilla involved claims to vindicate Winters rights, which

provide the foundation of the Nation’s claim here. Unlike

the plaintiffs in those cases, the Nation, in pointing to its

reserved water rights, has identified specific treaty, statutory,

and regulatory provisions that impose fiduciary obligations

on Federal Appellees—namely, those provisions of the

Nation’s various treaties and related statutes and executive

orders that establish the Navajo Reservation and, under the

long-established Winters doctrine, give rise to implied water

rights to make the reservation viable.

NAVAJO NATION V. USDOI 27

Under Winters, the federal government “reserve[d]

appurtenant water then unappropriated to the extent needed

to accomplish” the purpose of establishing the Reservation

as a permanent homeland for the Navajo people. Navajo I,

876 F.3d at 1155 (quoting Cappaert, 426 U.S. at 138). In

Colville Confederated Tribes v. Walton, 647 F.2d 42 (9th

Cir. 1981), we noted that while “[t]he specific purposes of

an Indian reservation . . . were often unarticulated,” “[t]he

general purpose, to provide a home for the Indians, is a broad

one and must be liberally construed,” id. at 47. It is clear

that the Reservation cannot exist as a viable homeland for

the Nation without an adequate water supply. As the Court

observed in Arizona I:

Most of the land in [the reservations

appurtenant to the Colorado River] is and

always has been arid. If the water necessary

to sustain life is to be had, it must come from

the Colorado River or its tributaries. It can

be said without overstatement that when the

Indians were put on these reservations they

were not considered to be located in the most

desirable area of the Nation. It is impossible

to believe that when Congress created the

great Colorado River Indian Reservation and

when the Executive Department of this

Nation created the other reservations they

were unaware that most of the lands were of

the desert kind—hot, scorching sands—and

that water from the river would be essential

to the life of the Indian people and to the

animals they hunted and the crops they

raised.

373 U.S. at 598–99.

28 NAVAJO NATION V. USDOI

We stress that Winters rights are long-established and

clearly qualify as rights “by implication” under a treaty.

Gros Ventre, 469 F.3d at 810 (quoting Shoshone-Bannock,

56 F.3d at 1482). Those necessarily implied rights are just

as important as express ones. It is not our province to modify

the Supreme Court’s definitive law establishing water rights

as contained in treaties establishing Native American

reservations, whether express or not. None of the twists and

turns in the responsible federal agencies’ and courts’

historical treatment of Indian law has brought the Winters

declaration of necessarily implied water rights into question.

We hold in particular that, under Winters, Federal

Appellees have a duty to protect the Nation’s water supply

that arises, in part, from specific provisions in the 1868

Treaty that contemplated farming by the members of the

Reservation. The Treaty provides that individual members

of the Nation may select plots of land if they “desire to

commence farming.” 1868 Treaty, art. V. Tribal members

who took up farming would be entitled to “seeds and

agricultural implements” to help make this transition. Id. art.

VII. The Treaty’s farming-related provisions, which sought

to encourage the Nation’s transition to an agrarian lifestyle,

would have been meaningless unless the Nation had

sufficient access to water. 4 Indeed, in Winters itself, the

Court explained that at the time the Fort Belknap Tribe

signed its treaty with the federal government, it was the

government’s policy to change the Tribe’s “habits and

4

In the Nation’s first motion for leave to file a third amended

complaint, the Nation sought to add, in addition to its breach of fiduciary

duty claim, a claim for breach of the 1849 and 1868 Treaties, but later

omitted that claim from its renewed motion. On remand, the district

court is instructed that the Nation should be permitted to amend its

complaint in this respect if it seeks to do so.

NAVAJO NATION V. USDOI 29

wants” to those of “a pastoral and civilized people.”

Winters, 207 U.S. at 576. We do not pass judgment on the

wisdom of such a policy, nor on the merits of particular

allegations that may be offered relating to agrarian rights, but

it is clear that the Winters Court based its holding in large

part on the fact that without water, the reservation lands

could not support an agrarian lifestyle in accordance with

government policy. See id. (“The lands were arid, and,

without irrigation, were practically valueless.”).

