Petition for Writ of Certiorari — Arizona, et al., Petitioners v. Navajo Nation, et al.
Supreme Court briefMay 17, 2022
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APPENDIX
United States Court of Appeals for the Ninth
Circuit, Order and Amended Opinion, February 17, 2022 ...................................................... App. 1
United States District Court for the District of
Arizona, Order, August 23, 2019.................... App. 75
United States District Court for the District of
Arizona, Order, December 11, 2018 ............... App. 93
United States Court of Appeals for the Ninth
Circuit, Opinion, December 4, 2017 ............ App. 106
United States District Court for the District of
Arizona, Order, July 22, 2014 ...................... App. 162
United States Constitution Art. III, § 2, Cl. 2 ... App. 186
Treaty with the Navaho, 1849, 9 Stat. 974 ..... App. 187
Treaty with the Navaho, 1868, 15 Stat. 667 ... App. 193
43 USCS § 617c................................................ App. 208
43 USCS § 617d ............................................... App. 212
43 USCS § 617g ............................................... App. 217
App. 1
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NAVAJO NATION,
Plaintiff-Appellant,
v.
U.S. DEPARTMENT OF THE INTERIOR;
DEB HAALAND, SECRETARY OF THE
INTERIOR; UNITED STATES BUREAU
OF RECLAMATION; BUREAU OF
INDIAN AFFAIRS,
Defendants-Appellees,
STATE OF ARIZONA; CENTRAL
ARIZONA WATER CONSERVATION
DISTRICT; ARIZONA POWER
AUTHORITY; SALT RIVER PROJECT
AGRICULTURAL IMPROVEMENT
AND POWER DISTRICT; SALT
RIVER VALLEY WATER USERS’
ASSOCIATION; IMPERIAL IRRIGATION
DISTRICT; METROPOLITAN WATER
DISTRICT OF SOUTHERN CALIFORNIA;
COACHELLA VALLEY WATER DISTRICT;
STATE OF NEVADA; COLORADO
RIVER COMMISSION OF NEVADA;
SOUTHERN NEVADA WATER
AUTHORITY; STATE OF COLORADO,
Intervenor-DefendantsAppellees.
No. 19-17088
D.C. No.
3:03-cv-00507-GMS
ORDER AND
AMENDED
OPINION
App. 2
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
Amended February 17, 2022
Before: Ronald M. Gould, Marsha S. Berzon, and
Kenneth K. Lee, Circuit Judges.
Order;
Opinion by Judge Gould;
Concurrence by Judge Lee
COUNSEL
M. Kathryn Hoover (argued), Sacks Tierney P.A.,
Scotsdale, Arizona; 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; Todd Kim, Assistant
Attorney General; 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 and Jennifer Heim, Arizona Department of Water Resources,
App. 3
Phoenix, Arizona; Marcia Scully and Catherine M.
Stites, Metropolitan Water District of Southern
California, Los Angeles, California; Charles T. DuMars,
Law & Resource Planning Associates P.C., Albuquerque, New Mexico; John B. Weldon Jr. and Lisa M.
McKnight, Salmon Lewis & Weldon P.L.C., Phoenix,
Arizona; Stuart L. Somach and Robert B. Hoffman,
Somach Simmons & Dunn APC, Sacramento, California;
Jay M. Johnson, Central Arizona Water Conservation
District, Phoenix, Arizona; Aaron Ford, Attorney General; Christine Guerci-Nyhus, Special Counsel to the
Colorado River Commission of Nevada; State of Nevada
and Colorado River Commission of Nevada, Las Vegas,
Nevada; Gregory J. Walch, General Counsel, Southern
Nevada Water Authority, Las Vegas, Nevada; Lauren
J. Caster and Bradley J. Pew, Fennemore Craig P.C.,
Phoenix, Arizona; Philip J. Weiser, Attorney General;
A. Lain Leoniak, First Assistant Attorney General;
Office of the Attorney General, Denver, Colorado; 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.
App. 4
ORDER
The opinion in the above-captioned matter filed on
April 28, 2021, and published at 996 F.3d 623, is
amended as follows:
At 996 F.3d at 629, delete <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.>
At 996 F.3d at 641, replace <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.> with <The
BCPA, which requires the United States and all Colorado River users to “observe and be subject to and
controlled by” the 1922 Compact, apportioned the Colorado River’s waters among the Lower Basin states.>
The panel has voted to deny Intervenor-Appellees’
petition for rehearing en banc (Dkt. 61), and to deny
Defendant-Appellees’ petition for rehearing en banc
(Dkt. 62). The full court has been advised of the petitions for rehearing en banc and no judge has requested
a vote on whether to rehear either matter en banc. Fed.
R. App. P. 35. The petitions for rehearing en banc are
DENIED. No future petitions will be entertained.
App. 5
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-yetundetermined 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
App. 6
duty on the federal government that could be vindicated in federal court. The Nation appealed.
We conclude that the district court erred in dismissing the complaint because, in contrast to the district court’s determination, the amendment was not
futile. Although the Supreme Court retained original
jurisdiction over water rights claims to the Colorado
River in Arizona I, the Nation’s complaint does not
seek a judicial quantification of rights to the River, so
we need not decide whether the Supreme Court’s retained jurisdiction is exclusive. And contrary to the Intervenors’ arguments on appeal, the Nation’s claim is
not barred by res judicata, despite the federal government’s representation of the Nation in Arizona I. Finally, the district court erred in denying the Nation’s
motion to amend and in dismissing the Nation’s complaint, because the complaint properly stated a breach
of trust claim premised on the Nation’s treaties with
the United States and the Nation’s federally reserved
Winters rights, especially when considered along with
the Federal Appellees’ pervasive control over the Colorado River. We remand to the district court with instructions to permit the Nation to amend its
complaint.
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
App. 7
jurisdiction and protection of the . . . United States,”
providing “that they are now, and will forever remain,
under the aforesaid jurisdiction and protection.”
Treaty with the Navaho, 1849 art. I (Sep. 9, 1849), 9
Stat. 974. The Navajo Reservation (the “Reservation”)
was established as the “permanent home” of the Nation by the 1868 Treaty between the United States of
America and the Navajo Tribe of Indians, 1868 art.
XIII (June 1, 1868), 15 Stat. 667 (1868 Treaty). The
Reservation was later expanded by executive orders
and acts of Congress.
The Reservation sprawls across Arizona, New
Mexico, and Utah, and lies almost entirely within the
drainage basin of the Colorado River. The Colorado
River flows along and defines a significant part of the
Reservation’s western border. Because much of the
land in the Colorado River drainage basin is arid, competition for water from the Colorado River and its tributaries is fierce.
To resolve disputes arising from water scarcity,
rights to the Colorado River’s waters are allocated
through a series of federal treaties, statutes, regulations, and common law rulings; Supreme Court decrees; and interstate compacts. Collectively, this legal
regime is known as the “Law of the River.”
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
App. 8
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. Finally, it authorized
the Lower Basin States to negotiate a second compact
dividing their 7.5 mafy share: 4.4 mafy to California,
2.8 to Arizona, and 0.3 to Nevada. See 43 U.S.C.
§ 617c(a).
The 1922 Compact—including the second compact
apportionment—was to take effect once all three
Lower Basin states ratified it. See id. But Arizona,
displeased with the Compact’s terms, failed to ratify
it. So the issue of how to share the Lower Basin States’
App. 9
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
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).
App. 10
Navajo Tribe of Indians for 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 35253. 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 34445. 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.”
App. 11
Cappaert v. United States, 426 U.S. 128, 138 (1976); see
Winters v. United States, 207 U.S. 564, 576 (1908).
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-navajocalifornia-second-wave-11591553896. The Nation has
as a result been particularly affected by the current
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 Civilizations 9 (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).
App. 12
pandemic, with a death rate significantly higher than
that of many other parts of the country. See id.3
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
3
The vast majority of deaths on the Reservation due to
COVID-19 are among people aged sixty and older, including the
hataałii, traditional 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-nativeamericans-coronavirus.html.
App. 13
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 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. . . .”).
App. 14
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. 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
App. 15
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 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
App. 16
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 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.
App. 17
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
App. 18
Americans and 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
App. 19
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. 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—
App. 20
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 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
App. 21
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 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
App. 22
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 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 [(1983)],
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
App. 23
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.
The Nation’s breach of trust claim is not barred by
res judicata.
App. 24
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
App. 25
government breached its trust obligations “by approving, permitting, and failing to reclaim” two cyanide
heap-leach gold mines upriver from 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
App. 26
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 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
App. 27
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 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 attorneyclient 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
App. 28
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 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.
App. 29
Here, the injunctive relief the Nation seeks would
not require the federal government to manage offreservation 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 longestablished Winters doctrine, give rise to implied water
rights to make the reservation viable.
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 . . .
App. 30
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.
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 ShoshoneBannock, 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
App. 31
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 farmingrelated 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
wants” to those of “a pastoral and civilized people.”
Winters, 207 U.S. at 576. We do not pass judgment on
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.
App. 32
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 [(1903)]).
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
App. 33
traditional hunting and fishing lifestyle.” Id. at 1409.
We reasoned that this purpose would have been defeated unless the Klamath Tribe had the 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, which requires
the United States and all Colorado River users to
App. 34
“observe and be subject to and controlled by” the 1922
Compact, 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 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]
App. 35
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 dutyimposing 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, 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
App. 36
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.3d 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. 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
5
The Nation is actively seeking water from various sources
in other litigation. See generally Navajo I, 876 F.3d at 1156 n.14.
App. 37
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 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—
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).
App. 38
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 Nation’s complaint and
remand to the district court with instructions to permit
App. 39
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 the mainstream.
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.
App. 40
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
App. 41
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.
App. 42
Covid-19 Stalks Large Families in Rural America
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
WSJ wsj.com/articles/covid-19-households-spreadcoronavirus-families-navajo-california-second-wave11591553896
June 7, 2020
June 7, 2020 2:22 pm ET
By Ian Lovett, Dan Frosch and Paul Overberg
The Woods family did everything together at the house
on Paden Road in Gadsden, Ala. They gathered there
before going to high-school football games on Friday
nights. They ate there after church on Sundays, when
the family matriarch, Barbara Woods, would make
chicken and dressing for her children and grandchildren.
And this spring, they grew sick there together. For
weeks in early April, seven family members staying in
the three-bedroom home were stricken by the new
coronavirus, several of them recounted. Five ended up
in the hospital. Two died.
“I was just wishing that we had extra rooms, so we
could have separated,” said Ms. Woods, 71, who for
years owned a barbecue restaurant in Gadsden, a rural
town 60 miles northeast of Birmingham. “It has been
devastating.”
Communities are reopening after months-long lockdown orders managed to slow the spread of Covid-19
in some places. But the lockdowns have done little to
App. 43
thwart the virus’s transmission within packed households. Outside of institutional settings like assistedliving facilities, large, multigenerational homes have
emerged as one of the most dangerous places to be during the outbreak—a weak spot in the country’s public
health response especially in the event of another wave
of infections in the fall, as some experts fear.
A Wall Street Journal analysis found that, across the
country, the virus has spread more widely in places
with the most crowded households, not necessarily
places with the largest or densest populations. Remote,
rural hamlets where extended families live under the
same roof have turned deadlier than some of the densest blocks of Manhattan or Chicago, the analysis found.
In both contexts, the virus has zeroed in on crowded
homes, sometimes wiping out generations in a matter
of days.
Housing analysts and some government agencies consider a home with more than one resident per room to
be crowded. Nationwide—4 million homes, or about
3%—fall into this category, according to census data.
App. 44
Barbara Woods, center, and her daughters
Kyra Porter, left, and Johnjalene Woods all
had Covid-19.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Photo: Lynsey Weatherspoon
for The Wall Street Journal
The Journal analyzed all 1,487 U.S. counties with at
least 50 Covid-19 cases, as of June 7. The 10% with the
highest rates of crowding accounted for 28% of the
coronavirus cases among those 1,487 counties, according to census and Johns Hopkins University data.
