Navajo Nation v. DOI, et al

Filing 305

ORDER that Defendants' 240 Motion to Dismiss is granted. ORDERED Defendant-Intervenors' 242 , 243 , 249 , 250 , 251 , 254 Motions to Dismiss are denied as moot; Intervenor's 252 Motion to Intervene and 253 Motion to Dismiss are denied as moot. Plaintiff's Second Amended Complaint is dismissed without prejudice. The Clerk of Court is directed to terminate this action and enter judgment accordingly. Signed by Judge G Murray Snow on 7/22/2014.(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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No. CV-03-00507-PCT-GMS

Navajo Nation,

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Plaintiff,

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v.

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ORDER

United States Department of the Interior; et
al.,

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Defendants.
Pending before the Court are multiple related motions. They include: (1)

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Defendants United States Department of the Interior (the “Department”), Secretary of the

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Interior Sally Jewell, Bureau of Reclamation, and Bureau of Indian Affairs’ (the “Federal

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Defendants”) Motion to Dismiss (Doc. 240), (2) Defendant-Intervenor State of Arizona’s

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Motion to Dismiss (Doc. 242), (3) Defendant-Intervenors Metropolitan Water District of

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Southern California and Coachella Valley Water District’s (the “Metropolitan

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Defendants”) Motion to Dismiss (Doc. 243), (4) Defendant-Intervenors Salt River Project

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Agricultural Improvement and Power District and the Salt River Water Users’

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Association’s (the “SRP Defendants”) Motion to Dismiss and to Join Required Parties

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(Doc. 249), (5) Defendant-Intervenor Central Arizona Water Conservation District’s

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Motion to Dismiss (Doc. 250), (6) Defendant-Intervenor Imperial Irrigation District’s

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Motion to Dismiss (Doc. 251), (7) the Hopi Tribe’s Motion to Intervene (Doc. 252), (8)

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the Hopi Tribe’s Motion to Dismiss (Doc. 253), and (9) Defendant-Intervenors Colorado
River Commission of Nevada, State of Nevada, and Southern Nevada Water Authority’s

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(the “Nevada Defendants”) Motion to Dismiss (Doc. 254).

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For the following reasons, the Federal Defendants’ Motion to Dismiss is granted
and the remaining Motions are denied as moot.

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BACKGROUND
I.

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The Navajo Nation
Plaintiff Navajo Nation (the “Nation”) is a federally recognized Indian Tribe.

(Doc. 281, “Second Amended Complaint” (“SAC”) ¶ 10.) The Navajo Nation’s
Reservation (the “Reservation”) is the largest Indian reservation in the United States,
with land spanning over 13 million acres located in Arizona, New Mexico, and Utah. (Id.
¶ 11.) The Reservation was originally established by the Treaty of June 1, 1868, 15 Stat.
667, and was expanded by a number of Executive Orders and Acts of Congress between
1868 and 1964. (Id. ¶ 12.) The Reservation is adjacent to the Colorado River and is
located in both the Upper and Lower Basins of the Colorado River Basin. (Id.) This case
concerns only the lands located in the Lower Basin in Arizona (the “Lower Basin”). (Id. ¶
5.)
The SAC alleges that by establishing the Reservation, “the United States impliedly
reserved for the benefit of the Navajo Nation a sufficient amount of water to carry out the
purposes for which the Reservation was created, specifically to make the Reservation a
livable homeland for the Nation’s present and future generations.” (Id. ¶ 14.) It further
alleges that an effect of establishing the Reservation “was to create a trust relationship
between the Navajo Nation and the United States,” (Id. ¶ 15), that “requires [the United
States] to protect the Navajo Nation’s land and the water necessary to make those lands
livable as a permanent homeland for the Navajo Nation” (Id. ¶ 16).
The Nation alleges that the United States has failed in its trust obligation to assert
and protect the Nation’s water rights by “expressly” leaving “open the question of the
Navajo Nation’s beneficial rights to the waters of the Colorado River.” (Id. ¶¶ 17–18, 20–
22.) The Nation claims that it has asked the Department to address the extent of the
Nation’s rights to use, and its interest in, water from the Lower Basin, but that the
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Department has not done so. (Id. ¶ 25.) Further, the Federal Defendants “have never
sought, through judicial or administrative means, to quantify or estimate the Navajo
Nation’s rights to water from the mainstream of the Colorado River in the Lower Basin.”
(Id. ¶ 26.)
II.

