Petition for Writ of Certiorari — Department of the Interior, et al., Petitioners v. Navajo Nation, et al.

Supreme Court briefJul 15, 2022

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No.

In the Supreme Court of the United States

DEPARTMENT OF THE INTERIOR, ET AL., PETITIONERS

NAVAJO NATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

TODD KIM

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

FREDERICK LIU

Assistant to the Solicitor

General

WILLIAM B. LAZARUS

JOHN L. SMELTZER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the federal government owes the Navajo

Nation an affirmative, judicially enforceable fiduciary

duty to assess and address the Navajo Nation’s need for

water from particular sources, in the absence of any

substantive source of law that expressly establishes

such a duty.

(I)

PARTIES TO THE PROCEEDING

Petitioners United States Department of the Interior; Deb Haaland, Secretary of the Interior; United

States Bureau of Reclamation; and Bureau of Indian Affairs were defendants in the district court and appellants in the court of appeals.

Respondent Navajo Nation was the plaintiff in the

district court and the appellant in the court of appeals.

Respondents 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, and

State of Colorado were intervenor-defendants in the

district court and appellees in the court of appeals.

RELATED PROCEEDINGS

United States District Court (D. Ariz.):

Navajo Nation v. Department of the Interior, No. 03cv-507 (Aug. 23, 2019)

United States Court of Appeals (9th Cir.):

Navajo Nation v. Department of the Interior, No. 1416864 (Dec. 4, 2017)

Navajo Nation v. Department of the Interior, No.

19-17088 (Feb. 17, 2022)

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 2

Treaty provisions involved ........................................................... 2

Statement:

A. Factual and legal background ........................................ 2

B. Procedural history ........................................................... 9

Reasons for granting the petition ............................................. 14

A. The court of appeals’ decision conflicts with this

Court’s precedents......................................................... 15

B. The court of appeals’ decision conflicts with the

decisions of other circuits on an important question

of federal law .................................................................. 23

Conclusion ................................................................................... 26

Appendix A — Court of appeals order and amended

opinion (Apr. 28, 2021) ................................ 1a

Appendix B — Court of appeals opinion (Aug. 23, 2019).... 36a

Appendix C — District court order (Aug. 23, 2019) ............ 37a

Appendix D — District court order (Dec. 11, 2018) ............ 54a

Appendix E — Court of appeals opinion (Dec. 4, 2017) ...... 66a

Appendix F — District court order (July 22, 2014) .......... 115a

Appendix G — Treaty (Aug. 12, 1868) ................................ 137a

Appendix H — Map from federal appellees’ petition for

rehearing en banc .................................... 150a

TABLE OF AUTHORITIES

Cases:

Arizona v. California:

373 U.S. 546 (1963) ............................................ 2, 3, 4, 5, 6

376 U.S. 340 (1964) ............................................................ 6

547 U.S. 150 (2006) ............................................................ 6

Cappaert v. United States, 426 U.S. 128 (1976).............. 4, 19

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) ....... 16

(III)

Cases—Continued:

Page

El Paso Natural Gas Co. v. United States,

750 F.3d 863 (D.C. Cir. 2014) ....................................... 23

Flute v. United States, 808 F.3d 1234 (2015),

cert. denied, 137 S. Ct. 146 (2016)...........................23, 24

Norton v. Southwestern Utah Wilderness Alliance,

542 U.S. 55 (2004) ............................................................... 19

Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476

(D.C. Cir. 1995) ................................................................... 23

State Engineer v. United States, 425 P.3d 723

(N.M. Ct. App. 2018)............................................................. 7

United States v. Jicarilla Apache Nation,

564 U.S. 162 (2011)..................................................... passim

United States v. Mitchell:

445 U.S. 535 (1980) ........................................ 13, 15, 22, 24

463 U.S. 206 (1983) .................................................... 15, 24

United States v. Navajo Nation,

537 U.S. 488 (2003)............................................ 15, 16, 22, 24

556 U.S. 287 (2009) ................................................. passim

United States v. White Mountain Apache Tribe,

537 U.S. 465 (2003).................................................. 15, 21, 24

Winters v. United States, 207 U.S. 564 (1908) ................ 4, 14

Constitution, treaties, statutes, and regulations:

U.S. Const. Art. III ............................................................... 10

Treaty Between the United States of America and

the Navajo Tribe of Indians, June 1, 1868,

15 Stat. 667 .................................................................. 3, 137a

art. II, 15 Stat. 668 .................................................. 3, 139a

arts. V, VII, 15 Stat. 668-669 .......................20, 140a, 142a

art. XIII, 15 Stat. 671 .............................................. 3, 146a

Act of Aug. 19, 1921, ch. 72, § 1, 42 Stat. 172 ........................ 3

Statutes and regulations—Continued:

Page

Administrative Procedure Act, 5 U.S.C. 551 et seq.:

5 U.S.C. 702 ...................................................................... 10

5 U.S.C. 706(1) ................................................................. 19

Arizona Water Settlements Act, Pub. L. No. 108-451,

118 Stat. 3478 ........................................................................ 8

Tit. I:

§ 104(a)(1), 118 Stat. 3487 ................................................. 8

§ 104(a)(1)(B)(ii), 118 Stat. 3487 ....................................... 9

Boulder Canyon Project Act,

ch. 42, 45 Stat. 1057 .............................................................. 3

Consolidated Appropriations Act, 2021, Pub. L. No.

116-260, Div. FF, tit. XI, 134 Stat. 1182:

§ 1102(c), 134 Stat. 3226 .................................................... 8

§ 1102(f ), 134 Stat. 3230 .................................................... 8

§ 1102(g), 134 Stat. 3231 ................................................... 8

National Environmental Policy Act of 1969,

42 U.S.C. 4321 et seq. ............................................................ 9

Northwestern New Mexico Rural Water Projects

Act, Pub. L. No. 111-11, Tit. X, Subtit. B,

§ 10701(a)(1), 123 Stat. 1396 ................................................ 7

§ 10609, 123 Stat. 1395-1396 ............................................. 7

43 U.S.C. 617 ............................................................................ 4

43 U.S.C. 617c .......................................................................... 4

43 U.S.C. 617d .................................................................... 4, 21

43 U.S.C. 1521 .................................................................... 8, 21

43 U.S.C. 1524 ........................................................................ 21

Miscellaneous:

Page

Final Environmental Impact Statement: Colorado

River Interim Guidelines for Lower Basin Shortages and Coordinated Operations for Lake Powell

and Lake Mead (Oct. 2007), https://www.usbr.gov/

lc/region/programs/strategies/FEIS/Chp3.pdf ......... 21, 22

In the Supreme Court of the United States

No.

DEPARTMENT OF THE INTERIOR, ET AL., PETITIONERS

NAVAJO NATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the Department

of the Interior, et al., respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The amended opinion of the court of appeals (App.,

infra, 1a-35a) is reported at 26 F.4th 794. A prior opinion of the court of appeals (App., infra, 66a-114a) is reported at 876 F.3d 1144. The order of the district court

granting the government’s motion to dismiss (App., infra, 115a-136a) is reported at 34 F. Supp. 3d 1019. The

order of the district court denying the Navajo Nation’s

motion for leave to file a third amended complaint

(App., infra, 54a-65a) is not published in the Federal

Supplement but is available at 2018 WL 6506957. The

order of the district court denying the Navajo Nation’s

renewed motion for leave to file a third amended

(1)

complaint (App., infra, 36a-53a) is not published in the

Federal Supplement but is available at 2019 WL

3997370.

JURISDICTION

The judgment of the court of appeals was entered on

February 17, 2022, and petitions for rehearing were denied on the same date (App., infra, 1a-3a). On May 10,

2022, Justice Kagan extended the time within which to

file a petition for a writ of certiorari to and including

June 17, 2022. On June 8, 2022, Justice Kagan further

extended the time to and including July 15, 2022. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

TREATY PROVISIONS INVOLVED

Pertinent treaty provisions are reproduced in an appendix to this petition. App., infra, 137a-149a.

STATEMENT

A. Factual And Legal Background

1. The Colorado River “rises in the mountains of

Colorado and flows generally in a southwesterly direction for about 1,300 miles through Colorado, Utah, and

Arizona and along the Arizona-Nevada and ArizonaCalifornia boundaries, after which it passes into Mexico

and empties into the Mexican waters of the Gulf of California.” Arizona v. California, 373 U.S. 546, 552

(1963). “On its way to the sea it receives tributary waters from Wyoming, Colorado, Utah, Nevada, New

Mexico, and Arizona.” Ibid. Those tributaries include

the San Juan River, which originates in southwestern

Colorado and flows through northern New Mexico and

southeastern Utah; and the Little Colorado River,

which flows through eastern Arizona. See App., infra,

150a (map).

The Navajo Nation is a federally recognized Indian

tribe. App., infra, 4a. In 1868, the Navajo Nation and

the United States signed a treaty that established a reservation as the Navajo Nation’s “permanent home.”

Treaty Between the United States of America and the

Navajo Tribe of Indians (1868 Treaty) art. XIII, June 1,

1868, 15 Stat. 671; see 1868 Treaty art. II, 15 Stat. 668.

The Reservation was located in the eastern part of what

is now Arizona and the western part of what is now New

Mexico. See App., infra, 150a (map). Subsequent Acts

of Congress and Executive Orders expanded the Reservation in various directions, including westward to the

mainstream of the Colorado River. See id. at 5a, 150a.

