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)


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.

Ninth Circuit Restores Navajo Nation Trust Breach Claim in Colorado River Water Rights Matter

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

An excerpt:

The panel held that the Nation’s breach of trust claim was not barred by sovereign immunity, and remanded to the district court to consider the claim on its merits. The panel held that the broad waiver of sovereign immunity found in § 702 of the Administrative Procedure Act (“APA”) waived sovereign immunity for all non-monetary claims, and § 704 of the APA’s final agency action requirement constrained only actions brought under the APA. The panel concluded that the Nation’s breach of trust claim sought relief other than money damages, and the waiver of sovereign immunity in § 702 applied squarely to the claim.

Lower court materials here.