Navajo Nation v. Department of the Interior , 876 F.3d 1144 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NAVAJO NATION, No. 14-16864
Plaintiff-Appellant,
D.C. No.
v. 3:03-cv-00507-
GMS
DEPARTMENT OF THE INTERIOR;
RYAN ZINKE*, Secretary of the
Interior; UNITED STATES BUREAU OF OPINION
RECLAMATION; BUREAU OF INDIAN
AFFAIRS,
Defendants-Appellees,
STATE OF ARIZONA; CENTRAL
ARIZONA WATER CONSERVATION
DISTRICT; ARIZONA POWER
AUTHORITY; SALT RIVER PROJECT
AGRICULTURAL IMPROVEMENT AND
POWER DISTRICT; SALT RIVER
VALLEY WATER USERS’
ASSOCIATION; IMPERIAL IRRIGATION
DISTRICT; METROPOLITAN WATER
DISTRICT OF SOUTHERN
CALIFORNIA; COACHELLA VALLEY
WATER DISTRICT; STATE OF
NEVADA; COLORADO RIVER
COMMISSION OF NEVADA;
*
We substitute Ryan Zinke for predecessor Sally Jewell as a
Defendant-Appellee pursuant to Fed. R. App. P. 43(c)(2).
2 NAVAJO NATION V. DEP’T OF INTERIOR
SOUTHERN NEVADA WATER
AUTHORITY; STATE OF COLORADO,
Intervenor-Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Argued and Submitted February 14, 2017
San Francisco, California
Filed December 4, 2017
Before: Ronald M. Gould and Marsha S. Berzon, Circuit
Judges, and Marvin J. Garbis,** District Judge.
Opinion by Judge Berzon
**
The Honorable Marvin J. Garbis, United States District Judge for
the District of Maryland, sitting by designation.
NAVAJO NATION V. DEP’T OF INTERIOR 3
SUMMARY***
Standing / Sovereign Immunity / Water Rights
The 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 River.
The 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
Colorado River.
The Department of the Interior, through the Bureau of
Reclamation, operates dams and reservoirs that control the
flow of the Colorado’s waters.
The 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
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 NAVAJO NATION V. DEP’T OF INTERIOR
Guidelines threatened either the Nation’s unadjudicated water
rights or its practical water needs.
The 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.
Because 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 allegations.
COUNSEL
Scott 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.
NAVAJO NATION V. DEP’T OF INTERIOR 5
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.
L. William Staudenmaier III (argued), Phoenix, Arizona, for
Intervenor-Defendants-Appellees.
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 Power Authority.
John 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.
Stuart Somach and Robert Hoffman, Somach Simmons &
Dunn, Sacramento, California; for for Intervenor-Defendant-
Appellee Central Arizona Water Conservation District.
Lauren 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.
6 NAVAJO NATION V. DEP’T OF INTERIOR
Adam 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.
Steven B. Abbott, Redwine and Sherrill, Riverside,
California, for Intervenor-Defendant-Appellee Coachella
Valley Water District.
Joanna 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 District.
Steven 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 California.
Shanti 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.
NAVAJO NATION V. DEP’T OF INTERIOR 7
OPINION
BERZON, Circuit Judge:
The 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 tribe.
The 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.
8 NAVAJO NATION V. DEP’T OF INTERIOR
I. BACKGROUND
A. The Navajo Nation
The Nation is a federally recognized Indian tribe whose
reservation lands sprawl over 13 million acres in the
American Southwest. 1 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,2 which
demarcates much of the Reservation’s western boundary.
Aside from the federal government, the Nation is the largest
riparian landowner along the Colorado.
The 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 relationship.
1
These facts are drawn from the complaint, which we accept as true
for purposes of reviewing a motion to dismiss for lack of subject-matter
jurisdiction. See Courthouse News Serv. v. Planet, 750 F.3d 776, 780 (9th
Cir. 2014).
2
A river “drains” the surface water that flows into it; a “drainage
basin” is the whole tract of land “drained by a river and its tributaries.”
WEBSTER’S THIRD NEW INT’L DICTIONARY 182, 685 (1971).
NAVAJO NATION V. DEP’T OF INTERIOR 9
B. The Law of the River
The 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 inhabitable.” Id.
Because 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 below.
i. The 1922 Compact3
In 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
3
The Court may take judicial notice of compacts, statutes, and
regulations not included in the plaintiff’s complaint. See, e.g., Cachil
Dehe Band of Wintun Indians of the Colusa Indian Cmty. v. California,
547 F.3d 962, 968 n.4 (9th Cir. 2008) (noticing tribal-state compacts);
United States v. Woods, 335 F.3d 993, 1001 (9th Cir. 2003) (holding it
was proper for the district court to notice published agency regulations).
10 NAVAJO NATION V. DEP’T OF INTERIOR
regular, dependable source of water; they recognized that
doing so would require a regional or national solution.4
The 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” States5
(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.6 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 XI.
4
See Arizona v. California, 373 U.S. at 554. Fears of over-
appropriation by California played a role in the compact as well. Id. at
556.
5
The Compact refers to states of the “Upper Division” and “Lower
Division,” see id. art. II. We instead follow the custom of the Supreme
Court and refer to Arizona, California, and Nevada collectively as the
“Lower Basin” states. See, e.g., Arizona v. California, 373 U.S. at
558–59.
6
An acre-foot is the volume of water that would cover an acre of land
to the depth of one foot. WEBSTER’S THIRD NEW INT’L DICTIONARY 19.
NAVAJO NATION V. DEP’T OF INTERIOR 11
ii. The Boulder Canyon Project Act
In 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.
Most 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. § 617c(a).
The 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.7 Arizona
did not ratify the 1922 Compact, so the Lower Basin states
never agreed to the second compact that would have
7
See Act of March 4, 1929, in Statutes and Amendments to the
California Codes, ch. 16, 48th Session (1929), at 38–39. The Boulder
Canyon Project Act lowered the 1922 Compact’s ratification threshold: six
states would suffice for ratification as long as California was among them
and committed to a ceiling on its apportionment. See 43 U.S.C. § 617c(a).
12 NAVAJO NATION V. DEP’T OF INTERIOR
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.8 Id.
at 562.
iii. Arizona v. California
Conflict 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,9 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”).
The 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
8
While the Secretary contracted with Arizona and Nevada for their
shares as laid out in the Boulder Canyon Project Act, 43 U.S.C. § 617c(a),
it contracted to deliver 5.36 mafy to California, significantly more than the
4.4 mafy the Act contemplated. Arizona v. California, 373 U.S. at 562.
9
See Findings of Fact and Conclusions of Law Proposed by the
United States of America, at 51, Arizona v. California, 373 U.S. 546
(1963) (No. 9, Original).
NAVAJO NATION V. DEP’T OF INTERIOR 13
State would get in years in which, “as determined by the
Secretary of the Interior,” there was surplus water available.10
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.
iv. Winters rights
In 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
10
California would receive 50% of the surplus, Arizona 46%, and
Nevada 4%. See 1964 Decree art. II(B)(2), 376 U.S. at 342.
14 NAVAJO NATION V. DEP’T OF INTERIOR
and trump the rights of later appropriators.11 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.12 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).
In 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.
