Navajo Nation v. United States Department of Interior

          ORDER

          G. Murray Snow Chief United States District Judge

         Pending before the Court is Plaintiff Navajo Nation's Motion for Leave to File Third Amended Complaint (Doc. 335). Defendant and Defendant-Intervenors oppose the Motion. For the following reasons the Motion is denied.

         BACKGROUND

         The Navajo Nation sued the Department of the Interior in 2003, seeking to strike down various regulations governing the use of water from the Colorado River in its Lower Basin (“the River”). The Nation also alleged that the United States breached its duties to the Nation as trustee of the Navajo Reservation. After several entities intervened in the case, it was stayed to allow for settlement negotiations which ultimately proved unsuccessful. The litigation resumed, and this Court dismissed the Nation's claims.

         The Ninth Circuit affirmed in part and reversed in part. It remanded the breach of trust claim with instructions to “fully consider the Nation's breach of trust claim in the first instance, after entertaining any request to amend the claim more fully to flesh it out.” Navajo Nation v. Dept. of Interior, 876 F.3d 1144, 1173 (9th Cir. 2017). The Nation now moves for leave to “flesh out” the breach of trust claim and file a Third Amended Complaint (“TAC” or “Proposed TAC”).

         DISCUSSION

         I. Legal Standard

         If a plaintiff wants to amend its complaint more than twenty-one days after the complaint is served, it needs the court's permission. Courts freely give that permission “when justice so requires.” Fed.R.Civ.P. 15(a)(2). This policy favoring amendments is generally “applied with extreme liberality, ” Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987), but that does not mean that leave to amend is automatically granted. If a court finds that there has been a sufficient showing of (1) undue delay; (2) bad faith or dilatory motives on the part of the movant; (3) repeated failure to cure deficiencies by previous amendments; (4) undue prejudice to the opposing party; or (5) futility of the proposed amendment, the court should deny the motion. Foman v. Davis, 371 U.S. 178, 182 (1962). District courts have particularly broad discretion to deny leave to amend if the plaintiff has already amended its complaint. Sisseton-Wahpeton Sioux Tribe of Lake Traverse Indian Reservation, North Dakota and South Dakota v. United States, 90 F.3d 351, 355 (9th Cir. 1996) (quoting Allen v. City of Beverly Hills, 911 F.2d 376, 373 (9th Cir. 1990)).

         II. Analysis

         The Proposed Third Amended Complaint raises two main issues. First, whether the Supreme Court's retention of jurisdiction in Arizona v. California, 547 U.S. 150, 166-67 (2006), deprives this court of jurisdiction to entertain the breach of trust claim, and, if it does not whether the proposed amendments should be allowed. Language throughout the TAC and specifically the Nation's two prayers for relief demonstrate that the relief sought in the Proposed TAC would require this Court to determine the Nation's rights to water from the River. Jurisdiction over that issue has been reserved by the Supreme Court in Arizona v. California, thus this Court lacks jurisdiction to entertain the Proposed TAC.

         A. Jurisdiction

         In Arizona v. California, the Supreme Court determined the rights of various entities to water from the River. Subsequent to its initial decree in the case, the Court declared that absent some showing of unforeseeable change in circumstances, the rights to the water that had been adjudicated would not be altered. See Arizona v. California, 460 U.S. 605, 619- 27 (1983)^[1].

         The Nation and other tribes were represented in Arizona v. California by the United States as trustee. See Navajo Nation v. Department of the Interior, 876 F.3d 1144, 1154 (9th Cir. 2017). The United States did not however present claims to water from the River for all of the tribes, including the Nation. Rather, the United States put forward the Nation's claim to water from the Little Colorado River, a tributary of the Colorado River. See Findings of Fact and Conclusions of Law Proposed by the United States of America at 58, Arizona v. California, 373 U.S. 546 (1963). The Court narrowed the scope of the Arizona v. California litigation to include only claims to the mainstream of the River, so the Nation's Little Colorado River claim was not considered. Arizona v. California, 373 U.S. 546, 590-91 (1963). When the Nation attempted to intervene on its own behalf in the Arizona litigation, the Court denied the motion. Arizona v. California, 368 U.S. 917 (1961).

         Thus the Court never addressed any rights the Nation may or may not have to the mainstream of the River because the United States did not bring that claim, nor was the Nation allowed to separately intervene to bring it. Yet the Court noted later that tribes represented by the United States in Arizona v. California are bound by the Court's decisions in the case, and so “the absence of the Indian Tribes in the prior ...