and Submitted February 14, 2017 San Francisco, California
from the United States District Court for the District of
Arizona G. Murray Snow No. 3:03-cv-00507-GMS, District Judge,
B. McElroy (argued) and Alice E. Walker, McElroy Meyer Walker
& Condon P.C., Boulder, Colorado; M. Kathryn Hoover and
Stanley M. Pollack, Navajo Nation Department of Justice,
Window Rock, Arizona; for Plaintiff-Appellant.
Elizabeth Ann Peterson (argued), Edward S. Geldermann, Ellen
J. Durkee, and William B. Lazarus, Attorneys; John C. Cruden,
Assistant Attorney General; United States Department of
Justice, Washington, D.C.; Scott Bergstrom and Robert F.
Snow, Office of the Solicitor, United States Department of
the Interior, Washington, D.C.; for Defendants-Appellees.
William Staudenmaier III (argued), Phoenix, Arizona, for
Michael J. Pearce, Maguire Pearce & Storey PLLC, Phoenix,
Arizona; Kelly Brown and Kenneth C. Slowinski, Chief Counsel,
Arizona Department of Water Resources, Phoenix, Arizona; for
Intervenor-Defendants-Appellees State of Arizona and Arizona
B. Weldon, Jr. and Lisa M. McKnight, Salmon Lewis &
Weldon PLC, Phoenix, Arizona; for
Intervenor-Defendants-Appellees Salt River Project
Agricultural Improvement and Power District and Salt River
Valley Water Users' Association.
Somach and Robert Hoffman, Somach Simmons & Dunn,
Sacramento, California; for for Intervenor-Defendant-Appellee
Central Arizona Water Conservation District.
J. Caster, Special Deputy Counsel, and Gregory L. Adams,
Fennermore Craig P.C., Phoenix, Arizona; Jennifer T.
Crandell, Special Counsel Attorney General; Adam Paul Laxalt,
Attorney General; Office of the Nevada Attorney General; for
Intervenor-Defendant-Appellee State of Nevada; Colorado River
Commission of Nevada; Southern Nevada Water Authority.
C. Kear, Chief Deputy General Counsel; Joseph A. Venderhorst,
Assistant General Counsel; Marcia Scully, General Counsel;
The Metropolitan Water District of Southern California, Los
Angeles, California; for for Intervenor-Defendant-Appellee
Metropolitan Water District of Southern California.
B. Abbott, Redwine and Sherrill, Riverside, California, for
Intervenor-Defendant-Appellee Coachella Valley Water
M. Smith Hoff, Assistant Counsel, Imperial Irrigation
District, Imperial, California; Charles T. Dumars, Law &
Resource Planning Associates P.C., Albuquerque, New Mexico;
for Intervenor-Defendant-Appellee Imperial Irrigation
G. Martin and Steven M. Anderson, Best Best & Krieger
LLP, Riverside, California, for
Intervenor-Defendants-Appellees Coachella Valley Water
District and The Metropolitan Water District of Southern
Rosset, Assistant Attorney General; Karen M. Kwon, First
Assistant Attorney General; Cynthia Coffman, Attorney
General; Attorney General's Office, Denver, Colorado; for
Intervenor-Defendant-Appellee State of Colorado.
Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges,
and Marvin J. Garbis, [**] District Judge.
/ Sovereign Immunity / Water Rights
panel affirmed in part, and reversed in part, the district
court's dismissal of the Navajo Nation's Second
Amended Complaint, and denial of the Nation's
Fed.R.Civ.P. 60(b) motion for relief, in their challenge to
the Department of the Interior's published Guidelines in
2001 and 2008 clarifying how it would make
"surplus" and "shortage" determinations
for delivery to Western states of the waters of the Colorado
Nation is a federally recognized tribe, and the United States
is trustee of the Nation's tribal lands. The Navajo
Reservation covers parts of Arizona, New Mexico, and Utah,
and lies almost entirely within the drainage basin of the
Department of the Interior, through the Bureau of
Reclamation, operates dams and reservoirs that control the
flow of the Colorado's waters.