11
Most water rights are acquired through appropriation. “Under the
doctrine of prior appropriation, the first to divert and use water
beneficially establishes a right to its continued use as long as the water is
beneficially diverted.” Cappaert, 426 U.S. at 139 n.5.
12
See, e.g., Agua Caliente Band of Cahuilla Indians v. Coachella
Valley Water Dist., 849 F.3d 1262, 1265 (9th Cir. 2017) (dating the
reservation of water from the Executive Orders that withdrew land for the
tribe), petition for cert. filed (U.S. July 3, 2017) (No. 17-42).
NAVAJO NATION V. DEP’T OF INTERIOR 15
The 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).
C. The Nation’s Rights to Water in the Colorado
River
Under 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.13 Id.
at 595. The Nation has in the last half-century repeatedly
13
The Nation attempted to intervene in the suit on its own behalf, but
the United States successfully opposed the motion. See Response of the
United States to the Motion on Behalf of the Navajo Tribe of Indians for
Leave to Intervene, Arizona v. California, 373 U.S. 546 (1963) (No. 8,
Original). The claim filed on behalf of the Nation was for water in the
Little Colorado River, a tributary of the Lower Colorado River. See
Findings of Fact and Conclusions of Law Proposed by the United States
of America, supra note 9, at 58. The Special Master, and the Court,
declined to reach “particularly those [claims] relating to tributaries.”
Arizona v. California, 373 U.S. at 595.
16 NAVAJO NATION V. DEP’T OF INTERIOR
asserted its right to water in the Lower Colorado,14 but its
potential water rights in the Lower Colorado have never been
adjudicated or quantified.
D. Implementing the Law of the River
The 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
14
The Nation has been, and is, actively seeking additional water for
the Reservation in several forums. The Nation’s rights to water from the
Little Colorado River, which flows through eastern Arizona and western
New Mexico,
are being considered in an ongoing adjudication in Arizona state court.
See In re General Adjudication of All Rights to Use Water in Little
Colorado River Sys. & Source, No. CV 6417 (Ariz. Super. Ct., Apache
Cty.). The Nation filed its claim in that adjudication in 1985. See
Statement of Claimant The Navajo Nation, In re General Adjudication,
No. CV 6417 (Nov. 27, 1985). The Nation may also receive an allocation
of water from the Central Arizona Project (“CAP”), a major diversion
canal in Arizona. In the Arizona Water Settlements Act of 2004, Pub. L.
No. 108-451, 118 Stat. 3478, 3487 (2004), Congress directed the Secretary
to set aside a specified amount of water from the CAP for distribution to
the Navajo Nation—6,411 afy—should the Nation obtain rights through
ongoing settlement negotiations. Congress conditioned the Nation’s
access to CAP water on approval of a water rights settlement by Congress
before 2030. No such settlement has been reached to date.
Finally, the Nation requested that the Secretary of the Interior contract
with the Nation for any of the water allocated to Arizona not committed
to other users. The Secretary has not agreed to such a contract.
NAVAJO NATION V. DEP’T OF INTERIOR 17
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.
The 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.
18 NAVAJO NATION V. DEP’T OF INTERIOR
E. The Challenged Surplus and Shortage Guidelines
i. Surplus Guidelines
In 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.
The 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,”15
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.
15
The three “tiers” correspond to three water surface elevations in
Lake Mead. Surplus Guidelines, 66 Fed. Reg. at 7775.
NAVAJO NATION V. DEP’T OF INTERIOR 19
Before 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”),16 and one month later its Record of Decision,
adopting the preferred alternative as the Surplus Guidelines.
See Surplus Guidelines, 66 Fed. Reg. at 7772.
During 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
16
The full Surplus Guidelines FEIS is available at Final
Environmental Impact Statement: Colorado River Interim Surplus
Criteria, https://www.usbr.gov/lc/region/g4000/surplus/SURPLUS_FEI
S.html (last updated Jan. 16, 2007).
20 NAVAJO NATION V. DEP’T OF INTERIOR
development and protection of Indian water rights. Id. at B-
196 to B-215.
The 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 interim
surplus criteria will not alter the quantity or priority of Tribal
entitlements.” Id. at B-204.
ii. Shortage Guidelines
The adoption of criteria for declarations of surplus water
in the Colorado River coincided with the driest eight-year
period in the recorded history of the River. See Colorado
River Interim Guidelines for Lower Basin Shortages and
Coordinated Operations for Lake Powell and Lake Mead
(“Shortage Guidelines”), 73 Fed. Reg. 19,873 (Apr. 11,
2008). This historic drought, combined with increasing
demand for river water, led the Secretary to implement
guidelines for declaring shortages as well. These guidelines
would, like the Surplus Guidelines, offer greater
predictability to mainstream Colorado water users regarding
the supply of water in any given year. The Shortage
Guidelines also created mechanisms to encourage water
banking and conservation that would provide greater year-to-
year flexibility for the Secretary and water users. See Final
Environmental Impact Statement, Shortage Guidelines
NAVAJO NATION V. DEP’T OF INTERIOR 21
(“Shortage Guidelines FEIS”), Executive Summary, at ES-1
to ES-2.17
In 2008, the Secretary adopted the Shortage Guidelines
and issued an accompanying Record of Decision. See
Shortage Guidelines, 73 Fed. Reg. at 19,873. Like the
Surplus Guidelines, the Shortage Guidelines linked the
Secretary’s declaration of a shortage to the level of water in
Lake Mead. See id. at 19,874; Shortage Guidelines FEIS,
Executive Summary, at ES-6. The Shortage Guidelines also
implemented procedures for the coordinated operation of the
Lake Mead and Lake Powell reservoirs in times of low water
and shortage. See Shortage Guidelines, 73 Fed. Reg. at
19,874.
Beyond delineating when and how the Secretary would
declare a shortage, the Shortage Guidelines also provided for
the creation of “Intentionally Created Surplus” (“ICS”) water.
Water users could bank ICS water by either (i) conserving
water through a variety of measures18 or (ii) importing water
from outside the Colorado (“non-system water”) into the
Lower Basin system. Id. at 19,877, 19,883, 19,887. The
Guidelines also modified the Surplus Guidelines and
extended them through 2026. Id. at 19,874.
17
The full Shortage Guidelines FEIS is available at Colorado River
Interim Guidelines for Lower Basin Shortages and Coordinated
Operations for Lakes Powell and Mead: Final Environmental Impact
Statement, https://www.usbr.gov/lc/region/programs/strategies/FEIS/#VolI
(last updated Nov. 2007).
18
These measures include fallowing fields, lining canals, desalinating
non-river water, or implementing other “extraordinary conservation
measures.” Id. at 19,886.
22 NAVAJO NATION V. DEP’T OF INTERIOR
In its comments on the draft EIS for the Shortage
Guidelines, the Nation largely reiterated its objections to the
Surplus Guidelines. See Shortage Guidelines FEIS, vol. IV,
at IT-103 to IT-108. The FEIS included a discussion of
Indian Trust Assets, including water rights.19 See id. at 3–87.
