United States District Court, D. Arizona
Murray Snow Chief United States District Judge.
before the Court is Plaintiff Navajo Nation's Renewed
Motion for Leave to File Third Amended Complaint (Doc. 360).
Intervenor-Defendants the Metropolitan Water District of
Southern California, Coachella Valley Water District,
Imperial Irrigation District, and State of Arizona oppose the
Motion, (Doc. 369), and Defendant United States Department of
the Interior opposes the Motion in part. (Doc. 370). All
other Intervenor-Defendants join the brief filed by the
Intervenor-Defendants named above. For the reasons outlined
below, the Motion is denied.
motion continues a long-lived dispute between the Navajo
Nation (“the Nation”) and the United States
Department of the Interior (“Interior”). Various
other entities have intervened in this case as defendants
(“Intervenor-Defendants”). Because the relevant
history of this case was summarized in the Court's order
on the Nation's previous motion for leave to amend, the
Court will not recite that history again here. See Navajo
Nation v. Dep't of Interior, No.
CV-03-00507-PCT-GMS, 2018 WL 6506957 (D. Ariz. Dec. 11,
2018). The Court held argument on this motion on August 16,
for permissive amendments should be granted “when
justice so requires.” Fed.R.Civ.P. 15(a)(2). While the
policy favoring amendments is generally “applied with
extreme liberality, ” Eldridge v. Block, 832
F.2d 1132, 1135 (9th Cir. 1987), leave to amend is not
automatic. If there has been a 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 previously 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 367, 373
(9th Cir. 1990)).
amendment is futile when no set of facts can be proved under
the amendment to the pleadings that would constitute a valid
and sufficient claim or defense.” Missouri ex rel.
Koster v. Harris, 847 F.3d 646, 656 (9th Cir. 2017)
Nation's Proposed Third Amended Complaint
(“TAC”) alleges that the Federal Defendants have
breached their trust responsibilities in two ways: (1) by
failing “to determine the quantities and sources of
water required to make the Navajo Reservation a permanent
homeland for the Navajo people, ” and (2) by failing
“to protect the sovereign interests of the Navajo
Nation by securing an adequate water supply to meet those
homeland purposes.” (Doc. 360-2 at 3.)
Intervenor-Defendants contend that leave to amend should be
denied as futile because the “[t]he mere existence of a
trust relationship between the United States and the Navajo
Nation is, by itself, an insufficient basis for an actionable
claim.” (Doc. 369 at 4).
general trust relationship exists between the United States
and Indian nations. Cherokee Nation v. Georgia, 30
U.S. (5 Pet.) 1, 17 (1831). But “[t]he general
relationship between the United States and the Indian tribes
is not comparable to a private trust relationship.”
United States v. Jicarilla Apache Nation, 564 U.S.
162, 173 (2011) (quoting Cherokee Nation of Okla. v.
United States, 21 Cl. Ct. 565, 573 (1990)) (emphasis in
original). To state a cognizable claim of breach of trust
against the government, a tribe must “identify a
substantive source of law that establishes specific fiduciary
or other duties, and allege that the Government has failed to
perform those duties.” Navajo I, 537 U.S. at
506. If the tribe does so, common law trust principles
“could play a role” in the court's analysis
of the trust duties undertaken by the government.
Jicarilla, 564 U.S. at 177 (quoting United
States v. Navajo Nation, 556 U.S. 287, 301 (2009)
“[w]hen [a] Tribe cannot identify a specific,
applicable, trust-creating statute or regulation that the
Government violated, neither the Government's control
over Indian assets nor common-law trust principles matter. .
. . The Government assumes Indian trust responsibilities only
to the extent it expressly accepts those responsibilities by
statute.” Id. See also Shoshone-Bannock Tribes v.
Reno, 56 F.3d 1476, 1482 (D.C. Cir. 1995) (“While
it is true that the United States acts in a fiduciary
capacity in its dealings with Indian tribal property, it is
also true that the government's fiduciary
responsibilities necessarily depend on the substantive laws
creating those obligations.”). Put another way,
“unless there is a specific duty that has been placed
on the government with respect to Indians, the
government's general trust obligation is discharged by
the government's compliance with general regulations and
statutes not specifically aimed at protecting Indian
tribes.” Gros Ventre Tribe v. United States,
469 F.3d 801, 810 (9th Cir. 2006) (quoting Morongo Band
of Mission Indians v. FAA, 161 F.3d 569, 574 (9th Cir.
1998)) (cleaned up). Thus, the Nation must allege a
substantive source of law that creates the specific duty that
it alleges the government has violated, or that at least
“permit[s] a fair inference that the Government is
subject to duties as a trustee.” United States v.
White Mountain Apache Tribe, 537 U.S. 465, 474 (2003).
Nation contends that Jicarilla is the wrong standard
to apply in actions for injunctive relief. But even though
Jicarilla and many of the cases cited were actions
brought by tribes for money damages under the Indian Tucker
Act, 28 U.S.C. § 1505, the Ninth Circuit has applied the
standard in cases brought for injunctive or declaratory
relief. See Gros Ventre Tribe, 469 F.3d at 812;
Morongo Band, 161 F.3d at 573-74. In Gros Ventre
Tribe, for example, the tribe argued that the
Mitchell standard (i.e., the standard the
Supreme Court applied in Jicarilla) only applied to
claims for money damages. Gros Ventre Tribe, 469
F.3d at 812. The tribe argued instead that the general trust
relationship between the federal government and the tribe
“imposes duties on the federal government even in the
absence of a specific treaty, agreement, executive order, or
statute.” Id. The Ninth Circuit disagreed. The
court instead concluded that “unless there is a
specific duty that has been placed on the government with
respect to Indians, [the general trust responsibility] is
discharged by the agency's compliance with general
regulations and statutes ...