Nation v. U.S. Dep't of the Interior

34 F.Supp.3d 1019

NAVAJO NATION, Plaintiff,

v.UNITED STATES DEPARTMENT OF THE INTERIOR; et al., Defendants.

No. CV–03–00507–PCT–GMS.

United States District Court, D. Arizona.

Signed July 22, 2014

Motion granted. Alice Elizabeth Walker, Scott Bowne McElroy, McElroy Meyer Walker & Condon PC, Boulder, CO, M. Kathryn Hoover, Stanley M. Pollack, Navajo Nation Department of Justice, Window Rock, AZ, for Plaintiff.

Edward S. Geldermann, U.S. Dept of Justice, Washington, DC, Michael A. Johns, U.S. Attorney's Office, Phoenix, AZ, for Defendants.

ORDER

G. MURRAY SNOW, District Judge.

Pending before the Court are multiple related motions. They include: (1) Defendants United States Department of the Interior (the “Department”), Secretary of the Interior Sally Jewell, Bureau of Reclamation, and Bureau of Indian Affairs' (the “Federal Defendants”) Motion to Dismiss (Doc. 240), (2) Defendant–Inter State of Arizona's Motion to Dismiss (Doc. 242), (3) Defendant–Intervenors Metropolitan Water District of Southern California and Coachella Valley Water District's (the “Metropolitan Defendants”) Motion to Dismiss (Doc. 243), (4) Defendant–Intervenors Salt River Project Agricultural Improvement and Power District and the Salt River Water Users' Association's (the “SRP Defendants”) Motion to Dismiss and to Join Required Parties (Doc. 249), (5) Defendant–Intervenor Central Arizona Water Conservation District's Motion to Dismiss (Doc. 250), (6) Defendant–Intervenor Imperial Irrigation District's Motion to Dismiss (Doc. 251), (7) the Hopi Tribe's Motion to Intervene (Doc. 252), (8) the Hopi Tribe's Motion to Dismiss (Doc. 253), and (9) Defendant–Intervenors Colorado River Commission of Nevada, State of Nevada, and Southern Nevada Water Authority's (the “Nevada Defendants”) Motion to Dismiss (Doc. 254).

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

Additionally, various Defendant–Intervenors have joined the case and filed their own Motions to Dismiss. (Docs. 242, 243, 249, 250, 251, and 254.) ² Also pending are the Hopi Tribe's Motion to Intervene (Doc. 252) and Motion to Dismiss (Doc. 251).

DISCUSSION

I. Legal Standard

The Court may only reach the merits of a dispute if it has jurisdiction to do so. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93–95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Jurisdiction is limited to subject matter authorized by the Constitution or by statute. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Under Rule 12(b)(1), a defendant may challenge at any time a federal court's jurisdiction to hear a case. See Fed.R.Civ.P. 12(b)(1), 12(h)(3). In such a challenge, the defendant may either facially or factually attack the plaintiff's complaint for lack of subject matter jurisdiction. A facial challenge asserts that the complaint, on its face, fails to allege facts that would invoke federal jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). A factual attack, on the other hand, disputes the veracity of allegations in the complaint that would, if true, invoke federal jurisdiction. Id.

II. Standing

To establish Article III standing to seek injunctive relief, “a plaintiff must show that he is under threat of suffering ‘injury in fact’ that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury.” Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) (citing Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)).

Under the first prong, the Nation alleges that it is under the threat of suffering “injury in fact” due to the challenged administrative actions in Counts One through Five. The Nation states that in establishing the Navajo Reservation, “the United States impliedly reserved for the benefit of the Navajo Nation a sufficient amount of water to carry out the purposes for which the Reservation was created, specifically to make the Reservation a livable homeland for the Nation's present and future generations.” (Doc. 281, SAC ¶ 14.) While the Nation alleges that they have these water rights, they also assert that the United States has never adjudicated, quantified, or estimated these rights as to the mainstream of the Colorado River in the Lower Basin. ( Id. ¶¶ 25–26.) However, consistent with Winters, the Nation does not challenge the Federal Defendants' assertion that the priority of any such rights will not be legally impacted by any of the challenged administrative actions. That is because any such water rights “vested at least as early as the date of each congressional act or executive order setting aside the Reservation lands” ( Id. ¶ 14), which occurred between 1868 and 1964 ( Id. ¶ 12), many decades before any of the challenged administrative actions ( Id. ¶¶ 36, 41, 46, 50). Further, under Winters, any such rights would retain priority despite non-use.