The Shortage Guidelines FEIS recognized that the Nation’s
unquantified Winters rights in the Lower Basin constituted an
Indian Trust Asset, and noted that the Nation maintains that
some portion of its Winters rights will need to be satisfied
from the Colorado River. Id. at 3–96. Ultimately, however,
the FEIS concluded that “[t]he proposed federal action would
not result in any substantive effects on [Indian Trust Assets].”
See id. at 5–12. To the Nation’s concerns about possible
injury to its unquantified water rights, the Secretary
responded:
No vested water right of any kind, quantified
or unquantified, including federally reserved
Indian rights to Colorado River water . . . will
be altered as a result of any of the alternatives
under consideration.
To the extent that additional Tribal water
rights are developed, established or quantified
during the interim period of the proposed
federal action, the United States will manage
Colorado River facilities to deliver water
19
The FEIS also considered potential impacts on tribal historic
properties, tribal sacred sites, cultural resources, and biological resources.
See Shortage Guidelines FEIS at 4-244 to 4-250.
NAVAJO NATION V. DEP’T OF INTERIOR 23
consistent with such additional water rights, if
any, pursuant to federal law.
See id. at 4-249.
II. PROCEDURAL HISTORY
The Nation filed its initial complaint against the
Department of the Interior, the Secretary, the Bureau of
Reclamation, and the Bureau of Indian Affairs (collectively
“Federal Defendants”) in March 2003. The Nation
challenged under the Administrative Procedure Act (“APA”),
5 U.S.C. §§ 701–706, the 2001 Surplus Guidelines,20 alleging
that the Secretary’s failure adequately to consider and protect
the Nation’s rights to, and interest in, water violated the
National Environmental Policy Act (“NEPA”), 42 U.S.C.
§ 4321 et seq. The Nation further alleged that the United
States had breached its trust obligations to the Nation by
failing to consider or protect the Nation’s water rights while
managing the Colorado River.
Various states and local government entities from
California, Arizona, Nevada, and Colorado intervened as
defendants.21 In October 2004, on the joint motion of the
20
The Nation also challenged several other agency actions in its
complaint. Only the Nation’s First, Second, and Seventh Claims for relief
are at issue on appeal.
21
From Arizona, the intervenors are the State of Arizona, Salt River
Project Agricultural Improvement and Power District, Salt River Water
Users’ Association, and Central Arizona Water Conservation District;
from California, the Coachella Valley Water District, Imperial Irrigation
District, and the Metropolitan Water District of Southern California; and
from Nevada, the State of Nevada, Colorado River Commission of
24 NAVAJO NATION V. DEP’T OF INTERIOR
parties, the district court stayed proceedings to allow for
settlement negotiations.
In 2013, after almost a decade of unsuccessful settlement
negotiations, the district court lifted the stay and the litigation
started anew. The Nation twice amended its complaint,
adding a challenge to the 2008 Shortage Guidelines, and the
district court then granted motions to dismiss the Nation’s
Second Amended Complaint without prejudice, holding that
the Nation lacked Article III standing to bring its NEPA
claims and that its breach of trust claim was barred by
sovereign immunity. At the hearing on the motions to
dismiss, the district court inquired whether, if necessary, the
Nation preferred a dismissal with leave to amend the
complaint or a dismissal with prejudice. Notwithstanding the
Nation’s expressed preference for dismissal with leave to
amend, the district court ultimately dismissed without leave
to amend and without prejudice.
The Nation filed a Rule 60(b)(6) motion for relief from
the final judgment, contending that because the relevant
statute of limitations had run, the dismissal was effectively
with prejudice. In the Nation’s view, the district court should
have re-opened the proceedings and granted it leave to further
amend its complaint. The district court denied that motion.
The Nation appeals both orders.
Nevada, and Southern Nevada Water Authority. The State of Colorado
also intervened. The Arizona, California, and Nevada Intervenor-
Defendants each filed separate answering briefs in this appeal, and
Colorado joined the arguments set out in the Arizona and Nevada briefs.
NAVAJO NATION V. DEP’T OF INTERIOR 25
III. STANDING
The district court dismissed the Nation’s NEPA claims,
holding that the alleged harm to the Nation’s unquantified
Winters rights was too speculative to confer standing.
Although the district court considered the Nation’s interests
in adequate water too narrowly, we agree that the Nation
failed to show it “reasonably probable” that the new
Guidelines threatened its interests in obtaining adequate
water. See Citizens for Better Forestry v. U.S. Dep’t of
Agric., 341 F.3d 961, 969–70 (9th Cir. 2003). Accordingly,
we affirm the district court’s dismissal of the NEPA claims.
A. Legal Standards
“[S]tanding is an essential and unchanging part of the
case-or-controversy requirement of Article III.” Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560 (1992). To establish
standing, a plaintiff must demonstrate “(1) a concrete and
particularized injury that is ‘actual or imminent, not
conjectural or hypothetical’; (2) a causal connection between
the injury and the defendant’s challenged conduct; and (3) a
likelihood that a favorable decision will redress that injury.”
Pyramid Lake Paiute Tribe of Indians v. Nev. Dep’t of
Wildlife, 724 F.3d 1181, 1187 (9th Cir. 2013) (quoting Lujan,
504 U.S. at 560–61). Our review of standing is de novo. City
of Sausalito v. O’Neill, 386 F.3d 1186, 1196–97 (9th Cir.
2004).
Where plaintiffs allege a “procedural injury”—that is, that
the government’s violation of a procedural requirement could
impair some separate interest of the plaintiffs’—the “normal
standards for . . . [the] immediacy” of injury are relaxed.
Lujan, 504 U.S. at 572 n.7. A plaintiff alleging procedural
26 NAVAJO NATION V. DEP’T OF INTERIOR
harm can demonstrate injury in fact by showing (i) the agency
violated certain procedural rules, (ii) those rules protect a
concrete interest of the plaintiff, and (iii) it is “reasonably
probable” that the challenged action threatens that concrete
interest. Citizens for Better Forestry, 341 F.3d at 969–70.
The universe of interests procedurally protected by NEPA
is broad: birdwatchers’ and outdoorsmen’s interests in their
ability to “picnic, birdwatch, walk, and swim” in a particular
area, Cantrell v. City of Long Beach, 241 F.3d 674, 681 (9th
Cir. 2001); municipalities’ interests “as varied as [their]
responsibilities, powers, and assets,” City of Sausalito,
386 F.3d at 1197, including harm to water resources, see
Churchill Cty. v. Babbitt, 150 F.3d 1072, 1079 (9th Cir. 1998)
(identifying harms such as “unknown changes to the
underground water supply system, and reduced quality of
local drinking water”); and, as here, Indian tribes’ interest in
assuring water is available on their reservation lands, see
Pyramid Lake Paiute, 724 F.3d at 1188 (“[T]he Tribe’s
interest in maximizing flows to Pyramid Lake . . . is well
established.”). In any instance, though, the plaintiff must
assert that the procedural violation could harm an interest
specific to it, not an abstract interest in assuring that NEPA’s
procedural requirements for considering environmental
impacts are followed. “A free-floating assertion of a
procedural violation, without a concrete link to the interest
protected by the procedural rules, does not constitute an
injury in fact.” Ashley Creek Phosphate Co. v. Norton,
420 F.3d 934, 938 (9th Cir. 2005).
Although standing inquiries are inherently fact-specific,
we have laid down some guideposts for determining whether
it is “reasonably probable” that agency action threatens a
plaintiff’s interests. For one thing, the imminence inquiry is
NAVAJO NATION V. DEP’T OF INTERIOR 27
“less demanding” for procedural harms. Hall v. Norton,
266 F.3d 969, 976 (9th Cir. 2001). The challenged action
need not immediately or directly cause the harm as a first-
order effect. “[T]hat the potential injury would be the result
of a chain of events need not doom the standing claim.”
