Amicus Curiae Brief — Gerald H. Hawkins, Individually and as a Trustee of the CN Hawkins Trust and Gerald H. Hawkins and Carol H. Hawkins Trust, et al., Petitioners v. Deb Haaland, Secretary of the Interior, et al.

No. 21-520

In The

Supreme Court of the United States

____________________

GERALD H. HAWKINS, et al.,

Petitioners,

v.

DEBRA HAALAND, Secretary of the Interior, et al.,

Respondents.

____________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

____________________

BRIEF AMICUS CURIAE OF

OREGON FARM BUREAU

IN SUPPORT OF PETITIONERS

____________________

PAUL J. BEARD II

Counsel of Record

FISHERBROYLES LLP

4470 W. Sunset Blvd.,

Suite 93165

Los Angeles, CA 90027

(818) 216-3988

paul.beard@fisherbroyles.com

Counsel for Amicus Curiae Oregon Farm Bureau

i

Question Presented

The United States is the owner of certain

instream water rights within Oregon’s Upper

Klamath Basin. The federal government holds these

water rights in trust for the benefit of the Klamath

Indian Tribes. In 2013, the Tribes and the federal

government entered into a Protocol Agreement, which

establishes a process by which “calls” for the

implementation of the water rights are to be placed

with Oregon’s Water Resources Department. Among

other things, the Protocol provides that, if “the Parties

cannot agree on whether to make a call, either Party

may independently make a call and the other party

will not withhold any required concurrence or object

to the call[.]”

The D.C. Circuit held below that Petitioners—a

group of landowners and livestock producers whose

lands and businesses have been devastated by the

Protocol-authorized implementation of the Tribes’

instream water rights—lack standing to challenge the

Protocol. Regardless of the Protocol, the D.C. Circuit

reasoned, the federal government has no authority to

countermand the Tribes’ preferred management of

trust assets. In so holding, the D.C. Circuit parted

company with decisions of this Court, as well as of

other circuit courts, which have repeatedly affirmed

the federal government’s paramount authority in

managing Indian trust property.

The question presented is:

Does the federal government possess final

decision-making authority over the management of

water rights held in trust for an Indian tribe?

ii

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE ........................... 1

SUMMARY OF THE ARGUMENT .......................... 3

ARGUMENT ............................................................... 5

I.

THE D.C. CIRCUIT’S DECISION IS IN

TENSION WITH OREGON SUPREME

COURT JURISPRUDENCE CONCERNING

THE OWNERSHIP ANDMANAGEMEN OF

WATER RIGHTS HELD IN TRUST ........... 5

II. THE D.C. CIRCUIT’S DECISION CONFLICTS

WITH THE FEDERAL POLICY OF

ENSURING

THE

INDIAN

TRUST

RELATIONSHIP SERVES, NOT JUST THE

INDIAN TRIBES, BUT THE GENERA

PUBLIC INTEREST .................................. 11

A. Drought Conditions and Federally

Unhampered Water Calls in the Klamath

Basin Have Taken a Heavy Toll on the

General Public, Including Ranchers,

Farmers, and Other Households ................ 11

B. The D.C. Circuit’s Decision Authorizes the

Federal Government to Ignore Its Role To

Avoid Public Harms Resulting from

Unfettered Water Calls Made by the

Klamath Tribes ......................................... …17

CONCLUSION.......................................................... 21

iii

Table of Authorities

Cases

Akhmetshin v. Browder,

983 F.3d 542 (D.C. Cir. 2020) ........................... 10

Allen v. Hendrick,

206 P. 733 (Or. 1922) ........................................... 6

Audubon Soc’y of Portland v. Zinke,

2019 U.S. Dist. LEXIS 230161 (D. Or.

Nov. 18, 2019) ...................................................... 1

Arkansas Project v. Shaw,

835 F.Supp.2d 251 (S.D. Tex. 2011).................... 1

Choctaw Nation v. United States,

119 U.S. 1 (1886) ............................................... 19

Cobell v. Norton,

240 F.3d 1084 (D.C. Cir. 2001) ........................... 9

Colorado River Water Conserv. Dist. v. U.S.,

424 U.S. 800 (1976) ............................................. 1

Fort Vannoy Irrig. Dist. v. Wat. Res.