Winters and Reservation Water Rights
The Nation asserts that it has water rights in the Lower Basin of the Colorado

River pursuant to Winters v. United States, 207 U.S. 564 (1908), and its progeny.
Beginning with its decision in Winters, the Supreme Court “has long held that when the
Federal Government withdraws its land from the public domain and reserves it for a
federal purpose, the Government, by implication, reserves appurtenant water then
unappropriated to the extent needed to accomplish the purpose of the reservation.”
Cappaert v. United States, 426 U.S. 128, 138 (1976). “In so doing the United States
acquires a reserved right in unappropriated water which vests on the date of the
reservation and is superior to the rights of future appropriators.” Cappaert, 426 U.S. at
138. Further, this right “is not dependent on beneficial use” and “retains priority despite
non-use.” In re Gen. Adjudication of All Rights to Use Water in Gila River Sys. & Source,
201 Ariz. 307, 310–11, 35 P.3d 68, 71–72 (2001). This doctrine applies to Indian
reservations. Cappaert, 426 U.S. at 138; Colo. River Water Cons. Dist. v. United States,
424 U.S. 800, 805 (1976); United States v. Dist. Court for Eagle Cnty., 401 U.S. 520,
522–23 (1971); Arizona v. California, 373 U.S. 546, 601 (1963) [Arizona I]; FPC v.
Oregon, 349 U.S. 435 (1955); United States v. Powers, 305 U.S. 527 (1939); Winters 207
U.S. 564.
In 1952, the State of Arizona brought suit against the State of California and seven
of its public agencies, alleging that it was entitled to a certain quantity of water from the
lower Colorado River under the Colorado River Compact of 1922 and the Boulder
Canyon Project Act. (Doc. 240-1 at 9.) Arizona sought a decree confirming its title to that
quantity of water. (Id.) The United States sought and was granted leave to intervene in
that action. Arizona v. California, 347 U.S. 985 (1954). In the action, in its role as trustee,
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the United States claimed federally reserved Winters water rights in the Lower Colorado
River on behalf of a number of entities, including the Nation. (Doc. 240-1 at 9.)
However, the United States filed its Winters rights claim on behalf of the Nation only
with respect to water from the Little Colorado River, a tributary of the Colorado. (Id.)
The Supreme Court referred all of the matters in the Arizona v. California litigation to a
Special Master for evidentiary proceedings. (Id.) The Special Master recommended that
conflicting claims to the Little Colorado River not be adjudicated in Arizona v.
California, and the Supreme Court, in its 1963 Opinion, affirmed that recommendation.
373 U.S. 546, 595 (1963) (the “1963 Opinion”). Thus, while the United States did file
and present a claim for rights to the Little Colorado River on behalf of the Nation, that
claim was not ultimately adjudicated in that action. (Doc. 240-1 at 10.) Therefore no
determination was made as to whether the Nation was entitled to any particular quantity
of water coming from the Little Colorado River.
III.

The Challenged Administrative Actions
Following this 1963 Opinion, the Court issued the 1964 Decree. 376 U.S. 340