Idaho Conservation League, 956 F.2d at 1515. “The relevant
inquiry . . . is whether there is a ‘reasonable probability’ that
the challenged procedural violation will harm the plaintiffs’
concrete interests, not how many steps must occur before
such harm occurs.” Citizens for Better Forestry, 341 F.3d at
975 (internal citations omitted).
Notwithstanding this relaxed standard, injury in fact
requires a likelihood that the challenged action, if ultimately
taken, would threaten a plaintiff’s interests. Where a plaintiff
cannot “explain in any way how their [interests] may be
affected” by agency action, it has not suffered an injury in
fact. Nuclear Info. & Res. Serv. v. Nuclear Regulatory
Comm’n (“NIRS”), 457 F.3d 941, 953 (9th Cir. 2006)
(emphasis in original). So, although a contingent “chain of
events” can create a “reasonably probable” threat to a
plaintiff’s interests, a purely speculative sequence of
occurrences will not meet this standard. See Bell v.
Bonneville Power Admin., 340 F.3d 945, 951 (9th Cir. 2003).
B. Discussion
The Navajo Nation proposes for standing purposes that it
has suffered two sorts of injuries. The Guidelines, the Nation
maintains, (1) “do[] not account for the unquantified rights of
the Navajo Nation to the waters of the Lower Basin of the
Colorado River” and (2) disregard “the unmet needs of the
Navajo Nation and tribal members for water from the Lower
Basin.” The two interests are distinct: the former arises out
28 NAVAJO NATION V. DEP’T OF INTERIOR
of the Nation’s potential reserved water rights under Winters
v. United States, while the latter is a freestanding interest in
an adequate water supply for the Nation that exists
notwithstanding the lack of a decreed right to water. The
district court’s analysis focused only on the threat to the
former interest. We consider each in turn.
i. Injury to the Nation’s unquantified Winters rights
The Nation’s first alleged injury is to its as-yet-
unquantified water rights under Winters v. United States,
discussed in Part I.B.iv supra. The parties agree that the
Nation may have unquantified Winters rights in some body of
water.22 Unquantified Winters rights in the Lower Basin are
sufficiently concrete interests, the impairment of
which—coupled with a procedural violation—gives rise to
standing under NEPA. See Citizens for Better Forestry,
341 F.3d at 969–70. Indeed, interests in water less concrete
than unquantified Winters rights have formed the basis for
standing in the past. In Laub v. U.S. Department of Interior,
342 F.3d 1080, 1086 (9th Cir. 2003), for example, the “loss
of affordable irrigation water” for farmers was a concrete
22
When the United States intervened in Arizona v. California as
trustee on behalf of the Nation (among other tribes), it presented evidence
that the Nation had 8,490 acres of irrigable land on which to base a
Winters claim. See supra notes 9 & 13 and accompanying text. This
claim, however, was not adjudicated.
In the run-up to the present litigation, the tribe sent to the Bureau of
Reclamation, during the consultation process on the Guidelines, a “water
budget” of 76,732 afy that would need to be satisfied out of the Colorado
River. The defendants contend that whatever water rights the Nation has
under Winters might be satisfied from sources other than the Lower Basin
of the Colorado.
NAVAJO NATION V. DEP’T OF INTERIOR 29
interest sufficient for NEPA standing. The precise scope and
status of the Nation’s possible Winters rights do not concern
us; it is enough to establish standing to demonstrate that
however those rights are delineated, they are threatened by
the Guidelines. But the Nation, we conclude, cannot so
establish.
The Guidelines do not act directly upon the Nation’s
unquantified water rights, nor could they.23 So how could the
Guidelines injure these rights?
The Nation alleges that the Secretary’s actions will create
a complex and difficult-to-reverse combination of third-party
reliance and political inertia that will frustrate future attempts
by the Nation to secure and enjoy its Winters rights. In
support of its allegation, the Nation posits the following chain
of events: the Guidelines will “establish[] a system of reliance
upon the Colorado River that ensures that entities other than
the Navajo Nation will continue to rely on water supplies
claimed by, reserved for, needed by, and potentially
belonging to” it. This reliance will make it “increasingly
difficult” to satisfy the Nation’s water rights from the Lower
Basin, and will “limit the Navajo Nation’s future options” for
securing water, notwithstanding the seniority of its rights.
Even with senior rights, “the complex process of bringing
water to the Reservation in a contentious political climate”
will cast a pall of uncertainty over the Nation’s entitlement.
23
“These Guidelines are not intended to, and do not . . . [a]ffect the
rights of any holder of present perfected rights or reserved rights, which
rights shall be satisfied within the apportionment of the State within which
the use is made, and in the Lower Basin, in accordance with the
Consolidated Decree.” See Shortage Guidelines, 73 Fed. Reg. at 19,884.
30 NAVAJO NATION V. DEP’T OF INTERIOR
Further developing its hypothetical scenario, the Nation
argues that the United States will not be “inclined” to re-open
the issue of water allocation in the Colorado, having forged
a multi-state consensus for the Guidelines that “appeased the
Lower Basin states.” The Secretary’s assurance that he will
manage the Colorado consistent with any Winters rights
quantified or obtained in the future “ignores political and
practical realities,” namely the “disincentive” for the United
States to protect the Nation’s water rights created by this
system of reliance.
Critically, the Nation does not contend that the Guidelines
legally impair any unquantified rights it has in Lower Basin
water. It is common ground among all affected that if the
Nation obtained decreed rights in the Lower Colorado Basin,
that entitlement would trump all claims with a later priority
date, “regardless of whether that water has been developed or
relied upon by third parties with junior priority dates.”
Rather, the Nation’s fear is that the Guidelines threaten to
solidify a web of reliance interests and incentives that, as a
practical matter, may prevent the Nation (or disincline the
United States, as its trustee) from enjoying or pursuing those
decreed rights.
Whether or not the Nation’s realpolitik predictions have
some truth to them, the posited injury to the Nation’s
unquantified Winters rights due to the Guidelines is too
speculative to confer standing. The string of contingencies
connecting the Guidelines to the frustration of the Nation’s
rights is not only long—not disqualifying in itself—but
spindly, too. The Nation’s allegations about the future
development of reliance interests, and the government’s
intransigence in upsetting these interests in pursuit of the
NAVAJO NATION V. DEP’T OF INTERIOR 31
Nation’s unadjudicated water rights, are supported by “no
facts, figures, or data.” See Bell, 340 F.3d at 951.