Comm’n,

199 P.3d 277 (Or. 2008) ............................. passim

Hawkins v. Haaland,

991 F.3d 216 (D.C. Cir. 2021) ............................. 2

Klamath Irrig. Dist. v. United States,

635 F.3d 505 (Fed. Cir. 2011) .............................. 2

iv

McKesson v. Doe,

141 S. Ct. 48 (2020) ........................................... 10

United States v. Davis,

139 S. Ct. 2319 (2019) ....................................... 18

United States v. Minnesota,

270 U.S. 181 (1926) ........................................... 18

Stop the Dump Coal. v. Yamhill Cty.,

435 P.3d 698 (Or. 2019) ....................................... 1

United States v. Jicarilla Apache Nation,

564 U.S. 162 (2011) ......................................17-19

United States v. Oregon, Water Resources

Dep’t,

44 F.3d 758 (9th Cir. 1994) ................................. 6

United States v. Rickert,

188 U.S. 432 (1903) ........................................... 19

United States v. Term Limits v. Thornton,

514 U.S. 779 (1995) ........................................... 18

Statutes

Or. Rev. Stat. §§ 130.001, et seq. ............................. 9

Or. Rev. Stat. §§ 130.025 .......................................... 9

Regulations

Or. Exec. Order No. 20-02 (Mar. 2, 2020) .............. 12

v

Other Authorities

Amos, Adell Louise, Developing the Law of

the River: The Integration of Law and

Policy into Hydrologic and SocioEconomic Modeling Efforts in the

Willamette River Basin,

62 U. Kan. L. Rev. 1091 (2014) ........................... 5

Benson, Reed D., Giving Suckers (and

Salmon) an Even Break: Klamath Water

and the Endangered Species Act,

15 Tul. Envtl. L.J. 197 (2002) ........................... 16

Cloran, William F., The Ownership of Water

in Oregon: Public Property vs. Private

Commodity,

47 Willamette L. Rev. 627 (2011) ................... 5-6

Cooper, Mary Anne, Assessing Western

Drought Conditions—Natural Disasters

Compound Severe Drought for Oregon

Farmers and Ranchers,

Oregon Farm Bureau,

https://bit.ly/3GZi9YH ..................................13-14

1 Cohen’s Handbook of Federal Indian Law,

§ 5.05[2] ................................................................ 9

Ehrlich, April, Homes Lose Running Water

in Klamath Basin As Houses Compete

with Farmers, Ranchers,

Oregon Public Broadcasting (Apr. 24,

2016)..............................................................15-16

vi

Kaye, Barry, How a Historic Drought Has

Left Klamath Basin Farmers Caught in

the Middle with No Water,

The Siskiyou Daily News,

https://bit.ly/3k4RZtA (May 14, 2021) .............. 16

Klamath County, Drought,

https://bit.ly/3BUcCyR ...................................... 12

Klamath County, Frequently Asked

Questions: Free Water Storage Tanks,

Water Filling Station and Water Deliver

in Response to Dry Wells in Klamath

County, Oregon, https://bit.ly/3CIHOlP ............ 15

Oregon Wild, A Vision for the Klamath

Basin, https://bit.ly/2ZMx7jq ............................ 12

Parks, Bradley, Bureau of Reclamation

Shuts Down Primary Canal for Klamath

Project Irrigators Amid Worsening

Drought,

Oregon Public Broadcasting (May 12,

2021)................................................................... 13

Spain, Glen, Dams, Water Reforms, and

Endangered Species in the Klamath

Basin,

22 J. Envtl. L. & Litig. 49 (2007) ...................... 16

U.S. Bureau of Reclamation, Extreme

Drought Conditions Force Closure of

Klamath Project’s “A” Canal,

https://on.doi.gov/3wdr0kd ................................ 12

vii

Restatement (Third) of Trusts, § 859 ................... 7-8

1

INTEREST OF AMICUS CURIAE

Oregon Farm Bureau (“OFB”)1 is Oregon’s

largest

grassroots

agriculture

association,

representing over 6,670 farming and ranching

families, raising over 220 different types of crops and

livestock across the State. OFB’s mission is to promote

educational improvement, economic opportunity, and

social advancement for its members and the farming,

ranching, and natural resources industry as a whole.

The OFB has participated as amicus curiae in state

and federal cases across the country that implicate the

interests of Oregon farmers and ranchers. See, e.g.,

Audubon Soc’y of Portland v. Zinke, 2019 U.S. Dist.

LEXIS 230161 (D. Or. Nov. 18, 2019); Aransas Project

v. Shaw, 835 F.Supp.2d 251 (S.D. Tex. 2011); Stop the

Dump Coal. v. Yamhill Cty., 435 P.3d 698 (Or. 2019).

