Stanley M. Pollack, SBA 011046 NAVAJO NATION …2. The Navajo Nation’s First, Second, Third and...

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Stanley M. Pollack, SBA 011046

M. Kathryn Hoover, SBA 013266

NAVAJO NATION DEPARTMENT OF JUSTICE

Post Office Drawer 2010

Window Rock, Arizona 86515

Telephone: (928) 871-7510

Fax: (928) 871-6200

[email protected]

[email protected]

Scott B. McElroy, Pro Hac Vice

Alice E. Walker, Pro Hac Vice

McELROY, MEYER, WALKER & CONDON, P.C.

1007 Pearl Street, Suite 220

Boulder, Colorado 80302

Telephone: (303) 442-2021

Fax: (303) 444-3490

[email protected]

[email protected]

Attorneys for the Navajo Nation

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

THE NAVAJO NATION,

Plaintiff,

v.

UNITED STATES DEPARTMENT OF

THE INTERIOR, et al.,

Defendants.

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CASE NO. CV-03-507-PCT-GMS

NAVAJO NATION’S RESPONSE

TO MOTIONS TO DISMISS

Case 3:03-cv-00507-GMS Document 282 Filed 11/14/13 of 107

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TABLE OF CONTENTS

Page

TABLE OF CONTENTS .................................................................................................. i

TABLE OF AUTHORITIES ........................................................................................... iv

I. INTRODUCTION. .................................................................................................1

II. BACKGROUND. ...................................................................................................6

A. THE NAVAJO INDIAN RESERVATION AND THE FEDERAL

TRUST RESPONSIBILITY. ......................................................................7

1. The Navajo Indian Reservation. .......................................................7

2. The Federal Trust Responsibility. ..................................................12

B. THE LAW OF THE RIVER. ....................................................................15

1. The 1922 Colorado River Compact. ..............................................16

2. The Boulder Canyon Project Act and the Arizona Contract. .........22

3. Arizona v. California I. ..................................................................25

4. Colorado River Basin Project Act. .................................................29

C. THE FEDERAL DEFENDANTS’ ACTIONS CHALLENGED HERE. .30

III. THE NAVAJO NATION HAS STATED COGNIZABLE CLAIMS FOR THIS

COURT TO CONSIDER UNDER NEPA, THE APA AND THE FEDERAL

TRUST RESPONSIBILITY. ...............................................................................37

A. INTRODUCTION. ....................................................................................37

B. THIS COURT HAS JURISDICTION TO CONSIDER THE NAVAJO

NATION’S NEPA AND APA CHALLENGES TO THE FIVE

PROGRAMS AT ISSUE HERE. ..............................................................39

1. The Challenged Programs and the Motions to Dismiss Related to

the NEPA and APA Challenges. ....................................................39

2. The Navajo Nation’s First, Second, Third and Fifth Claims For

Relief Set Forth Valid Claims Under NEPA and the APA Which

Are Within the Court’s Jurisdiction To Consider. .........................42

a. NEPA and APA Standards for Review. ..............................42


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b. NEPA’s Zone of Interests. ..................................................44

i. NEPA’s Purposes and Related Procedural

Requirements. ..........................................................45

ii. NEPA Affords Special Protections for Indian Trust

Assets. ......................................................................46

iii. NEPA Protects Water Supplies For Farming And

Other Purposes. ........................................................48

3. General Standing Principles. ..........................................................49

a. Constitutional Standing. ......................................................49

b. Prudential Standing. ............................................................50

c. Standing To Assert a NEPA Procedural Injury. .................51

d. The Navajo Nation Has Standing to Assert its First, Second,

Third and Fifth Claims for Relief. ......................................52

4. The First and Second Claims for Relief Do Not Require Joinder of

Additional Parties. ..........................................................................56

C. FOURTH CLAIM FOR RELIEF: THE IMPLEMENTATION OF THE

INTERSTATE BANKING REGULATIONS VIOLATES THE

ADMINISTRATIVE PROCEDURE ACT IS PROPERLY BEFORE

THE COURT. ............................................................................................59

1. The Navajo Nation Has Standing To Bring Its Fourth Claim For

Relief…… ......................................................................................59

2. The Navajo Nation’s Fourth Claim for Relief Is Timely. ..............61

3. The Fourth Claim for Relief Four Does not Rest on Agency

Discretion. ......................................................................................63

D. SEVENTH CLAIM FOR RELIEF: BREACH OF TRUST PRESENTS A

PROPER CLAIM FOR THIS COURT’S CONSIDERATION. ..............65

1. The United States Owes Duty of Trust to the Navajo Nation

Enforceable by an Action for Injunctive and Declaratory Relief in

this Court ........................................................................................68

a. The 1868 Treaty and Subsequent Acts of Congress

Confirming the Trust Obligations of the United States are


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Sufficient to State a Claim for Breach of Trust and Invoke

the Court’s Federal Question Jurisdiction ...........................69

b. The United States Exercises Pervasive Control over the

Waters of the Colorado River, Including the Navajo

Nation’s Reserved Water Rights, Giving Rise to

Enforceable Fiduciary Duties Owed to the Navajo Nation.74

2. This Court has Personal Jurisdiction over the Federal Defendants

and Congress has Waived the Immunity of the United States for

Claims Seeking Non-Monetary Relief through the APA ..............81

3. The Second Amended Complaint Does Not Seek Quantification of

the Navajo Nation’s Colorado River Water Rights and the

McCarran Amendment Has No Application to this Proceeding ....84

4. The Navajo Nation’s Breach of Trust Claim Presents a Justiciable

Controversy. ...................................................................................86

E. THIS CASE IS NOT AN ADJUDICATION INVOKING THE

SUPREME COURT’S JURISDICTION UNDER ARIZONA v.

CALIFORNIA. ...........................................................................................88

IV. CONCLUSION. .......................................................................................................91


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TABLE OF AUTHORITIES

CASES

Abbott Labs. v. Gardner, 387 U.S. 136 (1967) ........................................................ 43, 87

Arizona v. California I, 373 U.S. 546 (1963) .......................................................... passim

Arizona v. California II, 460 U.S. 605 (1983) ......................................................... 26, 91

Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983) ............................................76

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ..................................................................... 68-69

Assiniboine & Sioux Tribes v. Bd. of Oil and Gas Conservation of Mont.,

792 F.2d 782 (9th Cir. 1986) ................................................................................82

AT & T Corp. v. Coeur d'Alene Tribe, 295 F.3d 899 (9th Cir. 2002) .............................43

Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc.,

462 U.S. 87 (1983) ...............................................................................................42

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ...........................................................68

Benally v. Hodel, 940 F.2d 1194 (9th Cir. 1990) ............................................................50

Blagojevich v. Gates, 519 F.3d 370 (7th Cir. 2008) ........................................................84

Black Hills Inst. of Geological Research, Inc. v. S.D. Sch. of Mines & Tech.,

12 F.3d 737 (8th Cir. 1993) ..................................................................................84

Block v. North Dakota, 461 U.S. 273 (1983) ..................................................................85

Bratton v. Bethlehem Steel Corp., 649 F.2d 658 (9th Cir. 1980) ....................................62

Burlington Truck Lines v. United States, 371 U.S. 156 (1962) .......................................44

California v. Block, 690 F.2d 753 (9th Cir. 1982) ..........................................................42

Cantrell v. City of Long Beach, 241 F.3d 674 (9th Cir. 2001) .................................. 51-52


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Cent. Delta Water Agency v. United States, 306 F.3d 938 (9th Cir. 2002).....................51

Cent. States, Se. & Sw. Areas Pension Fund v.Cent. Transport, Inc.,

472 U.S. 559 (1985) .............................................................................................73

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

Churchill County v. Babbitt, 150 F.3d 1072 (9th Cir.)

as amended, 158 F.3d 491 (9th Cir. 1998),........................................................... 49, 51

Citizens for Better Forestry v. U.S. Dep't of Agric.,

341 F.3d 961 (9th Cir 2003)................................................................................. passim

City of Davis v. Coleman, 521 F.2d 661 (9th Cir. 1975) ......................................... 45, 49

Colo. River Water Conservation Dist v. United States,

424 U.S. 800 (1976) .....................................................................................................85

Commonwealth of Puerto Rico v. United States, 490 F.3d 50 (1st Cir. 2007) ..............84

Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988) .................................................. 57, 58

County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985) ..................................22

Couveau v. Am. Airlines, Inc., 218 F.3d 1078 (9th Cir. 2000) .................................. 61-62

Ctr. for Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157

(9th Cir. 2003) ............................................................................................... 42, 44

Ctr. for Food Safety v. Vilsack, 636 F.3d 1166 (9th Cir. 2011) ............................... 51, 52

Defenders of Wildlife v. U.S. Envtl. Prot. Agency, 420 F.3d 946 (9th Cir. 2005) ..........52

Delano Farms Co. v. Cal. Table Grape Comm’n, 655 F.3d 1337

(Fed. Cir. 2011) ....................................................................................................84

E.E.O.C. v. Peabody W. Coal Co., 610 F.3d 1070 (9th Cir. 2010) .................................82

Fort Mojave Indian Tribe v. United States, 43 Cl. Ct. 417 (1991) .......................... 25, 73

Gallo Cattle Co. v. U.S. Dep't of Agric., 159 F.3d 1194 (9th Cir. 1998) ........................83


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Gros Ventre v. United States, 469 F.3d 801 (9th Cir. 2006) ……………………..……… 71

Hall v. Norton, 266 F.3d 969 (9th Cir. 2001) ........................................................... 49, 50

Hamdi ex rel. Hamdi v. Napolitano, 620 F.3d 615 (6th Cir. 2010) ...............................84

Illinois v. City of Milwaukee, 406 U.S. 91 (1972) ...........................................................71

In re General Adjudication of All Rights to Use Water in Gila River

System & Source, 35 P.3d 68 (Ariz. 2001) ....................................................... 9, 90, 91

Jeffries v. Ga. Residential Finance Auth., 678 F.2d 919 (11th Cir. 1982) ......................57

Joint Bd. of Control v. United States, 832 F.2d 1127 (9th Cir. 1987).............................73

Joint Tribal Council of Passamaquoddy Tribe v. Morton,

528 F.2d 370 (1st Cir. 1975) ........................................................................................14

Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062 (9th Cir. 2002) ....................... 42, 44

Kittitas Reclamation Dist. v. Sunnyside Valley Irrigation Dist.,

763 F.2d 1032 (9th Cir. 1985)......................................................................... 73, 85, 86

Kling v. Hallmark Cards, Inc., 225 F.3d 1030 (9th Cir. 2000) .......................................62

Kourtis v. Cameron, 419 F.3d 989 (9th Cir. 2005), abrogated on other grounds by

Taylor v. Sturgell, 553 U.S. 880 (2008) ...............................................................62

Laub v. U.S. Dep't of Interior, 342 F.3d 1089 (ith Cir. 2003) ................................. passim

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................................ 48-53

Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (1990) .........................................................50

Marsh v. Or. Natural Res. Council, 490 U.S. 360 (1989) ...............................................42

Massachusetts v. Watt, 716 F.2d 946, 952 (1st Cir.1983)……………………………… 87

Metcalf v. Daley, 214 F.3d 1135 (9th Cir. 2000) ............................................................42

Mille Lacs Band of Chippewa Indians v. Minnesota, 853 F. Supp. 1118

D. Minn. 1994), aff'd, 124 F.3d 904 (8th Cir. 1997), aff'd,

26 U.S 172 (1999) ………………………………………………………………69


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Montana v. Blackfeet Tribe of Indians, 471 U.S. 759 (1985) .........................................22

Morton v. Mancari, 417 U.S. 535 (1974) ........................................................................13

Morton v. Ruiz, 415 U.S. 199 (1974) ..............................................................................13

Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) ...............................................................................................44

N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969 (9th Cir. 2006) ...............................42

Natural Res. Def. Council v. Tenn. Valley Auth., 340 F. Supp. 400

(S.D.N.Y. 1971) ..................................................................................................57

Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845 (1984) .............71

Nat'l Licorice Co. v. N.L.R.B., 309 U.S. 350 (1940) .......................................................57

Nat’l Parks Conservation Ass’n v. Norton, 324 F.3d 1229 (11th Cir. 2003) ..................84

Nat'l Wildlife Fed'n v. Burford, 676 F. Supp. 271 (D.D.C. 1985) ..................................57

Natural Res. Def. Council v. Berklund, 458 F. Supp. 925 (D.D.C. 1978) ......................57

Neighbors of Cuddy Mountain v. U.S. Forest Serv.,

137 F.3d 1372 (9th Cir. 1998) ..............................................................................61

Nevada v. United States, 463 U.S. 110 (1983) ................................................................79

Nulankeyutmonen Nkihtaqmikon v. Impson, 503 F.3d 18 (1st Cir. 2007) ..................... 87

Nw. Sea Farms, Inc. v. United States Army Corps of Eng'rs,

931 F. Supp. 1515 (W.D. Wash. 1996) ................................................................74

Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726 (1998) ......................................87

Okanogan Highlands Alliance v. Williams, 236 F.3d 468 (9th Cir. 2000) .....................45

Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974) ............... 15, 68, 69, 71

Or. Natural Desert Ass'n v. Bureau of Land Mgmt., 625 F.3d 1092 (9th Cir. 2008) .....43


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Or. Natural Res. Council v. Lowe, 109 F.3d 521 (9th Cir. 1997) ...................................44

Parravano v. Babbitt, 70 F.3d 539 (9th Cir. 1995) ................................................... 73-74

Pit River Home & Agric. Coop. Ass'n v. United States, 30 F.3d 1088

(9th Cir. 1994) ......................................................................................................82

Preston v. Heckler, 734 F.2d 1359 (9th Cir. 1984) .................................................. 50, 59

Pub. Citizen v. Dep't of Transp., 316 F.3d 1002 (9th Cir. 2003) ............................. 50, 52

Pyramid Lake Paiute Tribe v. U S. Dep't. of the Navy, 898 F.2d 1410

(9th Cir. 1990) ......................................................................................................72

Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F. Supp. 252

(D.D.C. 1972) ................................................................................................ 60, 72

Ranch Realty, Inc. v. DC Ranch Realty, LLC, 614 F. Supp. 2d 983 (D. Ariz. 2007) .....62

Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S 471 (1999) .............................82

S. Delta Water Agency v. U.S. Dep't of Interior, Bureau of Reclamation,

767 F.2d 531 (9th Cir. 1985) ................................................................................86

Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346 (9th Cir. 1994) ....... 50-51

Sandvik v. Alaska Packers Ass'n, 609 F.2d 969 (9th Cir. 1979) .....................................62

Seminole Nation v. United States, 316 U.S. 286 (1942) .................................................13

Sheehan v. Army & Air Force Exch. Serv., 619 F.2d 1132

(5th Cir. 1980), rev’d on other grounds, 456 U.S. 728 (1982) ............................84

Sierra Club v. Yeutter, 911 F.2d 1405 (10th Cir. 1990) ............................................ 86-87

Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998) ...........................................68

Swomley v. Watt, 526 F. Supp. 1271 (D.D.C. 1981) .......................................................57

The Presbyterian Church v. United States, 870 F.2d 518 (9th Cir. 1989) ................ 81-83


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Treasurer of N.J. v. U.S. Dep’t of Treasury, 684 F.3d 382 (3d Cir. 2012) .....................84

Truckee-Carson Irrigation Dist. v. Sec'y of Interior, 742 F.2d 527 (9th Cir. 1984) .......72

Trudeau v. F.T.C., 456 F.3d 178 (D.C. Cir. 2006) ..........................................................84

U.S. Equal Employment Opportunity Comm'n v. Global Horizons, Inc.,

904 F. Supp. 2d 1074 (D. Haw. 2012) .................................................................62

United States v. Anglin & Stevenson, 145 F.2d 622 (10th Cir. 1944) .............................26

United States v. Jicarilla Apache Nation, 131 S. Ct. 2313 (2011)……………………..70

United States v. Mitchell, 463 U.S. 206 (1983) ....................................................... passim

United States v. Navajo Nation, 537 U.S. 488 (2003) ……………………………….. 71

United States v. Shoshone Tribe, 304 U.S. 111 (1938) ...................................................13

United States v. White Mountain Apache Tribe, 537 U.S. 465 (2003) ........ 72, 73, 75, 80

Valentini v. Shinseki, 860 F. Supp 2d 1079 (C.D. Cal. 2012)………………………… 83

Veterans for Common Sense v. Shinseki, 644 F.3d 845 (9th Cir. 2011)

vacated on rehearing en banc on other grounds, 678 F.3d 1013 (2012).............83

W. Land Exchange Project v. U.S. Bureau of Land Mgmt.,

315 F. Supp. 2d 1068 (D. Nev. 2004) ..................................................................43

W. Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2010) .................. 52, 53

Washington v. Wash. State Commercial Passenger Vessel Ass'n,

443 U.S. 658 (1979) ...................................................................................... 13, 69

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

Worcester v. Georgia, 31 U.S. 515 (1832) ................................................................13, 22

Yakima v. Confederated Tribes & Bands of Yakima Indian Nation,

502 U.S. 251 (1992) .............................................................................................22


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STATUTES

5 U.S.C. §§ 701-06 …………………………………………………………..…… passim

25 U.S.C. § 177 ……………………………………………………………………. 14,78

25 U.S.C. § 13 ……………………………………………………………………...….. 21

25 U.S.C. § 175 ………………………………………………………………………... 76

25 U.S.C. § 1632(a)(5) …… ……………………………………………………………20

28 U.S.C. § 1331 …………………………………..……………………………..... 69, 71

28 U.S.C. § 1362 …………………………………………………………….... 69, 71, 77

28 U.S.C. § 1505 …………………………………………………………………........ 70

42 U.S.C. §§ 4321-70h …………………………………………………………... passim

43 U.S.C. §§ 617………………………………………………………………….. passim

43 U.S.C. § 666 …………………………………………………………………76, 84, 86

43 U.S.C. §§ 1501-56 …………………………………………………………………. 29

Ariz. Rev. Stat. § 45-107 …….. ………………………………………………………...77

Ariz. Rev. Stat. § 45-252……………………………………………………..………... 77

RULES

Fed. R. Civ. P. 8 …………………………………………………………………………61

Fed. R. Civ. P. 12(b)(1) …………………………………………………………………..4

Fed. R. Civ. P. 12(b)(6) ………………………………………………………………… 5

REGULATIONS

55 Fed. Reg. 9,223 (Mar. 12, 1990) ………………………………………………...77, 78

64 Fed. Reg. 58, 986 (Nov. 1, 1999) ……………………………………………….….. 43

66 Fed. Reg. 7,772 (Jan. 25, 2001) ………………………………………………….…..30

73 Fed. Reg. 19,873 (Apr. 11, 2008) ……………………………………………………30

40 C.F.R. § 1508.14 …..………………………………………………………...46, 47, 54

40 C.F.R. § 1508.8 ………………………………………………………………......46,47


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43 C.F.R. § 46.435(c) …………………………………………………………. 46, 54, 55

43 C.F.R. § 46.415(a)(9) ………………………………………………………………. 46

43 C.F.R. pt. 414 ……………………………………………………………31, 41, 61, 64

OTHER

U.S. Const. art. VI cl. 2 ……………………………………………………………..… 69

Colorado River Compact, 1922 ………………………………………………….. passim

Treaty of June 1, 1868, 15 Stat. 667 ……………………………………………… passim

Act of June 14, 1934, 48 Stat. 960 …………………………………………………….…8

Navajo Indian Reservation, S. Doc. No. 72-64, at 52 (1st Sess. 1932) ……………….… 9

Arizona Water Settlements Act, Pub. L. No. 108-451, 118 Stat. 3478 (2004) ….. passim

Omnibus Public Land Management Act of 2009, Pub. L. No. 111-11,

123 Stat. 991 ………………………………………………………..……… 11, 12

White Mountain Apache Tribe Water Rights Quantification Act of 2010,

Pub. L. No. 111-291, 124 Stat. 3064………………………………………….78-79

H.R. REP. NO. 94-1656 (1976) …… …………………………………………………….81

John B. Weldon, Jr., Non-Indian Water User’s Goals: More is Better,

All is Best, in Indian Water in the New West (Thomas R. McGuire

et al. eds. 1993) ……..…………………………………………………………...30

John F. Duffy, Administrative Common Law in Judicial Review,

77 TEXAS L. REV. 113 (1998) ……………………………………………………71

G. Bogert, The Law of Trusts and Trustees § 582 (2d ed. rev. 1980) …………………..73

Mary C. Wood, The Indian Trust Responsibility: Protecting Tribal Lands

and Resources Through Claims of Injunctive Relief Against Federal

Agencies, 39 TULSA L. REV. 355 (2003) ……………………………………… .80


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I. INTRODUCTION.

