The Supreme Court of the U.S. (SCOTUS) agreed earlier this month to review a decision by the 9th Circuit Court giving the Navajo Nation yet-to-be-determined access to water from the Colorado River.
Background
The Tribe sued the federal government in 2003, bringing a claim under the National Environmental Policy Act (NEPA) and a breach of trust claim for failing to consider the Tribe’s Colorado River water rights. Numerous states, including Arizona, and several water entities intervened in the suit to protect their water rights. A federal judge in Arizona dismissed the complaint in 2014, holding that the Navajo Nation lacked standing to bring its NEPA claims and that its breach of trust claim was barred by sovereign immunity.
The 9th Circuit Court concurred with the district court in 2017 on the NEPA claims but reversed the breach of trust claims, at which point the matter was remanded back to the district court.
The Navajo Nation filed an amended complaint, alleging the federal government failed to “determine the quantities and sources of water required to make the Navajo Nation a permanent homeland for the Navajo People” and “protect the sovereign interests of the Navajo Nation by securing an adequate water supply to meet those homeland purposes.”
The district court denied this amended complaint that the federal government breached its fiduciary duties to provide the Nation with sufficient water.
Latest appeals court ruling
The case then returned to the 9th Circuit Court of Appeals, which reversed the lower court ruling again in 2021, stating that although it is undetermined if the Nation’s water rights under the Winters doctrine (a 1908 SCOTUS opinion concerning Tribal water rights) entitle the Nation to the mainstream of the Colorado River, the Nation can base their breach of trust claim on this argument.
The Winters doctrine ruled that water rights were established when the government created the reservation, and the rights cannot be forfeited for non-use. The appeals court said the rights under the Winters doctrine are implied when the government establishes a reservation, and the Nation can bring a breach of trust suit.
“Federal Appellees have an irreversible and dramatically important trust duty requiring them to ensure adequate water for the health and safety of the Navajo Nation’s inhabitants in their permanent home reservation,” wrote Judge Ronald M. Gould for the appeals court.
The 9th Circuit Court also rejected the intervenors’ argument that res judicata—the principle that a claim that has been resolved cannot be pursued further by the same parties—bars the Nation’s claim. The court argued that the Navajo Nation’s claim was over a breach of trust and not a claim seeking judicial quantification of the Nation’s water rights covered by the 1964 Supreme Court decision known as Arizona I. The decision stems from the case Arizona v. California, in which the federal government intervened to protect federal water rights, including reserved water rights held for the benefit of five Native American reservations.
The 9th Circuit Court recognized that no court has quantified the Navajo Nation’s water rights under the Winters doctrine, and the fault lies with the federal government. It also stated that when the Nation attempted to intervene in the Arizona v. California suit, the federal government opposed the motion.
SCOTUS weighs in
In response to the 9th Circuit Court’s ruling to allow the Navajo Nation to sue the federal government over a breach of trust, the government and a group of three states (Arizona, Nevada and Colorado) filed writs of certiorari with SCOTUS, requesting a review of the decision.
The states contend the decision reduces the amount of water available to the state of Arizona and its entitlement holders. The states said if the Navajo Nation is successful in directing the federal government to redirect water from rights holders in the Lower Basin of the Colorado River “based solely upon the Nation’s unquantified and unadjudicated rights, the goals of finality and clarity articulated by this Court in Arizona v. California will be undermined. Specifically, this result would upset the priorities and amount of water available to those with existing rights awarded them by the decree in Arizona v. California,” the writ said.
The federal government, in its writ, asserts that SCOTUS has previously ruled a Tribe cannot sue to enforce an asserted trust obligation against the U.S. unless the tribe can “identify a specific, applicable, trust-creating statute or regulation that the Government violated.”
“Nothing in the supposed sources the court of appeals cited imposes any specific and affirmative duties on the federal government on behalf of the Navajo Nation with respect to the water of the Colorado River or the basin more generally, much less a duty to conduct the sort of broad ranging inquiry the Navajo Nation seeks,” the writ stated.
Lawyers for the Navajo Nation, in their objection to the writs, said the appeals court’s decision does not conflict with any of SCOTUS’ decisions.
“The dispute here between the Navajo Nation and the federal government concerns the federal government’s duty to assess the Nation’s water needs and develop a plan to meet them,” the lawyers wrote.
According to the Los Angeles Times, SCOTUS will hear the case early next year and make its decision by the end of June. — Charles Wallace, WLJ editor