The Journal also found that in selected areas—including Cook County, Ill., New York City and Wayne
County, Mich.—ZIP Codes with the largest share of
households of at least five people have disproportionate shares of their counties’ Covid-19 infections. The
problem is particularly acute in poorer and minority
communities, according to data from some cities, where
App. 45
extended families often live together and lack space
and resources to isolate anyone who falls ill.
Crowded Homes
Families that live on Indian reservations often live in
crowded homes, which the census defines as more than
one occupant per room. These areas have also seen
some of the highest infection rates in the nation.
Percentage of
households that
are crowded
Covid-19 cases
per 100,000 as
of June 5
Sources: U.S. Census Bureau; Johns Hopkins
Center for Systems Science and Engineering
App. 46
As states reopen, stopping transmission of the virus
within households will be key to preventing a second
wave of infections, said Dr. Ashish Jha, a health-policy
professor at the Harvard T.H. Chan School of Public
Health.
San Francisco, Kansas and the Navajo Nation in the
Southwest are among the places that have encouraged
sick people to leave their homes and stay in alternative
housing sites and hotels that have been converted into
quarantine facilities. Yet, persuading people to do so
has been difficult, health workers say, and there is little appetite among public officials to make the sick
leave their families.
“I’m 110% opposed to anything forcible on this,” said
Dr. Jha. But if the U.S. can’t find a way to control intrahousehold infections, he said, “that will lead to more
community transmission.”
‘Big Cough-19’
On the Navajo Nation, where roughly 175,000 people
are scattered across a three-state swath of the Southwest, household crowding has contributed to one of the
country’s worst outbreaks. Some 18% of homes have
five or more people and 14% are classified as crowded,
among the highest rates in the country, according to
census data.
The Navajo Nation’s coronavirus death rate was 154
per 100,000 people as of June 5—compared with 123 in
New York state, 136 in New Jersey and 33 for the U.S.
overall.
App. 47
Tina Harvey lives with her extended family in a cluster
of several small houses in the tiny Navajo village of Tes
Nez Iah, Ariz. None of the structures have running water, not uncommon on the reservation, making it difficult to wash hands regularly. Ms. Harvey, a 55- yearold home health-care worker, has watched with horror
as “Big Cough-19” or “Invisible Parasite-19,” as the
coronavirus is known in Navajo, struck family member
after family member.
First, she said, it was her brother, Amos Tso, 71, who
fell ill in April after returning from New Mexico, where
he had gone to have toes amputated due to an infection. On April 4, his niece, one of numerous family
members caring for Mr. Tso, drove him to an Indian
Health Service clinic after he began experiencing body
aches and breathing problems. Seven days later, he
was dead from Covid-19.
In one trailer, four of the six family members who
stayed there began running fevers, coughing and suffering body aches, Ms. Harvey said. They all tested positive for the coronavirus and were sent home with
Tylenol and cough syrup, she said.
In a second trailer, another sister and her husband, in
their 60s, fell ill. Their grandson, who lived with them
and was sick too, drove them to an IHS hospital in
Shiprock, N.M. The couple died days later.
The IHS didn’t respond to a request for comment on
Ms. Harvey’s family’s case.
App. 48
In all, 11 family members got sick, including Ms. Harvey, who was hospitalized for nearly two weeks. “It has
been very hard—what has happened to us,” she said.
“Right now, people are scared to turn up the road to our
house. ‘Those people over there. They all have coronavirus. They’re dying.’ That’s what we’ve been hearing.”
Tribal leaders and health officials said it has been difficult to keep the virus from ricocheting through
crowded homes on the reservation.
App. 49
App. 50
Tina Harvey in Tes Nez Iah, Ariz., holds a portrait of
her sister Jane and brother-in-law Richard Mustache,
who both died of Covid-19.
Photographs by Sharon Chischilly for The Wall Street
Journal
Eric Pelt, grandson of Jane and Richard, tends to his
late grandparents’ sheep in May. He tested positive for
Covid-19.
Nine of Ms. Harvey’s family members who stayed on
the family land, and two more who came there to help,
became ill with Covid-19.
Martha and Clifford Yazzie, members of Ms. Harvey’s
family, at home in Tes Nez Iah. Both were sick with
Covid-19.
“It is physically impossible to practice social distancing
in these homes,” said Dr. Loretta Christensen, chief
medical officer for the IHS’s Navajo area. “We have discovered people living in their cars to avoid exposing
their families to Covid-19.”
Adding to their struggles: a lack of resources and issues with poor care at the IHS before the pandemic
struck.
Hoping to get sick people out of their households, the
IHS and tribal health officials have set up quarantine
sites where more than 165 people were staying as of
Friday, mostly in converted hotel rooms. Health officials were also deploying isolation tents for those who
want to remain on their land.
App. 51
The infections on the reservation have spilled into surrounding communities. McKinley County, part of
which lies on the reservation, comprises about 3.4% of
New Mexico’s population but has nearly a third of its
Covid-19 cases, according to state data. About 14% of
the county’s homes are crowded, compared with 3.5%
statewide, according to census data.
Share Your Thoughts
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
What should the government and health authorities
do—if anything—about the spread of Covid-19 in large
households? Join the conversation below.
Household crowding is also helping fuel the outbreak
in urban areas.
A study from New York University’s Furman Center
found that in New York City, the areas hit hardest by
the disease weren’t those with the densest population;
they were the ones with the greatest household crowding among renters.
The Journal analysis found that in Chicago, ZIP Codes
where crowded households are most common accounted for a disproportionate share of the city’s coronavirus cases. The Humboldt Park neighborhood on
Chicago’s West Side, for example, has a household
crowding rate more than eight times as high as the
Evergreen Park area, on the city’s outskirts. Its infection rate is twice as high.
Household crowding frequently overlaps with other
risk factors, studies show. It is more common in poorer
App. 52
neighborhoods, where residents are more likely to have
underlying health conditions and to still be working
outside the house during the outbreak.
Covid-19 has disproportionately hit African-Americans
and Latinos, several studies have shown. Black and
Latino households are almost twice as likely to be
multigenerational as white households, according to
the Pew Research Center.
Essential worker
In California, the three counties with the highest coronavirus rates—Kings County, Imperial County and
Los Angeles County—are majority Latino and Black
and have among the highest rates of household crowding in the country.
In Azusa, Calif., a working-class, mostly Latino city in
eastern Los Angeles County, the Ramirez family took
strict precautions to avoid spreading the coronavirus.
By mid-March, no one was working outside the home
except Guillermo Ramirez, said his wife, Luciana
Ramirez. His job driving trucks for an asphalt company was among work Gov. Gavin Newsom deemed essential.
A study from the Public Policy Institute of California
found that essential workers are at higher risk of contracting Covid-19—and more likely to live in crowded
homes.
Mr. Ramirez, 47, wore a mask and gloves on the job,
and he would spray off his shoes before coming into
the five-bedroom house. Only he and Guillermo Jr., his
App. 53
25-year-old eldest son, shopped for food, and they
washed the groceries off before bringing them inside,
Ms. Ramirez said. Still, after spending Easter Sunday
watching movies and playing games with her children
and grandchildren, Ms. Ramirez began to feel feverish.
She isolated herself in the bedroom, and Mr. Ramirez
moved to the living room. But within days, the virus
had swept through the household. Ultimately, all 10
people living there—Mr. and Ms. Ramirez; four of their
children; three grandchildren and Ms. Ramirez’s
mother, who was staying with them at the time—
tested positive for Covid-19.
Guillermo Ramirez and his wife, Luciana,
celebrate Christmas Eve 2019 with their
family at home in Azusa, Calif.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Photo: Ramirez family
App. 54
By late April, the entire family had isolated from one
another in their rooms and wore masks. Their 26-yearold daughter, who lives down the street, dropped groceries outside the front door. Their 12-year-old son,
who was asymptomatic, slept on the couch and left food
and water outside his relatives’ rooms.
First, Guillermo Jr. went to the hospital. Then Mr.
Ramirez himself. Then Ms. Ramirez’s mother. On April
28, Mr. Ramirez called his wife from the Emanate
Health Inter-Community Hospital in West Covina at 3
a.m., telling her he was frightened and she needed to
pick him up. By 8 a.m., she said, he was dead.
Ms. Ramirez, 46, said the family tried desperately to
keep from spreading the virus to one another—even
after the funeral, they continued to wear masks at
home—but it was impossible once the disease was in
the house.
“It is a big house, but you have to pass each other
through the hallways,” Ms. Ramirez said. “We took it
serious. We got hand sanitizer. We got masks. We got
our gloves. We got Lysol. We sprayed our shoes. We did
everything right and we still got it, and it affected us
this way.”
Recognizing that simply staying at home won’t stop
transmission of the virus, countries in Asia have
adopted more drastic measures. Singapore and South
Korea required all people who test positive for Covid19 to move into isolation or medical facilities; Vietnam
and Hong Kong extended mandatory out-of-home
quarantining to contacts of the sick as well.
App. 55
In Italy, where multigenerational households are common and most people with Covid-19 remain at home,
the country’s National Health Institute found that one
in five people who have tested positive in April and
early May were likely infected by family members, the
second-highest source of infection after nursing homes.
A study from the London School of Hygiene & Tropical
Medicine found that in a city of four million people,
home-based isolation would result in a 20% reduction
in coronavirus cases, while isolation in quarantine centers would cut cases by 59%.
In the U.S., quarantine centers have been used sparingly. Because testing hasn’t been as widespread as in
some other countries, many people have passed the
virus to loved ones before even realizing they are sick.
Kansas officials have set up quarantine centers in six
counties across the state, including Ford County, where
outbreaks at two meatpacking plants have sickened
workers and their family members. The county of
33,600 people has more than 1,800 confirmed cases,
the highest total in the state. According to census data,
18% of households in Ford County have five or more
people and 7.1% are crowded, both well above the national average.
As of Saturday, only 8 Covid-positive people were
checked into the quarantine center in Ford County,
state health officials said. Statewide, just 12 of more
than 300 available rooms for infected residents were
occupied. Public-health officials and immigrant advocates said some workers in the county, who may be
App. 56
undocumented, are wary of using the facilities. A Ford
County official said the quarantine centers were working well.
San Francisco has contracted with hotels to provide
more than 1,000 rooms where people who get sick can
isolate and are provided with three meals a day. But
convincing the sick to leave their families can be difficult, said Trent Rhorer, director of San Francisco’s Human Services Agency.
“Often, the family bond is strong—you have multigenerational households and they all rely on each other for
income, or to cook, or to clean,” Mr. Rhorer said.
The Woods Family
Even in places that have escaped the worst of the outbreak, crowded households have proven vulnerable. In
Gadsden, a working-class town of 35,000 along Alabama’s Coosa River, the Woods family was decimated
by the very closeness that had for so long been their
bedrock.
When Ms. Woods’s 24-year-old grandson got sick in late
March, he didn’t realize it was Covid-19 and came to
her house so his grandmother and mother, who also
lived there, could take care of him, family members
said. When Ms. Woods’ youngest daughter, Kyra Porter,
48, grew ill, she too came to the house on Paden Road.
Seven people were now staying in three bedrooms—
Ms. Woods and her husband, all three of her daughters,
her son-in-law and her grandson.
App. 57
Ms. Woods’ oldest daughter died April 13. Ms. Woods’
husband, age 70, died five days after. A nephew who
lived nearby died the same day.
App. 58
Barbara Woods, foreground, and members of her family who survived Covid-19.
Photos by: Lynsey Weatherspoon for The Wall Street
Journal
App. 59
A photo collage of Billy Ray Woods, Phacethia Posey
and Michael Todd Woods, who died of Covid-19. The
family held all three funerals on April 22.
Barbara Woods’s home in Gadsden, Ala., where seven
family members were sick with the virus.
Johnjalene Woods, left, and Kyra Porter wear earrings
with pictures of their sister who died of Covid-19.