For nearly a century, the United States has recognized the tension between its

responsibilities to manage and control the waters of the Colorado River for the benefit of

the seven Colorado River Basin States and its obligations to the Indian tribes in the

Colorado River Basin who require water from the river to make their reservations the

permanent homes promised to them when their reservations were created. See, e.g.,

Article VII, Colorado River Compact, 1922 (“1922 Compact”) (“Nothing in this compact

shall be construed as affecting the obligations of the United States of America to Indian

tribes.”) (attached as Exhibit 1 to Federal Defendants’ Memorandum in Support of

Motion to Dismiss Amended Complaint (Sept. 9, 2013) (Doc. 240) (“Federal Defendants

Memo”)). Despite the 1922 Compact’s promise, the Federal Defendants failed to

reconcile those competing duties in the course of promulgating the various management

programs that are the subject of this case. Those programs were intended to “provide

mainstream United States users of Colorado River water, particularly those in the Lower

Division states, a greater degree of predictability with respect to the amount of annual

water deliveries in future years . . . .” Final Environmental Impact Statement, Colorado

River Interim Guidelines for Lower Basin Shortages and Coordinated Operations for

Lake Powell and Lake Mead vol. 1 at ES-2 (Oct. 2007) (“Shortage Guidelines FEIS”)

(Executive Summary attached as Exhibit 17 to Federal Defendants Memo), full document

available at http://www.usbr.gov/lc/region/programs/strategies/FEIS/index.html (last

visited Nov. 8, 2013). At the same time, the Federal Defendants claimed “to act


http://www.usbr.gov/lc/region/programs/strategies/FEIS/index.html

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responsibly to protect and maintain [Indian Trust Assets].” Final Environmental Impact

Statement, Colorado River Interim Surplus Criteria vol. I at 3.14-1 (Dec. 2000) (“Surplus

Guidelines FEIS”) (attached as Exhibit 1), full document available at

http://www.usbr.gov/lc/region/g4000/surplus/ SURPLUS_FEIS.html (last visited Nov. 8,

2013).

The Navajo Nation brings this action because the Federal Defendants failed to

meet their obligations to the Navajo Nation when they advanced the various programs at

issue which were intended to serve the interests of the Defendant-Intervenors and others

in the waters of the Lower Basin of the Colorado River. The litigation asks the court to

determine that the Federal Defendants (1) have an enforceable obligation to ensure that

their uncompleted task of securing the water supply required to make the Navajo Indian

Reservation a permanent home for the Navajo people is not adversely affected by their

actions to administer the Colorado River and, (2) as a matter of procedure, have failed to

take the requisite hard look at the impact of their actions on the interests of the Navajo

Nation or adequately considered the extent to which their neglect of those interests is

unfair to the Navajo Nation and undermines the very purpose for which the challenged

programs were enacted.

It is also important to note at the outset that contrary to the statements of the

Federal Defendants and many of the Defendant-Intervenors, this case does not request the

Court to adjudicate the water rights of the Navajo Nation in the Lower Basin of the

Colorado River nor does it necessarily seek to disrupt the programs put into effect by the


http://www.usbr.gov/lc/region/g4000/surplus/SURPLUS_FEIS.html

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Federal Defendants. Rather, its objective is to require the Federal Defendants – as their

predecessors promised – to fully consider the impacts of the challenged actions on the

interests of the Navajo Nation and to take appropriate steps to protect those important

tribal interests and to prevent any adverse effect on them.

The Navajo Nation filed the instant action invoking the strictures of the National

Environmental Policy Act, 42 U.S.C. §§ 4321-70h (“NEPA”), the Administrative

Procedure Act, 5 U.S.C. §§ 701-06 (“APA”), and the United States’ trust responsibilities

to require the Federal Defendants to examine the Navajo Nation’s needs for water from

the Colorado River in weighing the effects of their river management actions. None of

the objections raised by the Federal Defendants or the Defendant-Intervenors warrants

dismissal of this action. The Federal Defendants and the Defendant-Intervenors filed the

following memoranda in support of their motions to dismiss this action:

Federal Defendants’ Memorandum in Support of Motion to Dismiss Amended

Complaint (Sept. 9, 2013) (Doc. 240);

Intervenor-Defendant Central Arizona Water Conservation District’s Motion to

Dismiss Plaintiff’s First Amended Complaint (Sept. 23, 2013) (Doc. 250)

(“CAWCD Memo”);

Memorandum of Points and Authorities in Support of Motion to Dismiss Pursuant

to F.R.C.P. 12(b)(1) (Sept. 23, 2013) (Doc 244) (“MWD Memo”);


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Salt River Project’s Motion to Dismiss Fourth and Sixth Claims for Relief

in Plaintiff’s First Amended Complaint and Motion to Join Required

Parties (Sept. 23, 2013) (Doc 249) (“SRP Memo”);

Motion to Dismiss by Intervenor/Defendant Imperial Irrigation District

(Sept. 23, 2013) (Doc. 251) (“IID Memo”);

Motion to Dismiss of the State of Nevada, Colorado River Commission of

Nevada, and Southern Nevada Water Authority (Sept. 23, 2013) (Doc. 254)

(“Nevada Memo”); and

Motion to Dismiss by Intervenor/Defendant State of Arizona (Sept. 23,

2013) (Doc. 242) (“Arizona Memo”).1

The Federal Defendants argue that the Court lacks jurisdiction over the First

through Seventh Claims for Relief on a variety of theories, and Nevada makes the same

1 In conjunction with the Hopi Tribe’s Limited Motion to Intervene (Sept. 23,

2013) (Doc. 252), the Hopi Tribe also filed the Hopi Tribe’s Motion to Dismiss and

Memorandum in Support (Sept. 23, 2013) (Doc. 253) (“Hopi Tribe Memo”). Because the

Court has not yet determined whether the Hopi Tribe is entitled to intervene in this case,

the Navajo Nation does not respond to the Hopi Tribe Memo, but will do so should the

Court determine that intervention is appropriate.

2 On November 13, 2013, the Court granted the Navajo Nation’s Unopposed

Motion for Leave to File Second Amended Complaint and for Approval of Stipulated

Conditions (Nov. 7, 2013) (Doc. 277), dismissed the Sixth Claim for Relief and the

associated prayers for relief without prejudice, and ordered that the Second Amended

Complaint for Declaratory and Injunctive Relief (Nov. 14, 2013) (Doc. 281) (“Second

Amended Complaint”) be filed. Order (Nov. 13, 2013) (Doc. 280). The parties have

agreed to maintain the existing schedule for briefing the remaining issues raised by the

motions to dismiss and that those motions apply to the Second Amended Complaint.

Accordingly, the Navajo Nation does not address the now-dismissed Sixth Claim for


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argument but with respect to the First through Fifth Claims for Relief only, and both

parties seek, therefore, dismissal of those claims pursuant to Rule 12(b)(1) of the Federal

Rules of Civil Procedure (“FRCP”). Federal Defendants Memo at 26-33, 37-58; Nevada

Memo at 39-58. The Federal Defendants and Nevada also argue that the Navajo Nation

has failed to state a claim upon which relief can be granted, and seek, in addition,

dismissal pursuant to Rule 12(b)(6) of the FRCP. Federal Defendants Memo at 33-37,

54-48; Nevada Memo at 53-55. SRP argues that the Court lacks jurisdiction over the

Fourth and Sixth Claims for Relief, SRP Memo at 2-15, and alleges that those claims fail

to state a claim upon which relief can be granted because they are not subject to judicial

review. Id. at 15-16. Arizona, IID and MWD all argue that this Court lacks jurisdiction

either because the Second Amended Complaint for Declaratory and Injunctive Relief

(Nov. 14, 2013) (“Second Amended Complaint”)2 seeks an adjudication of the Navajo

Nation’s water rights claims to the Colorado River, or such an adjudication is required

before relief is granted and, therefore, the matter can only be heard by the United States

2 On November 13, 2013, the Court granted the Navajo Nation’s Unopposed

Motion for Leave to File Second Amended Complaint and for Approval of Stipulated

Conditions (Nov. 7, 2013) (Doc. 277), dismissed the Sixth Claim for Relief and the

associated prayers for relief without prejudice, and ordered that the Second Amended

Complaint for Declaratory and Injunctive Relief (Nov. 14, 2013) (Doc. 281) (“Second

Amended Complaint”) be filed. Order (Nov. 13, 2013) (Doc. 280). The parties have

agreed to maintain the existing schedule for briefing the remaining issues raised by the

motions to dismiss and that those motions apply to the Second Amended Complaint.

Accordingly, the Navajo Nation does not address the now-dismissed Sixth Claim for

Relief and refers to the Second Amended Complaint in this response.


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Supreme Court. Arizona Memo at 2-20; IID Memo at 9-23; MWD Memo at 44-50.

MWD adds that the Navajo Nation lacks standing to bring the First through Fourth

Claims for Relief and Prayer for Relief L. MWD Memo at 22-44.

The Navajo Nation addresses each of the arguments raised by the Federal

Defendants’ and Defendant-Intervenors’ motions in the discussion which follows, in the

context of the claims set forth in Navajo Nation’s Second Amended Complaint,

addressing why each claim is cognizable pursuant to NEPA, the APA, or the federal trust

responsibility, and why the motions to dismiss do not defeat those claims. Before

addressing the legal arguments in the various motions to dismiss, it is important to

describe the history of the Navajo Indian Reservation and to complete the description of

the “Law of the River” put forward by the Federal Defendants and the Defendant-

Intervenors to describe the obligations of the United States to the Navajo Nation and

other Indian tribes in the Colorado River Basin. While the motions to dismiss offer a

historical backdrop to the present dispute, they omit important aspects of that history.

The discussion that follows sheds further light on the role that the Federal Defendants

have carved out for themselves but now wish to deny.

II. BACKGROUND.

The United States has long avowed that it has an obligation to protect the interests

of Indian tribes in the Colorado River. The United States has also claimed exclusive and

extensive authority to manage the waters of the Lower Basin of the Colorado River, at

times to the exclusion of the interests of the Navajo Nation. At the same time, the


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Federal Defendants and their predecessors have steadfastly shied away from confronting

the question of whether the lands of the Navajo Nation require water from the Colorado

River to make the Navajo Indian Reservation a permanent home for the Navajo people.

Nor has the United States addressed the extent to which the Navajo Nation has rights

under federal law to meet those needs. Likewise, the federal government has refused to

address whether water can otherwise be secured to meet the needs of the Navajo Nation

in the absence of federal law rights to use the water of the Colorado River on the Navajo

Indian Reservation. The result of this neglect is that the Federal Defendants never

determined whether the management programs challenged in this litigation will adversely

affect the United States’ ability as trustee of the Navajo Nation’s natural resources to

secure an adequate water supply for the lands of the Navajo Indian Reservation.

A. THE NAVAJO INDIAN RESERVATION AND THE FEDERAL TRUST

RESPONSIBILITY.

1. The Navajo Indian Reservation.

The Navajo Nation is a federally recognized Indian tribe in the United States with

over 250,000 members. The Navajo Indian Reservation spans the states of Arizona, New

Mexico and Utah, encompassing an area over thirteen million acres in size and is located

almost entirely within the Colorado River Basin, above Lake Mead. Known for its iconic

landscape, the Reservation, characterized by vast rangelands demarcated by wind-

sculpted red bluffs and dotted with picturesque settlements, is literally trapped in time.

Without adequate water supplies, the Reservation looks much as it did when the 1922

Compact was executed. Although the Federal Defendants note that the Navajo Nation


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presently has no way to put water from the Colorado River to use, see Federal Defendants

Memo at 41, the responsibility for this lack of critical infrastructure rests squarely with

the United States.

In Arizona, the western-most Navajo Indian Reservation lands are adjacent to the

Colorado River both above and below Lee Ferry, and are located in the Upper and Lower

Basins of the Colorado River Basin. The Navajo Indian Reservation originally was

established by the Treaty of June 1, 1868, 15 Stat. 667 (“1868 Treaty”), as the permanent

homeland of the Navajo Nation. Id. arts. 2 (Reservation “set apart for the use and

occupation of the Navajo tribe of Indians.”), 13 (Navajo Nation agrees to make the

Reservation its “permanent home”). From 1868 to 1934, the Reservation was expanded

by various Executive Orders and Acts of Congress. The Act of June 14, 1934, 48 Stat.

960 (“Boundary Act”), added additional lands and confirmed the boundary of the Navajo

Indian Reservation in Arizona. The western boundary of the Navajo Indian Reservation,

as expressly provided in the Boundary Act, runs “down the south bank” of the Colorado

River. Id. § 1.3 Additions to the Reservation were necessary to meet the needs of

expanding Navajo population for additional land, and appurtenant water, and Department

of the Interior officials made those needs known to Congress. In seeking confirmation

that the lands within the boundaries of the Navajo Indian Reservation as confirmed by the

3 The Boundary Act also included provisions protecting the use by the United

States of certain lands running along the south and east bank of the Colorado River if

needed for power purposes. Until such lands were “required for power purposes or other

uses under the authority of the United States,” the lands remained for the exclusive use

and occupancy of the Navajo Nation. Boundary Act § 1.


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Boundary Act would be treated the same as the Reservation lands set aside under the

1868 Treaty, the Department of the Interior advised Congress:

One objective of this report has been to analyze, item by item, the different

parcels of land actually within the Navajo country, so as to demonstrate this

uncertainty of tenure and its consequent deterrent influence on the Indians

and Indian Bureau in devising plans and policies for water and range

development and of proper range rotation and control. If we all could be

assured that the country within the lines above described and with the

additional areas recommended for permanent withdrawals were actually in

the same clean-cut, exclusive, continuous ownership as the treaty area, then

the office would be in a far better shape to plan positive programs of water

development, rodent control and real conservation . . . .

Navajo Indian Reservation, S. Doc. No. 72-64, at 52 (1st Sess. 1932) (attached as

Exhibit 2).

“[T]he essential purpose of Indian reservations is to provide Native American

people with a ‘permanent home and abiding place,’” In re the General Adjudication of

All Rights to Use Water in Gila River System & Source (Gila V), 35 P.3d 68, 74 (Ariz.

2001) (quoting Winters v. United States, 207 U.S. 564, 565 (1908)), that is, a “‘livable’

environment.” Id. (quoting Arizona v. California I, 373 U.S. 546, 599 (1963)). When the

Navajo Indian Reservation was established, the federal government was aware “that most

of the lands [set aside for tribes in Arizona] 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.” Arizona v. California I, 373 U.S at

599. The Navajo Nation has always contended that its Reservation requires water from

the mainstream of the Colorado River if it is to be the permanent home for the members


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of the Navajo Nation. See, e.g., Shortage Guidelines FEIS vol. 4 at IT-105 (attached as

Exhibit 3).

Navajo lands in the Lower Basin do not presently have an adequate water supply,

and many of the Navajo Nation members who reside there must haul drinking water over

substantial distances. The local water supply – in the absence of water from the Colorado

River – is not sufficient to meet the long-term needs on the Reservation. The Navajo

Nation’s ability to rely on sources such as the groundwater underlying its Reservation is

made more tenuous by the fact that the Hopi Tribe and the United States, acting in its

capacity as the Tribe’s trustee, have filed competing claims in the Little Colorado River

(“LCR”) adjudication to many of the water sources that might otherwise be available to

meet Navajo needs. See, e.g., Report of the Special Master; Motion for Adoption of

Report and Notice for Filing Objections to the Report at 68, In re General Adjudication

of All Rights to Use Water in Little Colorado River System & Source, No. CV 6417

(Apache County Superior Ct. Apr. 24, 2013) (attached as Exhibit 4). And although the

Federal Defendants purport to take comfort from their efforts on behalf of the Navajo

Nation in the LCR adjudication, see Federal Defendants Memo at 41, the surface water at

issue in that case is not suitable to provide long-term drinking water supplies to the

members of the Navajo Nation who reside in the Lower Basin of the Colorado River.

The Bureau of Reclamation (“Reclamation”) has recognized that Navajo tribal members

living on the western part of the Navajo Indian Reservation experience living conditions

considerably worse than the United States in general. North Central Arizona Water


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Supply Study, Report of Findings at 14 (Oct. 2006) (“North Central Arizona Water

Supply Study”) (attached as Exhibit 5). Those deprivations include the overwhelming

problem of obtaining a reliable domestic water supply, which severely affects the health

and human needs of the Navajo people living on those lands. Id. at 14-15.

Congress has acknowledged the Navajo Nation’s need for water from the Lower

Basin of the Colorado River. In the Arizona Water Settlements Act, Pub. L. No. 108-

451, 118 Stat. 3478 (2004), Congress directed the Secretary of the Interior to “retain

6,411 acre-feet of [Central Arizona Project] 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.” Id. § 104(a)(1)(B)(ii). The construction of the Navajo

Gallup Water Supply Project which, among other things, would make it possible to

deliver the reserved water to Window Rock, the capital of the Navajo Nation, and

surrounding areas is underway. However, without a congressionally approved

settlement, the water supply reserved by the Arizona Water Settlements Act for that

portion of the project remains unavailable. See Omnibus Public Land Management Act

of 2009, Pub. L. No. 111-11, § 10603(c)(1), 123 Stat. 991, 1384. In the North Central

Arizona Water Supply Study, Reclamation concluded that the western part of the Navajo

Indian Reservation, along with other communities in the vicinity, will have unmet water


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needs by 2050 that will require the use of Colorado River water. North Central Arizona

Water Supply Study at 79-80. 4

In sum, although the United States established the Navajo Indian Reservation as

the permanent home for the Navajo people, it has been lax – indeed inactive – in securing

an adequate water supply for the Reservation lands in the Lower Basin in Arizona. Those

studies that it has performed reveal that water from the mainstream of the Colorado River

is needed to make the Navajo Indian Reservation lands livable, yet the Federal

Defendants and their predecessors have done nothing to secure a water supply from that

source to serve the Navajo people.

2. The Federal Trust Responsibility.

The trust relationship between the United States and Indian tribes, and the

attendant fiduciary duty owed to tribes by the federal government, is the cornerstone of

4 The Federal Defendants are wrong when they claim that various other sources of

water might meet Navajo Nation needs for its Arizona lands in the Lower Basin. As

noted above, water from the Navajo Gallup Water Supply Project may not be used in

Arizona in the absence of a settlement of all the claims of the Navajo Nation in that State.

Federal Defendants Memo at 41. Under the New Mexico settlement, the Navajo Nation’s

water rights from the San Juan River in the Upper Basin in New Mexico cannot be used

in Arizona, and all water delivered from New Mexico to Arizona through the Navajo

Gallup Water Supply Project must be accounted for as Arizona water. See Pub. L. No.

111-11, § 10603(c)(2)(A). While the Navajo Nation claims water in the Upper Basin of

the Colorado River in Arizona, the right of the Navajo Nation to use this water has not

been determined by any court, and the use of such water by Navajo people living in the

Lower Basin has not been firmly established.


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United States’ policy concerning Indian tribes.5 The trust relationship has its roots in the

earliest encounters between tribes and European colonists, has been reaffirmed by the

Congress in treaties and statutes and by the Executive in Executive Orders, regulations

and policy statements, and recognized and enforced by the federal courts. In United

States v. Mitchell (Mitchell II), the Supreme Court acknowledged “the undisputed

existence of a general trust relationship between the United States and the Indian people.”

463 U.S. 206, 225 (1983). The Supreme Court has repeatedly “emphasized ‘the

distinctive obligation of trust incumbent upon the Government,’” id. (quoting Seminole

Nation v. United States, 316 U.S. 286, 296 (1942)), that “has long dominated the

Government’s dealings with Indians.” Id.; see, eg., Washington v. Wash. State

Commercial Passenger Vessel Ass’n, 443 U.S. 658, 673 n.20 (1979); Morton v. Mancari,

417 U.S. 535, 541, 545-55 (1974); Morton v. Ruiz, 415 U.S. 199, 236 (1974); United

States v. Shoshone Tribe, 304 U.S. 111, 117-18 (1938); Cherokee Nation v. Georgia, 30

U.S. (5 Pet.) 1, 17 (1831).

Through treaty-making, the United States restricted Indian aboriginal land use,

locating tribes such as the Navajo Nation on reservations with defined boundaries that are

typically significantly smaller than the tribes’ aboriginal lands. In exchange for those

massive land cessions, the United States agreed to provide protection to Indian tribes and

their reserved lands. In Worcester v. Georgia, 31 U.S. 515 (1832), the Supreme Court

5 The legal issues related to the United States’ trust responsibility raised by the

Federal Defendants are addressed in Part III.D., infra.


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construed the 1785 Treaty of Hopewell between the fledgling federal government and the

Cherokee Nation. The Court observed that the “treaty, thus explicitly recognizing the

national character of the Cherokees, and their right of self government; thus guarantying

their lands; assuming the duty of protection, and of course pledging the faith of the

United States for that protection.” Id. at 556.

The federal government’s fiduciary duty to protect tribal lands, frequently

undertaken by the government by treaty, was extended by Congress to all tribes through

the Non-Intercourse Act, 25 U.S.C. § 177. Reviewing the “specific pledges” of

protection made by the federal government to Indian tribes, the Court in Worcester

observed:

From the commencement of our government, congress has passed acts to

regulate trade and intercourse with the Indians; which treat them as nations,

respect their rights, and manifest a firm purpose to afford that protection

which treaties stipulate. All these acts, and especially [the Non-Intercourse

Act] of 1802, which is still in force, manifestly consider the several Indian

nations as distinct political communities, having territorial boundaries,

within which their authority is exclusive, and having a right to all the lands

within those boundaries, which is not only acknowledged, but guarantied

by the United States.