(1964). Under Article II of the 1964 Decree and the Boulder Canyon Project Act, 43
U.S.C. §§ 617–617u, the Secretary is responsible for the allocation of the waters of the
mainstream of the Colorado River among California, Arizona, and Nevada (the “Lower
Basin States”), and for deciding which users in those Lower Basin States will be
delivered water under the Act. (SAC ¶ 33.) The Secretary has undertaken various actions
to do so which the Nation now challenges. These include:
 Record of Decision, Colorado Interim Surplus Criteria; Final Environmental
Impact Statement, reprinted at 66 Fed. Reg. 7772, 7773–82 (Jan 25. 2001)
(“Surplus Guidelines ROD”) for the Colorado River Interim Surplus Criteria
Final Environmental Impact Statement (Dec. 2000) (“Surplus Guidelines FEIS”),
pursuant to Article III(3)(b) of the Criteria for Coordinated Long-Range
Operation of the Colorado River Reservoirs Pursuant to the Colorado River Basin
Project Area Act of September 30, 1968 (P.L. 90-537) (June 8, 1970) (“LROC”).
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The Surplus Guidelines ROD adopted guidelines for the Secretary to determine
when there is a surplus of water from the Colorado River for use within the Lower
Basin States. The LROC requires the Secretary to determine the extent to which
the requirements of mainstream water uses in those states can be met in any year.
The Surplus Guidelines FEIS considered five alternatives for interim surplus
guidelines. (SAC ¶¶ 36–40.)
 Record of Decision, Colorado River Interim Guidelines for Lower Basin
Shortages and Coordinated Operations for Lake Powell and Lake Mead, reprinted
at 73 Fed. Reg. 19,873 (Apr. 11, 2008) (“Shortage Guidelines ROD”) for the Final
Environmental Impact Statement, Colorado River Interim Guidelines for Lower
Basin Shortages and Coordinated Operations for Lake Powell and Lake Mead
(Oct. 2007) (“Shortage Guidelines FEIS”). The Shortage Guidelines ROD adopted
guidelines for the Secretary to use to manage Lake Powell and Lake Mead under
low reservoir and drought conditions. The Shortage Guidelines FEIS analyzed five
alternatives for those interim shortage guidelines. (SAC ¶¶ 41–45.)
 Final Environmental Impact Statement, Implementation Agreement, Inadvertent
Overrun and Payback Policy, and Related Federal Actions (Oct. 2002)
(“Implementation Agreement FEIS”). The Secretary, through the Bureau of
Reclamation, developed the Implementation Agreement FEIS to analyze a
procedure requiring the Secretary to deliver California’s share of Colorado River
water in accordance with a certain agreement and to require payback of water used
in excess of the amounts set forth in contracts entered into under the Boulder
Canyon Project Act. (SAC ¶¶ 46–49.)
 Offstream Storage of Colorado River Water and Development and Release of
Intentionally Created Unused Apportionment in the Lower Division States, 64
Fed. Reg. 58,986 (Nov. 1, 1999), 43 C.F.R. pt. 414. The Secretary adopted final
regulations under which she may enter into certain agreements with the Lower
Basin States to permit offstream storage of those States’ individual entitlements.
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(SAC ¶¶ 50–51.)

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 The Storage and Interstate Release Agreement (Dec. 18, 2002) (“Storage and

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Release Agreement”) with the States of Nevada and Arizona, pursuant to the

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regulations described above, creates a program of interstate water banking of those

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States’ entitlements under the Decree in Arizona v. California. (SAC ¶¶ 52–55.)

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The Nation does not allege that any of these actions actually regulate any of its
activities. Instead, it argues that because the United States did not determine the extent
and quantity of the Navajo Nation’s water rights under Winters, the Secretary’s
subsequent actions in connection with the management of the Lower Basin, pursuant to
the Decree describing the management of the Colorado River in Arizona v. California¸
376 U.S. 340 (1964) (“the 1964 Decree”), have otherwise allocated the waters of the
Colorado River in a way “that threaten[s] the availability of Colorado River water to
satisfy the Navajo Nation’s rights and needs.” (Id. ¶ 29.) The Nation alleges that these
actions “establish[] a system of reliance upon the Colorado River that ensures that entities
other than the Navajo Nation will continue to rely on water supplies claimed by, reserved
for, needed by, and potentially belonging to the Navajo Nation.” (Id. ¶ 31.) In turn,
“[s]uch reliance will operate to make allocation of Colorado River water to the Navajo
Nation to satisfy its water rights or meet the needs of the Navajo Nation and its members
increasingly difficult.” (Id.)