Etowah County, in which Gadsden lies, is among the
U.S. counties with more than 50 Covid- 19 cases and is
near the national average for crowded homes. A dozen
people have died of Covid-19 in the county of 102,000.
Of those 12 deaths, three were in the Woods family.
The family held all three funerals April 22, each with
no more than 10 people.
“Everything happened so fast,” said Ms. Porter. “Walking into the house after the funeral and them not being
there, it just seemed like a dream. It was almost like,
‘Are you guys hiding from us? Are you going to come
back?’ “
Write to Ian Lovett at ian.lovett@wsj.com, Dan Frosch
at dan.frosch@wsj.com and PaulOverberg at paul.
overberg@wsj.com
Copyright ©2020 Dow Jones & Company, Inc. All Rights
Reserved. 87990cbe856818d5eddac44c7b1cdeb8
Appeared in the June 8, 2020, print edition as ‘.’
App. 60
Tribal Elders Are Dying From the Pandemic,
Causing a Cultural Crisis for American Indians
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[LOGO] nytimes.com/2021/01/12/us/tribal-eldersnative-americans-coronavirus.html
By Jack Healy
Photographs by Victor J. Blue
Published Jan. 12, 2021
Updated Jan. 19, 2021
Pall bearers with the coffin of Jesse Taken Alive, a
Lakota member of the Standing Rock Tribe, who died
from Covid-19, at Kesling Funeral Home in Mobridge,
S.D., last month. Credit . . .
Listen to This Article
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Listen 10:46
App. 61
To hear more audio stories from publishers like The
New York Times, download Audm for iPhone or Android.
STANDING ROCK RESERVATION, N.D.—The virus
took Grandma Delores first, silencing an 86-year-old
voice that rang with Lakota songs and stories. Then it
came for Uncle Ralph, a stoic Vietnam veteran. And
just after Christmas, two more elders of the Taken
Alive family were buried on the frozen North Dakota
prairie: Jesse and Cheryl, husband and wife, who died
a month apart.
“It takes your breath away,” said Ira Taken Alive, the
couple’s oldest son. “The amount of knowledge they
held, and connection to our past.”
One by one, those connections are being severed as the
coronavirus tears through ranks of Native American
elders, inflicting an incalculable toll on bonds of language and tradition that flow from older generations
to the young.
“It’s like we’re having a cultural book-burning,” said
Jason Salsman, a spokesman for the Muscogee (Creek)
Nation in eastern Oklahoma, whose grandparents contracted the virus but survived. “We’re losing a historical record, encyclopedias. One day soon, there won’t be
anybody to pass this knowledge down.”
The loss of tribal elders has swelled into a cultural crisis as the pandemic has killed American Indians and
Alaska Natives at nearly twice the rate of white people, deepening what critics call the deadly toll of a
App. 62
tattered health system and generations of harm and
broken promises by the U.S. government.
Jessie Taken Alive-Rencountre, left, with her sister
Nola Taken Alive on Christmas morning. Their parents
died a month apart, both from the coronavirus.
This sisters placed a bundle
of sage in their mother’s coffin.
App. 63
The deaths of Muscogee elders strained the tribe’s
burial program. They were grandparents and mikos,
traditional leaders who knew how to prepare for annual green-corn ceremonies and how to stoke sacred
fires their ancestors had carried to Oklahoma on the
Trail of Tears. One tiny Methodist church on the reservation recently lost three cherished great-aunts who
would sneak candy and smiles to restless children during Sunday services.
“We’ll never be able to get that back,” Mr. Salsman
said.
Tribal nations and volunteer groups are now trying to
protect their elders as a mission of cultural survival.
Your Coronavirus Tracker: We’ll send you the latest
data for places you care about each day. Navajo women
started a campaign to deliver meals and sanitizer to
high-desert trailers and remote homes without running water, where elders have been left stranded by
quarantines and lockdowns of community centers.
Some now post colored cardboard in their windows:
green for “OK,” red for “Help.”
In western Montana, volunteers led by a grocery-store
worker put together turkey dinners and hygiene packets to deliver to Blackfeet Nation elders. In Arizona,
the White Mountain Apache sent out thermometers
and pulse oximeters and taught young people to monitor their grandparents’ vital signs.
Across the country, tribes are now putting elders and
fluent Indigenous language speakers at the head of the
App. 64
line for vaccinations. But the effort faces huge obstacles. Elders who live in remote locations often have no
means to get to the clinics and hospitals where vaccinations are administered. And there is deep mistrust
of the government in a generation that was subjected
without consent to medical testing, shipped off to
boarding schools and punished for speaking their own
language in a decades-long campaign of forced assimilation.
Ira Taken Alive at the burial of his parents. “It takes
your breath away,” he said. “The amount of knowledge
they held, and connection to our past.”
App. 65
Mourners paid their respects at the burial service.
About a year into the pandemic, activists say there is
still is no reliable death toll of Native elders. They say
their deaths are overlooked or miscounted, especially
off reservations and in urban areas, where some 70
percent of Indigenous people live.
Adding to the problem, tribal health officials say their
sickest members can essentially vanish once they are
transferred out of small reservation health systems to
larger hospitals with intensive-care units.
The Coronavirus Outbreak
“We don’t know what happens to them until we see a
funeral announcement,” said Abigail Echo-Hawk, director of the Urban Indian Health Institute.
The virus claimed fluent Choctaw speakers and dressmakers from the Mississippi Band of Choctaw Indians.
App. 66
It took a Tulalip family matriarch in Washington State,
then her sister and brother-in-law. It killed a former
chairman of the Yocha Dehe Wintun Nation in California who spent decades fighting to preserve Native arts
and culture. It has killed members of the American Indian Movement, a group founded in 1968 that became
the country’s most radical and prominent civil rights
organization for American Indian rights.
On the Navajo Nation, where 565 of the reservation’s
869 deaths are among people 60 and older, the pandemic has devastated the ranks of hataałii, traditional
medicine men and women.
When the virus exploded across the Navajo Nation,
traditional healers who use prayer, songs and herbs as
treatments tried to protect themselves with masks and
gloves. They wrapped ceremonial objects in plastic.
They set hand sanitizer outside traditional hogan
dwellings.
App. 67
A funeral procession for
Jesse and Cheryl Taken Alive.
But people came, seeking help with their grief or prayers for ailing relatives. And the healers got sick.
Now, remote meetings of the Diné Hataałii Association,
a group of Navajo medicine men and women, include
updates on who has died, members said. The roster of
loss now includes Avery Denny’s 75-year-old grandfather and 78-year-old aunt, who both died of the virus.
“When they pass on, all that knowledge is gone forever,
never to be retained,” said Mr. Denny, a member of the
association and professor at Diné College. “It’s just
lost.”
Cemeteries are filling up on the rolling plains of the
Standing Rock Sioux in western North Dakota, where
families like the Taken Alives have buried multiple
App. 68
grandparents, matriarchs and patriarchs. Standing
Rock has recorded 24 deaths during the pandemic.
In 2016, the tribe’s fight to block an oil pipeline propelled Standing Rock to international fame, drawing
thousands of activists to protest camps that sprawled
along the Missouri River. This winter, Standing Rock’s
families are waging a lonelier battle as the virus rages
through crowded multigenerational homes where elders raise children and pass along their language—a
crucial role that has made them incredibly vulnerable.
Diane Gates, 75, one of Standing Rock’s first elders to
die of the virus, lived with multiple family members,
relatives said. Her 75-year-old sister-in-law, Reva, who
recently had open- heart surgery, also lives with several grandchildren in an isolated corner of the reservation. They see few visitors and have a lock on their
gate, and they try to protect themselves with herbs and
steam treatments. But there is always the risk of what
a granddaughter could bring home from work.
Tribal health workers say they are also tired and overwhelmed, the strains of fighting Covid compounded by
isolation, distance and a lack of resources.
App. 69
The Fort Yates Indian Health Service Hospital on
the Standing Rock Reservation. The pandemic
has challenged the health care system for
American Indian tribes.
Statistics on Covid-19 cases were written
on a white board for contact tracers in their
offices on the Standing Rock Reservation.
App. 70
The Standing Rock Sioux had to create their own contact-tracing team after tribal officials said governments in North Dakota and South Dakota failed to
track the virus. Over the summer, bureaucratic conflicts scuttled an effort to set up a testing site on the
southern end of the reservation, forcing people without
cars to hitchhike or walk for miles to get swabbed.
Those who do recover from the virus often find themselves stranded at hospitals hundreds of miles from
the reservation, and have to call a tiny team of drivers
to shuttle them home.
In October, as an outbreak of coronavirus swarmed
across North Dakota, Rita Hunte, 66, woke one morning gasping for breath in her riverside community of
Cannon Ball. She called her daughter and said: My
girl, I don’t know what to do.
She spent two days in the 12-bed Indian Health Service hospital on the reservation, begging to be transferred out, her daughter, Marlo, said. She was taken to
a hospital in Fargo where she lingered for weeks,
mostly unconscious and on a breathing machine, as her
daughter washed her hair and tried to move her arms
and legs to reduce the swelling. She died on Nov. 29.
Ms. Hunte was one of just 290 people who still spoke
fluent Dakota, and in her work with a tribal cancer
program, she would often pray with patients before
they traveled to Bismarck or the Mayo Clinic for treatment.
Since her death, her widower, Marlon, has been trying
to stay busy with church services where he plays
App. 71
acoustic guitar and lays hands on people as they testify
to the goodness of the Lord. But his daughter said that
Mr. Hunte’s role as a respected elder has paradoxically
isolated him even further. Some neighbors now keep
their distance because they are uneasy about asking
whether he is doing OK, Marlo Hunte said.
“I feel a little lost there every now and then,” Mr. Hunte
said.
Marlon Hunte, whose wife Rita died of Covid-19,
preaching at an evening service at Word of God
Ministries church in Fort Yates, N.D.
App. 72
Mr. Hunte prayed with Helen Flood, 76, of Gering,
Neb., an Oglala Lakota woman whose husband
was hospitalized with the coronavirus.
Many of the elders now perishing are dying after
months of monastic precautions. When the pandemic
first erupted, Jesse Taken Alive helped record publicservice messages in Lakota urging fellow elders to protect themselves. He set up a computer in the tepee beside his home where he taught remote language
classes.
But as the pandemic grew worse, requests from his
community piled up: Help with funeral prayers. Help
with a ceremony. He had been a tribal chairman, and
he and his wife, Cheryl, had spent their lives trying to
help people on Standing Rock, whether it was fighting
for tribal land and sovereignty or addressing a rash of
suicides.
App. 73
“We tried our best to keep everyone away,” their daughter Nola Taken Alive said. “But my Dad had a hard
time saying no when people needed him.”
The couple ended up on separate floors of the same
hospital in Fargo. When Cheryl died in November, the
fight began to fade in Jesse, said his son, Ira, who is
also vice-chairman of the Standing Rock Sioux Tribe.
Jesse Taken Alive died on Dec. 14. The family has been
reflecting on the loss—Delores, the walking dictionary
of Lakota linguistics. Ralph’s quiet dignity.
Jesse and Cheryl’s deep faith and love for each other
and their people.
“We’ll still be here,” Nola Taken Alive said. “But it’s going to be a struggle. How do I fill their shoes?”
The coffins of Jesse and Cheryl Taken Alive,
who died one month apart.
App. 74
Jack Healy is a Colorado-based national correspondent who focuses on rural places and
life outside America’s “City Limits” signs. He
has worked in Iraq and Afghanistan and is a
graduate of the University of Missouri’s journalism school. @jackhealynyt • Facebook
A version of this article appears in print on
Jan. 13, 2021, Section A, Page 6 of the New
York edition with the headline: Cultural Crisis for American Indians as Elders Die. Order
Reprints | Today’s Paper | Subscribe
App. 75
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
No. CV-03-00507-PCTGMS
Navajo Nation,
Plaintiff,
ORDER
v.
United States Department (Filed Aug. 23, 2019)
of the Interior, et al.,
Defendants.