31 U.S. at 556-57.6 The Congressional policy expressed in the Non-Intercourse Act “has

been said to protect the Indian tribes’ right of occupancy, even when that right is

unrecognized by any treaty, and the purpose to prevent the unfair, improvident, or

improper disposition of Indian lands.” Joint Tribal Council of Passamaquoddy Tribe v.

6 While the provisions of Worcester addressing the exclusive jurisdiction of Indian

tribes within their boundaries have eroded over time, the Court’s holding regarding the

duty of the United States to protect tribal lands remains viable.


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Morton, 528 F.2d 370, 377 (1st Cir. 1975) (citations omitted). In Passamaquoddy, the

First Circuit Court of Appeals determined that through the Non-Intercourse Act Congress

established an enforceable fiduciary relationship with all tribes, even absent federal

recognition. Id. at 379. For treaty tribes, the Supreme Court has held that the Non-

Intercourse Act manifests “a continuing solicitude for the rights of the Indians in their

land.” Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 684 (1974) (Rehnquist,

J. concurring). The right of treaty tribes to possession of their lands is “based not solely

on the original grant of rights in the land but also upon the Federal Government’s

subsequent guarantee.” Id.

These principles apply without question to the lands of the Navajo Indian

Reservation.

B. THE LAW OF THE RIVER.

In their various motions and memoranda, the Federal Defendants and the

Defendant-Intervenors have attempted to describe the Law of the River in detail. See,

e.g., Federal Defendants Memo at 5-19; IID Memo at 3-8. Contrary to those

characterizations, this case does not ask the Court to address unanswered questions about

the Law of the River other than the meaning of Article VII of the 1922 Compact or about

the quantity of the Navajo Nation’s water rights to the Colorado River. Instead, the

fundamental issue that underlies the litigation is whether the challenged actions can

withstand legal scrutiny in light of the Federal Defendants’ failure to consider the effect

of their actions on the ability of the Navajo Nation and the United States, as its trustee, to


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secure the firm and reliable water supply needed to make the lands of the Navajo Indian

Reservation a permanent home for the Navajo people, as the United States first promised

in the 1868 Treaty.

The Navajo Nation’s challenge to the administrative actions of the Federal

Defendants is based on Article VII of the 1922 Compact, the foundation for all of the

Law of the River. As discussed below, much of that law stems from the concerns of the

other Colorado River Basin States about California’s reliance on waters of the Colorado

River in derogation of the rights and interests of other Basin States. The Navajo Nation

submits that under the Law of the River and the federal trust responsibilities, the Federal

Defendants may not take actions that engender further reliance on water from the

Colorado River that may be needed to meet tribal purposes, including those of the Navajo

Nation. The following sections describe some of the more important aspects of the Law

of the River omitted by the Federal Defendants and the Defendant-Intervenors.

1. The 1922 Colorado River Compact.

As noted above, the United States acknowledged its duty to the Indian tribes in the

Colorado River Basin through the inclusion of Article VII in the 1922 Compact.

Although that article is never mentioned by the Federal Defendants in their description of

the 1922 Compact, see Federal Defendants Memo at 6-7, it is a critical component of the

Law of the River and essential to understanding this litigation. The 1922 Compact was

negotiated in response to the concerns of the other Basin States that the rapid

development in California would result in the ultimate award of far too much of the


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river’s water supply to California under the principle of prior appropriation. Arizona v.

California I, 373 U.S. at 555-57; see Federal Defendants Memo at 6-7. The other Basin

States, especially the Upper Basin States, sought to preserve an adequate supply from the

river to meet their own needs and were concerned that California’s reliance on Colorado

River water would deprive them of water to which they believed they would otherwise be

entitled. Arizona v. California I, 373 U.S. at 556. The parties ultimately were not able to

resolve the issue of apportionments to the individual states but agreed to provisions

allocating water between the Upper and Lower Basins. Id. at 557-58.7

The Indian tribes in the Colorado River Basin did not participate in the

negotiations over the provisions of the 1922 Compact nor was the Department of the

Interior designated to negotiate for the federal government. Minutes and Record of the

First Eighteen Sessions of the Colorado River Commission Negotiating the Colorado

River Compact of 1922, Session 1 at 1-2 (Jan. 26, 1922) (attached as Exhibit 6), complete

minutes for all sessions available at http://wwa.col.edu/resources/colorado-

river/compact.html (last visited Nov. 8, 2013). Instead, the federal representative to the

7 The statement of Delph Carpenter, Commissioner for Colorado, explained the

problem:

The upper state has but one alternative, that of using every means to retard

development in the lower state until the uses within the upper state have

reached their maximum. The states may avoid this unfortunate situation by

determining their respective rights by interstate compact before further

development in either state, thus permitting freedom of development in the

lower state without injury to future growth in the upper.

Arizona v. California I, 363 U.S. at 556 n.17.


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negotiations was Herbert Hoover, the Secretary of Commerce, with Reclamation officials

serving as advisors. Minutes and Record of Sessions Nineteen thru Twenty Seven of the

Colorado River Commission Negotiating the Colorado River Compact of 1922, Session

21 at 97 (Nov. 20, 1922) (“Minutes of Sessions Nineteen thru Twenty Seven”) (attached

as Exhibit 7). Apparently aware of the relatively recent decision in Winter , 207 U.S.

564, Secretary Hoover required the inclusion of Article VII, the only article in the

compact purporting to address the issue of tribal rights. Secretary Hoover first proposed

the inclusion in his words of the “wild Indian article” to the effect that “[n]othing in this

compact shall be construed as effecting the rights of Indian Tribes,” the purpose of which

was “[t]o protect the U. S. who have treaties with the Indians.” Minutes of Sessions

Nineteen thru Twenty Seven, Session 20 at 89 (Nov. 19, 1922) (attached as Exhibit 8).

Secretary Hoover further stated:

The Indian question is always prominent in every question of the west and

you always find some congressm[a]n who is endowed with looking after

the indian, who will bob up and say, “What is going to happen to the poor

Indian?” We thought we would settle it while we were at it.

Id.

Subsequently, Secretary Hoover suggested modifying the language to provide that

“[n]othing in this compact shall be construed as affecting the obligations of the United

States to the Indian tribes,” noting that it “is a separate obligation of the Federal

Government.” Id. Session 21 at 97-98. He further explained that the purpose of that

language was “to reduce all objection in Congress because the United States has a treaty


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with the Indian tribes affecting irrigation water . . . .” Id. at 98. The revised language

became Article VII.

When it approved the 1922 Compact, the United States was well aware that the

compact would play a major role in the future development of the waters of the Colorado

River, especially in the Lower Basin. See generally Federal Defendants Memo at 6-7.

But the United States had also always recognized the great demand for water

development on Indian lands and the avowed but frequently unfulfilled policy of the

United States to secure an adequate water supply to meet tribal needs. Occasionally, the

federal government aggressively sought rights under federal law to accomplish that

purpose. See Winters, 207 U.S. at 565 (asserting a right of 5,000 miners’ inches of water

for the benefit of the Gros Ventre and Assiniboine Tribes to the detriment of non-Indian

settlers on lands ceded by the two tribes).

Litigation, however, is not a prerequisite to securing much needed tribal water

supplies. Recognizing that a sufficient water supply was the key to transforming Indian

reservations with their limited land base into the desired homelands for Indian people, the

federal government has sought to advance water development on Indian lands. See, e.g.,

Arizona v. California I, 373 U.S. at 599 (Supreme Court quoting congressional statement

in support of appropriations for an irrigation canal for Indian lands long before the

determination of water rights). For example, the Fifty-Ninth Annual Report of the

Commissioner of Indian Affairs to the Secretary of the Interior (1890) (attached as

Exhibit 9) provides:


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Second in importance only to that of the education of the children is the

matter of promoting the material welfare of the Indians. . . . The large

majority of Indians whom I have seen must depend upon the products of

the soil, and whatever is done for them should be in the direction of

assisting them in opening and developing farms. Most of the land which

they occupy in Idaho, Nevada, California, Arizona, and New Mexico is

practically worthless without irrigation. Many of them have already

mastered this art and use it on a small scale very successfully. In many

cases, however, the natural streams upon which they have depended have

been taken from them by the irrigating canals built by the white man, and

they have neither the capital nor the knowledge necessary to develop for

themselves such systems of irrigation as are absolutely necessary for the

redemption of the arid wastes in which they dwell. It is entirely feasible to

bring under cultivation large bodies of most fertile land which will provide

an ample support for all. This, however, must of necessity be done by the

General Government and ought to be undertaken at once.

Id. at CXL-CXLI.

Actions to address the need for water development were undertaken on

reservations throughout the West without regard to whether water rights had been secured

under federal law or otherwise. See, e.g., Sixtieth Annual Report of the Commissioner of

Indian Affairs to the Secretary of the Interior at 50-51 (1891) (describing development of

irrigation structures on Crow Reservation in Montana) (attached as Exhibit 10).

Consistent with the general federal policies recognizing the importance of reservation

water supplies, the need to secure and develop various water resources if the Navajo

Indian Reservation lands were to serve as a homeland for Indian people was well-

recognized by the federal officials responsible for the Navajo Indian Reservation. See,

e.g., Sixty-First Annual Report of the Commissioner of Indian Affairs to the Secretary of

the Interior at 125-26 (1892) (describing the need for a survey “with a view to


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establishing and maintaining a system of irrigation and developing a stock water supply

sufficient for the Navajo Indians . . . .”) (attached as Exhibit 11).

Not surprisingly, providing an adequate water supply to Indian lands and Indian

people remains a critical part of the current policy of the federal government. Pursuant to

25 U.S.C. § 1632(a)(5), Congress declared it “the policy of the United States, that all

Indian communities and Indian homes . . . be provided with safe and adequate water

supply systems and sanitary sewage waste disposal systems as soon as possible.” And,

the Bureau of Indian Affairs has express authority over the “extension, improvement,

operation, and maintenance of . . . development of water supplies.” 25 U.S.C. § 13. In

short, the stated objective of the United States has always been to secure and develop the

water supplies needed to make Indian lands into a viable and self-sustaining home for

Indian people.

In Article VII of the 1922 Compact, the United States pledged that its potentially

conflicting actions in developing and controlling the water supplies for the benefit of the

Colorado River Basin States under the compact’s allocations would not interfere with its

ability to provide Indian tribes with the water needed to make their reservations livable.

On the Navajo Indian Reservation, federal officials noted at the time that the enactment

of the 1922 Compact required additional efforts on their part to ensure that its passage

would not interfere with their work to secure and develop much needed water supplies.

See Letter from Supervising Engineer to Frank C. Brandon, Special Supervisor, United

States Indian Service at 3 (Nov. 22, 1922) (“It would appear that it is now up to the


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Indian Office to outline its policy with reference to all of the Indian lands in the Colorado

Drainage, so that in any division agreements as between the states the rights the claims of

the government will be recognized . . . .”) (attached as Exhibit 12).

Given both the history of Article VII and the overarching concern of federal

officials for securing and developing the water supplies needed on Indian lands, Article

VII must be read broadly to effectuate the important policies it embodies.8 Federal

officials have always sought to secure sufficient water to develop Indian lands and were

well aware of the possibility of conflict between their duties under the 1922 Compact and

the federal objectives with regard to water development on Indian land. Viewed in

proper context, Article VII should be understood as a broad assertion of the United

States’ obligations to protect the interests of Indian tribes in securing the water needed to

make their reservations the permanent homelands envisioned at the time of their creation

despite the potentially competing federal duties on the Colorado River.

2. The Boulder Canyon Project Act and the Arizona Contract.

8 To the extent there is any uncertainty over the meaning of Article VII, the well-

established rule is that ambiguities in the interpretation of treaties, statutes, and

regulations enacted for the benefit of Indian people, must be construed in favor of the

tribes. Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S. 251,

269 (1992) (“When we are faced with these two possible constructions, our choice

between them must be dictated by a principle deeply rooted in this Court’s Indian

jurisprudence: ‘[S]tatutes are to be construed liberally in favor of the Indians, with

ambiguous provisions interpreted to their benefit.’” (quoting Montana v. Blackfeet Tribe

of Indians, 471 U.S. 759, 766 (1985))); see also Winters, 207 U.S. at 576-77; Worcester,

31 U.S. at 582. This rule that treaties and other laws applicable to Indian tribes should be

liberally construed in favor of Indian tribes is “rooted in the unique trust relationship

between the United States and the Indians.” County of Oneida v. Oneida Indian Nation,

470 U.S. 226, 247 (1985).


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The Boulder Canyon Project Act, 43 U.S.C. §§ 617-617 (“BCPA”), was enacted

to resolve the impasse among the Lower Basin States over the allocation of the water

secured to the Lower Basin by the 1922 Compact. Arizona v. California I, 373 U.S. at

560-63. With that allocation in place, the BCPA provided for the construction of Hoover

Dam (then Boulder Dam) and Lake Mead, part of a “great system of dams and public

works nationally built, controlled, and operated for the purpose of conserving and

distributing the water.” Id. at 552. Germane to the present litigation was the allocation to

the State of Arizona of 2.8 million acre-feet per year (“afy”), as well as a portion of any

surplus, from the mainstream of the Colorado River in the Lower Basin. See id. at 573-

81.

Section 5 of the BCPA authorized the Secretary “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.” Id. at 580; see id. at 583

(Representatives from Utah and Arizona criticized the proposed legislation because it

gave the Secretary “‘absolute control’ over the disposition of the stored waters.”). The

“unitary management” authority granted to the Secretary under the BCPA was necessary

to ensure the “full realization of the benefits Congress intended this national project to

bestow.” Id. at 589-90. The Secretary is not required to follow the law of prior

appropriation in carrying out this responsibility. Id. at 586; see Federal Defendants

Memo at 11 n.7.


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Significantly, the BCPA required the Secretary to account for uses in Arizona

from the mainstream above Lake Mead and below Lee Ferry in determining the water

supply available to meet Arizona’s allocation of 2.8 million afy, despite the fact “that the

Secretary was given physical control over the waters stored in Lake Mead and not over

waters before they reached the lake.” Arizona v. California I, 373 U.S. at 590.9

Arizona’s contract pursuant to section 5 of the BCPA contains an express provision to

that effect. See Contract for Delivery of Water, United States Department of the Interior,

Bureau of Reclamation, Boulder Canyon Project, Arizona-California-Nevada art. 7(d)

(Feb. 9, 1944) (“Arizona Contract”) (attached as Exhibit 5 to Federal Defendants Memo).

Finally, the BCPA made it clear that the actions of the States and the United States

were to be governed by the terms of the 1922 Compact. 43 U.S.C. § 617: see Arizona v.

California I, 373 U.S. at 566-67. Likewise, the Arizona Contract called for the United

States to adhere to the terms of the 1922 Compact, stating that “[t]his contract is made

upon the express condition and with the express covenant that the United States and

Arizona, and agencies and water users therein, shall observe and be subject to and

controlled by said Colorado River Compact and Boulder Canyon Project Act . . . .”

Arizona Contract art. 7(c). The Arizona Contract also paralleled the 1922 Compact in

that it expressly provided that “nothing in this contract shall be construed as affecting the

obligations of the United States to Indian Tribes,” id. art. 5, a provision the Federal

9 The Navajo Indian Reservation is almost entirely located in the drainage of the

Colorado River above Lake Mead.


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Defendants also neglect to mention in their description of the contract as part of the Law

of the River. See Federal Defendants Memo at 8-9. Thus, like the 1922 Compact, the

obligations of the United States to Indian tribes were not to be affected either by the

BCPA or the Arizona Contract issued pursuant to the BCPA.

3. Arizona v. California I.

The Supreme Court’s 1963 decision in Arizona v. California I answered numerous

questions about the BCPA, confirming the extensive federal control over the allocation

and distribution of waters from the mainstream of the river below Lake Mead and setting

the stage for the construction of the Central Arizona Project (“CAP”). At least three

aspects of its decision are important for purposes of this litigation. First, the United

States confirmed that it saw itself as the party responsible for the protection and assertion

of tribal rights to use water from the Lower Basin of the Colorado River. Second, the

Court addressed the issue of the management of uses from the mainstream above Lake

Mead and below Lee Ferry but limited its directives to the Secretary in the final decree to

the manner in which Lake Mead was operated. Third, the Court confirmed the role of the

Secretary of the Interior as the “Water Master” for waters of the Lower Basin. See 373

U.S. at 565 (“Congress gave the Secretary of the Interior adequate authority to

accomplish the division” of water between the States.).

With regard to the representation of tribal interests in the waters of the Lower

Basin of the Colorado River, the United States in Arizona v. California I asserted that it

“had ‘full and exclusive authority to control the presentation of the Indian’s interests in


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the [litigation].’” Fort Mojave Indian Tribe v. United States, 43 Cl. Ct. 417, 427 (1991).

The United States thus took control of the defense of the tribal rights in the case.

Indeed, the United States opposed the efforts of the Navajo Nation to intervene in the

case, arguing that such intervention was “precluded by the United States’ exclusive

authority.” Response of the United States to the Motion on Behalf of the Navajo Tribe of

Indians for Leave to Intervene at 7 (Nov. 6, 1961) (“U.S. Response to Navajo Motion to

Intervene”) (attached as Exhibit 9 to Federal Defendants Memo). In the course of

opposing Navajo intervention, the United States assured the Court that “it ‘is to be

presumed’ that ‘the United States will be governed by such considerations of justice [as

are required for the] treatment of [a] . . . dependent race.’” Id. at 6-7 (citation omitted).

The Attorney General’s control over such litigation was justified, according to the United

States’ response, by the Secretary’s actions ‘“as supervisor, agent, guardian, and trustee

of the Indian and his property, whether in the nature of lands or restricted funds.’” Id. at

4 (quoting United States v. Anglin & Stevenson, 145 F. 2d 622, 628 (10th Cir. 1944)).

While the United States subsequently agreed to the intervention of the five Indian tribes

whose rights were determined in the 1964 decree, see Arizona v. California II, 460 U.S.

605, 612 (1983), its statements in opposing the intervention of the Navajo Nation remain

as a telling indicator of the views of the federal government regarding the broad scope of

its obligations to the Navajo Nation after the federal approval of the 1922 Compact and

the enactment of the BCPA.


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Arizona v. California I is also important because of its treatment of mainstream

uses in Arizona and Nevada above Lake Mead but below Lee Ferry (where any Navajo

Nation uses would occur) as properly charged against the allocations to those states.10

The 1964 decree governs the Secretary’s role as the Court’s Water Master for the

operation of Lake Mead and the other federal regulatory structures on the mainstream

below Lake Mead and enjoins the Secretary “[f]rom releasing water controlled by the

United States for irrigation and domestic use in the State of Arizona, California, and

Nevada” except as provided in Article II. 1964 Decree art. II(B), 376 U.S. at 342. The

1964 decree further establishes that “[a]ny mainstream water consumptively used within

a State shall be charged to its apportionment . . . .” Id. art. II(B)(4), 376 U.S. at 343.

Under Article II(B)(5), the Secretary may generally provide water only to those with

whom she has contracted pursuant to Section 5 of the BCPA or other applicable statutes.

376 U.S. at 343.11

Article II(D) defines releases from Lake Mead which the Secretary

10

The Supreme Court disagreed “with the Master’s holding that the Secretary is

powerless to charge States for diversions from the mainstream above Lake Mead.”

Arizona v. California I, 373 U.S. at 591.

11

It is not clear whether Section 5 of the BCPA authorizes the Secretary to issue

contracts for mainstream uses above Lake Mead. See 43 U.S.C. § 617d. The Arizona

Contract states in Article 7(i) that it is not intended to preclude the parties from

contracting for the storing and delivery of water above Lake Mead “when and if

authorized by law.” In any event, the Arizona Contract excludes any water used by the

Navajo Nation from the amounts which the Secretary must deliver to Arizona pursuant to

the BCPA. As noted above, in Article 7(d), the Arizona Contract expressly provides that

the obligation to deliver water below Lake Mead is “diminished” by uses above Lake

Mead. In addition, the contract contains the caveat that “nothing in this contract shall be

construed as affecting the obligation of the United States to Indian tribes.” Id. art. 5.


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shall make for the benefit of certain enumerated federal establishments below Lake Mead

and exempts those establishments from the contracting requirement. 376 U.S. at 343-44.

That article is expressly limited, however, to those federal establishments “named” in it.

Id. at 344. Thus, the Secretary is enjoined

[f]rom releasing water controlled by the United States for use in the States

of Arizona, California, and Nevada for the benefit of any federal

establishment named in this subdivision (D) except in accordance with the

allocations made herein; . . . provided further that nothing herein shall

prohibit the United States from making future additional reservations of

mainstream water for use in any of such States as may be authorized by law

and subject to present perfected rights and rights under contracts theretofore

made with water users in such State under Section 5 of the Boulder Canyon

Project Act or any other applicable federal statute.