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The United States “generally agrees that [the Nation] has reserved water rights
under the Winters doctrine.” (Doc. 240-1 at 41.) But, it claims it has assisted the Nation
with acquisition of water supply in the San Juan Settlement and that it is currently
pursuing the establishment of Winters rights in the ongoing general adjudication of the
Little Colorado River System (Id.), and that additional mainstream water may be
available to the Nation should the various applicable parties be able to arrive at a water
rights settlement under the Arizona Water Settlements Act (Id. at 33–34).
IV.

Claims One, Two, Three, and Five
In Claims One, Two, Three, and Five of its Second Amended Complaint, the
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Nation alleges that the Federal Defendants violated the National Environmental Policy
Act (“NEPA”) and the Administrative Procedure Act (“APA”) by undertaking the actions
to manage the Lower Basin flow described above.
In Claim One, the Nation alleges that the Implementation of the Surplus
Guidelines violates NEPA and the APA. It claims that the United States failed to meet the
NEPA requirement to take a hard look at all of the effects of proposed federal action
because it did not consider the rights of the Nation. (SAC ¶¶ 63, 64.) Further, the Nation
claims that the Surplus Guidelines FEIS states that the United States examined all Indian
water rights that could be affected by implementation of the LROC, but that this
statement is false because the Unite States did not consider the needs of the Nation’s
possible right to mainstream water in the Lower Basin. The Nation argues that, as a result
of these failures, the documents are “arbitrary, capricious, an abuse of discretion, [and]
otherwise not in accordance with law,” “contrary to constitutional right, power, privilege,
or immunity,” and “in excess of statutory jurisdiction, authority, or limitations, [and]
short of statutory right.” (Id. ¶ 67.)
In Claim Two, the Nation alleges that the Implementation of the Shortage
Guidelines was similarly deficient because the United States claimed in the Shortage
Guidelines FEIS that it examined all Indian water rights that could be affected by
implementation of the LROC, but did not actually consider the needs of the Nation. (Id.
¶¶ 69–71.)
In Claim Three, the Nation alleges that the Development of the Implementation
Agreement FEIS is also lacking as the Implementation Agreement FEIS also purports to
have examined all Indian water rights that could have been impacted, but did not do so
because it did not actually consider the needs of the Nation. (Id. ¶¶ 73–76.)
In Claim Five, the Nation alleges that the Federal Defendants violated NEPA and
the APA by entering into the Storage and Release Agreement. It claims that the
Agreement fails to consider the Nation’s unquantified rights and memorialized a plan for
water banking without considering those rights. (Id. ¶¶ 82–84.)
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V.

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In Claim Four, the Nation alleges that the Implementation of the Interstate
Banking Regulations violates the APA. It alleges that the Secretary failed to protect the
Nation’s rights to and interests in the water from the Lower Basin. In so doing, the
regulations allow entitlement holders other than the Nation to store water they would
otherwise be unable to use and allows those entitlement holders to develop reliance upon
the use of those waters, which may potentially belong to the Nation. (Id. ¶¶ 78–79.) This,
the Nation alleges, resulted in a final rule that is “arbitrary, capricious, an abuse of
discretion, [and] otherwise not in accordance with law,” “contrary to constitutional right,
power, privilege, or immunity,” and “in excess of statutory jurisdiction, authority, or
limitations, [and] short of statutory right.” (Id. ¶ 80.)
VI.

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Claim Four

Claim Seven
In Claim Seven, the Nation notes that under Winters, it requires water from the

Lower Basin of the Colorado River to fulfil its purpose as a permanent homeland. (Id. ¶
90.) By failing to determine the extent and quantity of the Nation’s water rights, the
United States breached its fiduciary obligation to the Nation. (Id. ¶ 91.)
VII.

Pending Motions
The Nation brought these six claims against the Federal Defendants.1 (Doc. 281.)