OFB’s interest lies in the broader consequences of

the D.C. Circuit’s decision, which upends the State’s

comprehensive “system for the adjudication and

management of rights to the use of the State’s waters.”

Colorado River Water Conserv. Dist. v. United States,

424 U.S. 800, 819 (1976). The decision below does this

by effectively creating two classes of water users

whose water rights are held in trust by third parties.

One class is subject to the Oregon rule that the trustee

of a water right, as its legal owner, is solely

1 All counsel of record for the parties in this case received timely

notice of, and provided written consent to, the filing of this brief.

No party or counsel for any party authored this brief in whole or

in part, and no party or counsel for any party made a monetary

contribution towards the preparation or submission. No person

other than amici, their members or counsel made a monetary

contribution towards the preparation or submission of this brief.

2

responsible for managing that water right. Fort

Vannoy Irrig. Dist. v. Wat. Res. Comm’n, 188 P.3d 277,

295 (Or. 2008); see Klamath Irrig. Dist. v. United

States, 635 F.3d 505, 518 (Fed. Cir. 2011). Meanwhile,

another class of water users is exempt from the

Oregon rule and may independently call for the

implementation of a water right legally owned by a

third party, even over the legal owner’s objection.

Hawkins v. Haaland, 991 F.3d 216, 225, 231 (D.C. Cir.

2021).

In addition, OFB has an interest in ensuring that

the federal government is held to its congressionally

imposed obligation to ensure that, as trustee of the

Klamath Tribes’ water rights, the general public

interest—including the interests of farmers, ranchers,

and other residents—is acknowledged and adequately

protected.

If the D.C. Circuit’s decision stands, it will only

inject confusion and unfairness into Oregon’s wellestablished system for managing and implementing

water rights. And it will do so at the worst possible

time—during a state of emergency related to severe

drought in the Klamath Basin. The Court should

decide whether the same rule should apply to all

Oregon water held in trust, as required by Oregon

Supreme Court decisions, and whether the federal

government’s role as guardian of the general public

interest should be restored when it acts as trustee of

tribal assets. OFB has a keen interest in ensuring that

its many members, who are Oregon water users both

in and outside the Upper Klamath Basin, are all able

to farm, ranch, and support the wildlife on their lands

3

through a framework that is uniform, consistent,

predictable, and fair.

Finally, while OFB acknowledges and respects

the sovereign rights of the Klamath Tribes as a

governmental entity, OFB supports the efforts of the

water users in this case—including individual farmers

who belong to the Klamath Tribes—to vindicate their

irrigation rights. Further, OFB members strongly

support the prior appropriations doctrine, and have

been working closely with the tribes, environmental

groups, and all water users in the Klamath Basin to

resolve the long-standing water conflicts in the

Klamath Basin. OFB members are aware of and

sensitive to the many broken promises that the

federal government has made to the tribes over the

years. The issues in the Klamath Basin largely stem

from the federal government promising the same

resources to multiple parties. Many of OFB’s farmers

in the basin received their land as part of the G.I bill,

and have worked across multiple generations to make

it productive. This is why OFB members are

participating in processes to try to resolve these longstanding challenges in the basin. One of the biggest

challenges facing the basin is that the Klamath Tribes

did not come “online” as senior water rights holders in

the basin until 2013—and their water rights and other

pre-1909 water rights are still under adjudication in

the courts.

SUMMARY OF THE ARGUMENT

This brief highlights two reasons why the Court

should grant review in addition to those that the

petition identifies.

4

First, the D.C. Circuit’s decision is in tension with

the decisions of the Oregon Supreme Court that

govern rights to Oregon water held in trust.

Significantly, the Oregon Supreme Court has held

that the beneficiary of trust property—here, the

Klamath Tribes—may not manage said property,

which is the prerogative and duty of the trustee—

here, the federal government. Fort Vannoy, 188 P.3d

at 295-96. Thus, in addition to creating conflicts with

decisions of this Court and federal circuit courts, the

D.C. Circuit’s decision parts ways with Oregon court

precedents.

Second, the D.C. Circuit’s decision effectively

relieves the federal government of its congressionally

mandated obligation—under the Indian trust

relationship—to consider the general public interest

in managing Indian trust assets, such as water rights.