Id. at 343-44. Article II(D) thus requires the Secretary to account for mainstream uses

above Lake Mead, including any Navajo uses. However, nothing in the article directs the

Secretary to take any action other than as set forth in subsections (1) through (9) of

Article II(D) which applies only to releases from Lake Mead to serve downstream uses.

As a result, the operative article controlling the operation of Lake Mead does not purport

to govern the Secretary’s decision-making regarding water for use on the Navajo Indian

Reservation.

Finally, Arizona v. California I is important for what it did not do – specifically,

determine the nature and extent of the reserved rights which the United States may hold

for the benefit of the Navajo Nation in the waters of the Lower Basin of the Colorado

River. While certain Defendant-Intervenors treat that issue as the core of the case, see,

e.g., Arizona Memo at 2-20; MWD Memo at 44-50, the United States has never


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addressed the question of the nature and extent of the rights of the Navajo Nation from

the mainstream of the Colorado River. The United States expressly recognized prior to

the entry of the 1964 decree that no evidence had been submitted on behalf of the Navajo

Nation for uses from the mainstream and that evidence of such use would have had to be

submitted in order for the Court to consider the issue of the Navajo Nation’s rights to the

mainstream above Lake Mead. U.S. Response to Navajo Motion to Intervene at 14-15.12

The Federal Defendants concede that they did not undertake such an analysis as they

proceeded with the programs at issue here. Federal Defendants Memo at 42 (“Whether

Navajo needs any additional water supply from the Lower Colorado River is entirely

speculative . . . .”); but see North Central Arizona Water Supply Study at 79-80.

4. Colorado River Basin Project Act.

The Colorado River Basin Project Act, 43 U.S.C. §§ 1501-56, authorized the

construction of CAP to deliver water from the Colorado River to central Arizona. Id. §

1521; see Federal Defendants Memo at 15-16. The provision most significant to this

litigation is section 1521 which, among other things, subordinated the water supply for

CAP to the 4.4 million afy of water to which California is entitled pursuant to the BCPA

and the 1964 Decree. 43 U.S.C. § 1521(b); see Federal Defendants Memo at 15-16.

Protections were provided to Nevada as well under that provision. 43 U.S.C. § 1521(b).

12

In contrast to Arizona v. California, this case is not about the nature of the

Navajo Nation’s rights but rather addresses the failure of the United States to ensure that

its administrative actions do not interfere with its obligation to secure an adequate water

supply for the Navajo Nation.


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Thus, despite having prevailed as a matter of law in Arizona v. California I and secured

an entitlement of 2.8 million afy which under the law it was entitled to use for its long-

hoped-for project to deliver water from the Colorado River to the central portions of the

State, Arizona was politically compelled to surrender its legal victory. The political

power of the State of California simply overwhelmed any question of the legal

entitlements of the other two Lower Basin States. As a result, in order to obtain the

federal funding required to build CAP, Arizona relinquished the benefits of its hard

fought litigation. As concerns the interests of the Navajo Nation, the Federal Defendants

have ignored the lessons from the subordination of the CAP water supply to the interests

of the more politically powerful State of California.13

Assertions by the Federal

Defendants that the Navajo Nation’s rights are protected as a matter of law, despite the

fact that those rights have not been quantified or adjudicated, fly in the face of the

political lessons of the past.

C. THE FEDERAL DEFENDANTS’ ACTIONS CHALLENGED HERE.

The five federal management programs challenged in this litigation are: (1) the

Colorado River Interim Surplus Guidelines, reprinted in 66 Fed. Reg. 7,772 (Jan. 25,

2001) (“Surplus Guidelines”); (2) the Colorado River Interim Guidelines for Lower Basin

13

Clearly, the Navajo Nation does not possess the same political power as the

other parties in this litigation. See John B. Weldon, Jr., Non-Indian Water User’s Goals:

More is Better, All is Best, in Indian Water in the New West 79, 83 (Thomas R. McGuire

et al. eds. 1993) (“[M]any non-Indian appropriators would prefer to use political clout in

Congress to prevent the tribes from obtaining the funds necessary to exercise their

reserved rights.”) (attached as Exhibit 13).


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Shortages and Coordinated Operations for Lake Powell and Lake Mead, reprinted in 73

Fed. Reg. 19,873 (Apr. 11, 2008) (“Shortage Guidelines”); (3) the Final Environmental

Impact Statement, Implementation Agreement, Inadvertent Overrun and Payback Policy,

and Related Federal Actions (Oct. 2002) (“Implementation Agreement EIS”) (Executive

Summary attached as Exhibit 12 to Federal Defendants Memo), full document available

at www.usbr.gov/lc/region/g4000/FEIS/Volume%20I.pdf (last visited Nov. 6, 2013); (4)

the promulgation of regulations at 43 C.F.R. pt. 414 for interstate banking of Colorado

River water (“Interstate Banking Regulations”); and (5) the Storage and Interstate

Release Agreement (Dec. 18, 2002) (attached as Exhibit 16 to Federal Defendants

Memo). See Second Amended Complaint ¶ 1. Although the Federal Defendants provide

a general description of the programs and contracting activities which they have

undertaken, it is useful to take a closer look at the purposes for those programs and the

manner in which the Federal Defendants have sought to fulfill their obligations to the

Navajo Nation. See generally Federal Defendants Memo at 19-25.

The five federal management programs noted above all involve actions which

were intended to enable “the Lower Basin States to manage and conserve their

apportionments under the BCPA § 5 contracts and the Arizona v. California decree, with

greater predictability, efficiency and economy.” Federal Defendants Memo at 19. All

were undertaken, at least in part, pursuant the authority granted the Federal Defendants in

the BCPA and the decree in Arizona v. California. See, e.g. Implementation Agreement

EIS at ES-1. Thus, these actions were all taken pursuant to the authorization of the


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BCPA, in which the United States pledged that it would not abridge its obligations to

Indian tribes in carrying out its authorized duties or in the case of Arizona v. California,

the federal government, as trustee for the Navajo Nation, asserted exclusive control over

Navajo interests in the waters that are subject to the terms of the decree.

With the cooperation of many of the Defendant-Intervenors, Reclamation and the

Secretary have formulated a long-term program for the management of the Lower Basin

of the Colorado River that seeks to advance the delivery and reliability of water in

accordance with the decree in Arizona v. California, minimize flood damage, allow for

the consideration of power generation needs, and enhance the environment. See, e.g.,

Surplus Guidelines FEIS at 1 (Executive Summary attached as Exhibit 10 to Federal

Defendants Memo). These federal management activities also continue the effort by the

United States and the other Colorado River Basin States, initiated with the negotiations

over the 1922 Compact, to reduce California’s reliance on water from the Colorado River

which has frequently exceeded the 4.4 million afy to which it is entitled under the BCPA

and Arizona v. California. Id. at 7. That reliance on water above its legal entitlement–

and the fears of the other Basin States over the effect of that reliance – developed despite

the clear limitations on California uses from the mainstream of the Colorado River found

in the BCPA and the decree in Arizona v. California. See 1964 Decree art. II(B), 376

U.S. at 342. The list of federal management objectives do not include the longstanding

federal policy of securing the water needed by the Navajo Nation and other Indian tribes

to make their reservations a permanent home for tribal members. Nor is there any


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recognition of the federal responsibility to carry out its management objectives in

accordance with the mandate of Article VII of the 1922 Compact which requires that

those activities be accomplished with due regard for the Secretary’s obligations to Indian

tribes.

All of the federal management programs share one or both of the related

objectives of providing a more certain water supply to the Lower Basin States and

reducing California’s reliance on water in excess of 4.4 million afy. For example, when

Reclamation adopted the Colorado River Basin States’ proposal as the preferred

alternative for the Surplus Guidelines, the stated purpose was “to afford mainstream users

of Colorado River water, particularly those in California who currently utilize surplus

flows, a greater degree of predictability” with regard to the existence of surplus flows.

Surplus Guidelines FEIS at 7. In describing the need for the Surplus Guidelines,

Reclamation observed that “[f]or many years, California has been diverting more than its

normal 4.4 maf apportionment.” Id. Likewise in establishing the Shortage Guidelines,

the Secretary stated that he wanted to provide Colorado River water users with “a greater

degree of certainty” to allow those “water users in the Lower Basin to know when, and

by how much, water deliveries will be reduced in drought and other low reservoir

conditions.” Record of Decision, Colorado River Interim Guidelines for Lower Basin

Shortages and the Coordinated Operations for Lake Powell and Lake Mead at 6 (Dec.

2007) (“Shortage Guidelines ROD”) (attached as Exhibit 18 to Federal Defendants

Memo); see Implementation Agreement EIS at ES-1 (“The purpose of the Federal Action


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is to facilitate implementation of the QSA, which incorporates contractual agreements

necessary for California to reduce its use of Colorado River water.”); Final

Environmental Assessment and Finding of No Significant Impact for Storage and

Interstate Release Agreement among the United States of America Acting through the

Secretary of the Interior; and the Arizona Water Banking Authority; the Southern Nevada

Water Authority; and the Colorado River Commission of Nevada, No. 02-LC-012-FONSI

at 2 (June 19, 2002) (“Storage and Release Agreement FONSI”) (“The purpose and need

for the Preferred Alternative/Proposed Action is to meet part of southern Nevada’s future

water needs by storing currently unused basic or surplus apportionment of Colorado

River water in offstream groundwater basins in Arizona.”) (attached as Exhibit 15 to

Federal Defendants Memo); see also Nevada Memo at 8 (“Unused Colorado River water

has been stored offstream in Arizona and California for Nevada’s future use.”).

Reclamation’s response in the Shortage Guidelines FEIS to the concerns expressed

by the Navajo Nation about the effect of the proposed management action on its need for

water and the fact that its rights had not been judicially determined is typical of its

treatment of the Navajo Nation’s interests in the enactment of all of the challenged

management programs. Although Reclamation acknowledged that the Bureau of Indian

Affairs was obligated to protect tribal water rights and that Indian trust lands, with or

without water rights, were trust assets requiring it to analyze the effect of its actions on

such interests, it ultimately failed to address those issues in any meaningful fashion.

Shortage Guidelines FEIS at 3-96 to 3-97, 4-249, IT-109 to IT-111 (attached as Exhibit


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14). Devoting less than a page to its analysis of the effect of the proposed action on

Indian trust assets (“ITAs”), Reclamation offered only that it did not intend to interfere

with any “vested water right of any kind, quantified or unquantified . . . . Id. at 4-249.

The agency stated that if additional tribal rights were judicially recognized in future, it

would manage the river to allow for the delivery of such rights without explaining how

this significant undertaking would be accomplished. Id. History demonstrates that this

will be no easy task.

The Navajo Nation advised Reclamation of its need for Colorado River water and

asked the Secretary to account for those needs as he developed the Shortage Guidelines.

Id. at 3-96. Reclamation refused to address the question of the effect of its actions on the

ability of the United States to secure the water needed by the Navajo Nation and other

tribes with unquantified water rights or needs that may not be met by reserved rights

under federal law. Instead, Reclamation concluded that its obligations were satisfied by

its one paragraph assurance that in the event any tribal water rights were judicially

determined in the future, such rights would be recognized by the Secretary. Id. at 4-249.

That simplistic statement ignores the fact that the United States has never addressed

whether its holds reserved water rights from the Colorado River for the benefit of the

Navajo Nation, never considered as part of the challenged actions whether the Navajo

Nation needs water from the mainstream of the Colorado River in the Lower Basin to

make its Reservation a permanent homeland, and certainly never advanced a claim for, or

otherwise sought to secure any such water on behalf of the Navajo Nation. Thus, the


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Federal Defendants did not merely fail to analyze correctly the issues surrounding the

impact of its management actions on its obligations to the Navajo Nation; rather, they

refused to address those all important issues in any meaningful way.

In addition, the Federal Defendants ignored – much as they do in the Federal

Defendants Memo – the fact that by providing certainty and predictability to the Lower

Basin States’ water supply, they were fostering the very same sort of reliance to the

detriment of the Navajo Nation that California had developed and which requires these

substantial federal management programs to overcome. Indeed, California continued to

use water in excess of its allocated amounts despite the decree in Arizona v. California,

which had been instituted in large part to limit just such uses. See Arizona v. California I,

373 U.S. at 562-64. Moreover, the only conclusion that can be drawn from the motions

of certain of the Defendant-Intervenors is that whatever legal entitlement the United

States might hold for the benefit of the Navajo Nation, further action to clarify and

develop those rights will be resisted in light of the Defendant-Intervenors’ reliance on the

water supplies that have become more predictable and certain as a result of the

challenged actions. See, e.g., IID Memo at 15; Nevada Memo at 5. Arizona’s experience

with the Colorado River Basin Project Act counsels that legal rights described at supra

Part II.B.4., are of limited assistance when it comes to water development on the

Colorado River that threatens the interests of powerful entities already relying on such

supplies. In short, the federal response to the Navajo Nation’s concerns over the effect of


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the challenged actions on the Navajo Nation’s interests – interests which the Federal

Defendants are supposed to protect – is either hopelessly naive or disingenuous.

III. THE NAVAJO NATION HAS STATED COGNIZABLE

CLAIMS FOR THIS COURT TO CONSIDER UNDER NEPA, THE

APA AND THE FEDERAL TRUST RESPONSIBILITY.

A. INTRODUCTION.

The Navajo Nation filed this lawsuit to challenge the Federal Defendants’ actions

which obligate the waters of the Colorado River without having determined whether the

Navajo Nation requires water from the river to make its Reservation a permanent

homeland. Nor did the Federal Defendants address in any meaningful way the effect of

the challenged actions on the United States’ ability to secure the water needed to make

the lands of the Navajo Indian Reservation a permanent home for the Navajo people.

NEPA and the APA give the Navajo Nation standing to challenge the five federal actions

at issue in this lawsuit. Because the Federal Defendants failed to consider whether the

Navajo Nation requires water from the mainstream of the Colorado River, failed to

realistically assess the effect of their actions on the federal government’s ability to

provide the Navajo Indian Reservation with any water that is needed, and failed to

consider what the ultimate adjudication of federal law rights for the Navajo Nation might

mean for the water supply provided to the Defendant-Intervenors and others under the

programs at issue, the Federal Defendants violated NEPA and the APA. As described

below, those claims are properly before this Court.


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The Federal Defendants also violated the United States’ trust responsibility to the

Navajo Nation. When the federal government first took on its overarching role in

developing and regulating the waters of the Lower Basin of the Colorado River, it

pledged in Article VII of the 1922 Compact that those newly assumed duties would not

adversely affect its obligations to the Indian tribes who needed water from the Colorado

River to make their reservations liveable. In sum, as it told the Supreme Court in

Arizona v. California I, the United States acts as trustee for the Navajo Nation in matters

involving the waters of the Lower Basin of the Colorado River. See supra Part II.B.3.

Despite that commitment, the Federal Defendants failed to consider the needs of the

Navajo Nation, let alone ensure that their ability to secure water for use on the Navajo

Indian Reservation was not adversely affected when they implemented the challenged

programs. Given the plain language of Article VII, the issue of whether the Federal

Defendants violated their obligations to the Navajo Nation is also properly before this

Court.

Finally, this Court is the proper forum to consider these issues. While the

Supreme Court retains jurisdiction over the issue of water rights within the Lower Basin,

this case does not seek to adjudicate such rights. Instead, this case challenges the failure

of the Federal Defendants to carry out their obligations to the Navajo Nation under both

NEPA and the United States’ trust responsibilities. As a result, the issues described

above should be addressed by this Court and are not proper for consideration by the

Supreme Court.


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B. THIS COURT HAS JURISDICTION TO CONSIDER THE NAVAJO

NATION’S NEPA AND APA CHALLENGES TO THE FIVE PROGRAMS

AT ISSUE HERE.

1. The Challenged Programs and the Motions to Dismiss Related to the

NEPA and APA Challenges.

In its First Claim for Relief, the Navajo Nation alleges that the Record of Decision,

Colorado River Interim Surplus Guidelines, Final Environmental Impact Statement (Jan.

2001) (“Surplus Guidelines ROD”) (attached as Exhibit 11 to Federal Defendants Memo)

and Surplus Guidelines FEIS violate the APA, NEPA, and the Secretary’s trust

responsibilities because they failed to fully consider the impacts of the Surplus

Guidelines ROD and Surplus Guidelines FEIS on the interests of the Navajo Nation in

the Lower Basin of the Colorado River. Second Amended Complaint ¶¶ 60-67; see id.

¶¶ 36-40. Specifically, the Navajo Nation asserts a NEPA procedural injury because

even though the Surplus Guidelines FEIS and Surplus Guidelines ROD purported to

address all impacts to tribal water rights, as NEPA requires, neither document properly

considered whether the Navajo Nation requires water from the mainstream Colorado

River to serve its needs. Id. ¶¶ 37-39, 66-67. In addition, the Navajo Nation asserts that

the Federal Defendants failed to adequately consider what steps were required to fully

protect the water supply available to meet any such needs. Finally, the Navajo Nation

contends that the Surplus Guidelines serve to establish a politically formidable reliance

by other water users on the water supplies provided under those guidelines that ultimately

will interfere with the Federal Defendants’ ability to secure water for use on the Navajo

Indian Reservation. Id. ¶¶ 40, 64-65.


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In much the same fashion, the Navajo Nation’s Second Claim for Relief alleges

that the Shortage Guidelines ROD and Shortage Guidelines FEIS violate the APA,

NEPA, and the Secretary’s trust responsibilities because the Secretary again failed to

fully consider the impacts of the Shortage Guidelines ROD and Shortage Guidelines

FEIS on the interests of the Navajo Nation in the Lower Basin of the Colorado River.

Second Amended Complaint ¶¶ 68-71; see id. ¶¶ 41-45. As with the First Claim for

Relief, the Navajo Nation asserts a NEPA procedural injury because the Shortage

Guidelines FEIS and Shortage Guidelines ROD failed to adequately consider the interests

of the Navajo Nation as NEPA requires. Id. ¶¶ 42-45, 70-71.

Likewise, in its Third and Fifth Claims for Relief, the Navajo Nation alleges that

the Implementation Agreement FEIS, the Storage and Release Agreement FONSI and

Storage and Release Agreement all violate the APA, NEPA, and the Secretary’s trust

responsibilities for the same reasons – the Secretary once more failed to consider fully the

impacts of her actions on the interests of the Navajo Nation in the Lower Basin of the

Colorado River. Second Amended Complaint ¶¶ 72-76, 81-84; see id. ¶¶ 46-49, 50-55.

The primary challenges to the First, Second, Third and Fifth Claims for Relief rest

on whether the Navajo Nation has standing to bring them. Federal Defendants Memo at

44-54 (standing challenges to claims 1 through 5); MWD Memo at 22-44 (standing

challenges to claims 1 through 4); Nevada Memo at 39-53 (standing challenges to claims

1 through 5). As is demonstrated below, the Navajo Nation has standing to bring those

claims alleging a NEPA procedural injury.


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In its Fourth Claim for Relief, the Navajo Nation alleges that the interstate water

banking regulations, 43 C.F.R. pt. 414, violate the APA and the Secretary’s trust

responsibilities because the Secretary also failed to consider fully the impacts of the

interstate banking regulations on the interests of the Navajo Nation in the Lower Basin of

the Colorado River. Second Amended Complaint ¶¶ 77-80; see id. ¶¶ 50-55.

Specifically, the Navajo Nation asserts that the Secretary acted arbitrarily and

capriciously by failing to account for whether the Navajo Nation needs water from the

Colorado River in light of decreases in future water supplies available to satisfy such

needs. In addition, the regulations lead to reliance on water supplies made available

under the regulations to its detriment, and make it increasingly difficult for the Navajo

Nation to satisfy its unmet water needs. Id. ¶¶ 55, 78-79.

The Federal Defendants, Nevada and MWD argue that the Navajo Nation lacks

standing to bring its Fourth Claim for Relief. Federal Defendants Memo at 45-51;

Nevada Memo at 39-53; MWD Memo at 22-44. Nevada also argues that laches bars the

Fourth Claim for Relief. Nevada Memo at 55-57. The Federal Defendants and SRP

argue that the Fourth Claim for Relief is not cognizable because the APA by itself does

not give the Court jurisdiction to review it and asks for the joinder of additional parties.

Federal Defendants Memo at 57-58; SRP Memo at 3, 15-16. As discussed below, these

challenges fail to make the case for dismissal of the Fourth Claim for Relief.


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2. The Navajo Nation’s First, Second, Third and Fifth Claims For Relief

Set Forth Valid Claims Under NEPA and the APA Which Are Within

the Court’s Jurisdiction To Consider.

a. NEPA and APA Standards for Review.

Judicial review under NEPA is more than a rubber stamp. NEPA obligates federal

agencies “‘to consider every significant aspect of the environmental impact of a proposed

action’” and to ensure that federal agencies “‘inform the public that it has indeed

considered environmental concerns in its decision making process.’” Kern v. U.S.