2. In 1921, Congress authorized the seven States in

the Colorado River Basin—Wyoming, Colorado, Utah,

Nevada, New Mexico, Arizona, and California—to negotiate and enter into a compact providing for an equitable apportionment of the waters of the Colorado River

and its tributaries. Act of Aug. 19, 1921, ch. 72, § 1, 42

Stat. 172. The resulting Colorado River Compact “divide[d] the entire basin into two parts, the Upper Basin

and the Lower Basin, separated at a point on the [Colorado River] in northern Arizona known as Lee Ferry.”

Arizona v. California, 373 U.S. at 557; see id. at 602

(map).

The Compact apportioned to each basin

7,500,000 acre-feet of water per year from the “Colorado River System.” Id. at 557.

“While these allocations quieted rivalries between

the Upper and Lower Basins, major differences between the States in the Lower Basin continued.” Arizona v. California, 373 U.S. at 558. In 1928, Congress

enacted the Boulder Canyon Project Act (Project Act),

ch. 42, 45 Stat. 1057, which provided for the allocation

of the Lower Basin’s apportionment among Arizona,

California, and Nevada. Arizona v. California, 373 U.S.

at 560-561. The Project Act authorized the construction

of Lake Mead, Hoover Dam, and other works on the

Colorado River—downstream from the Navajo Reservation and the Grand Canyon—to facilitate diversion

and beneficial use of Colorado River water. 43 U.S.C.

617, 617c. The Act further authorized the Secretary of

the Interior to contract for the delivery of water stored

in Lake Mead, 43 U.S.C. 617d, and to use the dam and

reservoir for “irrigation and domestic uses and satisfaction of present perfected rights,” 43 U.S.C. 617e.

In 1952, Arizona brought an original action in this

Court against California to obtain a declaration of its

water rights in the Lower Basin. Arizona v. California,

373 U.S. at 551. Nevada and other States later intervened or were joined. Id. at 550-551 & n.3. The United

States also intervened, claiming reserved water rights

under the doctrine of Winters v. United States, 207 U.S.

564 (1908), which holds that the establishment of an Indian or other federal reservation, “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, 139

(1976); see Arizona v. California, 373 U.S. at 551, 595596, 599-600.

The United States claimed Winters rights on behalf

of 25 Indian reservations in the Lower Basin, including

the Navajo Reservation. U.S. Proposed Findings of

Fact and Conclusions of Law at 51-125, Arizona v. California, supra (U.S. Proposed Findings). On behalf of

five of the reservations—namely, the Chemehuevi, Cocopah, Yuma, Colorado River, and Fort Mohave

Reservations—the United States claimed Winters

rights in the Colorado River mainstream. Arizona v.

California, 373 U.S. at 595 & n.97. Each of those five

reservations is located on the Colorado River mainstream south of Hoover Dam and Lake Mead, along a

stretch where the River forms the border between Arizona and California. See U.S. Proposed Findings 64-84.

On behalf of the remaining reservations—including

the Navajo Reservation—the United States claimed

Winters rights in tributaries of the Colorado River in

the Lower Basin rather than in the mainstream. U.S.

Proposed Findings 52-64, 84-125. As relevant here, the

United States identified “within that portion of the Navajo Indian Reservation situated in the Lower Colorado

River Basin 8,490 acres” that were suitable for “irrigation from existing irrigation systems or extensions

thereof or additional systems.” Id. at 58. Those 8490

acres were located within 18 “areas of water use,” four

of which were “within, or partly within, the original

Treaty reservation.” U.S. Resp. to Navajo Mot. to Intervene at 17, Arizona v. California, supra (U.S.

Resp.). And because “all” 8490 acres were “within the

drainage area of the Little Colorado River,” U.S. Proposed Findings 58, the United States claimed “the right

to divert water from sources within th[at] drainage

area” for irrigation of the Navajo Reservation, id. at 61.

After proceedings before a Special Master, this

Court held that “Congress in the Project Act intended

to apportion only the mainstream,” Arizona v. California, 373 U.S. at 591—i.e., “the water to be delivered by

the upper States at Lee Ferry,” id. at 570, in northern

Arizona near the border with Utah. The Court thus determined the allocation of mainstream waters among

California, Arizona, and Nevada, id. at 564-594, and the

Winters rights of the five Indian reservations in the

mainstream, id. at 595-601, but declined to adjudicate

the claims of the reservations asserting Winters rights

in the tributaries, id. at 595.

The Court entered a decree in accordance with its

opinion. Arizona v. California, 376 U.S. 340 (1964).

The decree states that it “shall not affect * * * [t]he

rights or priorities, except as specific provision is made

herein, of any Indian Reservation * * * or other lands

of the United States.” Id. at 352-353; see Arizona v.

California, 547 U.S. 150, 166 (2006) (current consolidated decree). The decree further states:

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.

Arizona v. California, 547 U.S. at 166-167.

3. Today, with the addition of lands set aside by statute and Executive Order, the Navajo Reservation spans

over 17 million acres within the Lower and Upper Basins of the Colorado River in Arizona, New Mexico, and

Utah. D. Ct. Doc. 360-2, at 7 (Jan. 10, 2019). The mainstream of the Colorado River flows along the Reservation’s northwestern border. See App., infra, 150a

(map). The San Juan River primarily flows along the

Reservation’s northern border, and a portion of the Little Colorado River flows through the Reservation near

its southwestern border. See ibid. Although the United

States did not assert claims to the mainstream on behalf

of the Navajo Nation (and a number of other tribes)

when the Court adjudicated Lower Basin mainstream

rights in Arizona v. California, the United States has

asserted rights on behalf of the Navajo Nation in the

tributaries in both the Lower and the Upper Basins.

Within the Lower Basin, the Navajo Nation’s rights

to divert water from the Little Colorado River drainage

area—which this Court in Arizona v. California did not

address—are the subject of an ongoing general stream

adjudication in Arizona state court. See App., infra, 76a

n.14; In re General Adjudication of All Rights to Use

Water in Little Colorado River Sys. & Source, No. 6417

(Ariz. Super. Ct.). The United States has claimed Winters rights on behalf of the Navajo Nation in that adjudication. See, e.g., U.S. Second Am. Statement of

Claimant on Behalf of the Navajo Nation and Identified

Allotments at 5-6, In re General Adjudication, supra

(No. 6417) (July 30, 2019).

Within the Upper Basin, the Navajo Nation’s rights

to divert water from the San Juan River in New Mexico

(including rights for the federally funded Navajo Indian

Irrigation Project) have been resolved as part of a general stream adjudication in New Mexico state court.

State Engineer v. United States, 425 P.3d 723, 727-728

(N.M. Ct. App. 2018). In that adjudication, the United

States claimed Winters rights on behalf of the Navajo

Nation. See id. at 728. The United States, the Navajo

Nation, and New Mexico subsequently negotiated a settlement agreement that was approved by Congress and

upheld in state court. See id. at 728, 738; Northwestern

New Mexico Rural Water Projects Act, Pub. L. No. 11111, Tit. X, Subtit. B, § 10701(a)(1), 123 Stat. 1396. In the

same Act that approved the settlement, Congress also

authorized over $900 million for the Navajo Gallup Water Supply Project and other water projects for the

Navajo Reservation. § 10609, 123 Stat. 1395-1396.

Also within the Upper Basin, the Navajo Nation’s

rights to divert water from the San Juan River in Utah

are part of an ongoing general stream adjudication in

Utah state court. See In re General Determination of

Rights to the Use of Water, Both Surface and Underground, Within the Drainage Area of the Colorado

River in San Juan, Grand, and Uinta Counties, Utah

and Exclusive of the Green River Drainage, No.

810704477 (Utah D. Ct.). The United States, the Navajo

Nation, and Utah have agreed to settle the Navajo Nation’s Winters rights in Utah. In 2020, Congress approved the settlement and authorized $210 million for

Navajo water development projects in Utah. Consolidated Appropriations Act, 2021, Pub. L. No. 116-260,

Div. FF, Tit. XI, § 1102(c) and (f ), 134 Stat. 3226, 3230.

The settlement and funding are contingent on entry of

a final decree by the state court. § 1102(g), 134 Stat.

3231.

4. In addition to the Winters rights asserted (and

developed) on behalf of the Navajo Reservation in Colorado River tributaries, Congress has made provision

for a possible allocation of water to the Navajo Nation

in the Lower Basin by contract. In 1968, Congress authorized the Central Arizona Project, 43 U.S.C. 1521(a),

which diverts water at Lake Havasu, downstream from

Lake Mead, to municipalities, irrigation districts, and

Indian tribes in central Arizona, south of the Navajo

Reservation. See D. Ct. Doc. 240-17, at ES-4 (Sept. 9,

2013) (map). In the Arizona Water Settlements Act,

Pub. L. No. 108-451, 118 Stat. 3478, Congress authorized use of Central Arizona Project water to help settle

disputes over Indian water rights. Tit. I, § 104(a)(1),

118 Stat. 3487. Although the project’s distribution

works are hundreds of miles downstream from the

Navajo Reservation and incapable of delivering water

to the Navajo Reservation, the Act directs the Secretary to “retain 6,411 acre-feet of water for use for a future water rights settlement agreement approved by an

Act of Congress that settles the Navajo Nation’s claims

to water in Arizona.” § 104(a)(1)(B)(ii), 118 Stat. 3487.

If, however, Congress does not approve such a settlement “before December 31, 2030,” the 6411 acre-feet

will become available for other purposes. Id. at 3488.