The decision authorizes the federal government to

stand by, powerless, as the Klamath Tribes make

consequential decisions for an entire region—based on

totally unmanaged water calls—without any

consideration of the dire impacts on the general

populace. The Klamath Basin and its tribal and

nontribal farmers, ranchers, and residents have been

devastated by drought. The ecosystem, too, has

suffered from inadequate water. Life-altering

decisions about Indian trust assets normally are made

in coordination with the federal government, as

representative of the general public interest. The

Court should review the lower court’s decision to

determine whether the D.C. Circuit decision conflicts

with well-established federal law concerning the

Indian trust relationship, which serves, not just the

5

interests of tribal governments, but those of the

Nation and its people as a whole.

For these reasons, and those stated in the

petition, OFB urges the Court to grant review.

ARGUMENT

I.

The D.C. Circuit’s Decision Is in Tension

with

Oregon

Supreme

Court

Jurisprudence

Concerning

the

Ownership and Management of Water

Rights Held in Trust

Beyond the federal conflicts discussed in the

petition, the D.C. Circuit’s decision also is in tension

with Oregon Supreme Court decisions concerning

trust rights to state waters. Fort Vannoy, 188 P.3d at

295 (Or. 2008).

“Water law is a creature of state law.” Adell

Louise Amos, Developing the Law of the River: The

Integration of Law and Policy into Hydrologic and

Socio-Economic Modeling Efforts in the Willamette

River Basin, 62 U. Kan. L. Rev. 1091, 1101 (2014).

That is because “[a]ll water within the state from all

sources of water supply belongs to the public.” See Or.

Rev. Stat. § 537.110. In service of that principle, the

Oregon Water Resources Department has extensive

rules and procedures for allocating water resources

through the permitting process. See generally Or.

Admin. R. 690 (2021). Oregon’s surface waters are

extensively regulated pursuant to “both the public

trust and the police power” of the State. William F.

Cloran, The Ownership of Water in Oregon: Public

Property vs. Private Commodity, 47 Willamette L.

6

Rev. 627, 648 (2011) (discussing state ownership of

water). In Oregon, adjudication and management of

water rights have long been subject to a robust and

comprehensive system of rules and regulations. See,

e.g., United States v. Oregon, Water Resources Dep’t,

44 F.3d 758, 766-67 (9th Cir. 1994). As the Ninth

Circuit has observed, “Oregon’s system” has long been

“firmly established” and even “duplicated in Arizona,

California, and Nevada.” Id. at 767.

As is relevant here, Oregon law also governs

rights to state water held in trust. This general

principle was confirmed in a 2008 decision of the

Oregon Supreme Court. In Fort Vannoy, 188 P.3d at

295, the Court considered whether the beneficiary of

a water right held in trust by a third-party could

manage that water right. The trustee with the legal

title to the water right was an irrigation district. The

beneficiaries with an equitable interest in the water

right—the right to use the trust corpus, i.e., the

water—were the district’s members. Id.

Answering the question in the negative, the

Court drew on Oregon trust law to define the nature

and scope of the trust relationship. Id. at 295-96. The

Court cited an early Oregon Supreme Court opinion,

which established that “[a] trust implies two

estates”—“one legal, and the other equitable.” Id. at

295 (quoting Allen v. Hendrick, 206 P. 733, 740 (Or.

1922) (internal citation marks omitted)). As the Allen

Court explained, the trust “also implies that legal title

is held by one person, the trustee, while another

person, the cestui que trust, has the beneficial

interest.” Allen, 206 P. at 740. The Court in Fort

Vannoy concluded:

7

The existence of the trust relationship

bifurcates the ownership interest in each

certificated water right. The [irrigation]

district holds legal title to the water right

as trustee, and the members hold

equitable title as the beneficiaries.

Acting in a fiduciary capacity, the

district’s duties as trustee include

management of the water right and

the water that it provides, and the

members enjoy the use of that water as

their beneficial interest.

Fort Vannoy, 188 P.3d at 295 (emphasis added).

Importantly, the Fort Vannoy Court held that it

would “run afoul of the trust relationship” under

Oregon trust law to “permit[] a beneficiary to manage

the trust property.” Fort Vannoy, 188 P.3d at 296.

Indeed, the notion that the trustee, as legal owner,

manages and controls the trust corpus to the exclusion

of the beneficiary is all but inherent in a trust

relationship and represents the general national

consensus. As the Restatement (3d) of Trusts states:

In administering a trust, the trustee has,

except as limited by statute or the terms

of the trust, (a) all of the powers over

trust property that a legally competent,

unmarried individual has with respect to

individually owned property, as well as

(b) powers granted by statute or the

terms of the trust and (c) powers

specifically

applicable

to

trust

administration that are recognized in

other Sections of this Restatement.