Bureau of Land Mgmt., 284 F.3d 1062, 1066 (9th Cir. 2002) (quoting Baltimore Gas &

Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983)). NEPA

“‘establishes “action-forcing” procedures that require agencies to take a “hard look” at

environmental consequences,’” id. (quoting Metcalf v. Daley, 214 F.3d 1135, 1141 (9th

Cir. 2000)); accord Marsh v. Or. Natural Res. Council, 490 U.S. 360, 374 (1989), so “[a]

court’s inquiry, when reviewing whether an agency complied with NEPA, is whether the

agency adequately considered a project’s potential impacts and whether the consideration

given amounted to a ‘hard look’ at the environmental effects.” N. Alaska Envtl. Ctr. v.

Kempthorne, 457 F.3d 969, 975 (9th Cir. 2006). “The procedures prescribed both in

NEPA and the implementing regulations are to be strictly interpreted ‘to the fullest extent

possible’ in accord with the policies embodied in the Act,” and “‘[g]rudging, pro forma

compliance will not do.’” Ctr. for Biological Diversity v. U.S. Forest Serv., 349 F.3d

1157, 1166 (9th Cir. 2003) (quoting California v. Block, 690 F.2d 753, 769 (9th Cir.

1982)).


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NEPA itself does not provide for an express cause of action, however, so a

plaintiff alleging noncompliance with NEPA must bring suit pursuant to the APA. See 5

U.S.C. § 702 (“A person suffering legal wrong because of agency action, or adversely

affected or aggrieved by agency action within the meaning of a relevant statute, is

entitled to judicial review thereof.”). In order to have a cause of action under the APA,

there must be “final agency action.” Id. § 704. Examples of final agency action include

the preparation of an environmental impact statement (“EIS”) and accompanying record

of decision under NEPA, Or. Natural Desert Ass’n v. Bureau of Land Mgmt., 625 F.3d

1092, 1118-19 (9th Cir. 2008), the preparation of an environmental assessment (“EA”)

and accompanying finding of no significant impact under NEPA, W. Land Exchange

Project v. U.S. Bureau of Land Mgmt., 315 F. Supp. 2d 1068, 1080 (D. Nev. 2004), the

promulgation of regulations, Abbott Labs. v. Gardner, 387 U.S. 136, 149-50 (1967), and

the approval of contracts, such as the Interstate Banking Regulations. AT & T Corp. v.

Coeur d’Alene Tribe, 295 F.3d 899, 902 (9th Cir. 2002). The federal actions challenged

in this lawsuit for failure to comply with NEPA all satisfy the APA requirement for final

agency action. The Interstate Banking Regulations also constitute final agency action.

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); Second Amended Complaint ¶ 50.

The APA requires a court to “hold unlawful and set aside” final agency actions if

they are determined to be “arbitrary, capricious, an abuse of discretion, or otherwise not


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in accordance with law,” 5 U.S.C. § 706(2)(A), or “without observance of procedure

required by law.” Id. § 706(2)(D). The arbitrary and capricious standard requires an

agency to “examine the relevant data and articulate a satisfactory explanation for its

action including a ‘rational connection between the facts found and the choice made,’” so

that an agency action is arbitrary and capricious if the agency “failed to consider an

important aspect of the problem.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v. United States, 371

U.S. 156, 168 (1962)). With respect to the adequacy of an EIS, the Ninth Circuit

employs a ‘“rule of reason’” standard, which essentially requires the same analysis as the

arbitrary and capricious and abuse of discretion standards. Ctr. for Biological Diversity,

349 F.3d at 1166 (quoting Kern, 284 F.3d at 1071). Under this standard, a court must

consider whether an EIS “contains a ‘reasonably thorough discussion of the significant

aspects of the probable environmental consequences.’” Kern, 284 F.3d at 1071 (quoting

Or. Natural Res. Council v. Lowe, 109 F.3d 521, 526 (9th Cir. 1997)); see Motor Vehicle

Mfrs. Ass’n, 463 U.S. at 43.

b. NEPA’s Zone of Interests.

NEPA requires federal agencies to consider a wide variety of environmental

effects before taking action, including any impacts to ITAs and water supplies in general.


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i. NEPA’s Purposes and Related Procedural Requirements.

“The policies underlying NEPA are extremely broad.” City of Davis v. Coleman,

521 F.2d 661, 672 (9th Cir. 1975). The primary purposes of NEPA are to, among other

things, “encourage productive and enjoyable harmony between man and his environment;

[and] to promote efforts which will prevent or eliminate damage to the environment and

biosphere and stimulate the health and welfare of man.” 42 U.S.C. § 4321. To

accomplish these purposes, NEPA sets forth procedures “‘ensur[ing] that federal agencies

are informed of environmental consequences before making decisions and that the

information is available to the public.’” Citizens for Better Forestry v. U.S. Dep’t of

Agric., 341 F.3d 961, 970-71 (9th Cir 2003) (quoting Okanogan Highlands Alliance v.

Williams, 236 F.3d 468, 473 (9th Cir. 2000)). NEPA also declares a

continuing policy of the Federal Government in cooperation with State and

local governments . . . to use all practicable means and measures . . . in a

manner calculated to foster and promote the general welfare, to create and

maintain conditions under which man and nature can exist in productive

harmony, and fulfill the social, economic, and other requirements of present

and future generations of Americans.

42 U.S.C. § 4331(a).

In accordance with these purposes, NEPA requires federal agencies, including

Reclamation, to “utilize a systematic, interdisciplinary approach which will insure the

integrated use of the natural and social sciences and the environmental design arts in

planning and decisionmaking which may have an impact on man’s environment.” Id.

§ 4332(2)(A). Federal agencies must also prepare an EIS for actions that significantly

affect “the quality of the human environment.” Id. § 4332(2)(C). The “human


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environment” includes “the natural and physical environment and the relationship of

people with that environment,” so an EIS must discuss “economic or social and natural or

physical environmental effects” whenever these effects “are interrelated.” 40 C.F.R. §

1508.14; accord id. § 1508.8 (must consider direct, indirect, and cumulative effects to

“economic, social, or health” interests); see, e.g., Shortage Guidelines FEIS ch. 3 (in

addition to impacts to natural environment, “Affected Environment” includes impacts to

“Water Deliveries,” “Cultural Resources,” “Indian Trust Assets,” “Electrical Power

Resources,” “Socioeconomics,” and “Environmental Justice”).

ii. NEPA Affords Special Protections for Indian Trust

Assets.

Although never mentioned by the Federal Defendants, NEPA affords special

procedural protections to ITAs, which clearly fall within NEPA’s zone of interests. In

preparing an EIS, for example, federal agencies must request comments from Indian

tribes “when the proposed action may affect the environment of either: (1) Indian trust or

restricted land; or (2) Other Indian trust resources, trust assets, or tribal health and

safety.” 43 C.F.R. § 46.435(c). The EIS must describe “[t]he process used to coordinate

with . . . tribal . . . governments . . . and the results thereof.” Id.

§ 46.415(a)(9).

ITAs “are legal interests in property held in trust by the United States for Indian

tribes or individuals.” RECLAMATION’S NEPA HANDBOOK at 3-29 (Feb. 2012) (“NEPA

Handbook”) (attached as Exhibit 15), full document available at http://www.usbr.gov/

nepa (last visited Nov. 12, 2013). Reclamation defines the term “Assets,” as used in an


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ITA, to be “anything owned that has monetary value. The asset need not be owned

outright, but could be some other type of property interest, such as . . . a right to use

something . . . or intangible property rights.” Bureau of Reclamation Indian Trust Asset

Policy and NEPA Implementing Procedures, Questions and Answers About the Policy

and Procedures at 1, Question I-1 (Aug. 31, 1994) (“ITA/NEPA Q&A”) (included in

Attachment 9 to NEPA Handbook) (attached as Exhibit 16). On- and off-reservation

“water rights” and “claims” qualify as ITAs. Id.; see Shortage Guidelines FEIS vol. 1, at

3-96 (“The existence of a federally reserved right for the Navajo Nation to mainstream

Colorado River water has not been judicially determined at this time. Unquantified water

rights of the Navajo Nation are considered an ITA.”). So do tribal lands. ITA/NEPA

Q&A at 1, Question I-1.

Reclamation must take an interdisciplinary approach to evaluating impacts on

ITAs, including impacts to social, cultural, and economic values. Id. at 10, Questions IV-

7, IV-8; see 42 U.S.C. § 4332(2)(A); 40 C.F.R. §§ 1508.8, 1508.14. Since ITAs are a

“critical environmental” issue, NEPA Handbook at 8-13, Reclamation must discuss all

impacts to ITAs, “even those considered nonsignificant,” in its NEPA documents, id. at

3-29, including EAs. Id. at 6-8 (“Note that all impacts to ITAs, sacred sites, and

environmental justice need to be considered and addressed [in an EA], whether minor or

potentially significant, in accordance with Reclamation’s ITA policy, procedures, and

guidance.”). For example, “[a]ctions that could impact the value, use or enjoyment of the

ITA should be analyzed as part of the ITA assessment. Such actions could include


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interference with the exercise of a reserved water right . . . .” ITA/NEPA Q&A at 9,

Question IV-4. Since NEPA imposes procedures for the protection of ITAs and requires

the federal government to consider and discuss impacts to ITAs, it necessarily follows

that Indian tribes may “appeal informally to the agency to reconsider its conclusions; or

they can appeal formally if they feel the agency has acted in an arbitrary and capricious

manner or that the agency failed to follow its own procedures.” Id. at 13, Question IV-13

(emphasis added).

iii. NEPA Protects Water Supplies for Farming and Other

Purposes.

Threats to water supplies, whether for farming, drinking, municipal, or other

purposes, are also sufficient to establish standing under NEPA. In Laub v. U.S. Dep’t of

Interior, several farmers complained that the conversion of farmland and water would

“result in shortages of water supply” and a lack of “access” to water and thereby cause

certain economic injuries. 342 F.3d 1080, 1085-86 (9th Cir. 2003). The Ninth Circuit

held that the plaintiffs had suffered an injury in fact under NEPA because their alleged

“loss of affordable irrigation water for their agricultural lands” was “an invasion of a

legally protected particularized interest which ‘affect[s] the plaintiff[s] in a personal and

individualized way.’” Id. at 1086 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,

560 n.1 (1992)). After applying the relaxed standards for causation and redressability

applicable to alleged NEPA procedural injuries, the Ninth Circuit held that the farmers

had standing to bring their claims. Id. at 1086-87.


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Similarly, in Churchill County v. Babbitt, a city and county complained of a

NEPA procedural injury and alleged that a transfer of water rights would “adversely

affect both their land and their ability to make plans for and to protect local drinking

water.” 150 F.3d 1072, 1078 (9th Cir.), as amended, 158 F.3d 491 (9th Cir. 1998). The

Ninth Circuit held that this threat to their concrete interests “falls within NEPA’s interest

in preventing harm to the environment” and that the city and county had standing to bring

their suit. Id. at 1081. Also, in City of Davis, a city alleged that a planned development

would adversely affect the “quantity of the city water supply because of increased use,”

and the Ninth Circuit held that “[t]his is enough to satisfy the ‘injury in fact’ test insofar

as NEPA is concerned.” 521 F.2d at 671.

3. General Standing Principles.

In order to have standing, a plaintiff must meet both constitutional and prudential

requirements, but those requirements are relaxed for plaintiffs alleging a procedural

injury under NEPA.

a. Constitutional Standing.

Article III standing typically requires three elements: (1) an injury in fact that is

concrete and particularized and actual or imminent; (2) fairly traceable causation; and (3)

redressability. Citizens for Better Forestry, 341 F.3d at 969; Hall v. Norton, 266 F.3d

969, 975-77 (9th Cir. 2001). “The requisite weight of proof for each element of the test is

lowered, however, for ‘procedural standing,’” Churchill County, 150 F.3d at 1077

(quoting Defenders of Wildlife, 504 U.S. at 572 n.7), so that a plaintiff seeking to enforce

a NEPA procedure ‘“can establish standing without meeting all the normal standards for


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redressability and immediacy.’” Laub, 342 F.3d at 1086 (quoting Hall, 266 F.3d at 975);

accord Cantrell v. City of Long Beach, 241 F.3d 674, 679 n.3, 682 (9th Cir. 2001)

(“causation and redressability requirements are relaxed” and plaintiffs “need not show”

imminence for an alleged NEPA procedural injury). Further, “[a]t the pleading stage,

general factual allegations of injury resulting from the defendant’s conduct may suffice,

for on a motion to dismiss [courts] ‘presum[e] that general allegations embrace those

specific facts that are necessary to support the claim.’” Defenders of Wildlife, 504 U.S. at

561 (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990)).

b. Prudential Standing.

In suits brought under the APA, a plaintiff must also show that (1) there was final

agency action; and (2) the alleged injury “‘is arguably within the zone of interests to be

protected or regulated by the statute or constitutional guarantee in question.’” Citizens

for Better Forestry, 341 F.3d at 976 (quoting Pub. Citizen v. Dep’t of Transp., 316 F.3d

1002, 1019-20 (9th Cir. 2003)); accord Salmon River Concerned Citizens v. Robertson,

32 F.3d 1346, 1354 (9th Cir. 1994); see 5 U.S.C. § 702 (“A person suffering legal wrong

because of agency action, or adversely affected or aggrieved by agency action within the

meaning of a relevant statute, is entitled to judicial review thereof.”). A plaintiff who

satisfies the statutory zone of interests test for prudential standing “necessarily meets the

requirements of standing under article III,” described above. Preston v. Heckler, 734

F.2d 1359, 1364 (9th Cir. 1984); accord Salmon River, 32 F.3d at 1354; Benally v. Hodel,

940 F.2d 1194, 1198 (9th Cir. 1990).


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c. Standing To Assert a NEPA Procedural Injury.

Alleged procedural injuries under NEPA significantly lessen the burden of proof

for each element of standing. Churchill County, 150 F.3d at 1077. “To satisfy the injury

in fact requirement, a plaintiff asserting a procedural injury must show that ‘the

procedures in question are designed to protect some threatened concrete interest of his

that is the ultimate basis of his standing.’” Cantrell, 241 F.3d at 679 (quoting Defenders

of Wildlife, 504 U.S. at 573 n.8). The test for a concrete interest in NEPA actions is

whether “a geographic nexus” exists between a plaintiff and the location of the

environmental impact. Ctr. for Food Safety v. Vilsack, 636 F.3d 1166, 1172 (9th Cir.

2011); Citizens for Better Forestry, 341 F.3d at 969. Plaintiffs alleging deficiencies in

the government’s analysis under NEPA need not show that an injury to their concrete

interests will occur or that the government will take immediate harmful action. Laub, 342

F.3d at 1087; Cent. Delta Water Agency v. United States, 306 F.3d 938, 947 (9th Cir.

2002); Salmon River, 32 F.3d at 1355 n.14. Since the asserted injury in such cases is that

the government’s failure to consider the required factors “might” cause certain

consequences to be overlooked, speculation that the government may ultimately not take

harmful action “is irrelevant.” Salmon River, 32 F.3d at 1355; accord Citizens for Better

Forestry, 341 F.3d at 971-72.

Next, if NEPA requires that a particular interest or environmental impact be given

appropriate consideration, then plaintiffs have “a relatively easy burden to meet” in

satisfying the causation and redressability requirements. Citizens for Better Forestry, 341


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F.3d at 976. Under the relaxed standards for alleged procedural injuries under NEPA,

plaintiffs “‘must show only that they have a procedural right that, if exercised, could

protect their concrete interests.’” W. Watersheds Project v. Kraayenbrink, 632 F.3d 472,

485 (9th Cir. 2010) (quoting Defenders of Wildlife v. U.S. Envtl. Prot. Agency, 420 F.3d

946, 957 (9th Cir. 2005)); accord Citizens for Better Forestry, 341 F.3d at 976 (sufficient

if agency “‘decision could be influenced by the environmental considerations’” required

by NEPA (quoting Pub. Citizen, 316 F.3d at 1019)). In other words, both causation and

redressability are satisfied if a revised analysis under NEPA “‘may redress plaintiffs’

injuries,’” Ctr. for Food Safety, 636 F.3d at 1172 (quoting W. Watersheds Project, 632

F.3d at 485), and they “need not show that further analysis by the government would

result in a different conclusion.” Laub, 342 F.3d at 1087.

d. The Navajo Nation Has Standing to Assert its First, Second,

Third and Fifth Claims for Relief.

To establish standing, the Navajo Nation must show that the federal actions in

question are designed to protect a threatened concrete interest that is the ultimate basis of

its standing. See Cantrell, 241 F.3d at 679. Here, the Navajo Nation satisfies the

concrete interest test because there is a clear geographic nexus between the Navajo Indian

Reservation and the mainstream waters of the Lower Basin of the Colorado River. See

Ctr. for Food Safety, 636 F.3d at 1172; Second Amended Complaint ¶¶ 11-13; supra Part

II.A.1. The Navajo Nation also has demonstrated that NEPA and its implementing

regulations provide special procedural requirements with regard to ITAs, including any


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potential tribal water rights and, equally important, water that may be needed to serve

reservation lands. See supra Part III.B.2.b.ii.; see also supra Part II.C.

The Navajo Nation suffered a procedural injury in fact when the federal

government implemented the Surplus Guidelines ROD and Surplus Guidelines FEIS, the

Shortage Guidelines FEIS and the Shortage Guidelines ROD, the Implementation

Agreement FEIS, and the Storage and Release Agreement and Storage and Release

Agreement FONSI. In the course of implementing the challenged programs related to the

waters of the Colorado River and providing substantial benefits to the Defendant-

Intervenors and others, the Federal Defendants failed to consider whether the Navajo

Nation requires water from the Colorado River and if so, whether protections were

required to preserve the water supplies required to meet such tribal needs. See Laub, 342

F.3d at 1086; Citizens for Better Forestry, 341 F.3d at 971-72; see supra Part II.C.

Under the relaxed causation and redressability requirements for NEPA procedural

injuries, the Navajo Nation need not show that revisions to the NEPA documents in

question would result in a different conclusion with regard to the challenged actions, see

Laub, 342 F.3d at 1087, but must show only that it has a procedural right, which if

exercised, could influence the agency making these decisions. See W. Watersheds

Project, 632 F.3d at 485; Citizens for Better Forestry, 341 F.3d at 976; supra Part

III.B.3.c. Here, NEPA and its implementing regulations require the federal government

to consider impacts to ITAs, including whether the lands which it holds in trust for the

Navajo Nation require water from the Colorado River to serve the needs of the Navajo


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people and what the effect will be on the United States’ ability to meet those needs from

the challenged actions, before taking such actions. See 43 C.F.R. § 46.435(c); supra Part

III.B.2.b.ii. Impacts to ITAs are a “critical environmental” issue, NEPA Handbook at 8-

13, so Reclamation must discuss all impacts to ITAs, “even those considered

nonsignificant.” Id. at 3-29; see supra Part III.B.2.b.ii. Assuming these statements

actually mean something, the Navajo Nation meets its “relatively easy burden” to show

causation and redressability because proper consideration of its needs for mainstream

Colorado River water could influence Reclamation’s conclusions about the challenged

actions in some manner. See Citizens for Better Forestry, 341 F.3d at 976; supra Part

III.B.3.c.

Last, the adoption of the Surplus Guidelines FEIS and Surplus Guidelines ROD,

the Shortage Guidelines FEIS and the Short Guidelines ROD, the Implementation

Agreement FEIS, and the Storage and Release Agreement and Storage and Release

Agreement FONSI were clearly final agency actions and, as already shown, ITAs,

including trust lands and the associated need for water for such lands, fall squarely within

NEPA’s zone of interests, see Citizens for Better Forestry, 341 F.3d at 976; supra Part

III.B.2.b.ii., as do threats to water supplies in general. See supra Part III.B.2.b.iii.

Reclamation purported to examine the “Environmental Consequences” to ITAs as a part

of the “Affected Environment,” including impacts to the Navajo Nation, which it was

required to do because such effects interrelate with “economic or social and natural or

physical environmental effects . . . on the human environment.” 40 C.F.R. § 1508.14; see


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42 U.S.C. § 4332(2)(C) (EIS required for actions affecting “human environment”);

Surplus Guidelines FEIS vol. 1, at 3.14-1 to -20; Shortage Guidelines FEIS vol. 1, at 3-87

to -97, 4-249 to -250; Implementation Agreement EIS vol. 1, at 3.10-1 to -18 (attached as

Exhibit 18) (Navajo Nation not listed under either “Tribal Entities Along the Lower

Colorado River” or “Other Potentially Affected Tribal Entities”); Storage and Release

Agreement FONSI at 12, 14, 17-18. Reclamation deems impacts to ITAs as a “critical

environmental” issue, NEPA Handbook at 8-13, and since it must seek input from

affected Indian tribes on ITAs, 43 C.F.R. § 46.435, which include tribal water needs, and

must address all impacts to ITAs in its NEPA documents, Reclamation cannot now avoid

judicial review of its final conclusions if an affected Indian tribe such as the Navajo

Nation asserts that the agency did not follow proper NEPA procedures, acted arbitrarily,

and abused its discretion with respect to ITAs. See 5 U.S.C. § 706(2); ITA/NEPA Q&A

at 13, Question IV-13 (Indian tribes may “appeal informally to the agency to reconsider

its conclusions; or they can appeal formally if they feel the agency has acted in an

arbitrary and capricious manner or that the agency . . . failed to follow its own

procedures.”). While the merits of the First, Second, Third and Fifth Claims for Relief

are not at issue here, the alleged injury caused by the Secretary’s failure to properly

assess whether the Navajo Nation requires water from the Colorado River suffices to

confer standing under the APA and NEPA.


