Dept. of Justice [almost certainly over Interior’s objections] and Arizona File Cert Petitions in Navajo Nation Water Rights Trust Suit

Here is the petition in Dept. of the Interior v. Navajo Nation:

Question presented:

Whether the federal government owes the Navajo Nation an affirmative, judicially enforceable fiduciary duty to assess and address the Navajo Nation’s need for water from particular sources, in the absence of any substantive source of law that expressly establishes such a duty.

Here is the petition and the partial acquiescence by Justice in Arizona v. Navajo Nation:

Questions presented:

I. Does the Ninth Circuit Opinion, allowing the Nation to proceed with a claim to enjoin the Secretary to develop a plan to meet the Nation’s water needs and manage the mainstream of the LBCR so as not to in- terfere with that plan, infringe upon this Court’s re- tained and exclusive jurisdiction over the allocation of water from the LBCR mainstream in Arizona v. California?
II. Can the Nation state a cognizable claim for breach of trust consistent with this Court’s holding in Jicarilla based solely on unquantified implied rights to water under the Winters Doctrine?

Lower court materials here.

States’ Cert Petition in Navajo Nation Water Rights Case

Here is the petition in Arizona v. Navajo Nation:

Questions presented:

I. Does the Ninth Circuit Opinion, allowing the Nation to proceed with a claim to enjoin the Secretary to develop a plan to meet the Nation’s water needs and *ii manage the mainstream of the LBCR so as not to interfere with that plan, infringe upon this Court’s retained and exclusive jurisdiction over the allocation of water from the LBCR mainstream in Arizona v. California?

II. Can the Nation state a cognizable claim for breach of trust consistent with this Court’s holding in Jicarilla based solely on unquantified implied rights to water under the Winters Doctrine?

Lower court materials here.

Ninth Circuit Denies Federal Government’s En Banc Petition in Navajo Water Rights Case

Here are the en banc stage materials in Navajo Nation v. Dept. of the Interior:

Amended Order + Denial of En Banc Petition

US En Banc Petition

Water District En Banc Petition

Navajo Response

Panel stage materials here.

Artwork on water towers along a remote Arizona road leading to Monument Valley Navajo Tribal Park, a red-sand desert region on the Arizona-Utah border known for the towering sandstone buttes [LOC]

Ninth Circuit Restores Navajo Nation’s Water Rights Trust Breach Suit

Here is the opinion in Navajo Nation v. Dept. of the Interior. Briefs here.

An excerpt:

Moreover, neither Morongo nor Gros Ventre nor Jicarilla involved claims to vindicate Winters rights, which provide the foundation of the Nation’s claim here. Unlike the plaintiffs in those cases, the Nation, in pointing to its reserved water rights, has identified specific treaty, statutory, and regulatory provisions that impose fiduciary obligations on Federal Appellees—namely, those provisions of the Nation’s various treaties and related statutes and executive orders that establish the Navajo Reservation and, under the long-established Winters doctrine, give rise to implied water rights to make the reservation viable.

                      *. *  *

We hold in particular that, under Winters, Federal Appellees have a duty to protect the Nation’s water supply that arises, in part, from specific provisions in the 1868 Treaty that contemplated farming by the members of the Reservation.

Navajo Water Rights Trust Breach Case Dismissed

Here are the updated materials in Navajo Nation v. Dept. of the Interior (D. Arizona):

Third Amended Complaint materials

339 US Response

340 Utility and State Response

346 Navajo Reply

360-1 Navajo Renewed Motion

369 Utility and State Response

370 US Response

375 Navajo Reply

385 DCT Order

Prior posts here.

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

Here:

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.