8

Restatement (Third) of Trusts, § 859(1); see id., cmt.

on subsection 1 (“[T]he powers allowed to trustees

have gradually, rather steadily, expanded through

judicial decisions and legislation and also through the

drafting practices of experienced lawyer.”).

The principle articulated in Fort Vannoy applies

with equal force here: Acting through Respondents,

the United States is the legal owner of a water right

held in trust for the benefit of a tribal government, the

Klamath Tribes. As legal owner, the United States is

the sole manager of that water right under Oregon

trust principles. Therefore, the tribal government may

not independently make calls on its instream water

right absent federal concurrence.

The D.C. Circuit rejected that argument,

parting ways with Oregon Supreme Court decisions

pertaining to Oregon water rights held in trust. App.

A-21 (“[T]he Tribes were free to make calls in the

exercise of their treaty rights.”). But tellingly, it did

not do so on the grounds that federal law requires that

a tribal-government beneficiary be permitted to

manage a water right legally owned by the United

States. Rather, the lower court rejected the argument

because it did not view Fort Vannoy as relevant to the

trust relationship between the United States and the

tribal government App. A-23—24 (discussing Fort

Vannoy).

The D.C. Circuit’s analysis misunderstood the

role that State law plays in ascertaining the rights

and obligations inherent in trusts—even a federally

created trust where federal law is silent. As Cohen’s

Handbook of Federal Indian Law explains, in relevant

part:

9

Private trust law principles are most

often invoked in controversies involving

direct management of tribal resources

and funds. In these situations, the

government’s role is most akin2 to that of

a private fiduciary, and the common law

of trusts provides a rich source of norms

governing the basic duties of a trustee.

Trust law treatises, the Restatement of

Trusts, and state and federal trust law

opinions are invoked as guides to

determine the scope of enforceable

fiduciary duties.

1 Cohen’s Handbook of Federal Indian Law § 5.05[2].

There may be instances when federal law

speaks to the rights and obligations under a federally

created trust. But even when “the general ‘contours’ of

the [federal] government’s obligations may be defined

by statute,” “the interstices must be filled in through

reference to general trust law”—as supplied by state

law and state supreme courts interpreting that law.

Cobell v. Norton, 240 F.3d 1081, 1101 (D.C. Cir. 2001)

(emphasis added). In this case, that “general trust

law” includes the Oregon Uniform Trust Code, as well

as Oregon common law. Or. Rev. Stat. §§ 130.001 et

seq.; see also id. § 130.025 (“The common law of trusts

and principles of equity supplement this chapter,

except to the extent modified by this chapter or other

law.”).

While there are similarities between a private trust

relationship and the Indian trust relationship, the comparison is

not exact, as explained in Part II.B, infra.

2

10

Again, the D.C. Circuit decision cites no federal

law that directly answers the dispositive question

whether the Klamath Tribes may independently

manage a water right legally owned by the federal

government. As noted above, the court seemed to cast

aside Fort Vannoy and other Oregon precedents,

instead speculating (again, based on no specific

federal or state law on point) that the Klamath Tribes,

as trust beneficiary, had somehow been conferred a

power normally reserved to the United States as the

legal owner of the trust corpus. The court did not

adequately address whether Oregon trust law, as

interpreted by the Oregon Supreme Court, supports a

federal

concurrence

requirement

in

these

circumstances. Akhmetshin v. Browder, 983 F.3d 542,

558, 561 (D.C. Cir. 2020) (Tatel, J., dissenting) (“The

Supreme Court recently warned federal courts

against ‘[s]peculat[ing]’ about ‘novel issues of state

law peculiarly calling for the exercise of judgment by

the state courts.’” (quoting McKesson v. Doe, 141 S. Ct.

48, 51 (2020)).

The tension that the D.C. Circuit’s decision

creates with Oregon Supreme Court cases erodes the

predictability, certainty and basic fairness that all

water uses expect in the management of the State’s

water rights. If the D.C. Circuit decision stands

unreviewed, it will create a two-tier system for

management of water rights in Oregon. On the one

hand, some beneficiaries of a water right held in trust

by a third party—including many individual tribal

members—will continue to be subject to the rule

announced in Fort Vannoy, which places control of the

water right firmly in the hands of the third party. On

the other hand, the Klamath Tribes, as the beneficiary

11

of a water right legally owned by the federal

government, will be entitled to a special rule—created

by the D.C. Circuit opinion—that allows it to

independently manage the water right.

