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 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.

         BACKGROUND

         This 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, 2019.

         DISCUSSION

         I. Legal Standards

         Leave 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)).

         “An 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) (cleaned up).^[1]

         II. Analysis

         A. Standards

         The 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).

         A 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) (“Navajo II”)).

         But “[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).

         The 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 ...