B. Procedural History

1. In 2003, the Navajo Nation sued the federal petitioners in this case in the United States District Court

in Arizona, alleging that the government, while administering projects on the Colorado River, had failed to

consider or protect water rights the Navajo Nation asserted that it had in the mainstream, in violation of the

National Environmental Policy Act of 1969 (NEPA), 42

U.S.C. 4321 et seq., and trust obligations the Navajo Nation asserted that the United States owed to the Navajo.

App., infra, 83a. Arizona, Nevada, Colorado, and various local governmental entities intervened as defendants. Ibid. The district court “stayed proceedings to

allow for settlement negotiations.” Ibid.

In 2013, after the district court lifted the stay, the

Navajo Nation twice amended its complaint. App., infra, 84a. Its second amended complaint continued to allege violations of NEPA and trust obligations it claimed

were owed by the United States. D. Ct. Doc. 281, at 2633 (Nov. 14, 2013). With respect to the latter, the complaint asserted that the government had “failed to determine the extent and quantity of the water rights of

the Navajo Nation to the waters of the Colorado River,

or otherwise determine the amount of water which the

Navajo Nation requires from the Lower Basin of the

Colorado River to meet the needs of the Navajo Nation

and its members, thereby breaching the United States’

fiduciary obligation to the Navajo Nation.” Id. at 33.

The district court granted the government’s motion

to dismiss, concluding that the Navajo Nation lacked

Article III standing to bring its NEPA claims and that

the United States had not waived its sovereign immunity to the breach-of-trust claim. App., infra, 115a-136a.

The court of appeals affirmed in part and reversed in

part. Id. at 66a-114a. The court agreed that the Navajo

Nation lacked Article III standing to bring its NEPA

claims, concluding that any impact the Secretary’s management of projects on the mainstream would have on

rights the Navajo Nation asserted in the mainstream or

its needs for water was too speculative. Id. at 84a-99a.

But the court held that the waiver of sovereign immunity in Section 702 of the Administrative Procedure Act

(APA), 5 U.S.C. 702, covered the Navajo Nation’s

breach-of-trust claim. App., infra, 99a-111a. The court

of appeals remanded for the district court “to consider

fully the [Navajo] Nation’s breach of trust claim in the

first instance, after entertaining any request to amend

the claim more fully to flesh it out.” Id. at 111a.

2. On remand, the Navajo Nation moved for leave to

file a third amended complaint, alleging a breach of

trust as well as violations of two treaties and an Executive Order. D. Ct. Doc. 335-2, at 48-53 (Apr. 13, 2018).

The Navajo Nation asserted that the government had

breached a fiduciary obligation to the Navajo Nation by

“obstructing” the Navajo Nation’s efforts to obtain a

“determination of its rights to the mainstream of the

Colorado River.” Id. at 51. And with respect to all of

its claims, the Navajo Nation sought an injunction compelling the government to “determine the extent to

which the [Navajo] Nation requires water from the

mainstream of the Colorado River in the Lower Basin,”

to “develop a plan to secure the water needed,” and to

“manage the Colorado River in a manner that does not

interfere with [such] plan.” Id. at 53.

The district court denied leave to amend. App., infra, 54a-65a. The court held that the relief requested

would require a determination that the Navajo Nation

has water rights in the mainstream of the Colorado

River, id. at 60a, and it viewed such a determination as

falling within the jurisdiction that this Court had retained in Arizona v. California, id. at 58a. The district

court therefore concluded that it lacked jurisdiction to

entertain the proposed claims. Id. at 56a.

The Navajo Nation thereafter moved to file a modified third amended complaint alleging a single cause of

action for breach of trust. D. Ct. Doc. 360-2, at 48-51.

In the modified complaint, the Navajo Nation acknowledged that the “ongoing general stream adjudication”

of the Little Colorado River “may result in a declaration

of water rights to serve some lands of the Navajo Reservation in Arizona.” Id. at 19. The Navajo Nation further acknowledged that it “possesses quantified rights

to the use of water from the Upper Colorado River Basin in New Mexico.” Ibid. The Navajo Nation nevertheless alleged that the government breached its fiduciary obligation to the Navajo Nation by “fail[ing] to address the extent to which the Navajo Nation needs water from the Colorado River to make its Arizona lands

productive.” Id. at 20; see id. at 50. The Navajo Nation

sought declaratory relief and an injunction compelling

the government to (1) “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”; (2) “develop a plan to secure the water needed”;

(3) “exercise [the government’s] authorities, including

those for the management of the Colorado River, in a

manner that does not interfere with [such] plan”; and

(4) “analyze” the government’s “management decisions” in light of such plan and “adopt appropriate mitigation measures to offset any adverse effects.” Id. at

52.

The district court again denied leave to amend. App.,

infra, 37a-53a. The court reiterated that “[t]o the extent” the Navajo Nation “bases its claim on any Winters

rights in the mainstream of the Lower Colorado,”

“[s]uch a claim would have to be filed with the Supreme

Court,” given the Court’s retention of jurisdiction in Arizona v. California. Id. at 44a-45a. The district court

held, “in any event,” that “the enforceable trust duties

the Nation asserts are not inferable from the mere existence of implied water rights.” Id. at 46a. The court

explained that “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.” Id. at 41a. The court determined that the

Navajo Nation had failed to do so. Id. at 47a-52a. The

court therefore held that the Navajo Nation’s “amendment would be futile,” id. at 52a, and dismissed the suit,

id. at 37a.

3. The court of appeals reversed and remanded.

App., infra, 1a-35a.

The court of appeals held that the Navajo Nation’s

breach-of-trust claim does not fall within this Court’s

retained jurisdiction in Arizona v. California. App., infra, 16a-21a. The court of appeals took the view that the

claim “does not seek a quantification of [the Navajo

Nation’s] rights in the Colorado River,” id. at 17a, but

rather seeks “merely” “an injunction ordering the [government] to investigate the [Navajo] 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,” id. at 16a. For

similar reasons, the court held that the breach-of-trust

claim was “not barred by res judicata, despite the federal government’s representation of the [Navajo] Nation in” Arizona v. California. Id. at 4a; see id. at 18a20a.

Turning to the merits of the breach-of-trust claim,

the court of appeals first held that it was “not bound”

by this Court’s decisions in cases such as United States

v. Mitchell, 445 U.S. 535 (1980), and United States v.

Jicarilla Apache Nation, 564 U.S. 162 (2011), regarding

the standard for establishing a judicially enforceable

trust obligation. App., infra, 20a-24a. The court of appeals deemed those decisions inapposite on the view

that they involved “suits brought for money damages”

rather than claims “for injunctive relief.” Id. at 23a.

The court of appeals then held that the Navajo Nation had “successfully identified specific treaty, statutory, and regulatory provisions that, taken together, anchor its breach of trust claim.” App., infra, 30a. The

court concluded that the Navajo Nation could “state a

cognizable claim,” id. at 33a, based on (1) “the implied

treaty rights recognized in Winters, which in itself gives

the Tribe the right to proceed on a breach of trust claim

here”; (2) provisions in the 1868 Treaty that “recognize[] the [Navajo] Nation’s right to farm Reservation

lands” and thus “give[] rise to an implied right to the

water necessary to do so”; (3) the Project Act “and other

statutes that grant the Secretary authority to exercise

pervasive control over the Colorado River”; and

(4) agency “regulations and documents” in which the

government has “undertaken to protect Indian Trust

Assets,” id. at 30a-31a. The court stated that it was not

deciding “whether the [Navajo] Nation’s Winters rights

include rights to the mainstream of the Colorado River

or to any other specific water sources,” but rather was

“hold[ing] only that the [Navajo] 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.” Id. at 33a.

Judge Lee concurred, expressing the view that the

Navajo Nation’s proposed injunctive relief does not implicate this Court’s retained jurisdiction in Arizona v.

California. App., infra, 34a-35a.

REASONS FOR GRANTING THE PETITION

In a series of decisions, this Court has made clear

that an Indian tribe cannot sue to enforce an asserted

trust obligation against the United States unless the

tribe can “identify a specific, applicable, trust-creating

statute or regulation that the Government violated.”

United States v. Jicarilla Apache Nation, 564 U.S. 162,

177 (2011) (quoting United States v. Navajo Nation, 556

U.S. 287, 302 (2009) (Navajo II )). The court of appeals

in this case held that it was “not bound by those decisions” in determining whether the government owes the

Navajo Nation a judicially enforceable duty to assess

and address the Navajo Nation’s need for water from

particular sources. App., infra, 23a. The court then

purported to infer such a duty from the Winters doctrine and other sources. Id. at 24a-31a; see Winters v.

United States, 207 U.S. 564 (1908).

The court of appeals erred in deeming this Court’s

decisions “not apposite,” App., infra, 21a, and in finding

the existence of a judicially enforceable duty. Nothing

in the supposed sources the court of appeals cited imposes any specific and affirmative duties on the federal

government on behalf of the Navajo Nation with respect

to the water of the Colorado River or the basin more

generally, much less a duty to conduct the sort of broadranging inquiry the Navajo Nation seeks.

The court of appeals’ decision conflicts with this

Court’s precedents and with decisions of other courts of

appeals. And if allowed to stand, the decision below will

undermine Congress’s role in “implement[ing] national

policy respecting the Indian tribes,” Jicarilla, 564 U.S.

at 178, while imposing a regime of general judicial oversight of the United States’ relationship with Indian

tribes. This Court has previously granted certiorari to

review decisions imposing judicially enforceable Indian

trust obligations on the United States. See id. at 169;

Navajo II, 556 U.S. at 293; United States v. Navajo Nation, 537 U.S. 488, 502 (2003) (Navajo I ); United States

v. White Mountain Apache Tribe, 537 U.S. 465, 471

(2003); United States v. Mitchell, 463 U.S. 206, 213, 211

(1983) (Mitchell II ); United States v. Mitchell, 445 U.S.

