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Nation v. United States Department of Interior

United States District Court, D. Arizona

July 22, 2014

Navajo Nation, Plaintiff,
v.
United States Department of the Interior; et al., Defendants

Page 1020

For Navajo Nation, Plaintiff: Alice Elizabeth Walker, Scott Bowne McElroy, LEAD ATTORNEYS, McElroy Meyer Walker & Condon PC, Boulder, CO; M Kathryn Hoover, Stanley M Pollack, LEAD ATTORNEYS, Navajo Nation Department of Justice, Window Rock, AZ.

For Sally Jewell, Secretary of the Interior, United States Department of the Interior, United States Bureau of Reclamation, John W Keys, III, Commissioner of the Bureau of Reclamation, Robert W Johnson, Regional Director, Lower Colorado Region of the Bureau of Reclamation, Bennett W Raley, Assistant Secretary for Water and Science, Department of the Interior, Indian Affairs, Bureau of, Aurene Martin, Acting Assistant Secretary for Indian Affairs, Department of the Interior, Defendants: Edward S Geldermann, LEAD ATTORNEY, U.S. Dept of Justice, General Litigation Section, Washington, DC; Michael A Johns, U.S. Attorney's Office, Phoenix, AZ.

For Colorado, State of, Intervenor Defendant: Karen Marie Kwon, Shanti Rosset, LEAD ATTORNEYS, Colorado Attorney Generals Office, Denver, CO.

For Metropolitan Water District of Southern California, Movant: Catherine M Stites, Joseph A Vanderhorst, LEAD ATTORNEYS, Linus Serafeim Masouredis, Metropolitan Water District of Southern California, Los Angeles, CA; Gregory K Wilkinson, LEAD ATTORNEY, Best Best & Krieger LLP, Riverside, CA; Melissa R Cushman, Best Best & Krieger LLP, Riverside, CA.

For Hopi Tribe, Intervenor: Martin P Clare, LEAD ATTORNEY, Campbell Yost Clare & Norell PC, Phoenix, AZ; Joseph P Mentor , Jr, Mentor Law Group PLLC, Seattle, WA.

For Southern Nevada Water Authority, Intervenor Defendant: Gregory Loyd Adams, Lauren James Caster, LEAD ATTORNEYS, Fennemore Craig PC - Phoenix, AZ, Phoenix, AZ; James H Davenport, LEAD ATTORNEY, JHDavenport LLC, Buena, WA; Dana R Walsh, Southern Nevada Water Authority, Las Vegas, NV.

For Colorado River Commission of Nevada, Movant: Gregory Loyd Adams, Lauren James Caster, LEAD ATTORNEYS, Fennemore Craig PC - Phoenix, AZ, Phoenix, AZ; Jennifer T Crandell, LEAD ATTORNEY, Office of the Attorney General, State of Nevada, Las Vegas, NV.

For Arizona, State of, Intervenor, Intervenor Defendant: Michael J Pearce, LEAD ATTORNEY, Maguire & Pearce PLLC, Phoenix, AZ; Kenneth Cary Slowinski, Arizona Department of Water Resources, Phoenix, AZ.

For Nevada, State of, Intervenor Defendant: David E Lindgren, Scott L Shapiro, Steven P Saxton, LEAD ATTORNEYS, Downey Brand LLP, Sacramento, CA; Gregory Loyd Adams, Lauren James Caster, LEAD ATTORNEYS, Fennemore Craig PC - Phoenix, AZ, Phoenix, AZ; Jennifer T Crandell, LEAD ATTORNEY, Office of the Attorney General, State of Nevada, Las Vegas, NV.

For Central Arizona Water Conservation District, Intervenor Defendant: David Scott Johnson, Jay Michael Johnson, LEAD ATTORNEYS, Central Arizona Water Conservation District, Phoenix, AZ; Michael J Pearce, LEAD ATTORNEY, Maguire & Pearce PLLC, Phoenix, AZ; Robert B Hoffman, Stuart Leslie Somach, LEAD ATTORNEYS, Somach Simmons & Dunn, Sacramento, CA.

For Southern California Metropolitan Water District, Intervenor Defendant: Catherine M Stites, Joseph A Vanderhorst, Marcia L Scully, LEAD ATTORNEYS, Metropolitan Water District of Southern California, Los Angeles, CA; Gregory K Wilkinson, Melissa R Cushman, LEAD ATTORNEYS, Steven M Anderson, Best Best & Krieger LLP, Riverside, CA.

For Imperial Irrigation District, Intervenor Defendant: Charles T DuMars, LEAD ATTORNEY, Law & Resource Planning Associates PC, Albuquerque, NM; John Pendleton Carter , III, LEAD ATTORNEY, Horton Knox Carter & Foote, El Centro, CA; Joanna M Smith, Imperial Water District, Imperial, CA.

For Coachella Valley Water District, Intervenor Defendant: Gregory K Wilkinson, LEAD ATTORNEY, Best Best & Krieger LLP, Riverside, CA; Steven Bane Abbott, LEAD ATTORNEY, Redwine and Sherrill, Riverside, CA; Melissa R Cushman, Steven M Anderson, Best Best & Krieger LLP, Riverside, CA.

For Arizona Power Authority, Intervenor Defendant: Douglas V Fant, LEAD ATTORNEY, Phoenix, AZ; James P Bartlett, LEAD ATTORNEY, Arizona Power Authority, Phoenix, AZ.