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4. The First and Second Claims for Relief Do Not Require Joinder of

Additional Parties.

No party that must be in this case is missing, contrary to SRP’s Motion to Join

Required Parties Pursuant to Rule 19(a)(1), FRCP. SRP Memo at 16-25. The assertion

that additional parties must be joined in these proceedings in order to determine whether

the First and Second Claims for Relief14

violate NEPA and the APA fails because it rests

upon the mistaken assumption that this case is about the adjudication of the Navajo

Nation’s water rights claims to the Colorado River. See id. at 22 (characterizing First and

Second Claims for Relief as seeking to “interfere with or diminish a litany of Colorado

River users’ rights to receive Colorado River water”). But as demonstrated here, this

case does not seek the adjudication or quantification of any rights that the Navajo Nation

may assert on the Colorado River. See supra Part II. Rather, as stated repeatedly in this

memorandum, this case seeks the reconsideration of the five federal actions at issue here

in light of an express consideration of (1) whether the Navajo Nation requires water from

the Colorado River to serve its needs and (2) the actions required to protect any needed

water supply from the adverse effects of the challenged actions. Thus, none of the

interests asserted by SRP would be affected by this litigation.

Moreover, the nature of the instant proceedings is the protection of public rights,

specifically, the Navajo Nation seeks a judicial determination whether the Federal

14

SRP also asserted that the Sixth Claim for Relief required the joinder of all CAP

contract holders. SRP Memo at 18-22. Because the Navajo Nation has voluntarily and

without opposition dismissed its Sixth Claim for Relief without prejudice, it is not

necessary to address this argument.


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Defendants carried out the challenged federal actions in the manner required by the APA

and NEPA: “In a proceeding so narrowly restricted to the protection and enforcement of

public rights, there is little scope or need for the traditional rules governing the joinder

of parties in litigation determining private rights.” Nat’l Licorice Co. v. N.L.R.B., 309

U.S. 350, 363 (1940). Following National Licorice, “[s]ubsequent courts have also

refused to require the joinder of all parties affected by public rights litigation B even

when those affected parties have property interests at stake B because of the tight

constraints traditional joinder rules would place on litigation against the government.”

Conner v. Burford, 848 F.2d 1441, 1459-60 (9th Cir. 1988) (citing Jeffries v. Ga.

Residential Finance Auth., 678 F.2d 919, 927-29 (11th Cir. 1982) (landlords not joined

in action by tenants challenging lease provisions); Swomley v. Watt, 526 F. Supp. 1271,

1273 (D.D.C. 1981) (owners of use permit for federal lands not joined in Establishment

Clause challenge to issuance of permit); Natural Res. Def. Council v. Berklund, 458 F.

Supp. 925, 933 (D.D.C. 1978) (applicants for preference right coal leases not joined in

NEPA challenge to lease sale), aff=d, 609 F.2d 553 (D.C. Cir. 1980); Natural Res. Def.

Council v. Tenn. Valley Auth., 340 F. Supp. 400, 407-08 (S.D.N.Y. 1971) (coal

producers not joined in action challenging TVA’s coal purchases under NEPA); Nat’l

Wildlife Fed=n v. Burford, 676 F. Supp. 271 (D.D.C. 1985) (mineral leaseholders not

joined in challenge to lifting of protective restrictions on federal land)).

Under SRP’s formulation of the First and Second Claims for Relief, no challenge

to the NEPA and APA sufficiency of the Surplus Guidelines or the Shortage Guidelines


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could ever be brought because so many individuals have an interest in those management

programs and all of those interest holders would have to be joined. See SRP Memo at 24

(The lawsuit “could affect the rights of all Arizona entitlement holders, as well as the

Upper Basin States, to receive Colorado River water.”). Indeed, SRP characterizes the

problem as even more intractable because it sees as necessary parties sovereign tribes and

states who cannot be joined without their consent. Id. Clearly, this is not the intent of

NEPA or the APA. It is enough that one affected party challenges the government’s

actions in order to protect the public interest. See Conner, 848 F.2d at 1459-60. Stated

another way, the Navajo Nation’s “litigation against the government does not purport to

adjudicate the rights of current lessees; it merely seeks to enforce the public right to

administrative compliance with the environmental protection standards of NEPA.” Id. at

1460. At the end of the day, the individuals and states who claim interests under the

Surplus Guidelines and the Shortage Guidelines “remain free to assert whatever claims

they may have against the government. Thus, the public right to compliance with

environmental standards is vindicated.” Id. at 1461 (footnote omitted). The massive

joinder that SRP asserts is required here would effectively make all government

management actions on the Colorado River unreviewable. Certainly, that is not what

NEPA or the APA allows.

The Court should, therefore, deny SRP’s motion to join additional parties in this

litigation.


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C. FOURTH CLAIM FOR RELIEF: THE IMPLEMENTATION OF THE

INTERSTATE BANKING REGULATIONS VIOLATES THE

ADMINISTRATIVE PROCEDURE ACT IS PROPERLY BEFORE THE

COURT.

1. The Navajo Nation Has Standing To Bring Its Fourth Claim For

Relief.

To establish standing to bring its Fourth Claim for Relief alleging the Secretary’s

regulations violate the APA, the Navajo Nation must show that (1) there was final agency

action; and (2) the alleged injury is arguably within the zone of interests to be protected

by the statutes or constitutional guarantee in question. Citizens for Better Forestry, 341

F.3d at 976. This test also satisfies the test for constitutional standing. Preston, 734 F.2d

at 1364; supra Part III.B.3.a. Here, the promulgation of regulations is clearly final

agency action.

As discussed above, see supra Part II.B., the Federal Defendants’ management of

the Colorado River water is founded upon the 1922 Compact and the BCPA which

bestowed upon the Secretary authority to direct the sound usage of the waters of the

Colorado River, but all the while committing to do so in a way that did not injure the

federal government’s obligations to Indian tribes who need water from the river to make

their reservations permanent homelands. It is, therefore, incorrect to conclude that

because the Fourth Claim for Relief alleges only a violation of the APA and not NEPA, it

is not cognizable because it is not based upon any substantive law. See SRP Memo at 15.

The substantive law underlying the allegation of the APA violation in the Fourth Claim

for Relief is, in fact, the Law of the River and the laws establishing the Navajo Indian

Reservation. Because Reclamation promulgated the Interstate Banking Regulations to


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allow for the storage of unused Colorado River water by the Lower Basin states without

first making a determination whether the Navajo Nation requires such unused water to

serve its Reservation needs, the regulations violated the substantive law governing the

management of the Colorado River all of which is based upon the 1922 Compact’s

proviso that “[n]othing in this compact shall be construed as affecting the obligations of

the United States of America to Indian tribes.” Supra Parts I, II.B.1. The Boulder

Canyon Project Act, the Arizona Contract, and the Colorado River Basin Project Act are

not to the contrary. All of these laws, including the Supreme Court’s interpretation of

them in Arizona v. California I, supra Part II.B., form the substantive legal basis on

which the Fourth Claim for Relief rests.

Accordingly, the consideration of whether the Navajo Nation needs water from the

Colorado River falls within the zone of interests to be protected by the Law of the River

and the treaty, statutes, and executive orders creating the Navajo Indian Reservation.

Indeed, as in Pyramid Lake Paiute Tribe of Indians v. Morton, the Secretary must resolve

conflicting demands on the water supply and clearly explain and justify with precision

any authorized use of the water that may adversely affect the Navajo Nation’s interests.

354 F. Supp. 252, 255-56 (D.D.C. 1972). Clearly, then, the question whether the Navajo

Nation requires water from the Colorado River falls within the zone of interests to be

protected by the laws creating the Navajo Indian Reservation and the Law of the River,

and the Secretary’s alleged failure to give proper weight to that consideration falls far

short of the exacting standards required of the Secretary when he issued the Interstate


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Banking Regulations. See id. at 256. Such final agency action was arbitrary, capricious,

an abuse of discretion, and not in accordance with the law. See id.; 5 U.S.C. § 706(2)(A).

While the merits of the Fourth Claim for Relief are not at issue here, the alleged injury

caused by the Secretary’s failure to consider the Navajo Nation’s water needs in the

Lower Colorado River Basin suffices to confer standing under the APA and the Law of

the River as well as the laws creating the Navajo Indian Reservation. See supra Part II.B.

2. The Navajo Nation’s Fourth Claim for Relief Is Timely.

Nevada argues that laches bars the Navajo Nation’s Fourth Claim for Relief.

Nevada Memo at 35-36, 55-57. The Fourth Claim for Relief challenges the Secretary’s

implementation of the Interstate Banking Regulations at 43 C.F.R. pt. 414. Second

Amended Complaint ¶ 78. The Secretary’s failure to account for the Navajo Nation’s

unmet water needs in the Lower Colorado River Basin rendered the implementation of

the regulations “‘arbitrary, capricious, an abuse of discretion, [and] not otherwise 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 (quoting 5 U.S.C. § 706(2)(A)-(C)).

Laches is an affirmative defense typically asserted in an answer to a complaint, not

in a motion to dismiss, see FED. R. CIV. P. 8(c)(1), that requires proof of both (1)

unreasonable delay by the plaintiff; and (2) prejudice to the defendant. Couveau v. Am.

Airlines, Inc., 218 F.3d 1078, 1083 (9th Cir. 2000) (per curiam); Neighbors of Cuddy

Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1381 (9th Cir. 1998). “[A] claim of laches


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‘depends on a close evaluation of all the particular facts in a case,’” so not only is it

“seldom susceptible of resolution by summary judgment,’” Kling v. Hallmark Cards,

Inc., 225 F.3d 1030, 1041 (9th Cir. 2000) (quoting Couveau, 218 F.3d at 1083), but “[a]t

the motion-to-dismiss phase, the obstacle to asserting a successful laches defense is even

greater because the defendant must rely exclusively upon the factual allegations set forth

in the complaint.” Kourtis v. Cameron, 419 F.3d 989, 1000 (9th Cir. 2005), abrogated on

other grounds by Taylor v. Sturgell, 553 U.S. 880 (2008); accord U.S. Equal Employment

Opportunity Comm’n v. Global Horizons, Inc., 904 F. Supp. 2d 1074, 1095 (D. Haw.

2012) (“a claim is not easily disposed of at the motion to dismiss stage based on a

defense of laches”); see, e.g., Ranch Realty, Inc. v. DC Ranch Realty, LLC, 614 F. Supp.

2d 983, 990 (D. Ariz. 2007) (denying laches defense in motion to dismiss because factual

issues not determinable from the complaint). Indeed, “‘where laches is raised as a

defense “the factual issues involved . . . can rarely be resolved without some preliminary

evidentiary inquiry.”’” Bratton v. Bethlehem Steel Corp., 649 F.2d 658, 667 (9th Cir.

1980) (quoting Sandvik v. Alaska Packers Ass’n, 609 F.2d 969, 974 (9th Cir. 1979)).

Here, the Navajo Nation’s Second Amended Complaint does not contain sufficient

factual allegations to dispose of the Fourth Claim for Relief on the basis of laches.

Again, whether any delay in bringing this litigation was unreasonable turns on the

particular facts and circumstances of the case at bar. The extent to which the Navajo

Nation has objected to the implementation of the Interstate Banking Regulations, relates


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to the reasonableness of any delay. As a result, the defense of laches is premature and

not appropriate at this stage of the litigation.

3. The Fourth Claim for Relief Does not Rest on Agency Discretion.

SRP argues that the Court lacks subject matter jurisdiction over the Navajo

Nation’s Fourth Claim for Relief because the laws governing Lower Colorado River

water confer unfettered discretion on the Secretary,15

SRP Memo at 12-15, and as a

result, there is no law for the Court to apply and the Secretary’s actions are “‘committed

to agency discretion by law.’” Id. at 13 (quoting 5 U.S.C. § 701(a)(2)). In doing so, SRP

falsely claims that the Navajo Nation failed to cite “specific laws that would limit the

authority of the Secretary to act in managing, allocating and contracting for the use of

Lower Basin water.” Id. at 15. In fact, the Second Amended Complaint cites the

numerous laws establishing the Navajo Indian Reservation and governing the Lower

Colorado River that create and maintain a trust relationship between the Federal

Defendants and the Navajo Nation and require the Secretary to comply with her

obligations to Indian tribes. See Second Amended Complaint ¶¶ 12-18 (describing treaty

and executive orders creating Navajo Indian Reservation and resulting trust relationship),

19 (citing Article VII of 1922 Compact), 20-22 (describing Arizona v. California

litigation and resulting decree), 23 (citing Secretarial Order 3215 – Principles for the

15

SRP emphasizes that the Secretary has broad discretion to contract for the

delivery of Lower Colorado River water, which primarily relates to the Navajo Nation’s

now-dismissed Sixth Claim for Relief, which is not addressed herein, see supra n.2, so

the Navajo Nation responds here to the extent SRP asserts that such discretion is

applicable to the Fourth Claim for Relief.


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Discharge of the Secretary’s Trust Responsibility (Apr. 28, 2000)), 54 (citing 43 C.F.R.

§ 414.3(a)(2)). The assertion that the Secretary’s discretion is so broad that she may

simply ignore Article VII of the 1922 Compact and the responsibility of the federal

government to make the Navajo Indian Reservation a permanent homeland is simply

wrong.

As previously stated, the 1868 treaty and executive orders establishing the Navajo

Indian Reservation created a trust obligation on the part of the Federal Defendants to

make those lands a permanent homeland and livable environment for the Navajo people.

See supra Part II.A. Article VII of the 1922 Compact, providing that “[n]othing in this

compact shall be construed as affecting the obligations of the United States of America to

the Indian tribes,” is at the heart of this action and the Fourth Claim for Relief and

necessarily includes the Federal Defendants’ obligation to make the Navajo Indian

Reservation a permanent homeland and to consider the effect of any proposed action on

that duty. Later, the BCPA expressly approved the 1922 Compact, 43 U.S.C. § 617l(a),

made all contracts for the use of Lower Colorado River water subject to the 1922

Compact, id. § 617g(a); Arizona v. California I, 373 U.S. at 584 (BCPA provides that

Secretary and her “permittees, licensees, and contractees are subject to the Colorado

River Compact”), and made clear that the Secretary was bound by the 1922 Compact’s

terms, including Article VII. 43 U.S.C. § 617. As the Supreme Court noted in Arizona v.

California I, the BCPA set up standards and placed “significant limitations upon the

Secretary’s power to distribute the stored waters.” 373 U.S. at 584.


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Contrary to SRP’s contention that the Secretary’s discretion is so broad that there

is no law to apply, the Secretary is bound by her trust obligations to the Navajo Nation

that were expressly maintained in the 1922 Compact, the BCPA, and the Decree in

Arizona v. California. Indeed, the Secretary lacks discretion with respect to those

obligations, so no exception to the APA applies here and the Navajo Nation has identified

law that the Court may apply with respect to the Fourth Claim for Relief.

D. SEVENTH CLAIM FOR RELIEF: BREACH OF TRUST PRESENTS A

PROPER CLAIM FOR THIS COURT’S CONSIDERATION.

The United States bound itself in Article VII of the 1922 Compact to take no

action that would compromise its obligation, in the case of the Navajo Nation, to secure

an adequate water supply for Navajo lands. The only way for Federal Defendants to meet

this obligation is to determine whether the Navajo Nation requires water from the

mainstream of the Colorado River in the Lower Basin to make the Reservation a

permanent homeland. This they have never done. While the Federal Defendants

purported to consider the Navajo Nation’s unquantified reserved rights to the Colorado

River as an ITA in making their decisions, the administrative record reflects that this

review was cursory at best. See supra Part II.C. The statutorily required review made no

effort to assess whether Colorado River water was required to meet the homeland

purposes of the lands the United States holds in trust for the Navajo Nation. These

failures give rise to the Navajo Nation’s claims for breach of Federal Defendants’ trust

responsibility to the Navajo Nation.


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The trust relationship between the United States and the Navajo Nation emanates

from the 1868 Treaty and other Congressional enactments in which the United States

undertook to hold the lands of the Navajo Indian Reservation, and appurtenant reserved

water rights, in trust for the Navajo Nation, and expressly promised to protect those trust

resources. Supra Part II.A. In addition, the Federal Defendants’ pervasive control over

both the Colorado River and the methods available to the Navajo Nation to secure its

rights to a share of that resource give rise to a trust relationship. Thus, the Navajo

Nation’s primary claim alleges that the Federal Defendants violated statutory and

common law duties of trust owed to it by the United States.

The administrative conduct challenged in the Second Amended Complaint as

violative of NEPA and the APA also gives rise to an independent claim for breach of

trust. This is because the requirements in NEPA and the APA that the Federal

Defendants give meaningful consideration to the need for water on the Navajo Indian

Reservation in general and in particular the Navajo Nation’s vested but unquantified

water rights in the Colorado River before making management decisions that affect the

availability of water supplies derive from this same duty of trust. In other words, to

breach a trust obligation incorporated into federal procedures, regulations and guidelines,

is to breach the underlying duty of trust.

The Federal Defendants advance a host of alternative defenses to the Navajo

Nation’s breach of trust claim with little regard to what is plead in the Second Amended


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Complaint. The Federal Defendants argue that the breach of trust claim must be

dismissed because:

(1) the McCarran Amendment precludes the relief sought and there is no waiver

of sovereign immunity, Federal Defendants Memo at 29-31, in reliance on their

mischaracterization of the claim as one for quantification of the Navajo Nation’s water

rights;

(2) there is no alleged “final agency action,” id. at 31-32, disregarding the fact that

the Navajo Nation’s primary breach of trust claim is not premised on the APA, and its

secondary claims are substantiated by the allegations challenging such actions;

(3) the Navajo Nation cannot meet the standards for a claim of agency “inaction”

under 5 U.S.C. § 706(1), Federal Defendants Memo at 32-33, an argument Federal

Defendants acknowledge the Navajo Nation does not make;

(4) the Navajo Nation has failed to identify adequate legal underpinnings for its

claim for breach of trust, id. at 33-37, by dismissing as insufficient the substantive law

alleged in the Second Amended Complaint, including a derisive reference to “a treaty,”

id. at 35, by which they mean one of the Navajo Nation’s primary organic documents, the

1868 Treaty;

(5) the decision to institute litigation on behalf of a tribe, according to the Federal

Defendants, is a matter of agency discretion, id. at 37-39; however, the Navajo Nation

has not brought suit to compel the United States to bring a quantification action on the

Navajo Nation’s behalf, but instead seeks relief from the harm occasioned by the Federal


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Defendants’ failure to take stock of the Navajo Nation’s water rights in light of their

failure to secure them; and

(6) the Navajo Nation’s breach of trust claim is not ripe for decision, id. at 39-43,

an issue only relevant to the secondary breach of trust claims premised on the challenged

administrative actions.

As set forth in more detail below, this Court has jurisdiction to hear the Navajo

Nation’s primary breach of trust claim and Congress waived the Federal Defendants’

immunity from suit. The secondary claims for breach of trust are discussed in the context

of the other Claims for Relief.

1. The United States Owes a Duty of Trust to the Navajo Nation

Enforceable by an Action for Injunctive and Declaratory Relief in this

Court.

The Federal Defendants move for dismissal alleging that the Navajo Nation has

failed to state a claim for breach of trust. However, “[d]ismissal for lack of subject-

matter jurisdiction because of the inadequacy of the federal claim is proper only when the

claim is ‘so insubstantial, implausible, foreclosed by prior decisions of this Court, or

otherwise completely devoid of merit as not to involve a federal controversy.’” Steel Co.

v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (quoting Oneida, 414 U.S. at 666).

To plead sufficiently, a plaintiff must proffer “enough facts to state a claim to relief that

is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007). A claim

is facially plausible when “the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.”


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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Navajo Nation has adequately pled a

claim for breach of trust.

a. The 1868 Treaty and Subsequent Acts of Congress Confirming

the Trust Obligations of the United States are Sufficient to State

a Claim for Breach of Trust and Invoke the Court’s Federal

Question Jurisdiction.