Pending before the Court is Plaintiff Navajo Nation’s Renewed Motion for Leave to File Third Amended
Complaint (Doc. 360). Intervenor-Defendants the
Metropolitan Water District of Southern California,
Coachella Valley Water District, Imperial Irrigation
District, and State of Arizona oppose the Motion, (Doc.
369), and Defendant United States Department of the
Interior opposes the Motion in part. (Doc. 370). All
other Intervenor-Defendants join the brief filed by the
Intervenor-Defendants named above. For the reasons
outlined below, the Motion is denied.
BACKGROUND
This motion continues a long-lived dispute between the Navajo Nation (“the Nation”) and the United
States Department of the Interior (“Interior”). Various
other entities have intervened in this case as defendants (“Intervenor-Defendants”). Because the relevant
history of this case was summarized in the Court’s
App. 76
order on the Nation’s previous motion for leave to
amend, the Court will not recite that history again
here. See Navajo Nation v. Dep’t of Interior, No. CV-0300507-PCT-GMS, 2018 WL 6506957 (D. Ariz. Dec. 11,
2018). The Court held argument on this motion on August 16, 2019.
DISCUSSION
I.
Legal Standards
Leave for permissive amendments should be
granted “when justice so requires.” Fed. R. Civ. P.
15(a)(2). While the policy favoring amendments is
generally “applied with extreme liberality,” Eldridge v.
Block, 832 F.2d 1132, 1135 (9th Cir. 1987), leave to
amend is not automatic. If there has been a showing of
(1) undue delay; (2) bad faith or dilatory motives on the
part of the movant; (3) repeated failure to cure deficiencies by previous amendments; (4) undue prejudice
to the opposing party; or (5) futility of the proposed
amendment, the court should deny the motion. Foman
v. Davis, 371 U.S. 178, 182 (1962). District courts have
particularly broad discretion to deny leave to amend if
the plaintiff has previously amended its complaint.
Sisseton-Wahpeton Sioux Tribe of Lake Traverse Indian Reservation, North Dakota and South Dakota v.
United States, 90 F.3d 351, 355 (9th Cir. 1996) (quoting
Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir.
1990)).
“An amendment is futile when no set of facts can
be proved under the amendment to the pleadings that
App. 77
would constitute a valid and sufficient claim or defense.” Missouri ex rel. Koster v. Harris, 847 F.3d 646,
656 (9th Cir. 2017) (cleaned up).1
II.
Analysis
A. Standards
The Nation’s Proposed Third Amended Complaint
(“TAC”) alleges that the Federal Defendants have
breached their trust responsibilities in two ways: (1) by
failing “to determine the quantities and sources of water required to make the Navajo Reservation a permanent homeland for the Navajo people,” and (2) by
failing “to protect the sovereign interests of the Navajo
Nation by securing an adequate water supply to meet
those homeland purposes.” (Doc. 360-2 at 3.) Intervenor-Defendants contend that leave to amend should be
denied as futile because the “[t]he mere existence of a
trust relationship between the United States and the
Navajo Nation is, by itself, an insufficient basis for an
actionable claim.” (Doc. 369 at 4).
A general trust relationship exists between the
United States and Indian nations. Cherokee Nation v.
Georgia, 30 U.S. (5 Pet.) 1, 17 (1831). But “[t]he general
1
“Cleaned up” is a new parenthetical used to eliminate excessive, unnecessary explanation of non-substantive prior alterations. See Jack Metzler, Cleaning Up Quotations, 18 J. App. Prac.
& Process 143 (2018). This parenthetical can be used when extraneous, residual, non-substantive information has been removed—
in this case, citations and quotation marks. See United States v.
Steward, 880 F.3d 983, 986 n.3 (8th Cir. 2018); United States v.
Reyes, 866 F.3d 316, 321 (5th Cir. 2017).
App. 78
relationship between the United States and the Indian
tribes is not comparable to a private trust relationship.” United States v. Jicarilla Apache Nation, 564
U.S. 162, 173 (2011) (quoting Cherokee Nation of Okla.
v. United States, 21 Cl. Ct. 565, 573 (1990)) (emphasis
in original). To state a cognizable claim of breach of
trust against the government, a tribe must “identify a
substantive source of law that establishes specific fiduciary or other duties, and allege that the Government
has failed to perform those duties.” Navajo I, 537 U.S.
at 506. If the tribe does so, common law trust principles
“could play a role” in the court’s analysis of the trust
duties undertaken by the government. Jicarilla, 564
U.S. at 177 (quoting United States v. Navajo Nation,
556 U.S. 287, 301 (2009) (“Navajo II”)).
But “[w]hen [a] Tribe cannot identify a specific,
applicable, trust-creating statute or regulation that
the Government violated, neither the Government’s
control over Indian assets nor common-law trust principles matter. . . . The Government assumes Indian
trust responsibilities only to the extent it expressly accepts those responsibilities by statute.” Id. See also
Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476, 1482
(D.C. Cir. 1995) (“While it is true that the United States
acts in a fiduciary capacity in its dealings with Indian
tribal property, it is also true that the government’s
fiduciary responsibilities necessarily depend on the
substantive laws creating those obligations.”). Put another way, “unless there is a specific duty that has been
placed on the government with respect to Indians, the
government’s general trust obligation is discharged by
App. 79
the government’s compliance with general regulations
and statutes not specifically aimed at protecting Indian tribes.” Gros Ventre Tribe v. United States, 469
F.3d 801, 810 (9th Cir. 2006) (quoting Morongo Band of
Mission Indians v. FAA, 161 F.3d 569, 574 (9th Cir.
1998)) (cleaned up). Thus, the Nation must allege a
substantive source of law that creates the specific duty
that it alleges the government has violated, or that at
least “permit[s] a fair inference that the Government
is subject to duties as a trustee.” United States v. White
Mountain Apache Tribe, 537 U.S. 465, 474 (2003).
The Nation contends that Jicarilla is the wrong
standard to apply in actions for injunctive relief. But
even though Jicarilla and many of the cases cited were
actions brought by tribes for money damages under the
Indian Tucker Act, 28 U.S.C. § 1505, the Ninth Circuit
has applied the standard in cases brought for injunctive or declaratory relief. See Gros Ventre Tribe, 469
F.3d at 812; Morongo Band, 161 F.3d at 573-74. In Gros
Ventre Tribe, for example, the tribe argued that the
Mitchell standard (i.e., the standard the Supreme
Court applied in Jicarilla) only applied to claims for
money damages. Gros Ventre Tribe, 469 F.3d at 812.
The tribe argued instead that the general trust relationship between the federal government and the
tribe “imposes duties on the federal government even
in the absence of a specific treaty, agreement, executive
order, or statute.” Id. The Ninth Circuit disagreed. The
court instead concluded that “unless there is a specific
duty that has been placed on the government with respect to Indians, [the general trust responsibility] is
App. 80
discharged by the agency’s compliance with general
regulations and statutes not specifically aimed at protecting Indian tribes.” Id. In this circuit, then, tribes
must point to a specific treaty, agreement, executive
order, statute, or regulation that the government violated in order to bring a breach of trust claim, even one
for injunctive relief rather than money damages.
B. Winters and Treaties
The Nation’s strongest argument is that the
United States has trust duties arising from the treaties signed between the two parties and the Nation’s
implied water rights under Winters v. United States,
207 U.S. 564 (1908). Winters was a suit brought by the
United States on behalf of various tribes to prevent
other parties from diverting water from the Milk River
upstream of the Fort Belknap Indian Reservation. Id.
at 565. The tribes had previously entered treaties with
the United States by which the lands of the reservation
had been set aside for the tribes. Id. The Milk River
formed one of the boundaries of the reservation, and
the tribes needed water from the river to irrigate reservation land that was otherwise unsuited for cultivation. Id. at 566. The defendants—other landowners in
the area—began constructing dams, reservoirs, and canal systems by which they diverted the river water. Id.
at 567. Since they had begun to divert river water before the tribes had done so (but after the reservation
had been created), the defendants contended, their water rights were superior to those of the tribes. Id. at
568–69.
App. 81
The Court disagreed. In its view, the treaties entered by the tribes had the aim of transforming the
tribes’ previous lifestyle to one of settled farming. Id.
at 576. But the lands reserved for the tribes were “arid,
and without irrigation, were practically valueless.” Id.
Applying a canon of construction which requires that
“ambiguities occurring [in agreements and treaties
with tribes] will be resolved from the standpoint of the
Indians,” the Court concluded that the tribes had not
given up their rights to the water, without which their
reservation would not be suitable for its intended purpose. Id. at 576. Yet, while approving the government’s
actions in protecting the water rights at issue, the
Court said nothing about any trust duty imposed on
the government to secure the tribes’ water rights.
Later decisions distilled Winters into a black-letter
rule of law: “[W]hen the United States withdraws its
land from the public domain and reserves it for a federal purpose, the Government, by implication reserves
appurtenant water then unappropriated to the extent
needed to accomplish the purpose of the reservation.”
Agua Caliente Band of Cahuilla Indians v. Coachella
Valley Water District, 849 F.3d 1262, 1268 (9th Cir.
2017) (citing Cappaert v. United States, 426 U.S. 128,
138 (1976)).
Like many tribes, the Navajo Nation signed various treaties with the federal government, resulting in
the creation of the Navajo Reservation, the largest
tribal reservation in the United States. Through the
Treaty with the Navaho, 1849, Sept. 9, 1849, 9 Stat. 974
(“1849 Treaty”), and the Treaty with the Navaho, 1868,
App. 82
June 1, 1868, 15 Stat. 667 (“1868 Treaty”), the United
States placed the Nation under its “exclusive jurisdiction and protection” and declared that the Nation
“would forever remain” so. 1849 Treaty, at ¶ I. The Nation agreed to make the Navajo Reservation its “permanent home,” and to “not as a tribe make any
permanent settlement elsewhere.” 1868 Treaty, Art. 13.
Thus under Winters’ federal reserved rights doctrine,
the creation of the Navajo Reservation also impliedly
set aside rights to enough appurtenant water to allow
the Reservation to function as the permanent home of
the Navajo people. Navajo Nation v. Dep’t of Interior,
876 F.3d 1144, 1156 (9th Cir. 2017) (citing Arizona v.
California, 373 U.S. 546, 600 (1963)).
The Nation contends that because Winters recognized implied, reserved water rights, the Federal Defendants, under the treaties with the Nation, have
fiduciary duties to (1) “determine the quantities and
sources of water required to make the Navajo Reservation 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.” (Doc. 360-2 at 3.) This assertion runs into several problems.
The first is that to the extent that the Nation
would have this Court determine that the United
States has violated its trust responsibility by failing to
appropriate sufficient appurtenant water from the
mainstream of the lower Colorado River, that determination cannot be made by this Court in light of the
Supreme Court’s reservation of the question. (See Doc.
App. 83
359 at 2-4) (concluding that the broad language of the
Supreme Court’s reservation of jurisdiction in Arizona
v. California, 547 U.S. 150, 166–67 (2006),2 deprives
this Court of jurisdiction “over any claim that requires
any determination of rights to the [lower Colorado]
River.”). To the extent, then, that the Nation bases its
claim on any Winters rights in the mainstream of the
Lower Colorado, those rights cannot support the claim
in this Court. Such a claim would have to be filed with
the Supreme Court.
This Court has already so ruled. Yet, in its proposed Third Amended Complaint, the Nation sets forth
considerable allegations about the government’s regulation of the Colorado River to support its breach of
trust claim. Not only do these allegations go beyond
the scope of the remand in this case, see Navajo Nation,
876 F.3d at 1173, but they run headlong into the Supreme Court’s reservation of jurisdiction in Arizona v.
California. In order to determine that the United
States breached its trust duties by taking the actions
complained of, the Court would have to determine that
the Nation in fact has rights to the water in the mainstream of the Lower Colorado River. To the extent the
Nation wishes to use the government’s regulation of
2
In Arizona v. California, the Supreme Court “retain[ed] 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.” 547 U.S. at 166–67. The “subject matter in controversy” in Arizona v. California was the allocation of water rights
to the mainstream of the lower Colorado River. See Arizona v.