The Federal Defendants now move to dismiss each of these claims. (Doc. 240.) In their
Motion to Dismiss, the Federal Defendants argue that Plaintiff has failed to establish
standing to bring Claims One through Five and that it has failed to identify a breach of a
specific, enforceable trust obligation and waiver of sovereign immunity that allows it to
bring Claim Seven. (Id.)
Additionally, various Defendant-Intervenors have joined the case and filed their
own Motions to Dismiss. (Docs. 242, 243, 249, 250, 251, and 254.)2 Also pending are the

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The Nation voluntarily struck their Sixth Claim for Relief. (SAC ¶¶ 85–88.)

The SRP Defendants’ Motion to Dismiss also includes their Motion to Join
Required Parties. (Doc. 249.)
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Hopi Tribe’s Motion to Intervene (Doc. 252) and Motion to Dismiss (Doc. 251).

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DISCUSSION
I.

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Legal Standard
The Court may only reach the merits of a dispute if it has jurisdiction to do so.

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93–95 (1998). Jurisdiction is limited
to subject matter authorized by the Constitution or by statute. Kokkonen v. Guardian Life
Ins. Co., 511 U.S. 375, 377 (1994). Under Rule 12(b)(1), a defendant may challenge at
any time a federal court’s jurisdiction to hear a case. See Fed. R. Civ. P. 12(b)(1),
12(h)(3). In such a challenge, the defendant may either facially or factually attack the
plaintiff’s complaint for lack of subject matter jurisdiction. A facial challenge asserts that
the complaint, on its face, fails to allege facts that would invoke federal jurisdiction. Safe
Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2003). A factual attack, on the
other hand, disputes the veracity of allegations in the complaint that would, if true,
invoke federal jurisdiction. Id.
II.

Standing
To establish Article III standing to seek injunctive relief, “a plaintiff must show