535, 528 (1980) (Mitchell I ). The Court should follow

the same course here.*

A. The Court Of Appeals’ Decision Conflicts With This

Court’s Precedents

The court of appeals in this case held that the federal

government owes the Navajo Nation a judicially enforceable fiduciary duty to assess and address the

* The States and all but one of the other parties that intervened

below have also filed a petition for a writ of certiorari to review the

court of appeals’ decision in this case. 21-1484 Pet. The government

is filing a separate response to that petition.

Navajo Nation’s need for water “from sources other

than the Little Colorado River”—meaning, essentially,

water from the Colorado River mainstream. D. Ct. Doc.

360-2, at 52; see id. at 20 (asserting that “the Colorado

River * * * is the most obvious source of water to meet

the needs of the Navajo Nation for water that cannot be

met by the supplies available from the Little Colorado

River”); App., infra, 20a-33a. That holding is contrary

to this Court’s precedents.

1. The United States has a “general trust relationship” with Indian tribes. Jicarilla, 564 U.S. at 165; see,

e.g., Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17

(1831). As this Court has long held, however, that general trust relationship alone is not enough to establish

judicially enforceable duties. See Jicarilla, 564 U.S. at

173 (“The general relationship between the United

States and the Indian tribes is not comparable to a private trust relationship.”) (citation omitted); Navajo I,

537 U.S. at 506 (explaining that the “ ‘general trust relationship’ ” “alone is insufficient to support jurisdiction

under the Indian Tucker Act”) (citation omitted). Rather, for a duty to be judicially enforceable, a tribe first

“must identify a substantive source of law that establishes specific fiduciary or other duties.” Ibid. That

“substantive source of law” must be a “statutory or regulatory prescription[],” not merely a common-law principle. Ibid. And the source must contain “specific, applicable, trust-creating” language—not language that

merely grants the government “ ‘control’ over Indian assets.” Jicarilla, 564 U.S. at 177 (brackets and citation

omitted).

The Court in Jicarilla explained why a tribe must

point to a prescription of that kind. The federal government is a “sovereign,” “not a private trustee.” Jicarilla,

564 U.S. at 173-174. And “the organization and management of the [Indian trust relationship] is a sovereign

function subject to the plenary authority of Congress.”

Id. at 175. Accordingly, “[t]he trust obligations of the

United States to the Indian tribes are established and

governed by statute rather than the common law.” Id.

at 165. So unless a tribe can “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.” Id. at 177 (quoting Navajo II, 556 U.S. at 302)

(brackets, ellipsis, and footnote omitted). “The Government assumes Indian trust responsibilities only to the

extent it expressly accepts those responsibilities by

statute.” Ibid.

The court of appeals in this case held that it was “not

bound” by this Court’s decisions in Jicarilla and other

cases regarding what a tribe must show to establish a

judicially enforceable duty. App., infra, 23a. Characterizing those decisions as merely “decisions concern[ing] suits brought for money damages under the

Tucker Act, 28 U.S.C. § 1491, and the Indian Tucker

Act, 28 U.S.C. § 1505,” ibid., the court deemed them

“not apposite,” id. at 21a, when a tribe instead seeks

“injunctive relief,” id. at 23a.

Jicarilla itself, however, involved a request for what

was essentially injunctive relief—namely, a request “to

compel the Government to produce [certain] withheld

documents.” 564 U.S. at 167. Although the underlying

suit in Jicarilla was one for “monetary damages for the

Government’s alleged mismanagement of funds held in

trust for the Tribe,” id. at 166, the only issue before the

Court was whether the government had a “duty to disclose” the withheld documents, id. at 183 (citation

omitted). The court of appeals’ attempt to distinguish

Jicarilla (and the decisions on which Jicarilla relied)

therefore cannot be squared with Jicarilla’s holding—

which rejected the tribe’s claim on the ground that the

tribe had failed to point to a “specific, applicable, trustcreating statute or regulation” that required the government to take the action the tribe sought. Id. at 184

(citation omitted); see id. at 184-186.

Nor can the court of appeals’ attempt to distinguish

Jicarilla (and the decisions on which Jicarilla relied)

be squared with Jicarilla’s reasoning. As noted, the

Court in Jicarilla explained that a tribe must identify

the requisite trust-creating “ ‘statute or regulation’ ” because “[t]he Government assumes Indian trust responsibilities only to the extent it expressly accepts those

responsibilities by statute.” 564 U.S. at 177 (citation

omitted). Thus, if a tribe cannot identify a “specific, applicable, trust-creating statute or regulation,” ibid. (citation omitted), there is no enforceable trust duty in the

first place—regardless of what relief the tribe is seeking. Because this Court’s decisions in Jicarilla, Navajo

I, Navajo II, and other tribal breach-of-trust cases address that “threshold question,” Navajo II, 556 U.S. at

293 (citation omitted), the court of appeals erred in

treating those decisions as “not apposite,” App., infra,

21a.

Indeed, it would be anomalous if the Navajo Nation

could obtain the relief it seeks in this case without identifying a specific, trust-creating prescription. What the

Navajo Nation seeks is an order compelling governmental action—the equivalent of mandamus. D. Ct. Doc.

360-2, at 52. That remedy is “normally limited to enforcement of a specific, unequivocal command”—i.e.,

“the ordering of a precise, definite act about which an

official ha[s] no discretion whatever.” Norton v. Southwestern Utah Wilderness Alliance, 542 U.S. 55, 63

(2004) (brackets, citations, ellipsis, and internal quotation marks omitted); see also 5 U.S.C. 706(1) (APA suit

to “compel agency action unlawfully withheld or unreasonably delayed”). If anything, that standard is more

stringent than the standard this Court has identified for

establishing a judicially enforceable duty in the first

place.

2. Under the standard set forth in this Court’s decisions for establishing a judicially enforceable duty, the

Navajo Nation’s claim in this case cannot succeed. An

affirmative, judicially enforceable duty to assess and

address the Navajo Nation’s need for water from

“sources other than the Little Colorado River,” D. Ct.

Doc. 360-2, at 52, cannot be found in any of the authorities that the court of appeals cited.

First, the court of appeals inferred a judicially enforceable duty from the Winters doctrine. App., infra,

25a-26a. But Winters merely “reserves” “right[s]” “by

implication,” Cappaert, 426 U.S. at 138; such rights are

not affirmative duties—let alone duties that the government has “expressly accept[ed],” Jicarilla, 564 U.S. at

177. And here, the court of appeals explicitly declined

to decide whether the Navajo Nation even has Winters

rights “to the mainstream of the Colorado River or to

any other specific water sources.” App., infra, 33a.

Winters itself therefore cannot be the basis for any duty

to “determine the extent to which the Navajo Nation requires water from [those] sources.” D. Ct. Doc. 360-2,

at 52.

Second, the court of appeals inferred a judicially enforceable duty from the 1868 Treaty, which established

the original Navajo Reservation. App., infra, 26a-27a.

Certain provisions of that treaty gave individual tribal

members the right to “tract[s] of land,” “seeds,” and

“agricultural implements” if they desired to take up

farming. 1868 Treaty arts. V, VII, 15 Stat. 668-669. But

those provisions contain no “specific” “trust-creating”

duty with respect to water—let alone language bearing

any resemblance to the duty that the Navajo Nation asserts here. Jicarilla, 564 U.S. at 177 (citation omitted).

In any event, the 1868 Treaty governed only the Navajo

Nation’s original Reservation, which existed “within the

drainage area of the Little Colorado River” and was far

away from the mainstream of the Colorado River. U.S.

Proposed Findings 58; see p. 5, supra; App., infra, 150a

(map). The 1868 Treaty thus cannot be the basis for any

duty to address the Navajo Nation’s water needs from

“sources other than the Little Colorado River,” D. Ct.

Doc. 360-2, at 52—and in particular from the mainstream of the Colorado River, on which the Navajo Nation’s breach-of-trust claim is focused.

Third, the court of appeals inferred a judicially enforceable duty from what it described as the Secretary’s

“pervasive control” over the Colorado River mainstream. App., infra, 29a. But this Court has held that

“[t]he Federal Government’s liability cannot be premised on control alone.” Navajo II, 556 U.S. at 301; see

Jicarilla, 564 U.S. at 177 n.5 (rejecting reliance on “the

Government’s ‘managerial control’ ”) (citation omitted).

The court of appeals sought to distinguish that holding

on the ground that the Navajo Nation has also identified

a “specific duty-imposing treaty.” App., infra, 30a. But

as explained above, the 1868 Treaty contains no specific

language imposing the broad-ranging affirmative duty

the court of appeals announced.

The Secretary’s control over the mainstream, moreover, concerns the administration of federal projects

and water deliveries to fulfill the various purposes of the

projects and satisfy recognized rights in the mainstream adjudicated in Arizona v. California. No such

rights were adjudicated for the Navajo Nation in that

case. And the statutes authorizing the federal projects

do not mention the Navajo Nation or the water rights of

any specific Indian tribe. See 43 U.S.C. 617d, 1521,

1524. This case therefore bears no resemblance to cases

in which a tribe, in alleging a breach of trust, has relied

on the Secretary’s control of assets that were concededly held for the tribe’s benefit. Cf. White Mountain

Apache, 537 U.S. at 474-479. And even then, as just explained, control alone imposes no specific affirmative

duties cognizable in a breach-of-trust claim. Navajo II,

556 U.S. at 301.

Fourth, the court of appeals found the existence of a

judicially enforceable duty to be supported by agency

documents it read to acknowledge a trust responsibility

to protect a tribe’s Winters rights. App., infra, 29a.