panel affirmed the district court's dismissal of the
Nation's National Environmental Policy Act claims for
lack of Article III standing. The panel held that, although
the district court considered the Nation's interests in
adequate water too narrowly, it agreed with the district
court that the Nation failed to show it "reasonably
probable" that the new Guidelines threatened either the
Nation's unadjudicated water rights or its practical
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.
the panel reversed the district court's dismissal of the
Nation's breach of trust claim, the panel held that the
Nation's appeal from the district court's denial of
its Rule 60(b) motion was moot to the extent it sought to
amend its complaint to plead additional or alternative
waivers of sovereign immunity. The panel held that the Nation
was not entitled to relief under Rule 60(b) to amend its
pleadings for its National Environmental Policy Act
BERZON, Circuit Judge:
Department of the Interior ("Interior" or "the
Secretary") oversees the control, storage, and delivery
to the Western states of the waters of the Colorado River. In
most years, each state in the Colorado River Basin receives a
fixed amount of water from the river; in "surplus"
and "shortage" years, that amount changes. In the
face of unprecedented drought and ever-increasing demand for
water, Interior published guidelines in 2001 and 2008 to
clarify how it would make these "surplus" and
"shortage" determinations from year to year. This
case concerns challenges to those guidelines by the Navajo
Nation ("Nation"), a federally recognized Indian
Nation occupies vast reservation lands along the Colorado
River but has no judicially decreed right to its waters.
Aggrieved by its lack of enforceable rights to Colorado River
water, the Nation filed suit to challenge the surplus and
shortage guidelines, alleging principally that Interior
neglected to consider the guidelines' impact on its
potential, but as-yet unadjudicated, water rights in the
Colorado River and so violated the National Environmental
Policy Act ("NEPA"). The Nation also charged
Interior with more broadly breaching the trust duties the
government owes the Nation by failing to account for or
safeguard the tribe's interests in and rights to water in
the river. The district court rejected all of the
Nation's challenges, which are now raised anew here.
The Navajo Nation
Nation is a federally recognized Indian tribe whose
reservation lands sprawl over 13 million acres in the
American Southwest. The Navajo Reservation
("Reservation"), the largest Indian reservation in
the United States, was established by treaty in 1868 and grew
piecemeal between 1868 and 1934, as lands were added to it by
treaty, executive order, and statute. The Reservation covers
parts of Arizona, New Mexico, and Utah, and lies almost
entirely within the drainage basin of the Colorado River,
which demarcates much of the Reservation's western
boundary. Aside from the federal government, the Nation is
the largest riparian landowner along the Colorado.
United States is trustee of the Nation's tribal lands and
resources. United States v. Mitchell, 463 U.S. 206,
225 (1983). The Nation's claims in this action arise
either directly or derivatively from the alleged breach of
fiduciary responsibilities created by this trust
B. The Law of the River
Colorado River begins in the mountains of Colorado and flows
nearly 1, 300 miles to the Sea of Cortez, adjacent to the
Sonoran Desert in Mexico, draining an area amounting to
almost one-twelfth of the continental United States.
Arizona v. California, 373 U.S. 546, 552 (1963).
"Much of this large basin is so arid that it is, as it
always has been, largely dependent upon managed use of the
waters of the Colorado River System to make it productive and
of the Colorado's importance to the West, river water is
pervasively managed, regulated, and contested. Interior,
through the Bureau of Reclamation, operates large dams and
reservoirs that control the flow of the Colorado's
waters. Additionally, federal statutory law and regulations,
Supreme Court decrees, interstate compacts, state and federal
common law, and treaties foreign and domestic affect the
allocation and management of the River's waters. This
byzantine legal regime is known as "The Law of the
River, " the relevant portions of which we summarize
The 1922 Compact
1922, seven states entered into an interstate compact to
govern the gross allocation of water from the Colorado River.