California, 376 U.S. 340 (1964); Navajo Nation, 876 F.3d at 1154.
App. 84
the Colorado River as a basis for its breach of trust
claim, it asks this Court to assume facts that are beyond its jurisdiction.
Further, despite the earlier uninformed musings
of this Court at previous oral argument, Winters rights
can only apply to water appurtenant to the reservation. See Agua Caliente Band, 849 F.3d at 1268 (“[T]he
Winters doctrine only applies in certain situations: it
only reserves water to the extent it is necessary to
accomplish the purpose of the reservation, and it only
reserves water if it is appurtenant to the withdrawn
land.”) (citing Winters, 207 U.S. at 575–78; Cappaert,
426 U.S. at 138).3 For the reasons above stated, this
Court cannot decide matters pertaining to the allocation of the mainstream of the lower Colorado River.
And the TAC specifically states that the Nation is not
basing its breach of trust claim on the government’s
failure to secure rights to the water of the Little Colorado River because litigation over its rights in that
water is still ongoing. (See Doc. 361 at 20–21) (“[T]he
Federal Defendants have not sought to identify or secure water from any sources other than the Little Colorado River that could meet the needs of [the] Navajo
3
At oral argument, the United States took the position that
“appurtenant” is a legal concept and that is therefore not necessarily limited to only water geographically appurtenant to the
Navajo Reservation. The government points to a Ninth Circuit
decision, Katie John v. United States, 720 F.3d 1214 (9th Cir.
2013). However, as noted, the Ninth Circuit’s more recent statement of the limitation on Winters suggests that appurtency is in
fact a geographic limitation. See Agua Caliente Band, 849 F.3d at
1268.
App. 85
Nation in Arizona.”); (id. at 19) (noting ongoing Little
Colorado River rights adjudication in Arizona state
court). Since the Nation does not base its claim on identified and appurtenant water, it obtains no help from
Winters. And to the extent it bases its claim on the appurtenant rights to water in the mainstream of the
Colorado River, this Court has no jurisdiction to hear
that claim.
And in any event, the enforceable trust duties the
Nation asserts are not inferable from the mere existence of implied water rights. The undisputed existence
of the Nation’s implied, as-yet-unquantified rights to
some as-yet-undetermined appurtenant water does
not create those duties. “The Government assumes Indian trust responsibilities only to the extent it expressly accepts those responsibilities by statute.”
Jicarilla, 564 U.S. at 177. The Nation’s Winters rights
do not expressly create those responsibilities. So the
Nation must point to some other source that creates
them.
C. Other potential sources of trust duties
The Nation disagreed with this conclusion at oral
argument. The Nation instead maintained that its
claim need not be based on any statutory enumeration
of duties because it is bringing a common law claim for
injunctive relief rather than a damages claim. The
TAC sets forth a host of sources which the Nation
claims illustrate the ways in which the Federal Defendants have breached their common law trustee
App. 86
duties. The Nation asserts that the authorities cited in
the TAC are illustrative of the duties, but do not necessarily give rise to the duties. But the Nation cannot
bring a breach of trust claim “wholly separate from any
statutorily granted right.” Gros Ventre Tribe, 469 F.3d
at 812. So if the Nation’s claim is to survive, the duties
must arise from some source. The authorities the Nation cites, particularly in ¶¶ 24–36 of the TAC, might
give rise to those duties. However, upon examination,
none of the sources are “specific, applicable, trust-creating statute[s] or regulation[s] that the Government
violated.” See Jicarilla, 564 U.S. at 177. Allowing the
amendments to the Nation’s complaint would thus be
futile because “no set of facts can be proved under [it]
that would constitute a valid and sufficient claim.”
Koster, 847 F.3d at 656.
A brief review of the two Supreme Court cases establishing the standard discussed in Jicarilla is helpful here. In United States v. Mitchell, 445 U.S. 535
(1980) (“Mitchell I”), the Court held that the General
Allotment Act of 1887 did not create a fiduciary duty
on the part of the federal government to manage the
timber resources of the Quinault Indian Reservation.
445 U.S. 535, 542 (1980). The Act, which required the
United States to hold land “in trust” for Indian allottees, was not specific enough to create enforceable fiduciary duties regarding the management of timber
resources on tribal land. Id. The Act established only a
“limited” relationship and therefore imposed no specific duty to manage timber resources. Id. The Court
App. 87
remanded the case for consideration of whether other
statutes might impose the duty alleged by the Tribe.
In the case’s return trip, United States v. Mitchell
(“Mitchell II”), the Court held that several timber management statutes enacted after the General Allotment
Act did create enforceable trust duties regarding the
management of tribal timber resources. 463 U.S. 206,
224–25 (1983). For example, one statute required the
Secretary of the Interior to consider “the needs and
bests interests of the Indian owner [of the land] and
his heirs” before selling timber from Indian trust lands.
Id. at 222 (citing 25 U.S.C. § 406(a)). The same statute
required the Secretary to consider the need for “maintaining the productive capacity of the land for the benefit of the owner and his heirs,” whether other uses of
the land would be most beneficial to the owner and his
heirs, and “the present and future financial needs of
the owner and his heirs.” Id. Statutes also required the
government to manage Indian forest resources, obtain
revenue through that management, and pay the proceeds to the tribal landowners. Id. at 219–23. The
Court held that the statutes were specific enough to
allow for an action against the government for mismanagement of those resources. Id. at 224–27.
None of the statutes or regulations the Nation
points to here4 are as specific as the statutes in Mitchell II—none create enforceable duties on the part of the
4
This assumes, of course, that all the documents the Nation
cites could in fact create the enforceable trust duties they assert.
The parties have not briefed the issue, and for the purposes of this
analysis the Court assumes that they could.
App. 88
Federal Defendants to (1) determine the amount of water needed to make the Navajo Reservation a permanent homeland or (2) secure adequate water to meet
those homeland purposes.
The Nation first points to the Indian Health Care
Amendments of 1988, 25 U.S.C. § 1632, which state
that “it is in the interest of the United States, and it is
the policy of the United States, that all Indian communities and Indian homes, new and existing, be provided
with safe and adequate water supply systems and sanitary sewage waste disposal systems as soon as possible.” Id. (a)(5). But this language does not establish a
specific duty—it merely sets forth a policy position.
The language is insufficient to create an enforceable
trust duty. See Standing Rock Sioux Tribe v. U.S. Army
Corps of Engineers, 255 F. Supp. 3d 101, 155 (D.D.C.
2017). And even if it did, it would not be the duties the
Nation alleges.
Similarly, the Bureau of Reclamation’s Manual
does not create enforceable duties. The Manual states
that the Bureau of Reclamation “will discharge, without limitation, the Secretary’s Indian trust responsibility with a high degree of skill, care, and loyalty,” and
that it will “actively support and participate in the Department’s Indian water rights negotiation and implementation activities, as it works to resolve the water
rights claims of Indian tribes through negotiated settlements, if feasible, rather than litigation.” Bureau of
Reclamation, Reclamation Manual, NIA P10 at 5
¶ 5(C)(2). This language, while noting the existence
and importance of the trust relationship and pledging
App. 89
engagement in the resolution of Indian water rights
negotiation and implementation activities, does not
create the fiduciary duties the Nation alleges.
The other statutes, regulations, and executive actions likewise fail to show that the government expressly accepted the fiduciary duties the Nation
asserts. The “Krulitz Memo” discusses at length the
general trust relationship that exists between Indian
tribes and the United States but does not impose a
duty to analyze the Nation’s need for, and secure a sufficient supply of, water. See Letter from Leo. M. Krulitz,
Department Solicitor, to James W. Moorman, Assistant
Attorney General (Nov. 21, 1978), (attached as appendix to Brief for Respondents, United States v. Mitchell,
445 U.S. 535 (1979), 1979 WL 199447). To the extent
that the Memo concludes that “the government’s trust
responsibility to the Indian has an independent legal
basis and is not limited to the specific language of the
statutes, treaties and agreements,” id. at *14A, the Supreme Court disagreed in Mitchell I—the very case in
which the Krulitz Memo was submitted as an appendix
to a brief.
Secretarial Order No. 3335 likewise does not create enforceable duties—in fact, it specifically states
that the Order “does not[ ] create any . . . legal right or
benefit, substantive or procedural.” Secretarial Order
No. 3335, Reaffirmation of the Federal Trust Responsibility to Federally Recognized Indian Tribes and Individual Indian Beneficiaries at § 6 (Aug. 20, 2014). The
two other Secretarial Orders the Nation points to likewise fail to expressly obligate the United States to
App. 90
determine the amount of water the Nation needs or to
secure rights to sufficient water. See Secretarial Order
No. 3215, Principles for the Discharge of the Secretary’s
Trust Responsibility at § 6 (Apr. 28, 2000) (“This Order
. . . is not intended to, and does not, create any right
to administrative or judicial review, or any legal right
or benefit, substantive or procedural, enforceable by a
party against the United States, its agencies, or instrumentalities, its officers or employees, or any other
person”); Secretarial Order 3175, Departmental Responsibilities for Indian Trust Resources (Nov. 8, 1993)
(“This Order is for internal management guidance
only, and shall not be construed to grant or vest any
right to any party in respect to any Federal action not
otherwise granted or vested by existing law or regulations.”).
The Non-Intercourse Act limits the alienability of
Indian lands but imposes no duty to make the Navajo
Reservation productive by analyzing water needs and
securing water rights. See 25 U.S.C. § 177. While the
Nation may be correct that the Act “pre-dates the
United States Constitution and is reflective of the
course of dealings between the United States and Indian tribes, including the duty of protection,” nothing
in the Act acts as an express acceptance by the United
States of the trust duties the Nation asserts. See
Jicarilla, 564 U.S. at 177.
The Northwest Ordinance of 1787, while recognizing that the government has a duty to deal with Indian
tribes in the “utmost good faith,” does not impose the
specific duties alleged. 1 Stat. 50, 52 (1789). The
App. 91
Snyder Act, 25 U.S.C. § 13, also does not establish those
trust duties—rather, it directs the Bureau of Indian
Affairs to “direct, supervise, and expend such moneys
as Congress may from time to time appropriate, for the
benefit, care, and assistance of the Indians throughout
the United States . . . for the development of water supplies.” But nowhere does it require the United States
to analyze the extent of the Nation’s water needs and
secure water rights on its behalf.
The American Indian Trust Fund Management
Reform Act of 1994, 108 Stat. 4239, does not impose a
specific duty to secure water resources to make the
Navajo Reservation productive, but imposes only a
general responsibility to “appropriately manag[e] the
natural resources located within the boundaries of
Indian reservations and trust lands.” 25 U.S.C.
§ 162a(d)(8). The Indian Trust Asset Reform Act, 25
U.S.C. §§ 5601–36, likewise does not create such a duty.
While the Act acknowledges that the United States has
undertaken “enforceable Federal obligations to which
the national honor has been committed,” id. § 5601(5),
it does not create the specific obligations the Nation
seeks to enforce here.
Since none of these substantive sources of law create the trust duties the Nation seeks to enforce, and
the Nation “cannot allege a common law cause of action for breach of trust that is wholly separate from
any statutorily granted right,” Gros Ventre Tribe, 469
F.3d at 810, its breach of trust claim must fail, and
amendment would be futile. Koster, 847 F.3d at 656.
“Although the [Nation] may disagree with the current
App. 92
state of Ninth Circuit caselaw, as it now stands, unless
there is a specific duty that has been placed on the government with respect to Indians, the government’s
general trust obligation is discharged by the government’s compliance with general regulations and statutes not specifically aimed at protecting Indian tribes.”
Id. The general trust relationship between the Nation
and the United States is insufficient to support the
Nation’s breach of trust claim. See Navajo I, 537 U.S.
at 506.
IT IS THEREFORE ORDERED that Plaintiff
Navajo Nation’s Renewed Motion for Leave to File
Third Amended Complaint, (Doc. 360), is DENIED.