The only document cited by the court was a brief passage in the Final Environmental Impact Statement (Final EIS) for the 2007 guidelines on administration of the

mainstream, which states that the Winters doctrine applies to the Navajo Reservation. Bureau of Reclamation, Final Environmental Impact Statement: Colorado River Interim Guidelines for Lower Basin Shortages and Coordinated Operations for Lake Powell and

Lake Mead 3-96 (Oct. 2007), https://www.usbr.gov/lc/

region/programs/strategies/FEIS/Chp3.pdf. The Final

EIS, however, is not a “regulation,” Navajo II, 556 U.S.

at 302, so it cannot be the source of any “regulatory

prescription[]” establishing a judicially enforceable

duty here, id. at 296 (citation omitted).

In any event, the court of appeals’ reliance on the Final EIS’s reference to the Winters doctrine was misplaced. As explained above, the United States is in fact

claiming Winters rights for agricultural, commercial,

municipal, domestic, and other uses in the Little Colorado River basin in the ongoing general stream adjudication in state court. See p. 7, supra. Congress has also

approved settlements of the Navajo Nation’s water

rights in the San Juan River in both New Mexico and

Utah. See pp. 7-8, supra. To the extent the Navajo Nation seeks water from the mainstream of the Colorado

River, the Final EIS states merely that the Navajo Nation has “asserted” that it has “unquantified” water

rights in the mainstream and that “[u]nquantified water

rights of the Navajo Nation are considered an [Indian

Trust Asset].” Final EIS 3-96; see id. at 3-87 (describing “Indian Trust Assets” as “ ‘legal interests’ in ‘assets’

held in ‘trust’ by the federal government for federally

recognized Indian tribes or individual Indians”). Even

if such rights were found to exist in the mainstream, this

Court has held that a “ ‘bare trust’ ” is not enough to impose “judicially enforceable fiduciary duties upon the

United States.” Navajo I, 537 U.S. at 504-505 (citation

omitted); see Mitchell I, 445 U.S. at 542-544 (holding

that a bare trust created by the General Allotment Act

did not create judicially enforceable duties).

In short, none of the sources addressed by the court

of appeals contains language establishing a specific, judicially enforceable duty under Jicarilla and this

Court’s other breach-of-trust decisions. The court of

appeals therefore erred in allowing the Navajo Nation’s

breach-of-trust claim to proceed.

B. The Court Of Appeals’ Decision Conflicts With The

Decisions Of Other Circuits On An Important Question

Of Federal Law

1. The court of appeals’ decision in this case also

conflicts with the D.C. Circuit’s decision in El Paso Natural Gas Co. v. United States, 750 F.3d 863 (2014), and

the Tenth Circuit’s decision in Flute v. United States,

808 F.3d 1234 (2015). Like this case, El Paso Natural

Gas involved a breach-of-trust claim brought by the

Navajo Nation seeking equitable relief. 750 F.3d at 869,

871, 895. After reviewing the principles set forth in this

Court’s decisions governing tribal breach-of-trust

claims, including Mitchell I and Navajo I, the D.C. Circuit held that those principles were “control[ling],”

“even though the claim” before it was “for equitable relief (not money damages).” Id. at 895; see ibid. (emphasizing that the D.C. Circuit had followed the same “approach in past cases”). The D.C. Circuit then held that

“the Tribe ha[d] failed to state a claim for relief because

the Tribe ha[d] not identified a substantive source of

law establishing specific fiduciary duties.” Id. at 892

(emphasis omitted); see Shoshone-Bannock Tribes v.

Reno, 56 F.3d 1476, 1482-1484 (D.C. Cir. 1995) (citing

Mitchell I and Mitchell II in support of holding that

tribe had no cause of action to compel federal officials

to state particular claims in water-rights adjudication).

Flute likewise involved a tribal breach-of-trust claim

seeking equitable relief—namely, “an order directing

the government to provide an accounting” of amounts

held in trust for payment of reparations. 808 F.3d at

1239; see id. at 1237. The plaintiffs in that case argued

that this Court’s decisions in cases such as Mitchell I

and Navajo I were inapposite because they “involved

claims for damages, not claims for a trust accounting.”

Id. at 1247. The Tenth Circuit rejected that argument.

Ibid. It explained that, “[i]n order for Plaintiffs to claim

any right to a trust accounting, there must first be a

trust.” Ibid. And the court understood this Court’s decisions to “establish the guidelines by which [to] determine whether a statute or regulation creates a trust relationship.” Ibid. The Tenth Circuit then upheld the

dismissal of the breach-of-trust claim because the plaintiffs had “failed to identify express statutory or regulatory language that imposes fiduciary duties on the government.” Id. at 1245 (capitalization and emphasis

omitted); see id. at 1237.

Unlike the D.C. and Tenth Circuits, the court of appeals in this case held that it was “not bound” by this

Court’s decisions “concern[ing] suits brought for money

damages ” because “this case involves a claim for injunctive relief.” App., infra, 23a. That holding cannot be

squared with El Paso Natural Gas and Flute, which

found this Court’s decisions applicable to claims for equitable relief.

2. Even in the absence of a circuit conflict, this

Court has previously granted certiorari to review decisions imposing judicially enforceable Indian trust obligations on the United States. See Jicarilla, 564 U.S. at

169; Navajo II, 556 U.S. at 293; Navajo I, 537 U.S. at

502; White Mountain Apache, 537 U.S. at 471; Mitchell

II, 463 U.S. at 211; Mitchell I, 445 U.S. at 528. When

untethered from any “specific, applicable, trustcreating statute or regulation,” Jicarilla, 564 U.S. at

177 (citation omitted), such obligations raise significant

separation-of-powers concerns, and this case is no exception. Because “the organization and management of

the [Indian trust relationship] is a sovereign function

subject to the plenary authority of Congress,” id. at 175,

Congress may choose “to structure [that] relationship

in different ways,” id. at 178. When, as here, a court

imposes a judicially enforceable trust obligation where

Congress has not “expressly accept[ed]” such an obligation, id. at 177, the court undermines Congress’s “sovereign capacity to implement national policy respecting

the Indian tribes,” id. at 178.

The decision below also threatens significant practical consequences. The sources on which the court of appeals relied are hardly unique to the Navajo Nation.

“Winters rights are necessarily implied in each treaty”

that establishes a reservation for a tribe, as well as in

statutes and Executive Orders that do so. App., infra,

14a. And the court of appeals at one point stated that

Winters “in itself gives the Tribe the right to proceed

on a breach of trust claim here.” Id. at 30a. Thus, under

the decision below, any Winters right reserved for a

tribe could effectively become a source of affirmative

and potentially broad-ranging duties owed by the government. And that, in turn, would invite additional suits

against the government premised on those asserted duties—imposing a regime of ongoing judicial oversight of

the United States’ relationship with Indian tribes and

reservations untethered to duties expressly accepted by

Congress.

The amorphous nature of those duties underscores

the need for this Court’s review. The court of appeals

used various formulations in referring to the fiduciary

duty that it found to exist, describing it at one point as

a duty to “ensure adequate water for the health and

safety of the Navajo Nation’s inhabitants in their permanent home reservation,” App., infra, 14a-15a; at another point as a duty to “protect the [Navajo] Nation’s

Winters rights,” id. at 29a; and at yet another point as

a “duty to protect and preserve the [Navajo] Nation’s

right to water,” id. at 31a. Those descriptions give little

guidance as to what the duty would entail and how a

court would determine whether the government has

satisfied it—further highlighting the problem with imposing Indian trust obligations without any basis in

“statute or regulation.” Jicarilla, 564 U.S. at 177 (citation omitted). Review of the court of appeals’ decision

imposing such obligations, and departing from this

Court’s precedents and the decisions of other courts of

appeals, is warranted.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

TODD KIM

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

FREDERICK LIU

Assistant to the Solicitor

General

WILLIAM B. LAZARUS

JOHN L. SMELTZER

Attorneys

JULY 2022

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 19-17088

D.C. No. 3:03-cv-507-GMS

NAVAJO NATION, PLAINTIFF-APPELLANT

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 P OWER 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

Argued and Submitted: Oct. 16, 2020

Pasadena, California

Filed: Apr. 28, 2021

Amended: Feb. 17, 2022

Appeal from the United States District Court

for the District of Arizona

G. Murray Snow, Chief District Judge, Presiding

(1a)

ORDER AND AMENDED OPINION

Before: RONALD M. GOULD, MARSHA S. BERZON, and

KENNETH K. LEE, Circuit Judges.

Order;

Opinion by Judge GOULD;

Concurrence by Judge LEE

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.

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 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.

The Nation is a federally recognized Indian tribe that

has signed two treaties with the United States. In ratifying the first treaty in 1849, the United States placed

the Navajo people “under the exclusive jurisdiction and

protection of the . . . United States,” providing

“that they are now, and will forever remain, under the

aforesaid jurisdiction and protection.” Treaty with the

Navaho, 1849 art. I (Sep. 9, 1849), 9 Stat. 974. The Navajo Reservation (the “Reservation”) was established as

the “permanent home” of the Nation by the 1868 Treaty

between the United States of America and the Navajo

Tribe of Indians, 1868 art. XIII (June 1, 1868), 15 Stat.