The states wanted to assure that the Colorado became a
regular, dependable source of water; they recognized that
doing so would require a regional or national
Colorado River Compact ("1922 Compact") entered
into by the affected states divided the river in two at Lee
Ferry, Arizona. 1922 Compact art. II, reprinted in
70 Cong. Rec. 324 (Dec. 10, 1928). The "Upper
Basin" States(Colorado, New Mexico, Utah, and Wyoming)
and the "Lower Basin" States (Arizona, California,
and Nevada) would each be entitled to 7.5 million acre-feet
per year ("mafy") of water. Id. arts. II-III.
This suit concerns water in the Lower Basin only. The Compact
stated that it did not establish, alter, or impair any
present perfected rights within the States, id. art
VIII, nor "affect the obligations of the United States
of America to Indian tribes, " id. art VII.
Commissioners from each state signed the compact, but it
became effective under its terms only if ratified by Congress
and the legislature of each signatory state. Id. art
ii. The Boulder Canyon Project Act
1928, Congress addressed the management of the Colorado River
through the Boulder Canyon Project Act, 43 U.S.C. § 617
et seq. The Act conditionally approved the 1922
Compact and authorized the Secretary of the Interior to
construct a massive dam at Boulder Canyon (now the Hoover
Dam) and the attendant water delivery infrastructure (a
reservoir, now Lake Mead, and delivery canals) to effectuate
the allocations laid out in the 1922 Compact. 43 U.S.C.
§ 617. The Act also allowed the Secretary to enter into
contracts with users for the storage and delivery of water in
the Project's reservoir. Id. § 617d.
relevant for our purposes, the Act authorized the three Lower
Basin States to negotiate a second compact divvying up their
7.5 mafy share of the Colorado's water-4.4 to California,
2.8 to Arizona, and 0.3 (i.e., 300, 000 afy) to Nevada. If
entered into, this agreement would take effect once all three
states had ratified the 1922 Compact. Id. §
Boulder Canyon Project Act became effective in 1929, after
six of the seven states ratified the Compact, see
id., and California "irrevocably and
unconditionally" covenanted to limit its consumption to
4.4 mafy. Arizona did not ratify the 1922 Compact,
so the Lower Basin states never agreed to the second compact
that would have apportioned the 7.5 mafy among the three
states. See Arizona v. California, 373 U.S. at
561-62. The Secretary nonetheless entered into water
contracts with the Lower Basin states. Id. at
Arizona v. California
over Lower Basin water continued between Arizona and
California, coming to a boil in 1952 when Arizona sued
California in an original action in the Supreme Court. The
United States intervened to represent federal interests,
including the interests of 25 Indian tribes,  and other Basin
States intervened as well. Based on the report, findings, and
recommended decree of a Special Master, see Arizona v.
California, 373 U.S. at 551, the Court issued a decree
clarifying each state's rights to Lower Basin water.
See Arizona v. California, 376 U.S. 340 (1964)
1964 Decree affirmed the provisional apportionments set out
in the Boulder Canyon Project Act. In years when the
Secretary determined that 7.5 maf of water was available for
release to the Lower Basin states, Nevada was entitled to 0.3
mafy; Arizona to 2.8 mafy; and California to the lion's
share, 4.4 mafy. 1964 Decree art. II(B)(1), 376 U.S. at 342.
The Decree also parceled out the relative shares each Lower
Basin State would get in years in which, "as determined
by the Secretary of the Interior, " there was surplus
water available.1964 Decree art. II(B)(2), 376 U.S. at
342. If, instead, the Secretary determined in a given year
that there was a shortage of water-less than 7.5 maf
available in the Lower Basin-the Decree required the Bureau
of Reclamation first to "provid[e] for satisfaction of
present perfected rights in the order of their priority dates
without regard to state lines." Id. art.
II(B)(3), 376 U.S. at 342. Then, "after consultation
with the parties to major delivery contracts and such
representatives as the respective States may designate, [the
Secretary] may apportion the amount remaining available for
consumptive use in such manner as is consistent with the
Boulder Canyon Project Act, " the Decree, and other
applicable federal statutes. Id.
addition to partitioning the Colorado River waters among the
three Lower Basin States, the 1964 Decree adjudicated the
"Winters rights" of five Indian tribes.