that he is under threat of suffering ‘injury in fact’ that is concrete and particularized; the
threat must be actual and imminent, not conjectural or hypothetical; it must be fairly
traceable to the challenged action of the defendant; and it must be likely that a favorable
judicial decision will prevent or redress the injury.” Summers v. Earth Island Inst., 555
U.S. 488, 493 (2009) (citing Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 180–81 (2000)).
Under the first prong, the Nation alleges that it is under the threat of suffering
“injury in fact” due to the challenged administrative actions in Counts One through Five.
The Nation states that in establishing the Navajo Reservation, “the United States
impliedly reserved for the benefit of the Navajo Nation a sufficient amount of water to
carry out the purposes for which the Reservation was created, specifically to make the
Reservation a livable homeland for the Nation’s present and future generations.” (Doc.
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281, SAC ¶ 14.) While the Nation alleges that they have these water rights, they also
assert that the United States has never adjudicated, quantified, or estimated these rights as
to the mainstream of the Colorado River in the Lower Basin. (Id. ¶¶ 25–26.) However,
consistent with Winters, the Nation does not challenge the Federal Defendants’ assertion
that the priority of any such rights will not be legally impacted by any of the challenged
administrative actions. That is because any such water rights “vested at least as early as
the date of each congressional act or executive order setting aside the Reservation lands”
(Id. ¶ 14), which occurred between 1868 and 1964 (Id. ¶ 12), many decades before any of
the challenged administrative actions (Id. ¶¶ 36, 41, 46, 50). Further, under Winters, any
such rights would retain priority despite non-use.
The Nation also does not allege that any of the challenged actions directly regulate
any of the Nation’s activities. Instead, they assert that the actions regulate third-party
activities, and that this regulation, devised without consideration of the Nation’s potential
water rights, could cause injury to the Nation because it “establishes a system of reliance
upon the Colorado River that ensures that entities other than the Navajo Nation will
continue to rely on water supplies claimed by, reserved for, needed by, and potentially
belonging to the Navajo Nation.” (Id. ¶ 31.) In turn, “[s]uch reliance will operate to make
allocation of Colorado River water to the Navajo Nation to satisfy its water rights or meet
the needs of the Navajo Nation and its members increasingly difficult.” (Id.)
Here, in Claims One, Two, Three, and Five, the Nation alleges a number of
procedural violations under NEPA. For these claims, the Nation may demonstrate injury
under the standard for demonstrating a procedural injury under that statute. To show that
these alleged procedural violations constitute a cognizable injury for purposes of
establishing Article III standing, the Nation “must demonstrate that (1) [Defendants]
violated certain procedural rules; (2) these rules protect [Plaintiff’s] concrete interests;
and (3) it is reasonably probable that the challenged action will threaten their concrete
interests.” Center for Food Safety v. Vilsack, 636 F.3d 1166, 1171 (9th Cir. 2011) (citing
Citizens for Better Forestry, 341 F.3d at 969–70)).
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Here, the Court will assume without deciding that the Federal Defendants violated
some procedural rules of NEPA, that the Nation has some kind of interest in the water of
the Lower Basin, and the procedural rules protect the Nation’s interests in that water.
This satisfies the first two prongs of the NEPA injury inquiry. Under the third prong, the
Nation must demonstrate that it is “reasonably probable” that the challenged
administrative actions will threaten their interests. The Nation has not done so. As
explained above, the only injury the Nation asserts in this case is that the challenged
administrative actions will create a system of reliance that will somehow make it harder
for the Nation to satisfy its water rights, even though the Nation concedes that these
challenged actions do not vitiate those rights or otherwise legally alter those rights under
Winters. The Nation does not explain how any “system of reliance” created by the
challenged administrative actions could nonetheless injure the Nation’s interests. Without
this connection, the Nation has not demonstrated that it is “reasonably probable” that the
actions will threaten their interests. Thus, in Claims One, Two, Three, and Five, the
Nation fails to establish injury under the standard for establishing a NEPA procedural
injury and therefore the Nation does not have Article III standing to bring those claims.
In Claim Four, the Nation alleges that the Implementation of the Interstate
Banking Regulations violates the APA, but not NEPA. As the Nation does not bring
Claim Four under NEPA, it is not relevant whether it meets the Ninth Circuit’s
requirements for establishing injury under that particular statute. However, the Nation
must still establish injury under this Claim for Article III standing. As in Claims One,
Two, Three, and Five, the Nation alleges that the challenged regulations will allow
entitlement holders other than the Nation to develop a system of reliance on water that
may someday be determined to belong to the Nation. As with Claims One, Two, Three
and Five, the Nation fails to allege any facts to suggest that any possible injury deriving
from a theoretical, future “system of reliance” is “actual or imminent” as opposed to
merely “conjectural or hypothetical.” Summers, 555 U.S. at 493. Thus, Plaintiffs also fail

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to establish standing to bring Claim Four.3
III.

Breach of Trust Claim
A.

Trust Relationship

In its Claim Seven, the Nation challenges the Federal Defendants’ alleged breach
of their fiduciary trust responsibility. (SAC ¶¶ 90–91.) The Nation asserts that “[t]he
Department has 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.” (Id.) To remedy this alleged
violation, it asks the Court to enjoin “further breaches of the United States’ trust
responsibility.” (Id. ¶ L.) The Nation claims that this “primary breach of trust claim is not
premised on the APA.” (Doc. 282 at 67.)
While the Ninth Circuit recognizes that the United States owes a general trust
responsibility to Indian tribes, “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.” Gross 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)). Here, the Nation argues that the Colorado River Compact
of 1922 created a specific, enforceable trust obligation in stating that “[n]othing in this
compact shall be construed as affecting the obligations of the United States of America to
Indian tribes.” (Doc. 282 at 64; Doc. 293 at 14.) But, by its terms, this statement does not