That the farming provisions in the 1868 Treaty may

serve as the “specific statute” that satisfies Jicarilla,

Morongo, and Gros Ventre is consistent with more general

principles concerning the interpretation of treaties between

the United States and Indian tribes. The Supreme Court has

explained: “A treaty, including one between the United

States and an Indian tribe, is essentially a contract between

two sovereign nations.” Washington v. Wash. State Com.

Passenger Fishing Vessel Ass’n, 443 U.S. 658, 675,

modified sub nom. Washington v. United States, 444 U.S.

816 (1979) (citing Lone Wolf v. Hitchcock, 187 U.S. 553

(1979)). We have inferred a promise of water rights into

treaties that contained no explicit reservation of those rights.

See, e.g., Arizona I, 373 U.S. at 599; Agua Caliente Band of

Cahuilla Indians v. Coachella Valley Water Dist., 849 F.3d

1262, 1268 (9th Cir. 2017).

We did so in United States v. Adair, 723 F.2d 1394 (9th

Cir. 1983), for example, where the Klamath Tribe’s treaty

with the United States merely preserved the right to “hunt,

fish, and gather on their reservation,” Id. at 1398. We

recognized that a main purpose of the treaty was to “secure

to the Tribe a continuation of its traditional hunting and

fishing lifestyle.” Id. at 1409. We reasoned that this purpose

would have been defeated unless the Klamath Tribe had the

30 NAVAJO NATION V. USDOI

right to enjoy and use water sufficient to ensure an adequate

supply of game and fish. See id. at 1411. Although the

claimed water rights at issue in that case were “essentially

nonconsumptive in nature,” id. at 1418, Adair stands for the

broader proposition that we may read water rights into a

treaty where those rights are necessary to fulfill the treaty’s

primary purpose. See United States v. Washington, 853 F.3d

946, 965 (9th Cir. 2017) (“Thus, even if Governor Stevens

had made no explicit promise, we would infer, as in Winters

and Adair, a promise to ‘support the purpose’ of the

Treaties.”).

Interior’s documents also demonstrate that the Federal

Appellees have acknowledged their trust responsibilities to

protect the Nation’s Winters rights. For example, the final

EIS relating to Interior’s shortage guidelines acknowledges

that the federal government impliedly “reserved water in an

amount necessary to fulfill the purposes of” the Navajo

Reservation. Shortage Guidelines FEIS, 3-96. The EIS also

states that the Nation’s unquantified water rights are

considered an Indian Trust Asset, which Interior recognizes

as interests that the federal government holds in trust for

recognized Indian tribes, and that the federal government

must protect. Id.

The Nation’s breach of trust claim is also strengthened

and reinforced by the Secretary’s pervasive control over the

Colorado River. The BCPA requires the United States and

all Colorado River users to “observe and be subject to and

controlled by” the 1922 Compact, which apportioned the

Colorado River’s waters among the Lower Basin states.

43 U.S.C. § 617g(a). But within the general allocation of

water that the 1922 Compact entails, the Secretary has

pervasive authority “both to carry out the allocation of the

waters of the main Colorado River among the Lower Basin

NAVAJO NATION V. USDOI 31

States and to decide which users within each State would get

water.” Arizona I, 373 U.S. at 580.

In this respect, the Supreme Court’s reasoning in

Mitchell II is pertinent: just as the statutes and regulations in

that case gave the Secretary a “pervasive role in the sales of

timber from Indian lands,” 463 U.S. at 219, so too do the

BCPA and other components of the Law of the River confer

broad authority upon the Secretary to manage and contract

for Colorado River water, see, e.g., BCPA, 43 U.S.C. § 617d

(“No person shall have or be entitled to have the use for any

purpose of the water stored as aforesaid except by contract

made as herein stated.”). This pervasive control over the

Colorado River, coupled with the Nation’s Winters rights,

outlines the scope of Federal Appellees’ trust duties.

Our holding is consistent with the Supreme Court’s

decision in United States v. Navajo Nation. Although the

Court there held that “[t]he Federal Government’s liability

cannot be premised on control alone,” 556 U.S. at 301, the

Court also explained that once a plaintiff identifies a specific

duty-imposing treaty, statute, or regulation, “then trust

principles (including any such principles premised on

‘control’) could play a role in ‘inferring that the trust

obligation [is] enforceable by damages.’” Id. (quoting

United States v. White Mountain Apache Tribe, 537 U.S.