For example, the Nation offers no support for its
allegation that the United States will shirk its trust duties for
fear of upsetting the water rights apple-cart. From the
Secretary’s stated attempt to avoid “destabilizing litigation,”
and to gain consensus among the Basin States for the
challenged Guidelines, the Nation predicts that the United
States would no longer be inclined to pursue water rights for
the Nation if such actions necessitated a reallocation of rights
or potentially upset the multi-state consensus underlying the
Guidelines. But the tribe offers no actual support for this
conjecture—no statements by any government officials, for
example, and no pattern of such behavior in the past.24
Instead, the Nation attempts to shore up its allegations by
invoking the “presum[ption] that general allegations embrace
those specific facts that are necessary to support the claim” at
the pleading stage. Lujan, 504 U.S. at 561 (citations
omitted). “Conclusory allegations and unreasonable
inferences, however, are insufficient to defeat a motion to
dismiss.” Sanders v. Brown, 504 F.3d 903, 910 (9th Cir.
2007). “We do not . . . assume the truth of legal conclusions
merely because they are cast in the form of factual
allegations,” and, most especially, where our jurisdiction is at
stake, “[w]e cannot construe the complaint so liberally as to
24
The complaint does not spell out this theory—that the United States
will be disinclined to revisit water rights adjudications after the Guidelines
are implemented—with any clarity. Nevertheless, we construe the
complaint, favorably to the Nation, to embrace these allegations of injury.
We note that at other junctures as well we have relied on the briefs on
appeal to clarify the complaint, in compliance with our obligation to
construe the complaint favorably to the plaintiff.
32 NAVAJO NATION V. DEP’T OF INTERIOR
extend our jurisdiction beyond its constitutional limits.” W.
Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
The Nation need not provide smoking-gun allegations of
harm. But mere “speculation or ‘subjective apprehension’
about future harm [does not] support standing.” Mayfield v.
United States, 599 F.3d 964, 970 (9th Cir. 2010) (citing
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 184 (2000)). Instead, the Nation must
plausibly allege that adoption of the Guidelines will in some
fashion impede the ascertainment and declaration of the
Nation’s Winters rights. That it has not done.25
Absent more concrete allegations, the Nation cannot show
that “harm to [its] concrete interests”—here, its possible
Winters rights—“is reasonably probable,” Citizens for Better
Forestry, 341 F.3d at 975, and therefore that it has suffered
the injury needed for standing.
25
We also question whether the Guidelines create reliance interests
over and above the pre-existing third-party reliance on the fully
appropriated (or overappropriated) water of the Colorado River. The
gross allocations of water in the 1964 Decree would seem primarily
responsible for reliance on Lower Basin water. Unless the Nation can
show that the Guidelines are creating new or additional reliance interests,
it cannot demonstrate it to be reasonably probable that the Guidelines
themselves pose any threat to the Nation’s interests. See Bell, 340 F.3d at
951 (emphasizing that the amendments to the power delivery contracts,
and not the contracts themselves, were the agency actions in question, and
the amendments alone did not threaten the plaintiff’s interests). See also
Shortage Guidelines, 73 Fed. Reg. at 19,873 (describing the reliance of the
West on the Colorado River for drinking water and agriculture).
NAVAJO NATION V. DEP’T OF INTERIOR 33
ii. Injury to the Nation’s generalized interest in
Lower Basin water
In addition to its unadjudicated Winters rights, the Nation
articulated a different interest—a generalized interest in
availability for its use of water in the Lower Basin—that, it
alleged, the Guidelines could adversely affect. We reaffirm
that the interests upon which a NEPA plaintiff bases its
standing need not be legal entitlements or substantive rights,
and that an impairment as a practical matter of access to
adequate water for use on one’s land can qualify. We hold,
however, that the Nation again failed to trace a reasonably
probable link between this second interest in water
availability and the Guidelines, and so lacks standing under
this theory of injury as well.
The complaint does adequately allege an interest in water
availability aside from the tribe’s right to water under
Winters. It states, for example, that the Guidelines will
“adversely affect[] the water supply available to satisfy the
Navajo Nation’s rights or to otherwise meet its needs,”
(emphasis added) and that the Secretary’s actions “fail to
protect the Navajo Nation’s rights to and its interests in water
from the Lower Basin of the Colorado River” (emphasis
added). Peppered throughout the complaint as well are
mentions of the Nation’s “needs and rights” (emphasis
added). The Nation’s repeated invocation of this distinct
concrete interest—its generalized need for water from the
Lower Basin, independent of any rights to it—offers an
alternative basis upon which the Nation could have standing.
This interest, unlike unquantified Winters rights—which
depend on the special status of the Nation’s home as federally
reserved land—is similar to that of any large landowner, or
34 NAVAJO NATION V. DEP’T OF INTERIOR
municipality, or other potential Lower Basin water user.
Indeed, the Nation is the largest riparian landowner along the
Colorado River apart from the United States.
If such an interest in adequate water were, to a reasonable
probability, potentially injured by a proposed federal action,
the Nation would have standing to challenge NEPA
compliance. To support NEPA standing, the interest affected
need not be “a substantive right sounding in property or
contract,” although it must be “distinct from the interest held
by the public at large,” Cantrell, 241 F.3d at 681 (citing
Lujan, 504 U.S. at 562–63). Cantrell, for example, held that
birdwatchers had legally protected aesthetic interests in a bird
habitat located on a closed naval station, even though they
lacked a legal right of access to the base and viewed the birds
from “areas in and around the station.” Id. at 680. Closer to
this case, we regularly recognize concrete interests in access
to water although the plaintiff has no decreed or contractual
right to water. See Laub, 342 F.3d at 1086 (the “loss of
affordable irrigation water” for agricultural uses resulting
from increased competition for irrigation water was sufficient
injury to a cognizable interest for standing under NEPA);
Pyramid Lake Paiute, 724 F.3d at 1187–88.
So the Nation’s lack of decreed rights to Lower Basin
water does not matter for standing. Its interest in, and need
for, the water is a cognizable interest—much like the farmers’
interests in Laub—which, when threatened, may support
standing under NEPA.
Our question, then, is whether the Nation has alleged a
“reasonably probable” threat from the Guidelines to its
interest in accessing Lower Basin water. Citizens for Better
NAVAJO NATION V. DEP’T OF INTERIOR 35
Forestry, 341 F.3d at 969. If that interest is not imperiled by
the Guidelines, the Nation has suffered no injury.
At the outset, we reject the Nation’s reiterated argument
that the Guidelines impair the Nation’s interests in, and need
for, Lower Basin water by establishing a system of third-party
reliance that will make it harder to satisfy this need. For the
same reasons laid out in Part III.B.i with regard to the
Nation’s Winters rights, these allegations are too speculative
to demonstrate injury to any of the Nation’s interests.
But the Nation also alleges—albeit sparsely—another,
different sort of injury to its generalized interest in Lower
Basin water: there will simply be less of it available. The
Surplus Guidelines, the Nation maintains, will “adversely
affect[] the water supply available to . . . meet [the Nation’s]
needs” by “allocat[ing] all of the surplus waters of the
Colorado River” each year. As for the Shortage Guidelines:
The Nation’s use of mainstream water in the
Lower Basin will be charged against
Arizona’s Lower Basin apportionment, and
Arizona is particularly vulnerable to water
shortages, so the Nation reasonably fears that
excessive ICS development26 or an increased
likelihood of a [declared] shortage will
adversely affect its lands by reducing the
availability of local water supplies needed to
make them productive and livable.