IT IS FURTHER ORDERED directing the Clerk
of Court to terminate this action and enter judgment
accordingly.
Dated this 23rd day of August, 2019.
/s/ G. Murray Snow
G. Murray Snow
Chief United States District Judge
App. 93
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
No. CV-03-00507-PCTGMS
Navajo Nation,
Plaintiff,
ORDER
v.
United States Department (Filed Dec. 11, 2018)
of the Interior; et al.,
Defendants.
Pending before the Court is Plaintiff Navajo Nation’s
Motion for Leave to File Third Amended Complaint
(Doc. 335). Defendant and Defendant-Intervenors oppose the Motion. For the following reasons the Motion
is denied.
BACKGROUND
The Navajo Nation sued the Department of the Interior in 2003, seeking to strike down various regulations governing the use of water from the Colorado
River in its Lower Basin (“the River”). The Nation also
alleged that the United States breached its duties to
the Nation as trustee of the Navajo Reservation. After
several entities intervened in the case, it was stayed to
allow for settlement negotiations which ultimately
proved unsuccessful. The litigation resumed, and this
Court dismissed the Nation’s claims.
The Ninth Circuit affirmed in part and reversed
in part. It remanded the breach of trust claim with
App. 94
instructions to “fully consider the Nation’s breach of
trust claim in the first instance, after entertaining any
request to amend the claim more fully to flesh it out.”
Navajo Nation v. Dept. of Interior, 876 F.3d 1144, 1173
(9th Cir. 2017). The Nation now moves for leave to
“flesh out” the breach of trust claim and file a Third
Amended Complaint (“TAC” or “Proposed TAC”).
DISCUSSION
I.
Legal Standard
If a plaintiff wants to amend its complaint more
than twenty-one days after the complaint is served, it
needs the court’s permission. Courts freely give that
permission “when justice so requires.” FED. R. CIV. P.
15(a)(2). This policy favoring amendments is generally
“applied with extreme liberality,” Eldridge v. Block,
832 F.2d 1132, 1135 (9th Cir. 1987), but that does not
mean that leave to amend is automatically granted. If
a court finds that there has been a sufficient showing
of (1) undue delay; (2) bad faith or dilatory motives on
the part of the movant; (3) repeated failure to cure deficiencies by previous amendments; (4) undue prejudice to the opposing party; or (5) futility of the proposed
amendment, the court should deny the motion. Foman
v. Davis, 371 U.S. 178, 182 (1962). District courts have
particularly broad discretion to deny leave to amend if
the plaintiff has already amended its complaint. Sisseton-Wahpeton Sioux Tribe of Lake Traverse Indian Reservation, North Dakota and South Dakota v. United
States, 90 F.3d 351, 355 (9th Cir. 1996) (quoting Allen
App. 95
v. City of Beverly Hills, 911 F.2d 376, 373 (9th Cir.
1990)).
II.
Analysis
The Proposed Third Amended Complaint raises
two main issues. First, whether the Supreme Court’s
retention of jurisdiction in Arizona v. California, 547
U.S. 150, 166–67 (2006), deprives this court of jurisdiction to entertain the breach of trust claim, and, if it
does not whether the proposed amendments should be
allowed. Language throughout the TAC and specifically the Nation’s two prayers for relief demonstrate
that the relief sought in the Proposed TAC would require this Court to determine the Nation’s rights to
water from the River. Jurisdiction over that issue has
been reserved by the Supreme Court in Arizona v. California, thus this Court lacks jurisdiction to entertain
the Proposed TAC.
A. Jurisdiction
In Arizona v. California, the Supreme Court determined the rights of various entities to water from the
River. Subsequent to its initial decree in the case, the
Court declared that absent some showing of unforeseeable change in circumstances, the rights to the water
that had been adjudicated would not be altered. See
Arizona v. California, 460 U.S. 605, 619–27 (1983)1.
1
The Court has made minor adjustments to its 1964 Decree.
But the Court has clarified that the provision of the 1964 Decree
App. 96
The Nation and other tribes were represented in
Arizona v. California by the United States as trustee.
See Navajo Nation v. Department of the Interior, 876
F.3d 1144, 1154 (9th Cir. 2017). The United States did
not however present claims to water from the River for
all of the tribes, including the Nation. Rather, the
United States put forward the Nation’s claim to water
from the Little Colorado River, a tributary of the Colorado River. See Findings of Fact and Conclusions of
Law Proposed by the United States of America at 58,
Arizona v. California, 373 U.S. 546 (1963). The Court
narrowed the scope of the Arizona v. California litigation to include only claims to the mainstream of the
River, so the Nation’s Little Colorado River claim was
not considered. Arizona v. California, 373 U.S. 546,
590–91 (1963). When the Nation attempted to intervene on its own behalf in the Arizona litigation, the
Court denied the motion. Arizona v. California, 368
U.S. 917 (1961).
Thus the Court never addressed any rights the
Nation may or may not have to the mainstream of the
River because the United States did not bring that
claim, nor was the Nation allowed to separately intervene to bring it. Yet the Court noted later that tribes
represented by the United States in Arizona v. California are bound by the Court’s decisions in the case,
and so “the absence of the Indian Tribes in the prior
allowing amendment was “mainly a safety net added to retain jurisdiction and to ensure that [it] had not, by virtue of res judicata,
precluded [itself ] from adjusting the Decree in light of unforeseeable changes in circumstances.” 460 U.S. at 622.
App. 97
proceedings in this case does not dictate or authorize
relitigation of their reserved rights.” Arizona, 460 U.S.
at 626–27.
If the Nation wishes to assert rights to the River,
it is clear from the latest decree in Arizona v. California that such a determination is off-limits to any lower
court. In its 2006 Decree, the Supreme Court “retain[ed] 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.”
Arizona v. California, 547 U.S. 150, 166–67 (2006) (emphasis added). That is broad language. And it deprives
this court of jurisdiction over any claim that requires
any determination of rights to the River.
1. The Nation’s Proposed TAC
In its Proposed TAC, the Nation added allegations
regarding its breach of trust claim. It also added two
new claims: a breach of treaty claim and a failure to
consult claim. All the claims require this Court to determine that the Nation has rights to the River.
a. Breach of Trust
The breach of trust claim in the Proposed TAC
would require this Court to determine the Nation’s
rights to the River. That determination is beyond this
Court’s authority because of the Supreme Court’s reserved jurisdiction in Arizona v. California.
App. 98
The Proposed TAC contains a multitude of statements referring to the Nation’s “interests in . . . a water supply from the Lower Basin of the Colorado River.”
(Doc. 335-2 at 3). For example, the Nation alleges that
the United States has failed in its trust responsibilities
by
fail[ing] to determine the water required from
the Lower Basin of the Colorado River to
make the Navajo Reservation a permanent
homeland for the Navajo people; fail[ing] to
protect the sovereign interests of the Navajo
Nation by securing an adequate water supply
from the Lower Basin of the Colorado River to
meet those homeland purposes; failing to consult with the Navajo Nation prior to making
management decisions that affect Navajo
trust resources; and managing the Colorado
River through decisions that inure to the benefit of others, including the Intervenor-Defendants, while compromising the interests of
the Navajo Nation.
(Id.).
The Nation’s two prayers for relief in the Proposed
TAC confirm that the Nation seeks relief that would
require a declaration of rights to water from the River.
The first prayer for relief requests this Court to declare
that the United States’ trustee obligations require it
to
(1) determine the extent to which the Nation
requires water from the mainstream of the
Colorado River in the Lower Basin to enable
App. 99
its Reservation to serve as a permanent homeland for the Navajo Nation . . . ; (2) develop a
plan to secure the water needed; and (3) manage the Colorado River in a manner that does
not interfere with the plan to secure the water
from the Colorado River needed by the Navajo
Nation.
(Id. at 53).
The second prayer for relief asks for an injunction
from this Court ordering the United States to fulfil the
same steps outlined in the first prayer for relief (plus
one more). The second prayer asks this court to require
the government
(a) to determine the extent to which the Navajo Nation requires water from the mainstream of the Colorado River in the Lower
Basin to enable its Reservation to serve as a
permanent homeland for the Navajo Nation
and its members; (b) to develop a plan to secure the water as needed; (c) to manage the
Colorado River in a manner that does not
interfere with the plan to secure the water
from the Colorado River needed by the Navajo
Nation; and (d) to require the Federal Defendants to analyze their actions in adopting the
Shortage and Surplus Guidelines, and other
management decisions identified herein, in
light of the plan to secure the water from
the Colorado River and adopt appropriate
App. 100
mitigation measures to offset any adverse effects from those actions.2
(Id. at 54).
The Nation’s Proposed TAC thus requires a determination that the Nation has rights to the River. At the
very least it would require that this Court determine
that the Nation may have rights to the river, and thus
the United States may have breached its trust duties.
But a request for a determination that the United
States may have breached its trust to the Nation does
not constitute a case or controversy under the Constitution.
At oral argument, the Nation repeatedly asserted
that it is in fact bringing a more general claim—a
claim not requiring determination of rights to the
River, but rather a claim based on the Nation’s general
need for water to make the Reservation inhabitable.3
For example, the Nation alleges that “[t]he Department [of the Interior] has a fiduciary responsibility to
2
The Nation apparently failed to finish writing its second
prayer for relief in the Proposed TAC, and supplies the rest of the
sentence in its Reply. (Doc. 346 at 2 n.2).
3
The Ninth Circuit recognized the distinction between “the
unmet needs of the Navajo Nation . . . for water from the Lower
Basin” and “the unquantified rights of the Navajo Nation to the
waters of the Lower Basin of the Colorado River.” Navajo Nation,
876 F.3d at 1161. The unquantified rights arise under Winters,
while the “need” is “a freestanding interest in an adequate water
supply for the Nation that exists notwithstanding the lack of a
decreed right to water.” Id. The Proposed TAC and its three
claims focus primarily on the unquantified rights and would require a declaration that those rights are in the River.
App. 101
the Navajo Nation to preserve, protect, and make productive the Nation’s trust resources so that the Navajo
Reservation is a viable permanent homeland.” (Doc.
335-2 at 4). The Nation also notes that by creating
the Navajo Reservation, the United States also by implication reserved “a sufficient amount of water . . . for
the benefit of the Navajo Nation to carry out the purposes for which the [Navajo] Reservation was created,
specifically to make the Reservation a livable homeland for the Nation’s present and future generations.”
(Doc. 335-2 at 7); see Cappaert v. United States, 426
U.S. 128, 138 (1976); Winters v. United States, 207 U.S.
564 (1908).
At this point, however, this Court need not decide
whether the Nation’s rights under Winters would give
rise to a trust claim if the Tribe did not take the further step of requiring the Court to determine that the
Trustee had an obligation to satisfy such rights out
of the mainstream of the Colorado River. In the past,
however, the United States has taken the position that
Winters water rights can be held in trust for a Tribe.
See Fort Mojave Indian Tribe v. United States, 23 Cl.
Ct. 417, 425 (1991). The Court need not decide such
matters here, however, because the TAC as written requires the Court to determine whether the Nation has
rights in the Colorado River.
b. Breach of Treaty
The Nation’s breach of treaty claim is futile for the
same reason—the relief the Nation seeks under the
App. 102
claim asks this Court to find that the Nation has rights
to the River. The Nation alleges that the United States
breached two treaties made with the Navajo people—
the 1849 peace treaty, Treaty with the Navaho, 1849,
Sept. 9, 1849, 9 Stat. 974, and a treaty signed in 1868,
Treaty with the Navaho, 1868, June 1, 1868, 15 Stat.