Significantly, Oregon is home to unadjudicated

water rights in other basins claimed by tribal

governments. The lower court’s decision will also

entitle those tribal governments, once their rights are

adjudicated, to the same special rule allowing them to

manage water rights owned by the federal

government. Thus, Oregon water users now are faced

with two decisions in fundamental conflict with each

other—Fort Vannoy and the D.C. Circuit decision—

with water users subject to the former at a significant

disadvantage vis-à-vis those subject to the latter.

Again, the two-tier system that the D.C. Circuit

decision endorses is not based on Oregon law; in fact,

it appears to be based on no discernible legal

authority, state or federal. This Court’s review is

necessary to resolve this tension between a federal

court of appeals decision and the jurisprudence of a

State court.

II.

The D.C. Circuit Court’s Decision

Conflicts with the Federal Policy of

Ensuring the Indian Trust Relationship

Serves, Not Just the Indian Tribes, But the

General Public Interest

A. Drought

Conditions

and

Federally

Unhampered Water Calls in the Klamath

Basin Have Taken a Heavy Toll on the

General Public, Including Ranchers,

Farmers, and Other Households

12

Considered “one of the most ecologically

important watersheds in the United States,” the

Klamath Basin is and historically has been in severe

drought. Oregon Wild, A Vision for the Klamath

Basin, https://bit.ly/2ZMx7jq (last visited on Nov. 3,

2021). The basin contains most of Klamath County,

which has “declared disaster for drought more than

any other county in the state” and has therefore been

“a major concern for residents of the county.” Klamath

County, Oregon, Drought, https://bit.ly/3BUcCyR (last

visited Nov. 3, 2021). In the latest example of the

area’s perennial drought conditions, in March 2021,

the Governor of Oregon determined there was a state

of drought emergency in Klamath County, finding

that:

Extreme low water supply conditions

have caused natural and economic

disaster conditions in Klamath County,

resulting in a severe, continuing drought

emergency in that county during 2020. .

. . These conditions have had significant

economic impact on the agriculture and

livestock industries in Klamath County.

Or. Exec. Order No. 20-02 (Mar. 2, 2020).3

The Governor’s emergency declaration was

followed by the United States Bureau of Reclamation’s

announcement in May 2021 that the Klamath

Project—a water-management project developed by

Available at https://bit.ly/3EEWV04 (last visited on Nov. 3,

2021).

3

13

the federal government to supply farmers with

irrigation water in the Klamath Basin—would receive

no water deliveries for the first time since the project’s

creation in 1907. United States Bureau of

Reclamation, Extreme Drought Conditions Force

Closure

of

Klamath

Project’s

“A”

Canal,

https://on.doi.gov/3wdr0kd (May 12, 2021); see also

Bradley W. Parks, Bureau of Reclamation Shuts

Down Primary Canal for Klamath Project Irrigators

Amid

Worsening

Drought,

Oregon

Public

Broadcasting (May 12, 2021) (reporting that the

“decision will leave Klamath Project irrigators with no

water for the season as this year’s historic drought

deepens”).4

Needless to say, the region’s farmers and

ranchers have been ravaged by this state of affairs.

Mary Anne Cooper, Assessing Western Drought

Conditions—Natural Disasters Compound Severe

Drought for Oregon Farmers and Ranchers, Oregon

Farm Bureau, https://bit.ly/3GZi9YH (Sept. 2, 2021).

As amicus curiae Oregon Farm Bureau recently

reported:

[T]he Klamath Project delivers water to

nearly a quarter of a million acres of

productive farmland and two refuges

that are critical stops for migratory birds

on the Pacific Flyway. Years of

unseasonably dry conditions paired with

restrictions under the Endangered

Species Act left hundreds of farmers

4 Available at https://bit.ly/2ZMruBN (last visited on Nov. 3,

2021).

14

without irrigation water. While some

farmers in the basin were able to turn to

groundwater to irrigate a portion of their

property, many were left with nothing

this season.

Id.