(emphasis added) (internal citations omitted).
26
For an explanation of ICS, see supra note 18 and accompanying
text.
36 NAVAJO NATION V. DEP’T OF INTERIOR
The constraints imposed by the Law of the River affect
the plausibility of these averments concerning the Guidelines’
possible impact on the water available to the Nation. As
noted above, the Nation’s use of mainstream water “shall be
charged to [Arizona’s] apportionment.” 1964 Decree art.
II(B)(4), 376 U.S. at 343. Arizona’s apportionment, as set
out in the 1922 Compact and reaffirmed in the 1964 Decree,
is 2.8 mafy. Id. art. II(B)(1), 376 U.S. at 342. In times of
shortage, the Colorado River Basin Project Act subordinates
the water rights of Arizona’s largest mainstream diverter, the
Central Arizona Project (“CAP”), to those of California
users.27 See 43 U.S.C. § 1521(b). In flush years, the 1964
Decree grants Arizona 46% of the Lower Basin surplus water.
1964 Decree art. II(B)(2), 376 U.S. at 342. So the broad
contours of water allocation, and indeed many of the specific
ones, are settled by existing law; the Guidelines merely shade
in the details.
With those parameters in mind, we conclude that the
Nation has not plausibly alleged that the Guidelines
themselves—independently of the pre-existing water
allotments—will impair the tribe’s interest in the availability
of Lower Basin water. Construed as liberally as possible in
the Nation’s favor, the complaint does not explain why or
how the Secretary’s decisions on surplus and shortage
declarations, or the Shortage Guidelines’ rules on the banking
of ICS water, threaten to reduce the amount of water
available to the Nation.
Arizona’s relative allotment of surplus water is fixed by
the 1964 Decree. See id. The Guidelines do not make any
27
The Central Arizona Project diverts more than 1.2 mafy of
Arizona’s 2.8 mafy allocation. Shortage Guidelines FEIS, at 3–35.
NAVAJO NATION V. DEP’T OF INTERIOR 37
allotments during times of surplus or shortage; they only
ascertain the parameters for declaring whether there is a
surplus or shortage. And it is another statutory provision, not
the Guidelines, that triggers a statutory prioritization scheme
that disadvantages Arizona. See 43 U.S.C. § 1521(b).
Given the disadvantage to Arizona in times of shortage,
how the Secretary determines a shortage could, in theory,
reduce the availability of local water supplies. For instance,
if the Guidelines declared a shortage more often than would
some other method of determining a shortage, part of
Arizona’s allotment (the CAP water) would be subordinated
to California’s needs, pursuant to the Colorado River Basin
Project Act, more often than under the alternative approach,
and less water would be available on the tribe’s land. But the
Nation’s complaint does not anywhere allege that the
Guidelines do, in fact, result in “an increased likelihood of a
shortage” as compared to alternatives; it says only that “the
likelihood of a shortage determination would be different
under each of the alternatives in the guidelines proposed in
the EIS.” Fair enough. But it does not follow, as the Nation
asserts, that the existence of an array of alternatives itself
makes it “reasonably probable that unexplored effects
threaten the Navajo Nation’s interests.”
The Nation’s allegations regarding the ICS provisions of
the Shortage Guidelines are equally unavailing. The Nation
does not sketch out why ICS development—the banking of
extra water saved or procured by water users—will be
excessive, or how that development would reduce available
water supplies for the Nation and thus threaten its interests in
said water. We note that, under the Shortage Guidelines,
states and users can only “bank” water by offsetting their
water consumption in some other way. See 73 Fed. Reg. at
38 NAVAJO NATION V. DEP’T OF INTERIOR
19,886. Because the only water that can be banked this way
is water saved by users for the purpose of banking it, the
Nation’s argument that the water would otherwise be
available to meet the Nation’s needs is difficult to understand.
Ultimately, the Nation has not shown why the Guidelines
threaten injury to its interests in having water available to
meet its needs, as compared to any available alternative.
General references to the “risk of overlooking harmful
effects”—without describing these effects—or to a “certain
[e]ffect [on] the outcome of th[e] efforts” by the Nation to
secure water—without any description of that effect—do not
suffice.
The cases cited by the Nation in its discussion of the
reasonably probable threat to its interests do not support its
position to the contrary. Rather, those cases reiterate the
requirement that plaintiffs must identify how the challenged
action threatens, to a reasonable probability, some separate
interest belonging to them, and determined that the plaintiffs
had done so.
Douglas County v. Babbitt, 48 F.3d 1495, 1501 (9th Cir.
1995), for example, concerned a county’s allegation that its
lands “could be threatened by how the adjoining federal lands
[were] managed” with respect to pest, disease, and fire
control. We held the allegation sufficient to demonstrate
standing because “a concrete interest . . . could [have been]
harmed” by the challenged action. Churchill County,
150 F.3d at 1079, similarly held that an increased risk of “fire
hazards, airborne particles, [and] erosion,” among other
things, made it “reasonably probable” that a transfer of water
rights threatened county land. And in Pyramid Lake Paiute
Tribe, 724 F.3d at 1188, it was common ground that the
NAVAJO NATION V. DEP’T OF INTERIOR 39
transfer of water rights would “reduce[] flows to Pyramid
Lake” and thereby injure the Tribe’s interests in maximizing
flows to the lake. The plaintiffs in those cases thus
affirmatively demonstrated that agency action would, to a
reasonable probability, harm their interests.
We do not doubt the Nation’s needs for water, or its
skepticism that its needs and rights will be front and center as
the Secretary and other stakeholders vie for water rights in the
years to come. “The United States historically has not been
vigorous in litigating to establish or preserve Indian water
rights.” William C. Canby, Jr., AMERICAN INDIAN LAW 504
(6th ed. 2015).28 More than half a century has passed since
the Nation’s Winters rights were first put forward for
adjudication in Arizona v. California, and they go
unquantified still.
In short, the challenged Guidelines do not, as far as the
Nation has alleged, present a reasonable probability of threat
to either the Nation’s unadjudicated water rights or its
practical water needs. We therefore affirm the dismissal of
the Nation’s NEPA claims for lack of standing.
IV. SOVEREIGN IMMUNITY
The district court dismissed the Nation’s breach of trust
claim because the United States had not waived sovereign
immunity for that claim. The Nation alleged, as a breach of
trust, Interior’s failure “to determine the extent and quantity
of water rights . . . or otherwise determine the amount of
water which the [Nation] requires from the Lower Basin to
28
“The tribes themselves can bring suit, but the cost of such litigation
is frequently prohibitive.” Id. at 504–05.
40 NAVAJO NATION V. DEP’T OF INTERIOR
meet the needs of the [Nation].” The Nation’s breach of trust
claim is thus predicated not on an affirmative action but
rather a failure to act.
The broad waiver of immunity found in § 702 of the APA
did not apply, the district court held, because this Court’s
decisions construing the scope of § 702 limited its waiver to
(i) challenges to “final agency action” and (ii) constitutional
claims. Because the Nation “fail[ed] to challenge any
particular final agency action or bring a constitutional claim,”
the district court held, it could not avail itself of § 702’s
waiver.
We now review, and clarify, the scope of that waiver.
