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:
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?
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?
Here is the opinion in Navajo Nation v. Dept. of the Interior. Briefs here.
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.
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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.
On Wednesday, February 24, 2021, in an order from Klamath County Circuit Court Judge Cameron F. Wogan, the Oregon court again affirmed the Klamath Tribes’ water and treaty rights. Wednesday’s order rejected attacks on the Tribes’ water rights determined by the Oregon Water Resources Department (OWRD) during the administrative phase of the Klamath Basin Adjudication (KBA), affirmed the senior priority date of the Klamath Tribes’ water rights in the Klamath Basin, and upheld the need to maintain a healthy and productive habitat to meet the Tribes’ treaty right to fish, hunt, trap, and gather.
Klamath Tribes Chairman Don Gentry responded to the order, “We are pleased that Judge Wogan upheld the rulings from the administrative phase of the KBA. He reaffirmed that the 1864 treaty entered into between the Klamath Tribes and the United States reserved to the Tribes sufficient water to keep our fisheries and other aquatic resources healthy so that we can protect our natural resources and cultural traditions.”
NARF Staff Attorney Sue Noe explained, “Judge Wogan correctly affirmed quantification of the Tribal water rights based on the habitat needs of the fish, wildlife, and plants. Although he ruled that opponents of the Tribal rights will have another chance to try to reduce the amounts by showing the Tribes don’t need all the water awarded by OWRD to meet their livelihood needs, Judge Wogan made clear in no uncertain terms that the amounts cannot be below what is necessary to provide healthy and productive habitat.”
Importantly, like all other courts that have considered the issue, Judge Wogan ruled that the Klamath Tribes’ water rights extend to Upper Klamath Lake. Upper Klamath Lake forms part of the border of the former Reservation and provides critical habitat for the endangered c’waam and koptu (Lost River and shortnose sucker fish), which are sacred fish species traditionally harvested by the Tribes.
Represented by NARF, the Klamath Tribes successfully achieved recognition of their treaty-reserved water rights in federal court litigation in the 1970s and 1980s in United States v. Adair, but the federal courts left quantification of the water rights to the state adjudication in the KBA. After the successful conclusion of the KBA’s 38-year administrative phase, the Tribes were able to begin enforcing their water rights for the first time in 2013. The administrative determinations are presently on review in the Klamath County Circuit Court and Judge Wogan’s ruling is the latest to come out of that process.
The Native American Rights Fund and Western States Water Council will hold their 2019 Symposium on the Settlement of Indian Reserved Water Rights Claims August 13-15 at Harrah’s Resort Southern California in Funner, Calif. Registration and information, including a draft agenda, can be found here.