The impacts of drought in the Klamath Basin

have reverberated throughout Oregon, one of the most

agriculturally diverse States in the country. Oregon

produces over 225 agricultural commodities, with

farm-level agricultural receipts contributing “more

than $5 billion to Oregon’s economy with an estimated

total added value of $28 billion when accounting for

total supply chain benefits.” Id. Oregon “ranks first in

the nation for hazelnuts, Christmas trees and many

grass and specialty seeds.” Id. And, “[w]hile Oregon’s

top commodities are nursery stock ($1.7 billion), cattle

and calves ($736 million), dairy ($547 million) and hay

($378 million), Oregon is best known for its specialty

crops, like grass seed for golf courses and lawns, and

cover crop seed, carrot seed, sugar beet seed and

several other specialty seed crops.” Id. “Oregon is also

known for hazelnuts, fruit, berries and vegetables.”

And “[p]roving that happy cows don’t always come

from California, Oregon is home to the iconic

Tillamook Creamery, a farmer-owned cooperative

known worldwide for its cheese, ice cream and other

dairy products.” Id.

In sum, drought conditions have put the

region’s and State’s farming and agricultural industry

in peril.

15

Extreme drought conditions in the Klamath

Basin have impacted, not just farmers and ranchers

whose livelihoods depend on water, but nonagricultural homeowners, too. “Exceptional drought

conditions” have so affected the Klamath Basin that

many domestic wells “have received less recharge

than normal resulting in an unprecedented number of

domestic wells going dry or producing less water than

is needed.” Klamath County, Oregon, Frequently

Asked Questions: Free Water Storage Tanks, Water

Filling Station and Water Delivery in Response to Dry

Wells

in

Klamath

County,

Oregon,

https://bit.ly/3CIHOlP (Updated 7/27/21). The drought

emergency has required, among other things, state

and local agencies to mobilize to offer affected

households free water-filling stations, free water

storage tanks, and even direct water delivery, with

severe restrictions on how such water can be used. Id.

Drought conditions are unlike anything anyone in the

basin has seen in many years.

With farmers, ranchers, and households all

competing for limited water resources, social conflict

has grown. With water cut-offs—from tribal calls and

a cessation of water deliveries from the Klamath

Project—desperate farmers and ranchers have had to

pump water from underground to support their

livelihoods, and help feed the region’s and the State’s

residents. Those measures have has caused some to

struggle. One resident reported: “I have no water . . . .

I can’t take a bath. I can’t clean my house. I can’t cook.

And now my well is probably not going to work.” April

Ehrlich, Homes Lose Running Water in Klamath

Basin As Houses Compete with Farmers, Ranchers,

16

Oregon Public Broadcasting, https://bit.ly/2ZPUSXI

(April 24, 2016).

These conflicts come as no surprise. As one

commentator aptly described it, the Klamath Basin is

an area “where water is the limiting factor for so many

species as well as for most human development,” and

“water conflicts are nothing new.” Glen Spain, Dams,

Water Reforms, and Endangered Species in the

Klamath Basin, 22 J. Envtl. L. & Litig. 49, 53 (2007).

Then there are the flora and fauna in the

Klamath Basin, which have also been hit hard by the

region’s recurring drought problems. The basin has

refuges with, among other environmental features,

wetlands that have lacked “a reliable water supply.”

Reed D. Benson, Giving Suckers (and Salmon) an

Even Break: Klamath Water and the Endangered

Species Act, 15 Tul. Envtl. L.J. 197, 205 (2002). The

basin is also home to “many native fish and wildlife

species” that “are in serious trouble” because of “too

little water and” and “poor water quality.” Id. at 200.

Gone, too, is the rural way of life: “With little water

filling the canals or crops in the ground also largely

missing are the sounds of rural life, from tree frogs to

red-winged black birds to the methodical hum of

wheel line irrigation equipment.” Barry Kaye, How a

Historic Drought Has Left Klamath Basin Farmers

Caught in the Middle with No Water, The Siskiyou

Daily News, https://bit.ly/3k4RZtA (May 14, 2021).

17

B. The D.C. Circuit’s Decision Authorizes the

Federal Government to Ignore Its Role To

Avoid Public Harms Resulting from

Unfettered Water Calls Made by the

Klamath Tribes

The D.C. Circuit’s decision only exacerbates the

above-described harms already suffered by tribal and

nontribal farmers, ranchers, and households

generally who depend on access to water to sustain

their lives and livelihoods. The decision does so by

holding that the federal government is powerless to

exercise any management authority over Klamath

Tribes’ water calls. If the federal government

exercised the authority its trust ownership implies,

including in the context of the Indian trust

relationship, the federal government would be forced

to independently evaluate the Klamath Tribes’ water

calls against impacts to the public interest. The

Indian trust relationship requires the federal

government’s independent evaluation of such a call’s

effect on farmers, ranchers and residents in the

Klamath Basin.