A. Legal Background
“The United States, as sovereign, is immune from suit
save as it consents to be sued.” United States v. Sherwood,
312 U.S. 584, 586 (1941) (citations omitted). As the contours
of any such waiver define a court’s authority to entertain a
suit against the government, id., each claim against the
government must rest upon an applicable waiver of
immunity. We review whether sovereign immunity is waived
de novo. Orff v. United States, 358 F.3d 1137, 1142 (9th Cir.
2004).
NAVAJO NATION V. DEP’T OF INTERIOR 41
Congress has enacted several broad waivers of the United
States’ sovereign immunity.29 The waiver here at issue
appears in § 702 of the APA, which provides:
[1] A person suffering legal wrong because of
agency action, or adversely affected or
aggrieved by agency action within the
meaning of a relevant statute, is entitled to
judicial review thereof. [2] An action in a
court of the United States seeking relief other
than money damages and stating a claim that
an agency or an officer or employee thereof
acted or failed to act in an official capacity . . .
shall not be dismissed nor relief therein be
denied on the ground that it is against the
United States.
5 U.S.C. § 702.
Section 702, notably, does double duty, nestling a broad
waiver of sovereign immunity (its second sentence) within an
“omnibus judicial-review provision, which permits suit for
violations of numerous statutes . . . that do not themselves
include causes of action for judicial review.” Lexmark Int’l,
Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1389
(2014). We are mainly concerned here with the waiver, but,
as will appear, the relationship between the § 702 cause of
29
See, e.g., Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1) (waiving
immunity as to certain torts committed by government employees acting
in the scope of their employment); Tucker Act, 28 U.S.C. § 1491(a)(1)
(waiving immunity as to contract claims and claims for damages not
sounding in tort).
42 NAVAJO NATION V. DEP’T OF INTERIOR
action and the § 702 waiver is key to making sense of our
cases in this area.
The first sentence of § 702—the “omnibus” mechanism
for review of agency action by courts—was the sum and
substance of the judicial review provision of the APA as
originally enacted in 1946. See Administrative Procedure
Act, Pub. L. No. 79-404 § 10(a), 60 Stat. 237, 243 (1946)
(codified as amended at 5 U.S.C. § 702). The second
sentence—which waives sovereign immunity in cases
“seeking relief other than money damages” for wrongs
committed by agencies, their officers, and their employees,
5 U.S.C. § 702—was added in 1976 to clear up a morass of
federal sovereign immunity jurisprudence, which at the time
was “illogical,” a “thankless” undertaking for federal courts,
and “a mass of confusion . . . [and] confusion compounded.”
H.R. Rep. No. 94-1656, at 6–8 (1976) (internal citations
omitted). In addition to ending “the injustice and
inconsistency” begat by the doctrinal confusion, id. at 10, the
amendment aimed to “broaden the avenues for judicial review
of agency action by eliminating the defense of sovereign
immunity in cases covered by the amendment.” Bowen v.
Massachusetts, 487 U.S. 879, 891–92 (1988). Just how broad
those avenues are is our issue.
B. Ninth Circuit Law on § 702
A perceived conflict between two of our opinions
construing § 702 lies at the root of this appeal. Compare The
Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518,
524 (9th Cir. 1989) (holding that “[n]othing in the language
of [§ 702] suggests that the waiver of sovereign immunity is
limited to cases challenging . . . ‘agency action’”), with Gallo
Cattle Co. v. U.S. Dep’t of Agric., 159 F.3d 1194, 1198 (9th
NAVAJO NATION V. DEP’T OF INTERIOR 43
Cir. 1998) (noting § 702’s “waiver of sovereign immunity
contains several limitations,” including § 704’s requirement
that the challenged conduct be “final agency action” or
agency action otherwise reviewable by statute). A panel of
this Court pronounced these two cases “directly contrary” to
one another, and could find “no way to distinguish them,”
but, resolving the case before it on other grounds, declined to
call the case en banc to harmonize the perceived intra-circuit
conflict. See Gros Ventre Tribe v. United States, 469 F.3d
801, 809 (9th Cir. 2006); see also EEOC v. Peabody W. Coal
Co., 610 F.3d 1070, 1086 (9th Cir. 2010) (noting the same
“tension” between the same two decisions but again finding
no need to resolve it). As we face the issue squarely, we
delve into Presbyterian Church and Gallo Cattle in some
detail.
Presbyterian Church held that § 702 waived sovereign
immunity for the plaintiff churches’ First and Fourth
Amendment claims against the (now-defunct) Immigration
and Naturalization Service (INS). 870 F.2d at 526 (9th Cir.
1989). The claims in Presbyterian Church arose from the
dispatch of INS agents to attend, and furtively record,
worship services at four Arizona churches as the agents were
investigating the sanctuary movement, which was aiding
refugees fleeing civil war in Central America. Id. at 520.
The INS prevailed in district court on its argument that § 702
waived sovereign immunity only for claims challenging
“agency action” as defined in 5 U.S.C. § 551(13). Under that
definition, “‘agency action’ includes the whole or a part of an
agency rule, order, license, sanction, relief, or the equivalent
or denial thereof, or failure to act.” Id. at 524–25. The INS’s
argument was premised on the first sentence of § 702, which
grants judicial review to “person[s] suffering legal wrong
44 NAVAJO NATION V. DEP’T OF INTERIOR
because of agency action, or adversely affected or aggrieved
by agency action.” 5 U.S.C. § 702.
We reversed, interpreting the second sentence of § 702 as,
on its face, “an unqualified waiver of sovereign immunity in
actions seeking nonmonetary relief.” Presbyterian Church,
870 F.2d at 525. Presbyterian Church noted that the second
sentence of § 702 does not use the term “agency action.” Id.
And the legislative history of the waiver provision, which
Presbyterian Church surveyed at length, evinced Congress’
intent to “eliminate the sovereign immunity defense in all
equitable actions for specific relief” against the federal
government. Id. at 525 (quoting H.R. Rep. No. 94-1656, at
9 (1976)) (emphasis omitted). Whatever restrictions were
imposed by the first sentence’s limitation of judicial review
to “agency action” were absent in the broad waiver legislated
three decades later, we concluded. Id. at 525. Presbyterian
Church pronounced that reading in an “agency action”
limitation to that second, independently enacted provision
both “offend[ed] the plain meaning of the amendment” and
flew in the face of the drafting history. Id.
Gallo Cattle Co. v. U.S. Department of Agriculture,
159 F.3d 1194 (9th Cir. 1998), pointed in a different
direction, stating that “the APA’s waiver of sovereign
immunity contains several limitations,” including a proviso
in § 704 that only “final agency action” and agency action
otherwise reviewable by statute are subject to judicial
review.30 Id. at 1198. Gallo Cattle concerned a dairy
30
Section 704 provides: “Agency action made reviewable by statute
and final agency action for which there is no other adequate remedy in a
court are subject to judicial review. A preliminary, procedural, or
NAVAJO NATION V. DEP’T OF INTERIOR 45
producer who sought review in federal district court of a
denial by an administrative board of its petition for interim
relief. Id. at 1195–96. Gallo Cattle proposed paying the
monetary assessments it was challenging on First
Amendment grounds into escrow, rather than to the dairy
board, pending the outcome of its constitutional challenge.