667 (1868 Treaty). The Reservation was later expanded by executive orders and acts of Congress.

The Reservation sprawls across Arizona, New Mexico, and Utah, and lies almost entirely within the drainage basin of the Colorado River. The Colorado River

flows along and defines a significant part of the Reservation’s western border. Because much of the land in

the Colorado River drainage basin is arid, competition

for water from the Colorado River and its tributaries is

fierce.

To resolve disputes arising from water scarcity,

rights to the Colorado River’s waters are allocated

through a series of federal treaties, statutes, regulations, and common law rulings; Supreme Court decrees;

and interstate compacts. Collectively, this legal regime is known as the “Law of the River.”

The Law of the River begins with the 1922 Colorado

River Compact (1922 Compact), which split the Colorado River water equally between two groups of states:

the “Upper Basin” states, consisting of Colorado, New

Mexico, Utah, and Wyoming, and the “Lower Basin”

states: Arizona, California, and Nevada. 1922 Compact art. II, reprinted in 70 Cong. Rec. 324 (Dec. 10,

1928). Each group collectively received 7.5 million

acre-feet per year (mafy) of water. Id. art. III. The

1922 Compact did not, however, apportion the 7.5 mafy

among the individual states in either the Upper or Lower

Basin. See id. art. VIII. Nor did it “affect[] the obligations of the United States of America to Indian tribes.”

Id. art. VII.

Six years later, Congress conditionally approved the

1922 Compact through the Boulder Canyon Project Act

(BCPA). 43 U.S.C. § 617 et seq. The BCPA allowed

Interior to construct the Hoover Dam and a reservoir at

Lake Mead. See id. § 617. It empowered the Secretary to contract for the storage and delivery of water in

Lake Mead. See id. 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’ 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

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).

and other Basin States intervened, as did the United

States. Id. at 551.

In proceedings before a Special Master, the United

States asserted claims to various water sources in the

Colorado River Basin on behalf of twenty-five tribes.

But the United States only asserted claims to the Colorado River mainstream on behalf of five tribes, and the

Nation was not among them. Instead, the United States

at that time limited the Nation’s claim to the Little Colorado River, one of the tributaries in the Colorado River

system. Navajo I, 876 F.3d at 1156 n.13. The Nation,

along with other tribes, sought the appointment of a

Special Assistant Attorney General to represent their

interests, but their request was denied. The Nation

also sought to intervene in proceedings before the Special Master, but its motion to intervene was denied at

the United States’ urging. See Response of the United

States to the Motion on Behalf of the Navajo Tribe of

Indians for Leave to Intervene, Arizona I, 373 U.S. 546

(No. 8, Original).

The Supreme Court issued its decree in 1964. See

1964 Decree, 376 U.S. 340. The Court excluded the Little Colorado River—and therefore the Nation’s claim—

from the adjudication, along with other tributaries in the

river system. See id. art. VIII(B), 376 U.S. at 352-53.

It also affirmed the apportionment of the first 7.5 mafy

among the Lower Basin States as specified in the BCPA

and the accompanying second compact. Id. art. II(B),

376 U.S. at 341-42. The Decree stated that in years

where there is less than 7.5 million acre-feet available in

the Lower Basin, Interior must first “provide[] for satisfaction of present perfected rights in the order of their

priority dates without regard to state lines.” Id. art.

II(B)(3), 376 U.S. at 342. Then, “after consultation

with the parties to major delivery contracts and such

representatives as the respective States may designate,

[the Secretary] may apportion the amount remaining

available for consumptive use in such manner as is consistent with” the BCPA, the 1964 Decree, and other applicable federal statutes. Id.

The 1964 Decree also determined the Winters rights

of the five tribes for whom the federal government asserted federally reserved rights. See id. at 344-45.

Under the Winters doctrine, “when the Federal Government withdraws its land from the public domain” for the

purpose of establishing an Indian reservation, “the Government, by implication, reserves appurtenant water

then unappropriated to the extent needed to accomplish

the purpose of the reservation.” Cappaert v. United

States, 426 U.S. 128, 138 (1976); see Winters v. United

States, 207 U.S. 564, 576 (1908).

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,

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

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 COVID19. 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-householdsspread-coronavirus-families-navajo-california-secondwave-11591553896. The Nation has as a result been

particularly affected by the current pandemic, with a

death rate significantly higher than that of many other

parts of the country. See id.3

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

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).

The vast majority of deaths on the Reservation due to COVID19 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-native-americans-coronavirus.html.

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Belknap Tribe. Id. The Court agreed, noting that

the Reservation lands “were arid, and, without irrigation, were practically valueless.” Id. at 576. The Court

applied the Indian canons of construction, under which

ambiguities in agreements and treaties with tribes “will

be resolved from the standpoint of the Indians,” and

held that the Tribe was entitled to federally reserved

rights to the Milk River. Id.; see id. at 576-77.

Winters set a “solid foundation” for later decisions

that reaffirmed the scope of Indian reserved water

rights. Robert T. Anderson, Indian Water Rights and

the Federal Trust Responsibility, 46 Nat. Res. J. 399,

414 (2006).

Subsequent decisions have established

that these rights are determined by federal, not state

law. See 1 Cohen’s Handbook of Federal Indian Law

§ 19.03 (Nell Jessup Newton ed., 2019) (Cohen’s Handbook). Moreover, tribal water rights may trump water

rights of state users, even when those users have 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

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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 . . . .”).

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

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as legal interests in assets held in trust by the federal

government for federally recognized tribes. See Final

Environmental Impact Statement, Colorado River Interim Guidelines for Lower Basin Shortages and Coordinated Operations for Lake Powell and Lake Mead

(Shortage Guidelines FEIS) 3-87 (Oct. 2007). The EIS

acknowledges that under the Winters doctrine, the federal government impliedly “reserved water in an amount

necessary to fulfill the purposes of an Indian reservation” for the Navajo Reservation. Id. at 3-96. The

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

reserved right for the Navajo Nation to mainstream

Colorado River has not been judicially determined at

this time[, u]nquantified water rights of the Navajo Nation are considered an [Indian Trust Asset].” Id.

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 to bring

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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. 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

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government violated. And though the Nation argued

that such a specific trust obligation is created under the

Winters doctrine, the district court held that a determination of whether Winters rights attached to the mainstream of the Colorado River was jurisdictionally barred

by the Supreme Court’s reservation of jurisdiction in

Arizona v. California. We conclude that the Nation’s

claim does not implicate the Court’s reservation of jurisdiction, and that it therefore was error for the district

court not to grapple with the scope of Winters rights

available to the Nation in connection with its current requests.

The district court further reasoned that even if it

could decide the breach of trust claim, Winters rights

alone do not give rise to specific and enforceable trust

duties on the federal government. The district court

also held that none of the treaties, statutes, and regulations that the Nation cited in support of its trust claim

were “specific . . . trust-creating statute[s] or regulation[s] that the Government violated.” Finally, the

district court held that the Nation could not allege a

common law cause of action for breach of trust that is

“wholly separate from any statutorily granted right.”

We disagree with the district court as to the role of

Winters rights in establishing enforceable trust duties.

Winters rights are necessarily implied in each treaty in

which the government took land from Native Americans

and 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

15a

Navajo Nation’s inhabitants in their permanent home

reservation.

Because the district court concluded that the Nation’s attempts to amend its complaint were futile, the

district court denied the motion to amend and dismissed

the complaint. The Nation timely appealed. Although

the district court did not decide the res judicata issue in

dismissing the Nation’s complaint, Intervenors assert

that res judicata defense on appeal.

This appeal presents three issues. First, we determine whether the Nation’s breach of trust claim falls

within the Supreme Court’s reserved jurisdiction in Arizona v. California. If it does, we decide whether that

jurisdiction is not only reserved, but also exclusive.

Second, we determine whether the Nation’s claim is

barred by res judicata. Third, we decide whether the

Nation could properly state a claim for breach of trust

such that amendment was not futile.

III

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

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

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

district court’s exercise of discretion based on an erroneous interpretation of the law constitutes an abuse of

discretion.” Ahlmeyer v. Nev. Sys. of Higher Educ.,

555 F.3d 1051, 1055 (9th Cir. 2009). Moreover, “[d]ismissal without leave to amend is improper unless it is clear,

upon de novo review, that the complaint could not be

saved by any amendment.” Polich v. Burlington N.,

Inc., 942 F.2d 1467, 1472 (9th Cir. 1991). Finally, we

review a district court’s decision to dismiss for lack of

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subject matter jurisdiction de novo. DaVinci Aircraft,

Inc. v. United States, 926 F.3d 1117, 1122 (9th Cir. 2019).

We begin with the jurisdictional question. The district court determined it could not decide the Nation’s

breach of trust claim because it falls within the Supreme

Court’s reserved jurisdiction under Article IX of the

1964 Decree. Article IX provides that:

Any of the parties may apply at the foot of this decree

for its amendment or for further relief. The Court

retains jurisdiction of this suit for the purpose of any

order, direction, or modification of the decree, or any

supplementary decree, that may at any time be

deemed proper in relation to the subject matter in

controversy.

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

the district court assumed that this provision reserves

the Supreme Court’s exclusive jurisdiction over—and

strips lower courts of jurisdiction to determine—whether

the Nation has water rights to a specific allocation from

the mainstream of the Colorado River. But in attempting to avoid Article IX’s jurisdictional bar, the Nation

represents that it does not seek a judicial determination

of its rights to the Colorado. The Nation argues that it

merely seeks an injunction ordering the Federal Appellees to investigate the Nation’s needs for water, to develop a plan to meet those needs, and to exercise its authority over the management of 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

17a

establishing the Navajo Reservation as a homeland for

the Nation’s people.