This Court has jurisdiction over the Navajo Nation’s primary breach of trust claim

pursuant to 28 U.S.C. §§ 1331 and 1362 because it arises under the 1868 Treaty

consummated between the Navajo Nation and the United States, the Non-Intercourse Act,

and the 1922 Compact. “Both § 1331 and § 1362 of Title 28 of the United States Code

confer jurisdiction on the district courts to hear cases ‘aris(ing) under the Constitution,

laws, or treaties of the United States.’” Oneida, 414 U.S. at 663. The Constitution

declares that “all Treaties made, or which shall be made under the Authority of the

United States, shall be the supreme Law of the Land.” U.S. CONST. art. VI, cl. 2.

Pursuant to section 1362, “district courts have original jurisdiction over any action

brought by an Indian band involving treaties of the United States.” Mille Lacs Band of

Chippewa Indians v. Minnesota, 853 F. Supp. 1118, 1124-25 (D. Minn. 1994), aff’d, 124

F.3d 904 (8th Cir. 1997), aff’d, 526 U.S. 172 (1999). “[T]reaties confer enforceable

special benefits on signatory Indian tribes.” Wash. State Commercial Passenger Fishing

Vessel, 443 U.S. at 673 n.20.

The United States Supreme Court has never held that an Indian tribe bringing a

claim under sections 1331 or 1362 for violation of the government’s federal common law

trust obligations can secure prospective relief only by pointing to a federal statute or


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regulation imposing a fiduciary duty on the government.16

Breach of trust actions by

Indian tribes against the United States have typically proceeded in two discrete ways:

actions for prospective relief brought pursuant to the district courts’ federal question

jurisdiction or the APA; and actions for monetary damages brought pursuant to the

Indian Tucker Act, 28 U.S.C. § 1505, and other statutes by which the Congress waived

the immunity of the United States for monetary relief.

The Navajo Nation’s primary claim for breach of trust for failure of the Secretary

to protect and preserve the Navajo Nation’s reserved water rights is in the first category –

the Second Amended Complaint seeks only declaratory and injunctive relief. The

Second Amended Complaint states a claim based upon a federal common law trust

obligation founded on the 1868 Treaty and subsequent executive orders establishing the

Navajo Indian Reservation and protecting tribal lands, the Non-Intercourse Act where

Congress confirmed the guarantee of protection for tribal lands, the Winters doctrine

recognizing federal reserved rights to use water associated with those lands, and the 1922

16 “We have never held that all of the Government’s trust responsibilities to

Indians must be set forth expressly in a specific statute or regulation.” United States v.

Jicarilla Apache Nation, 131 S. Ct. 2313, 2339 (2011) (Sotomayor, J., dissenting).

Observing that the Court’s decision in Jicarilla should be of limited application because

it “pertains only to a narrow evidentiary issue,” Justice Sotomayor described as troubling

“the majority’s disregard of our settled precedent that looks to common-law trust

principles to define the scope of the Government’s fiduciary obligations to Indian tribes.”

Id. at 2331-32.


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Compact, in which the United States expressly preserved its obligations to the Nation.17

Sections 1331 and 1362 encompass such claims. “It is well settled that [§ 1331’s]

statutory grant of ‘jurisdiction will support claims founded upon federal common law as

well as those of a statutory origin.’” Nat’l Farmers Union Ins. Cos. v. Crow Tribe of

Indians, 471 U.S. 845, 850 (1984) (quoting Illinois v. City of Milwaukee, 406 U.S. 91,

100 (1972)). “Federal common law as articulated in rules that are fashioned by court

decisions are ‘laws’ as that term is used in § 1331.” Id.18

“Given the nature and source

of the possessory rights of Indian tribes to their aboriginal lands, particularly when

confirmed by treaty, it is plain that the complaint asserted a controversy arising under the

Constitution, laws, or treaties of the United States within the meaning of both § 1331 and

§ 1362.” Oneida, 414 U.S. at 667.

17 While the Supreme Court has held that the “[trust] relationship alone is

insufficient to support jurisdiction under the Indian Tucker Act,” United States v. Navajo

Nation, 537 U.S. 488, 506 (2003), cases invoking the federal courts’ jurisdiction

premised on a federal question or the APA are distinguishable. Only in Tucker Act cases

must the jurisdictional analysis “train on specific rights-creating or duty-imposing

statutory or regulatory prescriptions.” Id. In any event, the Navajo Nation’s breach of

trust claim meets the more stringent requirements under Ninth Circuit recent precedent.

See Gros Ventre v. United States, 469 F.3d 801 (9th Cir. 2006). In addition to the 1868

Treaty, that duty is founded on express obligations imposed by Congress, most directly in

Article VII of the 1922 Compact, which requires the Secretary to take no action in the

management of the Colorado River in derogation of the water rights of the Navajo

Nation.

18

Congress’s grant of federal question is exceedingly broad. “Thus, a litigant

having no other statutory authority for judicial review may unabashedly point to Section

1331 as the basis for injunctive relief against agency officers.” John F. Duffy,

Administrative Common Law in Judicial Review, 77 TEXAS L. REV. 113, 148 (1998).


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As set forth in the Navajo Nation’s Second Amended Complaint, “[t]he legal

effect of the 1868 Treaty, congressional acts and executive orders described [therein],

which established the Navajo Indian Reservation, was to create a trust relationship

between the Navajo Nation and the United States.” Second Amended Complaint ¶ 15.

Further “[a]ll the elements of a trust are present: the United States is the trustee; the

Navajo Nation is the beneficiary; and the Navajo Nation’s beneficial interest in and rights

to the waters of the Colorado River to make its Reservation a livable homeland constitute

the trust corpus.” Mitchell II, 463 U.S. at 225 (finding all the elements of a common law

trust on the facts before the Court); United States v. White Mountain Apache Tribe, 537

U.S. 465, 474 n.3 (2003) (same). In Fort Mojave, the Court observed that:

Defendant [United States] concedes that the legal effect of the statute and

executive orders creating the Tribes’ reservations was to create a trust

arrangement pursuant to which the United States held in trust for the Tribes

legal title to both their reservation land and any corresponding vested water

rights. Defendant also concedes that if the Department of the Interior sold

existing title to the land or existing water rights to a third party, the transfer

would constitute a breach of that trust.

23 Cl. Ct. at 425; see also Pyramid Lake Paiute Tribe, 354 F. Supp. at 256 (although

tribe’s water rights had yet to be quantified, to protect treaty-based fishing rights the

Secretary had a fiduciary obligation to protect flows into Pyramid Lake on tribe’s

reservation); Truckee-Carson Irrigation Dist. v. Sec’y of Interior, 742 F.2d 527, 532 (9th

Cir. 1984) (recognizing correctness of district court decision in Pyramid Lake); Pyramid

Lake Paiute Tribe v. U S. Dep’t. of the Navy, 898 F.2d 1410, 1420 (9th Cir. 1990) (same);

see also Joint Bd. of Control v. United States, 832 F.2d 1127, 1130-31 (9th Cir. 1987) (in


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controversy concerning the adequacy of the Bureau of Indian Affairs operating strategy

controlling distribution of water supplies from Flathead Irrigation Project, district court

could not “blind” itself to the potential senior, though unadjudicated, water rights of the

Tribes); Kittitas Reclamation Dist. v. Sunnyside Valley Irrigation Dist., 763 F.2d 1032,

1035 n.5 (9th Cir. 1985) (court “need not decide the scope of fishing rights reserved to

the Yakima Nation under the 1855 treaty” to effectuate emergency measures directing

allocation of water within the Yakima River system to protect those unquantified rights).

The court in Fort Mojave analogized the treaty and executive orders establishing

the tribes’ reservation to the “statutes and regulations” relied upon by the Supreme Court

in Mitchell II to find a trust relationship. 23 Cl. Ct. at 425. The court held that water

rights the tribes claimed had been lost as a result of errors committed by the United States

in representing the tribes in Arizona v. California, vested at the time the reservation was

created and “were real, existing rights, not mere expectancies.” Id. The unquantified

water rights of the tribes constituted the trust res. The court concluded that the United

States as trustee was “obligated to the beneficiary to do all acts necessary for the

preservation of the trust res. . . .” Id. at 426 (quoting G. Bogert, The Law of Trusts and

Trustees § 582 (2d ed. rev. 1980)); see White Mountain Apache Tribe, 537 U.S. at 475

(‘“One of the fundamental common-law duties of a trustee is to preserve and maintain

trust assets.’” (quoting Cent. States, Se. & Sw. Areas Pension Fund v. Cent. Transport,

Inc., 472 U.S. 559, 572 (1985))); Parravano v. Babbitt, 70 F.3d 539, 547 (9th Cir. 1995)

(“Tribes’ federally reserved fishing rights are accompanied by a corresponding duty on


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the part of the government to preserve those rights”); Nw. Sea Farms, Inc. v. United

States Army Corps of Eng’rs, 931 F. Supp. 1515, 1520 (W.D. Wash. 1996) (the Corps of

Engineers “owes a fiduciary duty to ensure that the Lummi Nation’s treaty rights are not

abrogated or impinged upon absent an act of Congress”).

In Arizona v. California I, the Supreme Court held that the Secretary “and his

permittees, licensees, and contractees are subject to the Colorado River Compact.” 373

U.S. at 584. Just as the Court stressed in relation to the section 8(a) allocation of

Colorado River water between the Upper and Lower Basins, the 1922 Compact

commands that the Federal Defendants “can do nothing to upset or encroach upon,” id.,

the Article VII promise to the Navajo Nation and other Indian tribes that the Secretary’s

management of the Colorado River would not adversely affect “the obligations of the

United States of America to Indian tribes.” 1922 Compact art. VII. The allegations in the

Second Amended Complaint that the Federal Defendants have disregarded their

obligation to preserve and protect water supplies necessary to make the Navajo Indian

Reservation a permanent homeland state a claim for relief cognizable in this Court.

b. The United States Exercises Pervasive Control over the Waters

of the Colorado River, Including the Navajo Nation’s Reserved

Water Rights Giving, Rise to Enforceable Fiduciary Duties

Owed to the Navajo Nation.

In Mitchell II, the Supreme Court established that “a fiduciary relationship

necessarily arises” when the United States assumes “elaborate control over . . . property

belonging to Indians.” 463 U.S. at 225. The United States exercises absolute control


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over the use of water from the mainstream of the Colorado River in the Lower Basin.19

Arizona v. California I, 373 U.S. at 580-90; see generally BCPA. This includes control

over the Navajo Nation’s unquantified but vested federal reserved rights to Colorado

River water. Similar to the facts upon which the Supreme Court found a trust obligation

in White Mountain Apache Tribe, here the “United States has not merely exercised daily

supervision but has enjoyed daily occupation” of the trust resource. 537 U.S. at 475. The

administrative actions challenged in the instant suit are taken in furtherance of the

Secretary’s Colorado River management authority. The Secretary’s comprehensive

control over the entire resource combined with the Federal Defendants’ control over

every avenue available to the Navajo Nation to finally secure its rights to some part of

that resource – including the ability to litigate the Navajo Nation’s interests in its

absence, and to dictate the terms upon which those rights may be settled – gives rise to a

fiduciary duty to preserve and protect the Navajo Nation’s water rights. The Federal

Defendants have breached that duty by failing to ascertain whether their management

decisions would impair the ability of the Navajo Nation to secure adequate water supplies

to make its Reservation a permanent homeland.

19 The one exception to this otherwise unitary management scheme is contained in

section 104(a)(1)(B) of the Arizona Water Settlements Act. The Federal Defendants

assert that “Congress has specifically precluded the Secretary from contracting for CAP

water with Arizona Indian Tribes . . . at least through 2030.” Federal Defendants Memo

at 33 n.21. That legislation settled litigation over the repayment of costs for the

construction of CAP. As part of the resolution of the repayment issues, the Secretary

may only enter into CAP contracts with Arizona tribes in the context of a water rights

settlement.


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There are three ways for the Navajo Nation to secure water from the mainstream

of the Colorado River in the Lower Basin: 1) by quantifying its water rights through

litigation; 2) through a settlement of its water rights claims; or 3) through a section 5

contract with the United States. The United States plays a significant, and sometimes

exclusive, role in each of these processes.

As discussed above, the United States opposed efforts of the Navajo Nation to

intervene in Arizona v. California I, claiming that it alone had exclusive authority to

present claims for the right to use water on the Navajo Indian Reservation.20

Supra Part

II.B.3. The United States is vested with authority to institute litigation on behalf of the

Navajo Nation to quantify the Nation’s reserved water rights, but has refused to do so.

See 25 U.S.C. § 175 (“the United States attorney shall represent [Indians] in all suits at

law and in equity”); 43 U.S.C. § 666 (the McCarran Amendment); Arizona v. San Carlos

Apache Tribe, 463 U.S. 545, 567 n.17 (1983) (“although the McCarran Amendment did

not waive the sovereign immunity of Indians as parties to state comprehensive water

adjudications, it did . . . waive sovereign immunity with regard to the Indian rights at

20 The fact that the Navajo Nation’s water rights were not determined in that

proceeding, due in no small part to the actions of the United States, has caused certain of

the Defendant-Intervenors to argue any such rights have been lost. See Arizona Memo at

8 (“Thus, by issuance of the 1964 Decree, the United States, and the Nation, were on

clear notice that any claim to any water in the mainstream below Lee Ferry based on the

reservation of mainstream water for the use of federal establishments under federal law

(including by necessity claims based on the Winters doctrine arising from the reservation

of land before 1929) would have to be asserted if they were to be recognized by the

Court.”). The Navajo Nation does not agree, but that issue is not before this Court.


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issue in those proceedings”). While the Federal Defendants suggest that the Navajo

Nation can just as easily quantify its rights to the mainstream of the Colorado River in the

Lower Basin by initiating litigation on its own behalf pursuant to 28 U.S.C. 1362, Federal

Defendants Memo at 38-39, they ignore the significant hurdle to such a suit posed by the

sovereign immunity of the states. A state general stream adjudication of the mainstream

is precluded by the authority vested in the Secretary by the BCPA as the Colorado

River’s water master, and Arizona law precludes the general adjudication of water

systems not administered by the Director of the Arizona Department of Water

Resources.21

The involvement of the United States and the Federal Defendants in the settlement

of Indian reserved water rights is also extensive. First, the Department of the Interior has

established procedures to determine whether tribal settlement negotiations merit federal

involvement. Working Group in Indian Water Settlements; Criteria and Procedures for

the Participation of the Federal Government in Negotiations for the Settlement of Indian

Water Rights Claims, 55 Fed. Reg. 9,223 (Mar. 12, 1990). If the Secretary finds that the

tribal settlement talks warrant federal participation, a decision frequently informed by the

21 See ARIZ. REV. STAT. § 45-252(A) (general stream adjudications limited to a

river system “administered by the director of water resources); id. § 45-107(B) (director’s

authority “limited and restricted to only that quantity of water which may be available for

use in the state of Arizona, after the satisfaction of all existing contracts between the

secretary of the interior and users in the state of Arizona for the delivery of water of the

main stream of the Colorado river, and shall not extend to any such contracts, any

amendments or supplements thereto, or to any federal statute enacted before June 21,

1962 pertaining to any federal reclamation project within the state of Arizona constructed

and using water of the main stream of the Colorado river before June 21, 1962.”).


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perceived benefits of the settlement to the United States, a federal negotiating team is

appointed. Id. at 9,224 (Phase I). Although ostensibly present in their capacity as trustee

of tribal resources, more often the United States’ representatives focus on protecting the

interests of the United States. See id. (Phases II & III). Once settlement negotiations are

concluded, the proposed settlement agreement and federal legislation undergo additional

review by the United States. Id. at 9,224-25 (Phase IV). Participation of the United

States in settlement negotiations does not assure Executive Branch support for settlement

legislation introduced in Congress. And, in the end, only Congress can approve a tribal

water rights settlement both because federal dollars are frequently required to develop the

water resource and because tribes must execute waivers of any additional claims they

might have. See 25 U.S.C. § 177. To date, the settlement efforts by the Federal

Defendants and others have not been successful in securing an adequate water supply for

the Navajo Indian Reservation. See Status Report at 1-2 (Apr. 29, 2013) (Doc. 198).

Finally, with the exception of CAP water, the Federal Defendants remain in

control of the allocation of any unobligated Arizona Colorado River water. 22

Most of

22

As noted above, the Arizona Water Settlements Act foreclosed the possibility

that the Nation could secure a section 5 contract for CAP water to meet its needs without

a settlement. CAP water accounts for approximately half of Arizona’s 2.8 million afy

allocation of Colorado River water. The Act divided CAP water between Indian and

non-Indian uses, and set aside 197,500 afy of agricultural priority water for use by

Arizona tribes. Pub. L. No. 108-451, § 104(a)(1)(A). Of this amount, 130,200 afy was

reallocated for use to settle the claims of the Gila River Indian Community and Tohono

O’odham Nation. Another 25,000 afy was allocated to the White Mountain Apache

Tribe in the White Mountain Apache Tribe Water Rights Quantification Act of 2010,


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Arizona’s water is already committed to meet delivery obligations that predate the

BCPA, and the remainder is likely not sufficient to fully address the Navajo Nation’s

needs. As alleged in the Second Amended Complaint, the Navajo Nation nonetheless

requested the Secretary to enter into a contract for Arizona’s unobligated Colorado River

allocation to begin to meet its water needs. Second Amended Complaint ¶ 35. Federal

Defendants have refused that request. Id.

To be sure, the Supreme Court has recognized the difficulty faced by the Federal

Defendants in balancing conflicting obligations to tribes and other interests served by

federal reclamation projects. See Nevada v. United States, 463 U.S. 110, 135 n.15 (1983)

(“There was a foreseeable conflict of purposes created by the Congress within the Interior

Department and as between the Bureau of Reclamation on the one hand in asserting large

water rights for its reclamation projects and the Bureau of Indian Affairs on the other in

the performance of its obligations to protect the rights and interests of the Indians on the

Pyramid Lake Paiute Indian Reservation.” (internal quotes and citation omitted)).

However, the Supreme Court has never held that those interests may be ignored without

recourse to the courts for breach of the solemn duty of trust owed by the United States to

Indian tribes. See id. at 135 n.14 (observing that subsequently the Tribe sued the United

Pub. L. No. 111-291, § 305(b)(1), 124 Stat. 3064, 3077, leaving 42,300 afy for the

remaining tribes with unsettled claims. Id.


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States before the Indian Claims Commission claiming receipt of less water for its fishery

than it was entitled to and settling its claims for $8,000,000).

The Secretary’s conflicting responsibilities . . . do not relieve him of his

trust obligations. To the contrary, identifying and fulfilling the trust

responsibility is even more important in situations such as the present case

where an agency’s conflicting goals and responsibilities combined with

political pressure asserted by non-Indians can lead federal agencies to

compromise or ignore Indian rights.

Mary C. Wood, The Indian Trust Responsibility: Protecting Tribal Lands and Resources

Through Claims of Injunctive Relief Against Federal Agencies, 39 TULSA L. REV. 355,

362-63 (2003) (quoting N. Cheyenne Tribe v. Hodel, 12 Indian L. Rep. 3065, 3071 (D.

Mont. 1985)).

As noted above, this case is thus analogous to White Mountain Apache Tribe. As

was true on the facts before the Supreme Court in that case, the “plenary control the

United States exercises under the Act” – here the authority exercised by the Secretary

over the Colorado River pursuant to the BCPA – “as sole manager and trustee . . . places

this case within Mitchell II’s governance.” White Mountain Apache Tribe, 537 U.S. at

481 (Ginsburg, J., concurring). The Secretary’s exclusive control of the waters of the

mainstream of the Colorado River in the Lower Basin, including the Navajo Nation’s

vested but unquantified share of the River, coupled with the extensive control exercised

by the Federal Defendants over the means to secure a water supply for the Navajo lands

adequate to meet the homeland purpose of the Navajo Indian Reservation unquestionably

give rise to a duty of trust and corresponding fiduciary duties. As described above, the

Federal Defendants have breached this trust responsibility. See generally supra Part II.C.


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The administrative actions challenged in the instant suit involve decisions concerning the

allocation of water from the Colorado River taken without legally mandated attention to

the interests of the Navajo Nation and give rise to the claim for breach of trust.

2. This Court has Personal Jurisdiction over the Federal Defendants and

Congress has Waived the Immunity of the United States for Claims

Seeking Non-Monetary Relief through the APA.

The United States cannot assert the defense of sovereign immunity to the Navajo

Nation’s breach of trust claims. Congress, in section 702 of the APA, waived the

immunity of the United States as a defense in actions seeking relief other than money

damages. Section 702 provides:

A person suffering legal wrong because of agency action, or adversely

affected or aggrieved by agency action within the meaning of a relevant

statute, is entitled to judicial review thereof. An 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 or under color of legal authority shall not be dismissed nor

relief therein be denied on the ground that it is against the United States or

that the United States is an indispensable party.