465, 473 (2003)). The Nation—which in any case does not

here seek money damages—has identified a specific duty-

imposing treaty, as we have explained.

To summarize: We hold that the Nation has successfully

identified specific treaty, statutory, and regulatory

provisions that, taken together, anchor its breach of trust

claim. First, we have the implied treaty rights recognized in

Winters, which in itself gives the Tribe the right to proceed

on a breach of trust claim here; second, the 1868 Treaty,

32 NAVAJO NATION V. USDOI

which recognizes the Nation’s right to farm Reservation

lands and, under Adair, gives rise to an implied right to the

water necessary to do so; third, the BCPA and other statutes

that grant the Secretary authority to exercise pervasive

control over the Colorado River; and fourth and finally, the

Nation has pointed to Interior regulations and documents in

which Federal Appellees have undertaken to protect Indian

Trust Assets, including the Nation’s as-yet-unquantified

Winters rights.

Having established that a fiduciary duty exists, we hold

that common-law sources of the trust doctrine and the

control the Secretary exercises over the Colorado River

firmly establish the Federal Appellees’ duty to protect and

preserve the Nation’s right to water. Under Winters, when

the federal government took the Reservation into trust, it

“reserve[d] appurtenant water then unappropriated to the

extent needed to accomplish” that purpose. Navajo I,

876 F.3d at 1155 (quoting Cappaert, 426 U.S. at 138).

These rights are recognized as reserved by treaty, applying

the canon that in “agreements and treaties with the Indians,

ambiguities occurring will be resolved from the standpoint

of the Indians.” Winters, 207 U.S. at 576; see Washington,

853 F.3d at 965. Though water rights are not expressly

stated in the Nation’s treaties with the United States, the

Winters rights that attach to the Reservation are sufficiently

well-established to create an implied fiduciary obligation on

the Federal Appellees. See Gros Ventre, 469 F.3d at 810

(noting that a specific duty can be imposed by “a treaty,

statute or agreement . . . expressly or by implication.”)

(quoting Shoshone-Bannock, 56 F.2d at 1482).

We recognize that no court has yet quantified the

Nation’s Winters rights. But the fault for the exceedingly

long delay in that respect, if any, lies with Federal Appellees.

NAVAJO NATION V. USDOI 33

As trustee, the federal government has the power to not only

bring water rights claims on behalf of the tribes, but also to

bind them in litigation. See Nevada, 463 U.S. at 135. When

the Nation tried to intervene in Arizona v. California, the

federal government opposed the Nation’s motion. And in

the more than half of a century since the Supreme Court

issued its 1964 Decree, the Nation has never had its Winters

rights adjudicated or quantified by any court. 5 This result is

but one example of what a commentator has described as the

federal government’s failure “to secure, protect, and develop

adequate water supplies for many Indian tribes.” Cohen's

Handbook § 19.06. Indeed, “[i]n the history of the United

States Government’s treatment of Indian tribes, its failure to

protect Indian water rights for use on the reservations it set

aside for them is one of the sorrier chapters.” 6 Id. (citing

National Water Comm’n, Water Policies for the Future:

Final Report to the President and to the Congress of the

United States, 474–75 (1973)); see also Anderson, supra, at

400.

The Supreme Court could not have intended to hamstring

the Winters doctrine—which has remained good law for

more than one hundred years—by preventing tribes from

seeking vindication of their water rights by the federal

government when the government has failed to discharge its

duties as trustee. Such a perverse reading of the Court’s

5

The Nation is actively seeking water from various sources in other

litigation. See generally Navajo I, 876 F.3d at 1156 n.14.

6

Perhaps recognizing this failure, some members of Congress have

proposed legislation that would empower the Administrator of the

Environmental Protection Agency to “give priority to projects that

respond to emergency situations where a lack of access to clean drinking

water threatens the health of Tribal populations” in the Columbia River

Basin. S. 421, 117th Cong. § 2 (2021).