667. (Doc. 335-2 at 49). The Nation alleges that the
United States breached its duties to the Nation under
those treaties by “failing to determine the extent and
quantity of the rights of the Navajo Nation to use the
waters of the Colorado River.” (Doc. 335-2 at 49). Proving this allegation would require that the United
States has a duty to secure water from the River for
the Nation. And since neither of the treaties specifically mentions water from the Colorado River, the only
way the United States would have that specific duty is
if the Nation had rights to the water. The Nation argues that this claim would not require a determination
regarding rights to the River because the crux of the
claim is the United States’ failure to act affirmatively
regarding the Nation’s interest in sufficient water. (See
Doc. 346 at 11). But that broader claim is not what the
nation alleges—the way the Proposed TAC is written,
this Court would be required to determine that the Nation has rights specific to the Colorado River before it
could conclude that the United States breached its
treaty duties to the Nation by having failed to secure
those rights.
App. 103
c. Failure to Consult
The Nation’s failure to consult claim fails for the
same reason, and at any rate, the Nation abandoned
this claim at oral argument. The Nation apparently
based this claim on Executive Order No. 13,175, 65
Fed. Reg. 67,249 (Nov. 6, 2000). (Doc. 335-2 at 52). That
order requires “[e]ach agency [to] have an accountable
process to ensure meaningful and timely input by
tribal officials in the development of regulatory policies
that have tribal implications.” 65 Fed. Reg. at 67250.
The Nation alleges that the United States did not consult with the Nation prior to taking various administrative actions regulating the River. (Doc. 335-2 at 52).
This allegedly violated the United States’ duty to consult with the Nation “in the development of Federal
policies that have tribal implications.” Executive Order
13,175 defines “policies that have tribal implications”
as “regulations, legislative comments or proposed legislation, and other policy statements or actions that
have substantial direct effects on one or more Indian
tribes.” 65 Fed. Reg. at 67,249 (emphasis added).
But the “administrative actions complained of ” all
relate to the regulation of the Colorado River. For these
administrative actions to have any “substantial direct
effects” on the Nation, the Court would need to determine that the Nation had rights to the River.4 Cf.
4
Each of the actions objected to has to do with actions taken
by the Federal Defendants regarding the regulation and use of
water from the River. (Doc. 335-2 at 41–43). Indeed the Nation
acknowledges this by titling the relevant section of the Proposed
TAC “The Federal Defendants’ On-going Management Efforts
App. 104
Navajo Nation, 876 F.3d at 1162 (“The Guidelines do
not act directly upon the Nation’s unquantified water
rights, nor could they.”). Since the Nation has never
had any such rights adjudicated, the “administrative
decisions complained of did not have “direct effects” on
the Nation. Thus the United States did not have a duty
under Executive Order 13,175 to consult with the Nation before implementing the Guidelines. To prevail on
this claim—which would require the Nation to show
that the actions had “direct effects” on it—the Nation
would require something that is beyond this Court’s
jurisdiction to declare: rights to the River.
And the failure to consult claim is futile for a second reason: Executive Order 13,175 does not create judicially enforceable rights. “This order is intended only
to improve the internal management of the executive
branch, and is not intended to create any right, benefit,
or trust responsibility, substantive or procedural, enforceable at law by a party against the United States,
its agencies, or any person.” 65 Fed. Reg. at 67,252. See
Dettling v. U.S., 948 F.Supp.2d 1116, 1125 (D. Haw.
2013) (“The Executive Orders . . . explicitly state that
they create no legally enforceable right or benefit. . . .
Thus, Plaintiffs had no legal right to fish in the Reserve
. . . and therefore suffered no injury in fact”); Chen
Zhou Chai v. Carroll, 48 F.3d 1331, 1339 (4th Cir. 1995)
(“[A]n executive order is privately enforceable only if it
was intended to create a private cause of action. . . .
Continue to Ignore the Needs of the Navajo Nation for Water from
the Colorado River in the Lower Basin.” (Doc. 335-2 at 41).
App. 105
The plain language of the Executive Order indicates
that it was an internal directive.”).
For all these reasons, the breach of trust, breach of
treaty, and failure to consult claims as pleaded in the
Proposed TAC are futile.
CONCLUSION
IT IS THEREFORE ORDERED that Plaintiff
Navajo Nation’s Motion for Leave to File Third
Amended Complaint (Doc. 335) is DENIED.
IT IS FURTHER ORDERED that Plaintiff
Navajo Nation will be given one last chance to file an
amended complaint asserting a breach of trust claim
consistent with this Order. It shall file such amendment, if any, within thirty (30) days of the date of
this Order.
Dated this 11th day of December, 2018.
/s/ G. Murray Snow
G. Murray Snow
Chief United States District Judge
App. 106
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NAVAJO NATION,
Plaintiff-Appellant,
v.
DEPARTMENT OF THE INTERIOR;
RYAN ZINKE*, Secretary of
the Interior; UNITED STATES
BUREAU OF RECLAMATION;
BUREAU OF INDIAN AFFAIRS,
No. 14-16864
D.C. No.
3:03-cv-00507GMS
OPINION
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.
* We substitute Ryan Zinke for predecessor Sally Jewell as
a Defendant-Appellee pursuant to Fed. R. App. P. 43(c)(2).
App. 107
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Argued and Submitted February 14, 2017
San Francisco, California
Filed December 4, 2017
Before: Ronald M. Gould and Marsha S. Berzon,
Circuit Judges, and Marvin J. Garbis,** District Judge.
Opinion by Judge Berzon
COUNSEL
Scott B. McElroy (argued) and Alice E. Walker,
McElroy Meyer Walker & Condon P.C., Boulder, Colorado; M. Kathryn Hoover and Stanley M. Pollack, Navajo Nation Department of Justice, Window Rock,
Arizona; for Plaintiff-Appellant.
Elizabeth Ann Peterson (argued), Edward S. Geldermann, Ellen J. Durkee, and William B. Lazarus, Attorneys; John C. Cruden, Assistant Attorney General;
United States Department of Justice, Washington,
D.C.; Scott Bergstrom and Robert F. Snow, Office of the
Solicitor, United States Department of the Interior,
Washington, D.C.; for Defendants-Appellees.
L. William Staudenmaier III (argued), Phoenix, Arizona, for Intervenor-Defendants-Appellees.
Michael J. Pearce, Maguire Pearce & Storey PLLC, Phoenix, Arizona; Kelly Brown and Kenneth C. Slowinski,
** The Honorable Marvin J. Garbis, United States District
Judge for the District of Maryland, sitting by designation.
App. 108
Chief Counsel, Arizona Department of Water Resources, Phoenix, Arizona; for Intervenor-DefendantsAppellees State of Arizona and Arizona Power Authority.
John B. Weldon, Jr. and Lisa M. McKnight, Salmon
Lewis & Weldon PLC, Phoenix, Arizona; for IntervenorDefendants-Appellees Salt River Project Agricultural
Improvement and Power District and Salt River Valley
Water Users’ Association.
Stuart Somach and Robert Hoffman, Somach Simmons
& Dunn, Sacramento, California; for IntervenorDefendant-Appellee Central Arizona Water Conservation District.
Lauren J. Caster, Special Deputy Counsel, and Gregory
L. Adams, Fennermore Craig P.C., Phoenix, Arizona;
Jennifer T. Crandell, Special Counsel Attorney General; Adam Paul Laxalt, Attorney General; Office of the
Nevada Attorney General; for Intervenor-DefendantAppellee State of Nevada; Colorado River Commission
of Nevada; Southern Nevada Water Authority.
Adam C. Kear, Chief Deputy General Counsel; Joseph
A. Venderhorst, Assistant General Counsel; Marcia
Scully, General Counsel; The Metropolitan Water District of Southern California, Los Angeles, California; [ ]
for Intervenor-Defendant-Appellee Metropolitan Water District of Southern California.
Steven B. Abbott, Redwine and Sherrill, Riverside, California, for Intervenor-Defendant-Appellee Coachella
Valley Water District.
App. 109
Joanna M. Smith Hoff, Assistant Counsel, Imperial Irrigation District, Imperial, California; Charles T.
Dumars, Law & Resource Planning Associates P.C.,
Albuquerque, New Mexico; for Intervenor-DefendantAppellee Imperial Irrigation District.
Steven G. Martin and Steven M. Anderson, Best Best
& Krieger LLP, Riverside, California, for IntervenorDefendants-Appellees Coachella Valley Water District
and The Metropolitan Water District of Southern California.
Shanti Rosset, Assistant Attorney General; Karen M.
Kwon, First Assistant Attorney General; Cynthia
Coffman, Attorney General; Attorney General’s Office,
Denver, Colorado; for Intervenor-Defendant-Appellee
State of Colorado.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
OPINION
BERZON, Circuit Judge:
The Department of the Interior (“Interior” or
“the Secretary”) oversees the control, storage, and delivery to the Western states of the waters of the Colorado River. In most years, each state in the Colorado
River Basin receives a fixed amount of water from the
river; in “surplus” and “shortage” years, that amount
changes. In the face of unprecedented drought and
ever-increasing demand for water, Interior published
guidelines in 2001 and 2008 to clarify how it would
make these “surplus” and “shortage” determinations
from year to year. This case concerns challenges to
App. 110
those guidelines by the Navajo Nation (“Nation”), a
federally recognized Indian tribe.
The Nation occupies vast reservation lands along
the Colorado River but has no judicially decreed right
to its waters. Aggrieved by its lack of enforceable rights
to Colorado River water, the Nation filed suit to challenge the surplus and shortage guidelines, alleging
principally that Interior neglected to consider the
guidelines’ impact on its potential, but as-yet unadjudicated, water rights in the Colorado River and so violated the National Environmental Policy Act (“NEPA”).
The Nation also charged Interior with more broadly
breaching the trust duties the government owes the
Nation by failing to account for or safeguard the tribe’s
interests in and rights to water in the river. The district court rejected all of the Nation’s challenges, which
are now raised anew here.
I.
BACKGROUND
A. The Navajo Nation
The Nation is a federally recognized Indian tribe
whose reservation lands sprawl over 13 million acres
in the American Southwest.1 The Navajo Reservation
(“Reservation”), the largest Indian reservation in the
United States, was established by treaty in 1868 and
grew piecemeal between 1868 and 1934, as lands were
1
These facts are drawn from the complaint, which we accept
as true for purposes of reviewing a motion to dismiss for lack of
subject-matter jurisdiction. See Courthouse News Serv. v. Planet,
750 F.3d 776, 780 (9th Cir. 2014).
App. 111
added to it by treaty, executive order, and statute. The
Reservation covers parts of Arizona, New Mexico, and
Utah, and lies almost entirely within the drainage basin of the Colorado River,2 which demarcates much of
the Reservation’s western boundary. Aside from the
federal government, the Nation is the largest riparian
landowner along the Colorado.
The United States is trustee of the Nation’s tribal
lands and resources. United States v. Mitchell, 463 U.S.
206, 225 (1983). The Nation’s claims in this action arise
either directly or derivatively from the alleged breach
of fiduciary responsibilities created by this trust relationship.
B. The Law of the River
The Colorado River begins in the mountains of
Colorado and flows nearly 1,300 miles to the Sea of
Cortez, adjacent to the Sonoran Desert in Mexico,
draining an area amounting to almost one-twelfth of
the continental United States. Arizona v. California,
373 U.S. 546, 552 (1963). “Much of this large basin is so
arid that it is, as it always has been, largely dependent
upon managed use of the waters of the Colorado River
System to make it productive and inhabitable.” Id.
Because of the Colorado’s importance to the West,
river water is pervasively managed, regulated, and
2
A river “drains” the surface water that flows into it; a
“drainage basin” is the whole tract of land “drained by a river and
its tributaries.” WEBSTER’S THIRD NEW INT’L DICTIONARY 182, 685
(1971).
App. 112
contested. Interior, through the Bureau of Reclamation, operates large dams and reservoirs that control
the flow of the Colorado’s waters. Additionally, federal
statutory law and regulations, Supreme Court decrees,
interstate compacts, state and federal common law,
and treaties foreign and domestic affect the allocation
and management of the River’s waters. This byzantine
legal regime is known as “The Law of the River,” the
relevant portions of which we summarize below.
i.