For Salt River Project Agricultural Improvement and Power District, Salt River Valley Water Users Association, Intervenor Defendants: John B Weldon , Lisa Michelle McKnight, LEAD ATTORNEYS, Salmon Lewis & Weldon PLC, Phoenix, AZ.

Page 1021

ORDER

G. Murray Snow, United States District Judge.

Pending before the Court are multiple related motions. They include: (1) Defendants United States Department of the Interior (the " Department" ), Secretary of the Interior Sally Jewell, Bureau of Reclamation, and Bureau of Indian Affairs' (the " Federal Defendants" ) Motion to Dismiss (Doc. 240), (2) Defendant-Intervenor State of Arizona's Motion to Dismiss (Doc. 242), (3) Defendant-Intervenors Metropolitan Water District of Southern California and Coachella Valley Water District's (the " Metropolitan Defendants" ) Motion to Dismiss (Doc. 243), (4) Defendant-Intervenors Salt River Project Agricultural Improvement and Power District and the Salt River Water Users' Association's (the " SRP Defendants" ) Motion to Dismiss and to Join Required Parties (Doc. 249), (5) Defendant-Intervenor Central Arizona Water Conservation District's Motion to Dismiss (Doc. 250), (6) Defendant-Intervenor Imperial Irrigation District's Motion to Dismiss (Doc. 251), (7) the Hopi Tribe's Motion to Intervene (Doc. 252), (8) the Hopi Tribe's Motion to Dismiss (Doc. 253), and (9) Defendant-Intervenors Colorado River Commission of Nevada, State of Nevada, and Southern Nevada Water Authority's (the " Nevada Defendants" ) Motion to Dismiss (Doc. 254).

For the following reasons, the Federal Defendants' Motion to Dismiss is granted and the remaining Motions are denied as moot.

BACKGROUND

I. The Navajo Nation

Plaintiff Navajo Nation (the " Nation" ) is a federally recognized Indian Tribe. (Doc. 281, " Second Amended Complaint" (" SAC" ) ¶ 10.) The Navajo Nation's Reservation (the " Reservation" ) is the largest Indian reservation in the United States, with land spanning over 13 million acres located in Arizona, New Mexico, and Utah. ( Id. ¶ 11.) The Reservation was originally established by the Treaty of June 1, 1868, 15 Stat. 667, and was expanded by a number of Executive Orders and Acts of Congress between 1868 and 1964. ( Id. ¶ 12.) The Reservation is adjacent to the Colorado River and is located in both the Upper and Lower Basins of the Colorado River

Page 1022

Basin. ( Id. ) This case concerns only the lands located in the Lower Basin in Arizona (the " Lower Basin" ). ( Id. ¶ 5.)

The SAC alleges that by establishing the Reservation, " the United States impliedly reserved for the benefit of the Navajo Nation a sufficient amount of water to carry out the purposes for which the Reservation was created, specifically to make the Reservation a livable homeland for the Nation's present and future generations." ( Id. ¶ 14.) It further alleges that an effect of establishing the Reservation " was to create a trust relationship between the Navajo Nation and the United States," ( Id. ¶ 15), that " requires [the United States] to protect the Navajo Nation's land and the water necessary to make those lands livable as a permanent homeland for the Navajo Nation" ( Id. ¶ 16).

The Nation alleges that the United States has failed in its trust obligation to assert and protect the Nation's water rights by " expressly" leaving " open the question of the Navajo Nation's beneficial rights to the waters of the Colorado River." ( Id. ¶ ¶ 17-18, 20-22.) The Nation claims that it has asked the Department to address the extent of the Nation's rights to use, and its interest in, water from the Lower Basin, but that the Department has not done so. ( Id. ¶ 25.) Further, the Federal Defendants " have never sought, through judicial or administrative means, to quantify or estimate the Navajo Nation's rights to water from the mainstream of the Colorado River in the Lower Basin." ( Id. ¶ 26.)

II. Winters and Reservation Water Rights

The Nation asserts that it has water rights in the Lower Basin of the Colorado River pursuant to Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908), and its progeny. Beginning with its decision in Winters, the Supreme Court " has long 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, 96 S.Ct. 2062, 48 L.Ed.2d 523 (1976). " In so doing the United States acquires a reserved right in unappropriated water which vests on the date of the reservation and is superior to the rights of future appropriators." Cappaert, 426 U.S. at 138. Further, this right " is not dependent on beneficial use" and " retains priority despite non-use." In re Gen. Adjudication of All Rights to Use Water in Gila River Sys. & Source, 201 Ariz. 307, 310-11, 35 P.3d 68, 71-72 (2001). This doctrine applies to Indian reservations. Cappaert, 426 U.S. at 138; Colo. River Water Cons. Dist. v. United States, 424 U.S. 800, 805, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976); United States v. Dist. Court for Eagle Cnty., 401 U.S. 520, 522-23, 91 S.Ct. 998, 28 L.Ed.2d 278 (1971); Arizona v. California, 373 U.S. 546, 601, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963) [ Arizona I ]; FPC v. Oregon, 349 U.S. 435, 75 S.Ct. 832, 99 L.Ed. 1215 (1955); United States v. Powers, 305 U.S. 527, 59 S.Ct. 344, 83 L.Ed. 330 (1939); Winters 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340.

In 1952, the State of Arizona brought suit against the State of California and seven of its public agencies, alleging that it was entitled to a certain quantity of water from the lower Colorado River under the Colorado River Compact of 1922 and the Boulder Canyon Project Act. (Doc. 240-1 at 9.) Arizona sought a decree confirming its title to that quantity of water. ( Id. ) ...


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