The Nation also does not allege that any of the challenged actions directly regulate any of the Nation's activities. Instead, they assert that the actions regulate third-party activities, and that this regulation, devised without consideration of the Nation's potential water rights, could cause injury to the Nation because it “establishes a system of reliance upon the Colorado River that ensures that entities other than the Navajo Nation will continue to rely on water supplies claimed by, reserved for, needed by, and potentially belonging to the Navajo Nation.” ( Id. ¶ 31.) In turn, “[s]uch reliance will operate to make allocation of Colorado River water to the Navajo Nation to satisfy its water rights or meet the needs of the Navajo Nation and its members increasingly difficult.” ( Id.)

Here, in Claims One, Two, Three, and Five, the Nation alleges a number of procedural violations under NEPA. For these claims, the Nation may demonstrate injury under the standard for demonstrating a procedural injury under that statute. To show that these alleged procedural violations constitute a cognizable injury for purposes of establishing Article III standing, the Nation “must demonstrate that (1) [Defendants] violated certain procedural rules; (2) these rules protect [Plaintiff's] concrete interests; and (3) it is reasonably probable that the challenged action will threaten their concrete interests.” Center for Food Safety v. Vilsack, 636 F.3d 1166, 1171 (9th Cir.2011) (citing Citizens for Better Forestry v. U.S. Dep't of Agric., 341 F.3d 961, 969–70 (9th Cir.2003)).

Here, the Court will assume without deciding that the Federal Defendants violated some procedural rules of NEPA, that the Nation has some kind of interest in the water of the Lower Basin, and the procedural rules protect the Nation's interests in that water. This satisfies the first two prongs of the NEPA injury inquiry. Under the third prong, the Nation must demonstrate that it is “reasonably probable” that the challenged administrative actions will threaten their interests. The Nation has not done so. As explained above, the only injury the Nation asserts in this case is that the challenged administrative actions will create a system of reliance that will somehow make it harder for the Nation to satisfy its water rights, even though the Nation concedes that these challenged actions do not vitiate those rights or otherwise legally alter those rights under Winters. The Nation does not explain how any “system of reliance” created by the challenged administrative actions could nonetheless injure the Nation's interests. Without this connection, the Nation has not demonstrated that it is “reasonably probable” that the actions will threaten their interests. Thus, in Claims One, Two, Three, and Five, the Nation fails to establish injury under the standard for establishing a NEPA procedural injury and therefore the Nation does not have Article III standing to bring those claims.

In Claim Four, the Nation alleges that the Implementation of the Interstate Banking Regulations violates the APA, but not NEPA. As the Nation does not bring Claim Four under NEPA, it is not relevant whether it meets the Ninth Circuit's requirements for establishing injury under that particular statute. However, the Nation must still establish injury under this Claim for Article III standing. As in Claims One, Two, Three, and Five, the Nation alleges that the challenged regulations will allow entitlement holders other than the Nation to develop a system of reliance on water that may someday be determined to belong to the Nation. As with Claims One, Two, Three and Five, the Nation fails to allege any facts to suggest that any possible injury deriving from a theoretical, future “system of reliance” is “actual or imminent” as opposed to merely “conjectural or hypothetical.” Summers, 555 U.S. at 493, 129 S.Ct. 1142. Thus, Plaintiffs also fail to establish standing to bring Claim Four.³

III. Breach of Trust ClaimA. Trust Relationship

In its Claim Seven, the Nation challenges the Federal Defendants' alleged breach of their fiduciary trust responsibility. (SAC ¶¶ 90–91.) The Nation asserts that “[t]he Department has failed to determine the extent and quantity of the water rights of the Navajo Nation to the waters of the Colorado River, or otherwise determine the amount of water which the Navajo Nation requires from the Lower Basin of the Colorado River to meet the needs of the Navajo Nation and its members.” ( Id.) To remedy this alleged violation, it asks the Court to enjoin “further breaches of the United States' trust responsibility.” ( Id. ¶ L.) The Nation claims that this “primary breach of trust claim is not premised on the APA.” (Doc. 282 ...