5 U.S.C. § 702. Section 702 was amended in 1976 to “eliminate the defense of sovereign

immunity as to any action in a Federal court seeking relief other than money damages

and stating a claim based on the assertion of unlawful official action by an agency or by

an officer or employee of the agency.” The Presbyterian Church v. United States, 870

F.2d 518, 524 (9th Cir. 1989) (quoting H.R. REP. NO. 94-1656 (1976), reprinted in 1976

U.S.C.C.A.N. 6121, 6123). “It is particularly significant that [in enacting section 702 of

the APA] Congress referred disapprovingly to the Ex parte Young fiction, which

permitted a plaintiff to name a government official as the defendant in equitable actions


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to redress government misconduct, on the pretense that the suit was not actually against

the government.” Id. at 525. “[S]ince 1976 federal courts have looked to § 702 . . . to

serve the purposes of the Ex parte Young fiction in suits against federal officers.”

E.E.O.C. v. Peabody W. Coal Co., 610 F.3d 1070, 1087 (9th Cir. 2010). By the 1976

amendment to section 702, Congress “enacted a general consent to” actions against the

Secretary for injunctive and declaratory relief. Mitchell II, 463 U.S. at 227 n.32; see Pit

River Home & Agric. Coop. Ass’n v. United States, 30 F.3d 1088, 1097-98 & n.5 (9th

Cir. 1994) (APA waives sovereign immunity in non-monetary actions against the United

States); Assiniboine & Sioux Tribes v. Bd. of Oil and Gas Conservation of Mont., 792

F.2d 782, 793 (9th Cir. 1986) (APA waives sovereign immunity for claims brought by

tribes under 28 U.S.C. § 1362).

“Nothing in the language of the [1976 APA] amendment suggests that the waiver

of sovereign immunity is limited to claims challenging conduct falling in the narrow

definition of ‘agency action.’” Presbyterian Church, 870 F.2d at 525. Section 702’s

“waiver of immunity is not restricted by the requirement of final agency action that

applies to suits under the Administrative Procedure Act.” Reno v. Am.-Arab Anti-

Discrimination Comm., 525 U.S 471, 510 n.4 (1999) (Souter, J., dissenting) (citing

Presbyterian Church, 870 F.2d at 523-26). Instead, section 702’s waiver “covers ‘all

actions seeking relief from official misconduct except for money damages.’” E.E.O.C. v.

Peabody, 610 F.3d at 1086 (quoting Presbyterian Church, 870 F.2d at 525).

Accordingly, claims arising under the Constitution, treaties or other laws of the United


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States, including the common law, and seeking equitable relief, need not meet the

additional procedural requirements of the APA.

The Federal Defendants fail to make any mention of the Court of Appeals decision

in Presbyterian Church. Instead, Federal Defendants cite Gallo Cattle Co. v. U.S. Dep’t

of Agric., 159 F.3d 1194, 1199 (9th Cir. 1998), for the proposition that to be entitled to

assert a waiver of sovereign immunity under the APA, the Navajo Nation must

demonstrate that its breach of trust claim is premised on “final agency action.” Federal

Defendants Memo at 31-32. In Gallo Cattle, plaintiffs challenged administrative action

and asserted claims pursuant to the APA. The decision is inapposite. Rejecting the

argument advanced by the Federal Defendants here, that section 702 as applied in Gallo

Cattle only waives sovereign immunity in a case challenging “final agency action” under

section 704, the court in Valentini v. Shinseki, held that “[w]here the allegation is that the

agency action violates another law – be it statutory, constitutional, or common law – the

waiver of sovereign immunity is not so limited, but rather is the broad, unqualified

waiver described in Presbyterian Church and suggested in the plain language of the

statute. 860 F. Supp. 2d 1079, 1101 (C.D. Cal. 2012); see Veterans for Common Sense v.

Shinseki, 644 F.3d 845, 866 (9th Cir. 2011) (“But it is Presbyterian Church and not Gallo

Cattle that controls where, as here, a plaintiff's challenge is constitutional and thus not


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dependent on the APA for a cause of action.”), vacated on rehearing en banc on other

grounds, 678 F.3d 1013 (2012).23

The United States has waived its immunity from suit for claims of breach of trust

arising under a tribal treaty and federal law, and this Court has jurisdiction to hear the

Nation’s breach of trust claims.

3. The Second Amended Complaint Does Not Seek Quantification of the

Navajo Nation’s Colorado River Water Rights and the McCarran

Amendment Has No Application to this Proceeding.

There being ample authority that Congress through the APA has waived the

immunity of the United States to permit the prosecution of claims for non-monetary

relief, the Court should give short shrift to the Federal Defendants’ argument that

McCarran Amendment, 43 U.S.C. § 666, precludes the relief the Navajo Nation seeks.

The McCarran Amendment waives the immunity of the United States to permit federal

23 The great weight of authority supports this construction of the waiver of

immunity granted in section 702 of the APA. See, e.g., Commonwealth of Puerto Rico v.

United States, 490 F.3d 50, 57-58 (1st Cir. 2007); Treasurer of N.J. v. U.S. Dep’t of

Treasury, 684 F.3d 382, 397 (3d Cir. 2012); Sheehan v. Army & Air Force Exch. Serv.,

619 F.2d 1132, 1139-40 (5th Cir. 1980), rev’d on other grounds, 456 U.S. 728 (1982);

Hamdi ex rel. Hamdi v. Napolitano, 620 F.3d 615, 623-24 (6th Cir. 2010); Blagojevich v.

Gates, 519 F.3d 370, 372 (7th Cir. 2008); Black Hills Inst. of Geological Research, Inc.

v. S.D. Sch. of Mines & Tech., 12 F.3d 737, 740 (8th Cir. 1993); Nat’l Parks

Conservation Ass’n v. Norton, 324 F.3d 1229, 1240-41 (11th Cir. 2003); Trudeau v.

F.T.C., 456 F.3d 178, 186-87 (D.C. Cir. 2006); Delano Farms Co. v. Cal. Table Grape

Comm’n, 655 F.3d 1337, 1344 (Fed. Cir. 2011). The other cases cited by the Federal

Defendants are similarly inapposite because the Navajo Nation does not bring its primary

breach of trust claim under the APA, but relies on the APA only to waive the immunity

of the United States. See Federal Defendants Memo at 31-32.


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reserved rights to be determined in comprehensive water rights adjudications, and neither

“expressly or impliedly forbids the relief which is sought” here. 5 U.S.C. § 702.

The Federal Defendants’ reliance on Block v. North Dakota, 461 U.S. 273 (1983),

is misplaced, and their argument is fundamentally flawed. See Federal Defendants Memo

at 29 n.18. First, the Court should not be misled by the Federal Defendants’ efforts to

recast the claims alleged in the Second Amended Complaint. The Navajo Nation’s

breach of trust claim seeks declaratory and injunctive relief arising out of the Federal

Defendants’ failure either to consider the Navajo Nation’s need for water from the

Colorado River to make its Reservation a permanent homeland or to properly evaluate

the impacts of its actions on the federal reserved rights of the Navajo Nation in going

about the business of managing the Colorado River. No claim asserted in the Second

Amended Complaint demands a quantification of the Navajo Nation’s federal reserved

rights, and the argument of the Federal Defendants in reliance on the McCarran

Amendment is simply inapposite and should be disregarded as such.

Second, the Ninth Circuit Court of Appeals has already determined that “unlike

the Quiet Title Act, the McCarran Amendment does not preclude district court

jurisdiction under section 1331.” S. Delta Water Agency v. U.S. Dep’t of Interior, Bureau

of Reclamation, 767 F.2d 531, 543 (9th Cir. 1985); see Kittitas Reclamation Dist., 763

F.2d at 1034-35 (“a pending state action adjudicating water rights [does not]

automatically deprive[] the district court of jurisdiction over issues implicating water”

(citing Colo. River Water Conservation Dist v. United States, 424 U.S. 800 (1976))). The


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Navajo Nation’s breach of trust claim is premised on the district court’s federal question

jurisdiction. In South Delta Water Agency, the Ninth Circuit distinguished the Quiet Title

Act, observing that while Congress intended the Quiet Title Act to be an exclusive

remedy, “the McCarran Amendment, three sections long, is an attempt to address a

particular type of water rights dispute, not the entire field of water law litigation

involving the federal government.” 767 F.2d at 542 (footnote omitted); Kittitas

Reclamation Dist., 763 F.2d at 1034-35; see Sierra Club v. Yeutter, 911 F.2d 1405, 1422

(10th Cir. 1990) (Theis, J., concurring) (reading the majority opinion “as a repudiation of

defendants’ argument that under the McCarran Amendment” the plaintiffs’ actions

seeking to compel the United States to bring suit to quantify water rights for Wilderness

Areas “in federal court would never be appropriate in the face of ongoing stream

adjudication in state court”).

The APA waives the immunity of the Federal Defendants for the breach of trust

claims alleged in the instant suit. The McCarran Amendment’s waiver of the immunity

of the United States to permit the determination of federal reserved water rights in

comprehensive general stream adjudications does not require a different result.

4. The Navajo Nation’s Breach of Trust Claim Presents a Justiciable

Controversy.

The Federal Defendants’ argument that the Navajo Nation’s breach of trust claim

is not ripe for judicial resolution is flawed on many of the same grounds that undercut

their defense premised on the McCarran Amendment. Their ripeness argument may be

summarily disposed of because: 1) their reliance on Yeutter, 911 F.2d 1045, is misplaced


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– unlike the plaintiffs in Yeutter, the Navajo Nation does not seek a quantification of

federal reserved rights; 2) Federal Defendants’ reliance on the line of cases beginning

with Abbott Labs., 387 U.S. 136, is equally unavailing, as those cases address ripeness in

the context of review of administrative decisions under the APA, and the Navajo Nation’s

breach of trust claim is premised on this court’s federal question jurisdiction; and finally,

3) unlike any of the cases cited by the Federal Defendants, here the Navajo Nation

challenges final agency actions that have real and immediate consequences, and alleges

that those consequences include harm to the Nation’s interest in securing the use of

Colorado River water to make its Reservation a viable homeland. See, e.g.,

Nulankeyutmonen Nkihtaqmikon v. Impson, 503 F.3d 18, 28 (1st Cir. 2007) (‘“[W]hen a

decision to which NEPA obligations attach is made without the informed environmental

consideration that NEPA requires, the harm that NEPA intends to prevent has been

suffered.’”) (quoting Massachusetts v. Watt, 716 F.2d 946, 952 (1st Cir.1983)). The

Nation’s claims of procedural injury are clearly ripe. ‘“[A] person with standing who is

injured by a failure to comply with [statutory] procedure may complain of that failure at

the time the failure takes place, for the claim can never get riper.’” Id. at 32 (quoting

Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 737 (1998)). The Navajo Nation’s

breach of trust claim presents a justiciable controversy.

As the Federal Defendants, trustees of the Navajo Nation’s lands, should be aware,

the Navajo Indian Reservation encompasses lands in both the Upper and Lower Basins of

the Colorado River, and multiple sub-basins, and within the boundaries of three states.


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The Navajo Nation was not at the table when the 1922 Compact was negotiated, and

except for Article VII neither the 1922 Compact nor other portions of the Law of the

River were crafted with much attention to tribal needs. The Navajo Nation is, as a result,

a party to multiple state and federal general stream adjudications. Although the Federal

Defendants ignore this fact, the Navajo Nation cannot easily move water from one part of

the Reservation to another across jurisdictional divides created long after Navajo people

made their home in the Colorado River Basin. As noted above, whatever efforts the

Federal Defendants are making in other forums and venues to serve certain Navajo lands,

those efforts do not override the requirement to determine whether the Navajo Nation

needs water from the Colorado River.

In sum, the Navajo Nation cannot sit idly by as the United States engages in

administrative actions to manage the Colorado River that allocate water in ways that

compromise the ability of the United States as the trustee of Indian lands to secure

adequate water supplies to make the Navajo Indian Reservation a permanent homeland.

E. THIS CASE IS NOT AN ADJUDICATION INVOKING THE SUPREME

COURT’S JURISDICTION UNDER ARIZONA V. CALIFORNIA.

The Defendant-Intervenors Arizona, IID and MWD each argue that the United

States Supreme Court’s exclusive jurisdiction under the Arizona v. California litigation

requires dismissal of all or some of the Navajo Nation’s claims. See Arizona Memo at 2,

17-20; IID Memo at 9-23; MWD Memo at 44-50. While Arizona and IID seek dismissal

of the entire case on this basis, MWD seeks dismissal of the Navajo Nation’s first four

claims and the request in the Prayer for Relief L that water from the Lower Colorado


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River be set aside for the protection of Navajo interests. As explained below, the Second

Amended Complaint does not implicate the Supreme Court’s retention of jurisdiction in

the Arizona v. California litigation.

First, contrary to the Defendant-Intervenors’ characterization of this case, the

Navajo Nation does not ask the Court to investigate, quantify, or adjudicate the Navajo

Nation’s water rights in the Lower Colorado River, or in any way take action in

derogation of any other party’s water rights, so the Defendant-Intervenors’ argument that

this case belongs in the United States Supreme Court is based on a misreading of the

Second Amended Complaint and the relief requested therein. See, e.g., Arizona Memo at

2 (Court lacks jurisdiction to make “determination of whether the Nation possesses such

‘rights to or interests in’ the mainstream waters of the Lower Colorado River”); IID

Memo at 3 (Navajo “Nation requests that this Court make the reserved water rights

determination”); MWD Memo at 45 (“this Court lacks jurisdiction to determine whether

the Navajo have water rights in the Colorado River”). The Navajo Nation’s objective,

rather, is to have the Federal Defendants act consistently with their obligations under the

1868 Treaty and Article VII of the 1922 Compact, to comply with the statutory

procedures set forth in NEPA and the APA, and fully consider the impact their actions

have on the ability to secure a reliable water supply for the Navajo Indian Reservation in

the future, which may include water from the Colorado River. Accordingly, the

Defendant-Intervenors’ fear that the Navajo Nation seeks as part of this case an

adjudication of its water rights in the Lower Colorado River is unwarranted and, to the


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extent the United States Supreme Court may have exclusive jurisdiction to adjudicate

such rights, the Second Amended Complaint in no way implicates that jurisdiction.

Specifically, MWD misconstrues the Navajo Nation’s request that its interests be

protected by setting aside Lower Colorado River water as an attempt to have its water

rights adjudicated in this action. See MWD Memo at 49; Second Amended Complaint ¶

L, at 36. Not only is the request qualified by the phrase “or providing such other relief as

the Court deems appropriate,” but it is not a request for the adjudication and delivery of

water to the Navajo Indian Reservation. The request simply asks the Court to order the

Federal Defendants to ensure water is available for the Navajo Nation within the

framework of existing water rights, however they determine that should be done, and to

consider the impact their actions have on the available water supply and the Navajo

people’s right to “a ‘permanent home and abiding place.’” Gila V, 35 P.3d at 74 (quoting

Winters, 207 U.S. at 565). If such actions impair the Navajo Nation’s interests in this

regard, then at that time it will become necessary to adjudicate the Navajo Nation’s water

rights in a separate proceeding.

Second, the argument that only the United States Supreme Court can hear the

Navajo Nation’s NEPA and APA claims defies logic. Arizona and IID seek dismissal of

every claim on the grounds that the subject matter in controversy is Lower Colorado

River water, see Arizona Memo at 2, 18-19, and that they are predicated on the Navajo

Nation’s rights to Lower Colorado River water, see IID Memo at 9, but by this flawed

reasoning, any party who asserts a NEPA, APA, or other claim involving Lower


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Colorado River water would be required to file an original action in the Supreme Court or

reopen Arizona v. California. If any of the five Indian tribes that obtained water rights in

Arizona v. California brought NEPA and APA claims involving Lower Colorado River

water, for example, it is doubtful that the Defendant-Intervenors would argue that such a

case belonged in the Supreme Court. The Supreme Court itself noted that not all

tangentially related issues need be litigated in that forum. See Arizona v. California II,

460 U.S. at 638 (holding that boundary disputes should be settled in other forums and

noting that if such “litigation goes forward and is concluded, there will then also be time

enough to determine the impact of the judgment on our outstanding Decree”). Indeed,

this litigation only involves Lower Colorado River water as a part of the Federal

Defendants’ obligation, pursuant to the 1868 Treaty and Article VII of the 1922

Compact, to consider the impacts of their actions on Navajo Indian Reservation lands and

the ability of those lands to serve as the Navajo Nation’s permanent home. See Gila V,

35 P.3d at 74. The Second Amended Complaint does not seek to adjudicate Navajo

water rights or in any way disturb the Arizona v. California decree, so once again the

Supreme Court’s exclusive jurisdiction is not implicated.

IV. CONCLUSION.

For the reasons set forth herein, nothing in the seven motions to dismiss this action

should prevail. Fundamentally, this is not a case in which the Navajo Nation seeks to

litigate whether it has rights to the waters of the Colorado River. Rather, the purpose of

this case is to require the Federal Defendants to consider whether the Navajo Nation


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requires water from the Colorado River in order to make the Navajo Indian Reservation a

permanent home and abiding place for the Navajo people and if so, to take all appropriate

steps to preserve the necessary water supply. Yet each of the motions to dismiss seeks to

characterize the Second Amended Complaint as an effort to thwart the United States

Supreme Court’s continuing jurisdiction to determine rights to the Lower Colorado River.

Nothing could be further from the truth. The Federal Defendants have refused to make a

determination whether the Navajo Nation requires Colorado River water in order to serve

its unmet needs, and have taken actions to obligate that water despite their failure to

engage in the much-needed determination of how the Navajo Nation’s needs might be

met. That failure renders the five challenged federal actions inconsistent with NEPA –

the hard look was not hard enough – and the APA – the actions were arbitrary,

capricious, and contrary to law. In similar fashion, those actions violate the United

States’ trust responsibility to the Navajo Nation arising out of the 1868 Treaty and Article

VII of the 1922 Compact.

Accordingly, and for the reasons set forth in this response, the Court should deny

the motions to dismiss filed by the Federal Defendants and the Defendant-Intervenors.


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Date: November 14, 2013 Stanley M. Pollack, SBA 011046

M. Kathryn Hoover, SBA 013266

NAVAJO NATION DEPARTMENT OF

JUSTICE

Post Office Drawer 2010

Window Rock, Arizona 86515

Telephone: (928) 871-7510

Fax: (928) 871-6200

[email protected]

[email protected]

Scott B. McElroy, Pro Hac Vice

Alice E. Walker, Pro Hac Vice

McELROY, MEYER, WALKER &

CONDON, P.C.

1007 Pearl Street, Suite 220

Boulder, Colorado 80302

Telephone: (303) 442-2021

Fax: (303) 444-3490

[email protected]

[email protected]

/s/ Scott B. McElroy

By:________________________

Scott B. McElroy

Attorneys for the Navajo Nation

CERTIFICATE OF SERVICE

I hereby certify that on November 14, 2013, I electronically transmitted the

Navajo Nation’s Response to Motions to Dismiss to the Clerk’s Office using the CM/ECF

System for filing, which will send a transmittal of the Notice of Electronic Filing to the

following CM/ECF registrants:

Alice Elizabeth Walker, [email protected], [email protected]

Catherine M. Stites, [email protected], [email protected],

[email protected]

Charles T. DuMars, [email protected], [email protected], [email protected]

Dana R. Walsh, [email protected], [email protected]


mailto:[email protected]










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David E Lindgren, [email protected]

David Scott Johnson, [email protected], [email protected]

Douglas V. Fant, [email protected]

Edward S. Geldermann, [email protected], [email protected], g

[email protected], [email protected], [email protected]

Gregory K. Wilkinson, [email protected], [email protected]

Gregory Loyd Adams, [email protected], [email protected]

James H. Davenport, [email protected]

Jay Michael Johnson, [email protected], [email protected]

Jennifer T. Crandell, [email protected], [email protected]

Joanna M. Smith, [email protected], [email protected], [email protected]

John B. Weldon, [email protected], [email protected]

John Pendleton Carter, III, [email protected]

Joseph A. Vanderhorst, [email protected]

Joseph P Mentor, Jr., [email protected], [email protected],

[email protected]

Karen Marie Kwon, [email protected], [email protected],

[email protected]

Kenneth Cary Slowinski, [email protected]

Lauren James Caster, [email protected]

Linus Serafeim Masouredis, [email protected], [email protected]

Lisa Michelle McKnight, [email protected], [email protected]

M Kathryn Hoover, [email protected], [email protected]

Marcia L. Scully, [email protected], [email protected]

Martin P. Clare, [email protected], [email protected], [email protected]

Melissa R. Cushman, [email protected], [email protected]

Michael A. Johns, [email protected], [email protected],

[email protected], [email protected]





















































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Michael J. Pearce, [email protected], [email protected]

Robert B. Hoffman, [email protected], [email protected]

Scott Bowne McElroy, [email protected]

Scott L. Shapiro, [email protected]

Stanley M. Pollack, [email protected], [email protected]

Steven Bane Abbott, [email protected], [email protected]

Steven M. Anderson, [email protected], [email protected]

Steven P. Saxton, [email protected]

Stuart Leslie Somach, [email protected], [email protected], blewis-

[email protected], [email protected]

/s/ Daryl Ann Vitale

_________________________




















Stanley M. Pollack, SBA 011046 NAVAJO NATION …2. The Navajo Nation’s First, Second, Third and...

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