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A plaintiff bringing a suit under the APA must also fulfill statutory standing
requirements by establishing “(1) that there has been final agency action adversely
affecting the plaintiff, and (2) that, as a result, it suffers legal wrong or that its injury falls
within the zone of interests of the statutory provision the plaintiff claims was violated.”
Citizens for BetterForestry, 341 F.3d at 976 (citations omitted). Because the Nation does
not establish Article III standing to bring its APA/NEPA claims, the Court need not
address whether the Nation meets the additional requirements for statutory standing.
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create any new or additional obligations of the United States of America to Indian tribes.
It merely recognizes the existence of such rights as may have pre-existed the Compact.
The Nation has not identified a relevant, specific duty that pre-existed the Compact and
that was owed to it by the Federal Defendants that would either support its general breach
of trust claim or its claim that the Federal Defendants have breached a specific duty to the
Nation in undertaking any of the challenged management activities in the Lower Basin.
No party contests that the United States has a trust responsibility to the Nation
consistent with Winters that pre-existed the Compact. No party contests that the Nation
was allocated no water right in the Lower Basin as a result of Arizona v. California. Yet
when, as a current result of Arizona v. California the Nation has no present, existing and
determined right in the allocation of that water, the Nation does not point to any duty that
either existed before or after the Compact that requires the United States, in regulating
the use of the waters between the present determined and existing rights holders, to
include the potential future interest which may accrue to the Nation as a result of Winters.
The allegation of such facts simply is insufficient to meet the specificity requirement set
forth in Gross Ventre as a prerequisite for a breach of trust claim.4 Further, the Nation’s
claim to Lower Basin water would be wholly unimpaired by any third-party claim that
post-dated the time from which the Nation could base its claim through Winters. This
only highlights the non-existence of a breach of trust claim against the United States for
actions taken with third parties that post-date the time from which the Nation bases its
claims.
B.

Sovereign Immunity

To bring Claim Seven or any other claim against the Federal Defendants, the
Nation must also identify an applicable waiver of sovereign immunity. “A party may

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The Court, of course, makes no determination as to whether a claim for breach of
trust could be stated against the United States under other factual circumstances, such as
for example, if the Nation was unable to obtain on its own and the United States refused
to otherwise pursue a determination whether the Nation had any right in Lower Basin
waters.
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bring a cause of action against the United States only to the extent [the United States] has
waived its sovereign immunity. A party bringing a cause of action against the federal
government bears the burden of demonstrating an unequivocal waiver of immunity.”
Cunningham v. United States, 786 F.2d 1445, 1446 (9th Cir. 1986) (citations omitted).
“A waiver of the Federal Government’s sovereign immunity must be unequivocally
expressed in statutory text.” Lane v. Pena, 518 U.S. 187, 192 (1996) (citations omitted).
Further, “a waiver of the Government’s sovereign immunity will be strictly construed, in
terms of its scope, in favor of the sovereign.” Id. As the SAC specifies that it seeks relief
under the APA, 5 U.S.C. §§ 701–06 (Id. ¶ 8), the Court will consider whether that statute
contains a waiver of sovereign immunity that would allow the Nation to bring its Claim
Seven, even though the Nation does state that its Claim Seven falls outside the bounds of
the APA (Doc. 282 at 67).
The APA waives sovereign immunity for certain actions brought against the
Federal Government. 5 U.S.C. § 702. In relevant part, it states that “[a]n action in a court
of the United States seeking relief other than money damages and stating a claim that an
agency or an officer or employee thereof acted or failed to act in an official capacity . . .
shall not be dismissed . . . on the ground that it is against the United States.” Id. Section
704, which describes the scope of reviewable agency action under the APA, states in
relevant part that judicial review extends to “final agency action for which there is no
other adequate remedy in a court.” 5 U.S.C. § 704. See also Gallo Cattle v. U.S. Dep’t of
Agric., 159 F.3d 1194, 1198 (9th Cir. 1998) (describing that “the APA’s waiver of
sovereign immunity contains several limitations” including § 704, which limits review to
actions “made reviewable by statute or final agency action”).
As the Nation notes, the Ninth Circuit has held that this § 704 limitation does not
limit the § 702 waiver for some constitutional claims. See Presbyterian Church v. United
States, 870 F.2d 518, 526 (9th Cir. 1989) (declining to read Ҥ 702 as preserving
sovereign immunity in claims for equitable relief against government investigations
alleged to violate First and Fourth Amendment rights”); See also Robinson v. Salazar,
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885 F. Supp. 2d 1002, 1027–28 (E.D. Cal. 2012) (reconciling the Ninth Circuit’s
opinions in Gallo Cattle and Presbyterian Church, noting that Presbyterian Church was
limited to the availability of a sovereign immunity waiver to bring constitutional claims).
However, no such constitutional claims are present in this action. The APA also waives
sovereign immunity under 5 U.S.C. § 706(1) for certain claims challenging agency
inaction. However, a § 706(1) claim must assert that an agency failed to take a discrete
agency action that it is actually required to take. Norton v. S. Utah Wilderness Alliance,
542 U.S. 55, 64 (2004). The Nation concedes that it is not bringing any § 706(1) claims
in this case. (Doc. 282 at 67.)
Here, Claim Seven is indeed a claim for relief other than damages, brought against
the United States. However, Claim Seven does not challenge any final agency action or
allege any constitutional claim. (Doc. 282 at 67.) Because the Nation fails to challenge
any particular final agency action or bring a constitutional claim, Claim Seven falls
outside of the scope of the APA’s waiver of sovereign immunity and is thus barred. The
Nation invites the Court to adopt a broad reading of Presbyterian Church that would
expand its reading of the APA’s waiver beyond constitutional claims to encompass a
general breach of trust claim. See Robinson, 885 F. Supp. 2d at 1027–28; but see
Valentini v. Shinseki, 860 F. Supp. 2d 1079, 1101 (C.D. Cal. 2012).The Court declines
that invitation. The Nation alleges no other applicable waiver of sovereign immunity.
Therefore, Claim Seven is dismissed as barred by the Federal Defendants’ sovereign
immunity.
CONCLUSION
Plaintiff fails to establish the injury in fact necessary to confer standing to bring its
claims One through Five and has voluntarily struck its Claim Six. In addition, Plaintiff
fails to identify a waiver of sovereign immunity that permits it to bring Claim Seven. The
Court thus lacks subject matter jurisdiction to consider the merits of the Nation’s Second
Amended Complaint. Due to this lack of subject matter jurisdiction, the Second Amended
Complaint is dismissed without prejudice pursuant to the Federal Defendant’s Motion to
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Dismiss (Doc. 240). The Court denies the other pending Motions to Dismiss (Docs. 242,
243, 249, 250, 251, 253, 254) and the Hopi Tribe’s Motion to Intervene (Doc. 252) as
moot.