Winters v. United States held that "when the
Federal Government withdraws its land from the public domain
and reserves it for a federal purpose, the Government, by
implication, reserves appurtenant water then unappropriated
to the extent needed to accomplish the purpose of the
reservation." Cappaert v. United States, 426
U.S. 128, 138 (1976); see also Winters v. United
States, 207 U.S. 564, 577 (1908). The rights to this
water-also called "reserved rights"-vest on the
original date of withdrawal of the land and trump the rights
of later appropriators. Cappaert, 426 U.S. at 138.
For Indian reservations, courts look to the treaties,
executive orders, and statutes that set aside reservation
land for the tribe in question. Winters rights,
unlike water rights gained through prior appropriation, are
not lost through non-use. Colville Confederated Tribes v.
Walton, 647 F.2d 42, 51 (9th Cir. 1981).
Arizona v. California, the Supreme Court reaffirmed
the vitality of the Winters doctrine, noting that
"most of the [reservation] lands were of the desert
kind-hot, scorching sands-and . . . water from the [Colorado]
would be essential to the life of the Indian people and to
the animals they hunted and the crops they raised." 373
U.S. at 599. The Decree awarded five tribes a right to Lower
Basin water commensurate with the "practicably irrigable
acreage" of each tribe's reservation. Id.
at 600; 1964 Decree art. II(D), 376 U.S. at 343-45. Following
the Special Master's lead, the Court declined to reach
the claims of the other twenty tribes, including the Navajo
Nation's. See 373 U.S. at 595. The Decree made
clear, however, that it did not affect "[t]he rights or
priorities, except as specific provision is made herein, of
any Indian Reservation." Id. art. VIII(C), 376
U.S. at 352-53.
Supreme Court retained jurisdiction over the suit, 1964
Decree art. IX, 376 U.S. at 353, and, over the next few
decades, announced several sequels to the original opinion.
See, e.g., Arizona v. California, 460 U.S.
605 (1983) (holding that res judicata barred re-opening the
quantification of tribes' Winters rights);
Arizona v. California, 530 U.S. 392 (2000) (holding
that res judicata did not bar certain claims
stemming from reservation boundary disputes); Arizona v.
California, 547 U.S. 150 (2006) (consolidating prior
decrees and implementing the water rights settlement
concerning one Indian reservation).
The Nation's Rights to Water in the Colorado
the Winters doctrine, when setting aside lands for
the Navajo Nation, the United States impliedly reserved for
the tribe "the waters without which their lands would
[be] useless." Arizona v. California, 373 U.S.
at 600. As noted above, in the first iteration of Arizona
v. California, the Special Master-and the Supreme
Court-declined to reach the Winters claim put
forward on behalf of the Nation. Id. at 595. The
Nation has in the last half-century repeatedly asserted its
right to water in the Lower Colorado,  but its
potential water rights in the Lower Colorado have never been
adjudicated or quantified.
Implementing the Law of the River
Secretary "is vested with considerable control over the
apportionment of Colorado River waters, " Arizona v.
California, 373 U.S. at 593, and is generally
responsible for the management and delivery of water from the
Colorado pursuant to the Law of the River. Each state's
water portion is dictated by the 1964 Decree, as is the
allocation of surplus water; Arizona v. California
accords discretion to the Secretary to apportion shortfalls
in years of shortage, see id. at 593-94. The 1964
Decree also commits the determination of surplus and
shortage years to the Secretary. See 1964 Decree,
art. II(B)(2)-(3), 376 U.S. at 342.