34 NAVAJO NATION V. USDOI

precedents would render ineffectual the federal

government’s promise to “charge[] itself with moral

obligations of the highest responsibility and trust,” Seminole

Nation v. United States, 316 U.S. 286, 297 (1942), by

ensuring that the tribes of this country can make their

reservation lands livable. This principle takes on even more

importance in an era in which the COVID-19 pandemic

renders reservation lands more dangerous to tribal

members—particularly when they lack adequate water for

health and safety purposes.

The Nation’s attempts to amend its complaint were not

futile. The Nation can state a cognizable claim for breach of

trust because it has identified specific regulations and treaty

provisions that can “fairly be interpreted,” Mitchell II,

463 U.S. at 218, as establishing Federal Appellees’ fiduciary

obligations to ensure that the Nation’s Reservation has the

water it needs to exist as a viable homeland for the Navajo

people.

At this early stage of litigation, we decline to address

whether the Nation’s Winters rights include rights to the

mainstream of the Colorado River or to any other specific

water sources. We hold only that the Nation may properly

base its breach of trust claim on water rights derived from its

treaties with the United States under Winters, and so may

amend its complaint to so allege.

V

Because the district court’s denial of the Nation’s motion

for leave to amend and subsequent dismissal of the Nation’s

complaint were based on legal errors, the court abused its

discretion. Applying the correct legal principles, we hold

that the Nation’s attempts to amend its complaint were not

futile. We reverse the district court’s dismissal of the

NAVAJO NATION V. USDOI 35

Nation’s complaint and remand to the district court with

instructions to permit amendment to the complaint

consistent with this opinion. 7

REVERSED AND REMANDED.

LEE, Circuit Judge, concurring:

I write separately to emphasize that the Nation’s

proposed injunctive relief should not and does not implicate

the Supreme Court’s retained jurisdiction in Arizona v.

California (1964 Decree), 376 U.S. 340, 353 (1964).

When the Supreme Court first adjudicated the rights to

the Colorado River, it issued a Decree listing the Indian

tribes and other entities holding present perfected rights to

the mainstream. Id. at 344–46. Article IX of the Decree

“retain[ed] jurisdiction . . . for the purpose of any order,

direction, or modification of the decree, or any

supplementary decree . . .” Id. at 353. Since then, there have

been several iterations of the Arizona v. California litigation,

but none has explicitly addressed whether Article IX

reserves exclusive jurisdiction for adjudication of rights to

7

As the concurrence recognizes, we need not and do not decide

whether the Supreme Court’s retained jurisdiction in the 1964 Decree is

exclusive. That is because the Nation’s claim does not seek a

quantification of any rights it may have to the Colorado River

mainstream. If, however, Federal Appellees later determine that they

cannot meet their trust obligation to provide adequate water for the

Nation unless the jurisdictional question is resolved, then they can

petition the Supreme Court for modification of the 1964 Decree.

36 NAVAJO NATION V. USDOI

the mainstream. See, e.g., Arizona v. California (Arizona II),

460 U.S. 605, 622 (1983).

In this case, the Nation seeks additional water for its

Reservation, and both the parties and the district court

considered whether the Supreme Court’s retained

jurisdiction applied. But our decision does not answer that

question, as the Nation’s Proposed Third Amended

Complaint (“TAC”) does not, on its face, actually seek rights

to the mainstream.

The Nation’s TAC seeks injunctive relief requiring, in

part, that the Federal Defendants “determine the extent to

which the Navajo Nation requires water from sources other

than the Little Colorado River to enable its Reservation to

serve as a permanent homeland for the Navajo Nation and

its members” and “develop a plan to secure the water

needed.” The Nation asserts, and our decision affirms, that

this proposed injunction does not ask the district court to

quantify any rights that the Nation may have to the Colorado

River mainstream. This narrow construction of the proposed

relief is imperative, as it allows the Nation to pursue its

claims without raising the separate and more complex issue

of the Supreme Court’s retained jurisdiction.

Thus, on remand and in all future proceedings, the

TAC’s proposed injunctive relief should not be construed as

implicitly authorizing a reassessment of the rights to the

Colorado River mainstream. In other words, the requested

relief that the Federal Defendants develop a plan to meet the

Nation’s water needs cannot be used as a backdoor attempt

to allocate the rights to the mainstream. If such rights are to

be reassessed, that action may be taken only after resolving

the jurisdictional question raised by Article IX of the 1964

Decree.