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IT IS THEREFORE ORDERED THAT:

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1.

Interior Sally Jewell, Bureau of Reclamation, and Bureau of Indian Affairs’ (collectively
the Motion to Dismiss (Doc. 240) is granted.

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2.

3.

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Join Required Parties (Doc. 249) is denied as moot.
5.

6.

7.

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Intervenor Hopi Tribe’s Motion to Dismiss (Doc. 253) is denied as moot.

9.

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Intervenor Hopi Tribe’s Motion to Intervene (Doc. 252) is denied as moot.

8.

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Defendant-Intervenor Imperial Irrigation District’s Motion to Dismiss

(Doc. 251) is denied as moot.

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Defendant-Intervenor Central Arizona Water Conservation District’s

Motion to Dismiss (Doc. 250) is denied as moot.

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Defendant-Intervenors Salt River Project Agricultural Improvement and

Power District and the Salt River Water Users’ Association’s Motion to Dismiss and to

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Defendant-Intervenors Metropolitan Water District of Southern California

and Coachella Valley Water District’s Motion to Dismiss (Doc. 243) is denied as moot.

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Defendant-Intervenor State of Arizona’s Motion to Dismiss (Doc. 242) is

denied as moot.

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Defendants United States Department of the Interior, Secretary of the

Defendant-Intervenors Colorado River Commission of Nevada, State of

Nevada, and Southern Nevada Water Authority’s Motion to Dismiss (Doc. 254) is denied
as moot.
///
///
///
///
///
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10.

Plaintiff’s Second Amended Complaint is dismissed without prejudice.

The Clerk of Court is directed to terminate this action and enter judgment accordingly.
Dated this 22nd day of July, 2014.

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