We agree with the Nation’s characterization of its

claim. A plain reading of the Nation’s complaint makes

clear that it does not seek a quantification of its rights

in the Colorado River. The Nation seeks an injunction

“[r]equiring the Federal Appellees . . . (1) to determine the extent to which the Navajo Nation requires water . . . (2) to develop a plan to secure the water

needed; (3) to exercise their authorities, including those

for the management of the Colorado River, in a manner

that does not interfere with the plan to secure the water

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

to analyze their actions . . . and adopt appropriate

mitigation measures to offset any adverse effects from

those actions.” Granting this scope of relief would not

require a judicial quantification of the Nation’s rights to

water from the River. Nor would it require any modification of the Arizona Decree. Furthermore, Article

VIII(C) of the Decree provides that the Decree does not

affect “[t]he rights or priorities, except as specific provision is made herein, of any Indian Reservation.”

1964 Decree, 376 U.S. at 353. As discussed infra, the

Nation’s claim is not determined by any specific provision in the 1964 Decree, as none addresses the Navajo

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

claim thus falls outside the scope of the Decree, and our

jurisdiction is proper.

Because the Nation does not seek a judicial determination of its rights to the waters of the Colorado River,

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

reserved jurisdiction under Article IX. But we note

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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 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.

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

19a

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 (1982), the

Supreme Court held that res judicata barred the federal

government from seeking additional water rights for the

Pyramid Lake Tribe beyond the rights the tribe obtained in previous water rights litigation, id. at 113, 145.

The Nevada Court considered “first if the cause of action which the Government now seeks to assert is the

same cause of action that was asserted” in previous litigation, and then “whether the parties in the instant proceeding are identical to or in privity with” the parties in

the previous litigation. Id. at 130 (internal quotation

marks omitted). The Court held that the federal government, in a decades-long adjudication that began in

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

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

the same parties “asserting the same reserved right” as

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

later claim was barred.

In this case, by contrast, the Nation asserts a different claim than the water rights claim the federal government could have asserted on the Nation’s behalf in Arizona I. The Nation’s claim, properly understood, is an

action for breach of trust—not a claim seeking judicial

quantification of its water rights. The federal government’s fiduciary duty to the Navajo Nation was never at

issue in Arizona v. California, and no final judgment

20a

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.

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 nonmonetary 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 nonmonetary 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

21a

responsibility is discharged by the agency’s compliance

with general regulations and statutes not specifically

aimed at protecting Indian tribes.” Id. at 574.

We addressed this issue again in Gros Ventre Tribe

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

the Gros Ventre Tribe alleged that the federal government breached its trust obligations “by approving, permitting, and failing to reclaim” two cyanide heap-leach

gold mines upriver from 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.

22a

The fiduciary claim in this case is one for injunctive

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

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

members of the Quinault Tribe sued the federal government through the Tucker Act, 28 U.S.C. § 1491, over alleged mismanagement of timber resources on their allotted reservation lands, 445 U.S. at 537, 539. The timber was managed by the Secretary of Interior under the

General Allotment Act (GAA). Id. at 537. The Supreme Court rejected the tribal allottees’ argument that

the GAA imposed enforceable trust duties on the federal

government to manage tribal timber resources in a fiduciary capacity. Id. at 546. The Court explained that

when Congress enacted the GAA, it intended that the

federal government hold the land in trust “not because

it wished the Government to control use of the land and

be subject to money damages for breaches of fiduciary

duty, but simply because it wished to prevent alienation

of the land and to ensure that allottees would be immune

from the state taxation.” Id. at 544. The Court remanded the case to the Court of Claims to consider

whether the federal government could be held liable for

breach of trust based on any other statutes. Id. at 546.

On remand, the Court of Claims held that the government was subject to suit for money damages based on

various statutes and regulations detailing the federal

government’s responsibilities in managing the tribal

timber resources. United States v. Mitchell (Mitchell

II), 463 U.S. 206, 211 (1983). The Supreme Court affirmed, holding that the regulations and statutes created an enforceable trust obligation because they accorded the Secretary a “pervasive role in the sales of

timber from Indian lands.” Id. at 219. The Court observed that a substantive right to sue under the Tucker

23a

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 attorney-client privilege in

a suit against the federal government, id. at 165. At

first, the Tribe sued the government for breach of trust,

seeking monetary damages for alleged mismanagement

of tribal funds. Id. at 166. Then the parties participated in alternative dispute resolution, wherein the government refused to produce certain documents, claiming the attorney-client privilege. Id. So the Tribe

moved to compel production of those documents. Id.

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

attorney-client privilege, which states that a trustee

cannot assert the privilege against a beneficiary after

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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.

Federal Appellees contend that under these precedents, the Nation has failed to state a breach of trust

claim because it cannot point to any treaty, statute, or

regulation that imposes an affirmative trust duty on the

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

Here, the injunctive relief the Nation seeks would not

require the federal government to manage off-reservation

resources. Instead, the Nation seeks an injunction

compelling the Secretary to determine the extent to which

the Reservation requires water from sources other than

the Little Colorado River to fulfill the Reservation’s

25a

purpose of establishing a permanent homeland for the

Nation. The mainstream of the Colorado River is appurtenant to the Nation and defines a significant segment of the Reservation’s western boundary.

Moreover, neither Morongo nor Gros Ventre nor

Jicarilla involved claims to vindicate Winters rights,

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

Unlike the plaintiffs in those cases, the Nation, in pointing to its reserved water rights, has identified specific

treaty, statutory, and regulatory provisions that impose

fiduciary obligations on Federal Appellees—namely,

those provisions of the Nation’s various treaties and related statutes and executive orders that establish the

Navajo Reservation and, under the long-established

Winters doctrine, give rise to implied water rights to

make the reservation viable.

Under Winters, the federal government “reserve[d]

appurtenant water then unappropriated to the extent

needed to accomplish” the purpose of establishing the

Reservation as a permanent homeland for the Navajo

people. Navajo I, 876 F.3d at 1155 (quoting Cappaert,

426 U.S. at 138). In Colville Confederated Tribes v.

Walton, 647 F.2d 42 (9th Cir. 1981), we noted that while

“[t]he specific purposes of an Indian reservation . . .

were often unarticulated,” “[t]he general purpose, to

provide a home for the Indians, is a broad one and must

be liberally construed,” id. at 47. It is clear that the

Reservation cannot exist as a viable homeland for the

Nation without an adequate water supply. As the

Court observed in Arizona I:

Most of the land in [the reservations appurtenant to

the Colorado River] is and always has been arid. If

the water necessary to sustain life is to be had, it

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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 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.

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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

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

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.

28a

between the United States and an Indian tribe, is essentially a contract between two sovereign nations.”

Washington v. Wash. State Com. Passenger Fishing

Vessel Ass’n, 443 U.S. 658, 675, modified sub nom.

Washington v. United States, 444 U.S. 816 (1979) (citing

Lone Wolf v. Hitchcock, 187 U.S. 553 (1979)). We have

inferred a promise of water rights into treaties that contained no explicit reservation of those rights. See, e.g.,

Arizona I, 373 U.S. at 599; Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., 849 F.3d

1262, 1268 (9th Cir. 2017).

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

(9th Cir. 1983), for example, where the Klamath Tribe’s

treaty with the United States merely preserved the

right to “hunt, fish, and gather on their reservation,” Id.

at 1398. We recognized that a main purpose of the

treaty was to “secure to the Tribe a continuation of its

traditional hunting and fishing lifestyle.” Id. at 1409.

We reasoned that this purpose would have been defeated unless the Klamath Tribe had the 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.”).

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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 “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,

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see, e.g., BCPA, 43 U.S.C. § 617d (“No person shall have

or be entitled to have the use for any purpose of the water stored as aforesaid except by contract made as

herein stated.”). This pervasive control over the Colorado River, coupled with the Nation’s Winters rights,

outlines the scope of Federal Appellees’ trust duties.

Our holding is consistent with the Supreme Court’s

decision in United States v. Navajo Nation. Although

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

liability cannot be premised on control alone,” 556 U.S.

at 301, the Court also explained that once a plaintiff

identifies a specific duty-imposing treaty, statute, or

regulation, “then trust principles (including any such

principles premised on ‘control’) could play a role in ‘inferring that the trust obligation [is] enforceable by damages.’ ” Id. (quoting United States v. White Mountain

Apache Tribe, 537 U.S. 465, 473 (2003)). The Nation—

which in any case does not here seek money damages—

has identified a specific duty-imposing treaty, as we

have explained.

To summarize: We hold that the Nation has successfully identified specific treaty, statutory, and regulatory provisions that, taken together, anchor its breach

of trust claim. First, we have the implied treaty rights

recognized in Winters, which in itself gives the Tribe the

right to proceed on a breach of trust claim here; second,

the 1868 Treaty, 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

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Appellees have undertaken to protect Indian Trust Assets, including the Nation’s as-yet-unquantified Winters

rights.

