Update in Navajo Nation v. Dept. of the Interior (water rights case on remand)


2018-04-13 Doc 335 NN Mot Leave Intervene

2018-04-13 Doc 335-1 NN Memo in Support of Mot for Leave to Amend

2018-04-13 Doc 335-2 EX 1 – NN Proposed Third Amended Complaint

On remand from the Ninth Circuit, the Nation moves the district court for leave to file its third amended complaint, which restates the Nation’s claims for breach of trust (dismissal of the Nation’s NEPA claims was upheld). The appeals court gave short shrift to the argument by the US, adopted by the district court, that sovereign immunity barred the breach of trust claim, clarifying (consistent with the majority of circuits) that section 702 of the APA, as amended, is a broad waiver of that immunity for claims not seeking money damages.

While continuing to assert that the Secretary as water master for the mainstream of the Colorado River in the Lower Basin breached his fiduciary duties, including the duty of protection explicitly undertaken in the 1849 Treaty of Peace, in management decisions that failed to account for the needs and unquantified rights of the Navajo Nation for homeland purposes, the proposed amended complaint now focuses more particularly on the federal defendants’ historic failure to correct an omission in the Decree in Arizona v. California, omitting lands above Lake Mead, and inducing reliance on limited water supplies by others with rights junior to the Navajo Nation to the detriment of the Nation.