Colorado River Basin Project Act of 1968 required the
Secretary to adopt criteria for the coordinated management of
Lake Mead and Lake Powell, the reservoirs under the
Secretary's management in the Lower Basin. See
43 U.S.C. 1552(a)-(b). These "Operating Criteria"
for the coordinated management of the storage reservoirs in
the Lower Basin help the Secretary determine whether to
declare a shortage or surplus in any given year. See
Colorado River Reservoirs: Coordinated Long-Range
Operation, 35 Fed. Reg. 8951 (June 10, 1970). Before
adopting the challenged guidelines, the Secretary made
year-to-year determinations about declaring a shortage or
surplus, relying on a varying combination of factors,
including the year-end water levels in Lake Mead and Lake
Powell, potential run-off conditions, and projected water
demands. See Colorado River Interim Surplus
Guidelines, 66 Fed. Reg. 7772, 7774 (Jan. 25, 2001)
(describing the factors the Secretary historically considered
in making shortage and surplus declarations). This ad hoc
approach bred uncertainty about the possibility of surplus or
shortage in any particular year, which grew untenable as
demand for surplus water increased. Id.. To
partially remedy this problem, the Secretary first decided to
adopt more specific, objective criteria for making the annual
determinations regarding surplus water. Id..
Guidelines for determining shortages came later.
The Challenged Surplus and Shortage Guidelines
2001, the Secretary adopted the Colorado River Interim
Surplus Guidelines ("Surplus Guidelines"). The
Guidelines would "determine the conditions under which
the Secretary would declare the availability of surplus water
for use within" the Lower Basin states every year.
See Surplus Guidelines, 66 Fed. Reg. at 7773. This
declaration and allocation of a surplus, if there was one,
were to be consistent with the 1964 Decree, the Colorado
River Basin Project Act, and the Operating Criteria adopted
pursuant to that Act. The Surplus Guidelines aimed to provide
greater consistency and predictability in the Secretary's
surplus declarations from year to year, in light of growing
(and competing) demands for surplus water, and of
California's continued diversion of more than its
allotted 4.4 mafy share of Lower Basin water. See
id. at 7773-74.
Surplus Guidelines pegged the surplus declaration to the
year-end water level in Lake Mead. See id. at 7775.
If that water level equaled or exceeded the highest
"tier, "surplus water would be made available for
all types of water uses. At or below the lowest "tier,
" a "Normal" or "Shortage" year
would be declared and no surplus water would be released. At
the middle tier, water would be released subject to use
restrictions. See id. at 7780. These
"interim" guidelines were set to expire in 2016.
See id. at 7773-74, 7780-81.
adopting the Surplus Guidelines and issuing the Record of
Decision, the Secretary published a draft environmental
impact statement ("EIS") assessing the
environmental impacts of four alternatives along with the
"No-Action Alternative." See Colorado River
Interim Surplus Criteria, Notice of Availability of Draft
EIS, 65 Fed. Reg. 42, 028, 42, 029 (July 7, 2000). In
December 2000, after receiving comments on its draft, the
Secretary issued his final EIS ("FEIS"),
and one month later its Record of Decision, adopting the
preferred alternative as the Surplus Guidelines. See
Surplus Guidelines, 66 Fed. Reg. at 7772.
the development of the EIS, the Secretary consulted with
various Indian tribes whose lands or water resources lay in
the Lower Basin. See Final Environmental Impact
Statement, Colorado River Interim Surplus Criteria
("Surplus Guidelines FEIS"), Executive
Summary, at 33, 44. Both the Navajo Nation and the Colorado
River Basin Ten Tribes Partnership, of which the Nation is a
member, submitted comments on the draft, calling it
"fundamentally flawed" and "deeply and fatally
flawed." Surplus Guidelines FEIS at B-187,
B-196. The Nation complained that the proposed Surplus
Guidelines did not account for its unquantified rights in the
Lower Basin and fostered reliance by third parties on water
to which it was, or would or could be, entitled. Id.
at B-187 to B-190. The Ten Tribes objected to the lack of
consideration of "Indian Trust Assets" and claimed
that the Guidelines would generally frustrate the development
and protection of Indian water rights. Id. at B-196
Secretary responded that it was actively assisting tribes in
obtaining their water rights, and it disagreed that the
Guidelines would hamper or decrease incentives to develop
Indian water rights in the Lower Basin. Id. at
B-189; B-203 to B-205. "The Department does not believe
this proposed action would preclude the Tribes or any
entitlement holder from using their Colorado River
entitlement. The ...