Having established that a fiduciary duty exists, we

hold that common-law sources of the trust doctrine and

the control the Secretary exercises over the Colorado

River firmly establish the Federal Appellees’ duty to

protect and preserve the Nation’s right to water. Under Winters, when the federal government took the Reservation into trust, it “reserve[d] appurtenant water

then unappropriated to the extent needed to accomplish” that purpose. Navajo I, 876 F.3d at 1155 (quoting Cappaert, 426 U.S. at 138). These rights are recognized as reserved by treaty, applying the canon that in

“agreements and treaties with the Indians, ambiguities

occurring will be resolved from the standpoint of the Indians.” Winters, 207 U.S. at 576; see Washington, 853

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

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

the Winters rights that attach to the Reservation are

sufficiently well-established to create an implied fiduciary obligation on the Federal Appellees. See Gros

Ventre, 469 F.3d at 810 (noting that a specific duty can

be imposed by “a treaty, statute or agreement . . .

expressly or by implication.”) (quoting ShoshoneBannock, 56 F.2d at 1482).

We recognize that no court has yet quantified the Nation’s Winters rights. But the fault for the exceedingly

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

32a

vada, 463 U.S. at 135. When the Nation tried to intervene in Arizona v. California, the federal government

opposed the Nation’s motion. And in the more than

half of a century since the Supreme Court issued its 1964

Decree, the Nation has never had its Winters rights adjudicated or quantified by any court. 5 This result is but

one example of what a commentator has described as the

federal government’s failure “to secure, protect, and develop adequate water supplies for many Indian tribes.”

Cohen’s Handbook § 19.06. Indeed, “[i]n the history of

the United States Government’s treatment of Indian

tribes, its failure to protect Indian water rights for use

on the reservations it set aside for them is one of the

sorrier chapters.”6 Id. (citing National Water Comm’n,

Water Policies for the Future: Final Report to the

President and to the Congress of the United States, 47475 (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

The Nation is actively seeking water from various sources in

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

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).

33a

trust,” Seminole Nation v. United States, 316 U.S. 286,

297 (1942), by ensuring that the tribes of this country

can make their reservation lands livable. This principle takes on even more importance in an era in which the

COVID-19 pandemic renders reservation lands more

dangerous to tribal members—particularly when they

lack adequate water for health and safety purposes.

The Nation’s attempts to amend its complaint were

not futile. The Nation can state a cognizable claim for

breach of trust because it has identified specific regulations and treaty provisions that can “fairly be interpreted,” Mitchell II, 463 U.S. at 218, as establishing

Federal Appellees’ fiduciary obligations to ensure that

the Nation’s Reservation has the water it needs to exist

as a viable homeland for the Navajo people.

At this early stage of litigation, we decline to address

whether the Nation’s Winters rights include rights to

the mainstream of the Colorado River or to any other

specific water sources. We hold only that the Nation

may properly base its breach of trust claim on water

rights derived from its treaties with the United States

under Winters, and so may amend its complaint to so

allege.

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

34a

to the district court with instructions to permit amendment to the complaint consistent with this opinion. 7

REVERSED AND REMANDED.

LEE, Circuit Judge, concurring:

I write separately to emphasize that the Nation’s

proposed injunctive relief should not and does not implicate the Supreme Court’s retained jurisdiction in Arizona v. California (1964 Decree), 376 U.S. 340, 353

(1964).

When the Supreme Court first adjudicated the rights

to the Colorado River, it issued a Decree listing the Indian tribes and other entities holding present perfected

rights to the mainstream. Id. at 344-46. Article IX of

the Decree “retain[ed] jurisdiction . . . for the purpose of any order, direction, or modification of the decree, or any supplementary decree . . .” Id. at 353.

Since then, there have been several iterations of the Arizona v. California litigation, but none has explicitly addressed whether Article IX reserves exclusive jurisdiction for adjudication of rights to the mainstream. See,

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

622 (1983).

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.

35a

In this case, the Nation seeks additional water for its

Reservation, and both the parties and the district court

considered whether the Supreme Court’s retained jurisdiction applied. But our decision does not answer that

question, as the Nation’s Proposed Third Amended

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

rights to the mainstream.

The Nation’s TAC seeks injunctive relief requiring,

in part, that the Federal Defendants “determine the extent to which the Navajo Nation requires water from

sources other than the Little Colorado River to enable

its Reservation to serve as a permanent homeland for

the Navajo Nation and its members” and “develop a plan

to secure the water needed.” The Nation asserts, and

our decision affirms, that this proposed injunction does

not ask the district court to quantify any rights that the

Nation may have to the Colorado River mainstream.

This narrow construction of the proposed relief is imperative, as it allows the Nation to pursue its claims without

raising the separate and more complex issue of the Supreme Court’s retained jurisdiction.

Thus, on remand and in all future proceedings, the

TAC’s proposed injunctive relief should not be construed as implicitly authorizing a reassessment of the

rights to the Colorado River mainstream. In other

words, the requested relief that the Federal Defendants

develop a plan to meet the Nation’s water needs cannot

be used as a backdoor attempt to allocate the rights to

the mainstream. If such rights are to be reassessed,

that action may be taken only after resolving the jurisdictional question raised by Article IX of the 1964 Decree.

36a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF ARIZONA

No. CV-03-00507-PCT-GMS

NAVAJO NATION, PLAINTIFF

UNITED STATES DEPARTMENT OF THE INTERIOR, ET

AL., DEFENDANTS

[Filed:

Aug. 23, 2019]

Judgment of Dismissal in a Civil Case

Decision by Court. This action came for consideration before the Court. The issues have been considered and a decision has been rendered.

IT IS ORDERED AND ADJUDGED that pursuant

to the Court’s order filed August 23, 2019, Plaintiff to

take nothing and the complaint and action are dismissed.

/s/ BRIAN D. KARTH

BRIAN D. KARTH

District Court Executive/Clerk of Court

Aug. 23, 2019.

/s/ REBECCA KOBZA

REBECCA KOBZA

Deputy Clerk

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APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

No. CV-03-00507-PCT-GMS

NAVAJO NATION, PLAINTIFF

UNITED STATES DEPARTMENT OF THE INTERIOR,

ET AL., DEFENDANTS

Filed:

Aug. 23, 2019

ORDER

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 IntervenorDefendants 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

38a

entities have intervened in this case as defendants

(“Intervenor-Defendants”). Because the relevant history of this case was summarized in the Court’s 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-03-00507-PCTGMS, 2018 WL 6506957 (D. Ariz. Dec. 11, 2018). The

Court held argument on this motion on August 16, 2019.

DISCUSSION

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.

SissetonWahpeton 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

would constitute a valid and sufficient claim or defense.”

39a

Missouri ex rel. Koster v. Harris, 847 F.3d 646, 656 (9th

Cir. 2017) (cleaned up). 1

II. Analysis

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.) IntervenorDefendants 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 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,

“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).

40a

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 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

41a

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 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.

42a

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 56869.

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

43a

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, 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

44a

(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. 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

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.

45a

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 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

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

46a

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 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 asyet-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.

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 appurtenancy is in fact a geographic limitation. See Agua Caliente Band, 849 F.3d at 1268.

47a

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 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

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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 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.

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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 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

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.

50a

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 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

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two other Secretarial Orders the Nation points to likewise fail to expressly obligate the United States to 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 Snyder Act,

25 U.S.C. § 13, also does not establish those trust duties

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—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 state of Ninth Circuit caselaw, as it now stands, unless there is a specific

duty that has been placed on the government with re-

53a

spect 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 Aug., 2019.

/s/ G. MURRAY SNOW

G. MURRAY SNOW

Chief United States District Judge

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APPENDIX D

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

No. CV-03-00507-PCT-GMS

NAVAJO NATION, PLAINTIFF

UNITED STATES DEPARTMENT OF THE INTERIOR,

ET AL., DEFENDANTS

Filed:

Dec. 11, 2018

ORDER

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

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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 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

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-

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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 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.

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

The Court has made minor adjustments to its 1964 Decree. But

the Court has clarified that the provision of the 1964 Decree 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.

57a

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 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

58a

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.

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.

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.

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

59a

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 IntervenorDefendants, 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 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

60a

(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 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

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).

61a

water to make the Reservation inhabitable. 3 For example, the Nation alleges that “[t]he Department [of the

Interior] has a fiduciary responsibility to 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 Indianm Tribe v. United States, 23 Cl. Ct.

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.

62a

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.

Breach of Treaty

The Nation’s breach of treaty claim is futile for the

same reason—the relief the Nation seeks under the

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

63a

the United States breached its treaty duties to the Nation by having failed to secure those rights.

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. Navajo

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

64a

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. . . . The plain language of the Executive

Order indicates that it was an internal directive.”).

Federal Defendants’ On-going Management Efforts Continue to Ignore the Needs of the Navajo Nation for Water from the Colorado

River in the Lower Basin.” (Doc. 335-2 at 41).

65a

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 Dec., 2018.

/s/ G. MURRAY SNOW

G. MURRAY SNOW

Chief United States District Judge

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APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 14-16864

D.C. No. 3:03-cv-00507-GMS

NAVAJO NATION, PLAINTIFF-APPELLANT

DEPARTMENT OF THE INTERIOR; RYAN ZINKE*,

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-DEFENDANTS-APPELLEES

Argued and Submitted: Feb. 14, 2017

Filed: Dec. 4, 2017

San Francisco, California

* We substitute Ryan Zinke for predecessor Sally Jewell as a

Defendant-Appellee pursuant to Fed. R. App. P. 43(c)(2).

67a

Appeal from the United States District Court

for the District of Arizona

G. Murray Snow, District Judge, Presiding

OPINION

Before: RONALD M. GOULD and MARSHA S. BERZON, Circuit Judges, and MARVIN J. GARBIS ,** District

Judge.

Opinion by Judge BERZON

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 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 Honorable Marvin J. Garbis, United States District Judge

for the District of Maryland, sitting by designation.

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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

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