The 1922 Compact3
In 1922, seven states entered into an interstate
compact to govern the gross allocation of water from
the Colorado River. The states wanted to assure that
the Colorado became a regular, dependable source of
water; they recognized that doing so would require a
regional or national solution.4
The Colorado River Compact (“1922 Compact”) entered into by the affected states divided the river in
two at Lee Ferry, Arizona. 1922 Compact art. II, reprinted in 70 Cong. Rec. 324 (Dec. 10, 1928). The
3
The Court may take judicial notice of compacts, statutes,
and regulations not included in the plaintiff ’s complaint. See, e.g.,
Cachil Dehe Band of Wintun Indians of the Colusa Indian Cmty.
v. California, 547 F.3d 962, 968 n.4 (9th Cir. 2008) (noticing
tribal-state compacts); United States v. Woods, 335 F.3d 993, 1001
(9th Cir. 2003) (holding it was proper for the district court to notice published agency regulations).
4
See Arizona v. California, 373 U.S. at 554. Fears of overappropriation by California played a role in the compact as well.
Id. at 556.
App. 113
“Upper Basin” States5 (Colorado, New Mexico, Utah,
and Wyoming) and the “Lower Basin” States (Arizona,
California, and Nevada) would each be entitled to 7.5
million acre-feet per year (“mafy”) of water.6 Id. arts.
II-III. This suit concerns water in the Lower Basin
only. The Compact stated that it did not establish, alter, or impair any present perfected rights within the
States, id. art VIII, nor “affect[ ] the obligations of the
United States of America to Indian tribes,” id. art VII.
Commissioners from each state signed the compact,
but it became effective under its terms only if ratified
by Congress and the legislature of each signatory state.
Id. art XI.
ii. The Boulder Canyon Project Act
In 1928, Congress addressed the management of
the Colorado River through the Boulder Canyon Project Act, 43 U.S.C. § 617 et seq. The Act conditionally
approved the 1922 Compact and authorized the Secretary of the Interior to construct a massive dam at Boulder Canyon (now the Hoover Dam) and the attendant
water delivery infrastructure (a reservoir, now Lake
Mead, and delivery canals) to effectuate the allocations
5
The Compact refers to states of the “Upper Division” and
“Lower Division,” see id. art. II. We instead follow the custom of
the Supreme Court and refer to Arizona, California, and Nevada
collectively as the “Lower Basin” states. See, e.g., Arizona v. California, 373 U.S. at 558–59.
6
An acre-foot is the volume of water that would cover an acre
of land to the depth of one foot. WEBSTER’S THIRD NEW INT’L DICTIONARY 19.
App. 114
laid out in the 1922 Compact. 43 U.S.C. § 617. The Act
also allowed the Secretary to enter into contracts with
users for the storage and delivery of water in the Project’s reservoir. Id. § 617d.
Most relevant for our purposes, the Act authorized
the three Lower Basin States to negotiate a second
compact divvying up their 7.5 mafy share of the Colorado’s water—4.4 to California, 2.8 to Arizona, and 0.3
(i.e., 300,000 afy) to Nevada. If entered into, this agreement would take effect once all three states had ratified the 1922 Compact. Id. § 617c(a).
The Boulder Canyon Project Act became effective
in 1929, after six of the seven states ratified the Compact, see id., and California “irrevocably and unconditionally” covenanted to limit its consumption to 4.4
mafy.7 Arizona did not ratify the 1922 Compact, so the
Lower Basin states never agreed to the second compact
that would have apportioned the 7.5 mafy among the
three states. See Arizona v. California, 373 U.S. at 561–
62. The Secretary nonetheless entered into water contracts with the Lower Basin states.8 Id. at 562.
7
See Act of March 4, 1929, in Statutes and Amendments to
the California Codes, ch. 16, 48th Session (1929), at 38–39. The
Boulder Canyon Project Act 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).
8
While the Secretary contracted with Arizona and Nevada
for their shares as laid out in the Boulder Canyon Project Act, 43
U.S.C. § 617c(a), it contracted to deliver 5.36 mafy to California,
App. 115
iii. Arizona v. California
Conflict over Lower Basin water continued between Arizona and California, coming to a boil in 1952
when Arizona sued California in an original action in
the Supreme Court. The United States intervened to
represent federal interests, including the interests of
25 Indian tribes,9 and other Basin States intervened as
well. Based on the report, findings, and recommended
decree of a Special Master, see Arizona v. California,
373 U.S. at 551, the Court issued a decree clarifying
each state’s rights to Lower Basin water. See Arizona
v. California, 376 U.S. 340 (1964) (“1964 Decree”).
The 1964 Decree affirmed the provisional apportionments set out in the Boulder Canyon Project Act.
In years when the Secretary determined that 7.5 maf
of water was available for release to the Lower Basin
states, Nevada was entitled to 0.3 mafy; Arizona to 2.8
mafy; and California to the lion’s share, 4.4 mafy. 1964
Decree art. II(B)(1), 376 U.S. at 342. The Decree also
parceled out the relative shares each Lower Basin
State would get in years in which, “as determined by
the Secretary of the Interior,” there was surplus water
available.10 1964 Decree art. II(B)(2), 376 U.S. at 342.
If, instead, the Secretary determined in a given year
significantly more than the 4.4 mafy the Act contemplated. Arizona v. California, 373 U.S. at 562.
9
See Findings of Fact and Conclusions of Law Proposed by
the United States of America, at 51, Arizona v. California, 373
U.S. 546 (1963) (No. 9, Original).
10
California would receive 50% of the surplus, Arizona 46%,
and Nevada 4%. See 1964 Decree art. II(B)(2), 376 U.S. at 342.
App. 116
that there was a shortage of water—less than 7.5 maf
available in the Lower Basin—the Decree required the
Bureau of Reclamation first to “provid[e] 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 Boulder Canyon Project Act,” the
Decree, and other applicable federal statutes. Id.
iv. Winters rights
In addition to partitioning the Colorado River waters among the three Lower Basin States, the 1964 Decree adjudicated the “Winters rights” of five Indian
tribes. Winters v. United States held that “when the
Federal Government withdraws its land from the public domain and reserves it for a federal purpose, 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 also Winters v. United States, 207 U.S. 564, 577 (1908). The
rights to this water—also called “reserved rights”—
vest on the original date of withdrawal of the land and
trump the rights of later appropriators.11 Cappaert,
11
Most water rights are acquired through appropriation.
“Under the doctrine of prior appropriation, the first to divert and
use water beneficially establishes a right to its continued use as
App. 117
426 U.S. at 138. For Indian reservations, courts look to
the treaties, executive orders, and statutes that set
aside reservation land for the tribe in question.12 Winters rights, unlike water rights gained through prior
appropriation, are not lost through non-use. Colville
Confederated Tribes v. Walton, 647 F.2d 42, 51 (9th Cir.
1981).
In Arizona v. California, the Supreme Court reaffirmed the vitality of the Winters doctrine, noting that
“most of the [reservation] lands were of the desert
kind—hot, scorching sands—and . . . water from the
[Colorado] 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 599. The Decree awarded five
tribes a right to Lower Basin water commensurate
with the “practicably irrigable acreage” of each tribe’s
reservation. Id. at 600; 1964 Decree art. II(D), 376 U.S.
at 343–45. Following the Special Master’s lead, the
Court declined to reach the claims of the other twenty
tribes, including the Navajo Nation’s. See 373 U.S. at
595. The Decree made clear, however, that it did not
affect “[t]he rights or priorities, except as specific provision is made herein, of any Indian Reservation.” Id.
art. VIII(C), 376 U.S. at 352–53.
long as the water is beneficially diverted.” Cappaert, 426 U.S. at
139 n.5.
12
See, e.g., Agua Caliente Band of Cahuilla Indians v.
Coachella Valley Water Dist., 849 F.3d 1262, 1265 (9th Cir. 2017)
(dating the reservation of water from the Executive Orders that
withdrew land for the tribe), petition for cert. filed (U.S. July 3,
2017) (No. 17-42).
App. 118
The Supreme Court retained jurisdiction over the
suit, 1964 Decree art. IX, 376 U.S. at 353, and, over the
next few decades, announced several sequels to the
original opinion. See, e.g., Arizona v. California, 460
U.S. 605 (1983) (holding that res judicata barred reopening the quantification of tribes’ Winters rights);
Arizona v. California, 530 U.S. 392 (2000) (holding that
res judicata did not bar certain claims stemming from
reservation boundary disputes); Arizona v. California,
547 U.S. 150 (2006) (consolidating prior decrees and
implementing the water rights settlement concerning
one Indian reservation).
C. The Nation’s Rights to Water in the Colorado River
Under the Winters doctrine, when setting aside
lands for the Navajo Nation, the United States impliedly reserved for the tribe “the waters without
which their lands would [be] useless.” Arizona v. California, 373 U.S. at 600. As noted above, in the first iteration of Arizona v. California, the Special Master—
and the Supreme Court—declined to reach the Winters
claim put forward on behalf of the Nation.13 Id. at 595.
13
The Nation attempted to intervene in the suit on its own
behalf, but the United States successfully opposed the motion. See
Response of the United States to the Motion on Behalf of the Navajo Tribe of Indians for Leave to Intervene, Arizona v. California,
373 U.S. 546 (1963) (No. 8, Original). The claim filed on behalf of
the Nation was for water in the Little Colorado River, a tributary
of the Lower Colorado River. See Findings of Fact and Conclusions of Law Proposed by the United States of America, supra
note 9, at 58. The Special Master, and the Court, declined to reach
App. 119
The Nation has in the last half-century repeatedly asserted its right to water in the Lower Colorado,14 but
its potential water rights in the Lower Colorado have
never been adjudicated or quantified.
“particularly those [claims] relating to tributaries.” Arizona v.
California, 373 U.S. at 595.
14
The Nation has been, and is, actively seeking additional
water for the Reservation in several forums. The Nation’s rights
to water from the Little Colorado River, which flows through eastern Arizona and western New Mexico,
are being considered in an ongoing adjudication in Arizona state
court. See In re General Adjudication of All Rights to Use Water
in Little Colorado River Sys. & Source, No. CV 6417 (Ariz. Super.
Ct., Apache Cty.). The Nation filed its claim in that adjudication
in 1985. See Statement of Claimant The Navajo Nation, In re General Adjudication, No. CV 6417 (Nov. 27, 1985). The Nation may
also receive an allocation of water from the Central Arizona Project (“CAP”), a major diversion canal in Arizona. In the Arizona
Water Settlements Act of 2004, Pub. L. No. 108-451, 118 Stat.
3478, 3487 (2004), Congress directed the Secretary to set aside a
specified amount of water from the CAP for distribution to the
Navajo Nation—6,411 afy—should the Nation obtain rights
through ongoing settlement negotiations. Congress conditioned
the Nation’s access to CAP water on approval of a water rights
settlement by Congress before 2030. No such settlement has been
reached to date.
Finally, the Nation requested that the Secretary of the Interior contract with the Nation for any of the water allocated to Arizona not committed to other users. The Secretary has not agreed
to such a contract.
App. 120
D. Implementing the Law of the River
The Secretary “is vested with considerable control
over the apportionment of Colorado River waters,”
Arizona v. California, 373 U.S. at 593, and is generally
responsible for the management and delivery of water
from the Colorado pursuant to the Law of the River.
Each state’s water portion is dictated by the 1964 Decree, as is the allocation of surplus water; Arizona v.
California accords discretion to the Secretary to apportion shortfalls in years of shortage, see id. at 593–94.
The 1964 Decree also commits the determination of
surplus and shortage years to the Secretary. See 1964
Decree art. II(B)(2)–(3), 376 U.S. at 342.
The Colorado River Basin Project Act of 1968 required the Secretary to adopt criteria for the coordinated management of Lake Mead and Lake Powell, the
reservoirs under the Secretary’s management in the
Lower Basin. See 43 U.S.C. 1552(a)–(b). These “Operating Criteria” for the coordinated management of the
storage reservoirs in the Lower Basin help the Secretary determine whether to declare a shortage or surplus in any given year. See Colorado River Res
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