In many of its decisions, this Court has

affirmed the nature and scope of the Indian trust

relationship as it pertains to trust assets, highlighting

the dual purposes that inform that relationship as

regulated by Congress.

“[T]he relationship between the United States

and the Indian tribes is distinctive”— “different from

that existing between individuals whether dealing at

arm’s length, as trustees and beneficiaries, or

otherwise.” United States v. Jicarilla Apache Nation,

18

564 U.S. 162 (2011) (internal citation and quotation

marks omitted). Significantly, in the Indian trust

relationship, “the organization and management of

the trust is a sovereign function subject to the

plenary authority of Congress,” as representative

of the people. Jicarilla, 564 U.S. at 175 (emphasis

added); see also United States Term Limits v.

Thornton, 514 U.S. 779, 803 (1995) (“In that National

Government, representatives owe primary allegiance

. . . to the people of the Nation.”); United States v.

Davis, 139 S. Ct. 2319, 2323 (2019) (referring to “the

people’s elected representatives in Congress’). As a

consequence, the federal government, as a sovereign,

“has a real and direct interest”—independent of the

tribe’s—in the management of trust assets. United

States v. Minnesota, 270 U.S. 181, 194 (1926). The

“trust relationship” has been “designed . . . to serve the

interests of the United States as well as to benefit the

Indian Tribes.” Jicarilla, 564 U.S. at 180. “The United

States has a sovereign interest in the administration

of Indian trusts distinct from the private interests of

those who may benefit from its administration.” Id.

181. This becomes especially important where there

are conflicting interests:

[W]hen multiple interests are involved

in a trust relationship, the equivalence

between the interests of the beneficiary

and the trustee breaks down. That

principle applies with particular force to

the Government. Because of the multiple

interests it must represent, the

Government cannot follow the fastidious

standards of a private fiduciary, who

would breach his duties to his single

19

beneficiary solely by representing

potentially conflicting interests without

the beneficiary’s consent. . . [T]he

Government may be obliged to

balance competing interests when it

administers a tribal trust.

Id. at 182 (internal citations and quotation marks

omitted) (emphasis added).

It stands to reason that, in resolving competing

interests in the administration of trust assets like

water rights, the federal government would

adequately consider and safeguard the general public

interest. See United States v. Rickert, 188 U.S. 432,

443 (1903) (trust relationship “authorizes the

adoption on the part of the United States of such

policy as their own public interests may dictate”

(quoting Choctaw Nation v. United States, 119 U.S. 1,

28 (1886))).

Here, administration of Klamath Tribes’

instream water rights requires a balancing of

competing interests, including those of tribal and

nontribal farmers, ranchers, and residents of the

basin who require water. Acknowledgment of its role

as the guardian of the general public interest would

require the federal government to consider the effects

of water calls on the general public interest. In

deciding whether to concur in a call, the federal

government would be forced to consider, not just the

Klamath Tribes’ private interests, but the public

impacts of that call on the economic, social, and

environmental well-being of other members of the

public. That approach is consistent with the federal

20

mandate that the Indian trust relationship serves a

dual purpose: promoting the tribe’s interests and the

federal government’s independent obligation to

safeguard the public interest.

With the D.C. Circuit’s opinion, the Indian

trust relationship serves only the interests of the

tribal government. The federal government is

rendered impotent over the call process, allowing the

Klamath Tribes to make critical decisions without

regard to the public interest, resulting in untold

impacts on the lives and livelihoods of an entire

region. Thus, in addition to the federal and state-court

conflicts the D.C. Circuit decision creates, the decision

also conflicts with the principles that undergird the

Indian trust relationship, as interpreted by this

Court.5

5 It should also be noted that the Klamath Tribes receive the

benefit of federal resources, attorneys, and the power of the

federal government in developing their claims to instream water

rights. It stands to reason that those same federal resources—

through the voice of the federal government—should also be

involved in the water rights’ implementation, and that the

federal government be precluded from waiving its duty to

manage those water rights in service, not just of the tribal

government, but of the general public interest as well.

21

CONCLUSION

For these reasons, and those stated in the

petition, the petition should be granted.

DATED: November 2021

Respectfully submitted,

PAUL J. BEARD II

Counsel of Record

FisherBroyles LLP

4470 W. Sunset Blvd.

Suite 93165

Los Angeles, CA 90027

(818) 216-3988

Counsel for Amicus Curiae

Oregon Farm Bureau