Id. The district court held that it lacked jurisdiction over the
claim because the statute governing the dairy assessments
allowed review only after the Secretary of Agriculture had
decided the merits of Gallo’s petition, id. at 1197–98, and this
Court affirmed.
Relevant to our analysis, we rejected Gallo Cattle’s
alternative argument that the APA provided a source of
jurisdiction, holding that there was no “final agency action”
under § 704. Id. at 1198–99. The Court identified the final
agency action requirement of § 704 as a “limitation[]” on
§ 702’s waiver of sovereign immunity, id. at 1198, and thus
a “jurisdictional” requirement of suit. See id. at 1199
(holding that the lack of final agency action meant § 704
“could not vest the district court with jurisdiction to review
the order”); id. at 1200 (same).
How could there be this limitation, when recently we had
said there was “no such limitation”? Presbyterian Church,
870 F.2d at 525. Notably—and inexplicably—Gallo Cattle
did not cite or discuss Presbyterian Church. Still,
notwithstanding the dictum in Gros Ventre Tribe, 469 F.3d at
809, that there is “no way to distinguish” these “directly
contrary” holdings, a panel of this Court recently did just that.
intermediate agency action or ruling not directly reviewable is subject to
review on the review of the final agency action.” 5 U.S.C. § 704.
46 NAVAJO NATION V. DEP’T OF INTERIOR
Veterans for Common Sense v. Shinseki (“VCS I”),
644 F.3d 845 (9th Cir. 2011), opinion vacated on reh’g en
banc, 678 F.3d 1013 (9th Cir. 2012), untangled the Gallo
Cattle-Presbyterian Church knot. Gallo’s claim for interim
relief,31 it noted, was brought directly under the
APA—specifically, the first sentence of § 702, which grants
judicial review to those people “‘suffering legal wrong
because of agency action, or adversely affected or aggrieved
by agency action.’” VCS I, 644 F.3d at 865–66 (quoting
5 U.S.C. § 702). APA claims, as outlined in the first sentence
of § 702, are subject to “§ 704’s limitation on what agency
action is reviewable—meaning subject to ‘judicial review’
under the first sentence of § 702.” Id. at 866. Claims not
grounded in the APA, like the constitutional claims in
Presbyterian Church and VCS I, “do[] not depend on the
cause of action found in the first sentence of § 702” and thus
§ 704’s limitation does not apply to them. Id. at 867.
According to VCS I, then, the limitation on the APA’s waiver
of sovereign immunity discussed in Gallo Cattle is simply
that a court is foreclosed by § 704 from entertaining claims
brought under the APA seeking review of non-final agency
action (and not otherwise permitted by law).32 “[N]o such
limitation,” Presbyterian Church, 870 F.2d at 525, applies to
other types of claims (like the constitutional claims in
Presbyterian Church).
31
Gallo appealed to the district court only from the Secretary’s denial
of interim relief—the escrowing of the disputed assessments. The
Secretary had not yet passed on, and so Gallo did not appeal, the merits of
its First Amendment challenge. Gallo Cattle, 159 F.3d at 1198.
32
In addition to making reviewable final agency action, the APA
permits suit to “compel agency action unlawfully withheld or
unreasonably delayed.” 5 U.S.C. § 706.
NAVAJO NATION V. DEP’T OF INTERIOR 47
VCS I was vacated upon rehearing en banc, so its analysis
does not stand as the law of the circuit.33 But we believe the
panel opinion persuasively reconciled Gallo Cattle and
Presbyterian Church and so follow its lead.
First, the text of the second sentence of § 702 contains no
limitation to “final agency action,” to APA cases, or to APA
and constitutional cases. We read statutes as written, subject
to very limited exceptions, none of which apply here.34 As
there is no basis for reading into the amendment to § 702
language that is not there, we should not do so. And, as VCS
I concluded, nothing in Gallo Cattle requires us to adopt an
atextual reading of § 702, as Gallo Cattle concerned a cause
of action under the APA. We therefore hold, as did VCS I,
that § 702 waives sovereign immunity for all non-monetary
claims; § 704’s final agency action requirement constrains
only actions brought under the APA.
The district court concluded otherwise, viewing
Presbyterian Church as an exception to § 704 for
constitutional claims only. By so holding, the district court
took the wrong path.
What Presbyterian Church actually determined was that
when Congress amended § 702 by adding its second sentence,
it enacted an “unqualified” waiver of sovereign immunity in
33
Veterans for Common Sense v. Shinseki, 678 F.3d 1013 (9th Cir.
2012) (en banc).
34
“It is well established that when the statute’s language is plain, the
sole function of the courts—at least where the disposition required by the
text is not absurd—is to enforce it according to its terms.” Lamie v. U.S.
Tr., 540 U.S. 526, 534 (2004).
48 NAVAJO NATION V. DEP’T OF INTERIOR
“all actions seeking relief from official misconduct except for
money damages.” Presbyterian Church, 870 F.2d at 525.
This Court has long so understood the opinion—that is, as
holding that § 702 waives “whatever sovereign immunity the
United States enjoyed from prospective relief” with respect
to “any action for injunctive relief.” Cabrera v. Martin,
973 F.2d 735, 741 (9th Cir. 1992) (citing Presbyterian
Church, 870 F.2d at 524–25) (emphasis omitted); see also
Hill v. United States, 571 F.2d 1098, 1102 (9th Cir. 1978)
(“[Section 702] is cast as a blanket waiver of sovereign
immunity as to a broad category of actions against the
government”); Clinton v. Babbitt, 180 F.3d 1081, 1087 (9th
Cir. 1999) (holding that § 702 flatly “expressly waived”
immunity for non-statutory claims for “nonmonetary relief
against the United States”).
Gallo Cattle is fully consistent with this understanding of
Presbyterian Church, and of § 702, as Gallo Cattle addressed
a claim brought directly under the APA. Even if sovereign
immunity is waived for claims not involving “final agency
action,” § 704’s requirement that to proceed under the APA,
agency action must be final or otherwise reviewable by
statute is an independent element without which courts may
not determine APA claims. Section 702, notably, expressly
preserves the § 704 limitations, among many others, by
providing that nothing in § 702 “affects other limitations on
judicial review or the power or duty of the court to dismiss
any action or deny relief on any other appropriate legal or
equitable ground.” 5 U.S.C. § 702; see also Darby v.
Cisneros, 509 U.S. 137, 153 (1993) (noting that the finality
requirement for actions brought under the APA, 5 U.S.C.
§ 704, is undiminished by § 702’s waiver of sovereign
immunity).
NAVAJO NATION V. DEP’T OF INTERIOR 49
Read this way, Gallo Cattle has much to say about the
elements of the APA cause of action, and little to say about
sovereign immunity.35 As noted, missing from Gallo Cattle
is any discussion of Presbyterian Church. This significant
omission is further evidence that Gallo Cattle governs only
in cases where, unlike Presbyterian Church, the APA
supplies the cause of action. For non-APA claims, “it is
Presbyterian Church and not Gallo Cattle that controls.”
VCS I, 644 F.3d at 866.
Our conclusion—that the second sentence of § 702
waives sovereign immunity broadly for all causes of action
that meet its terms, while § 704’s “final agency action”
limitation applies only to APA claims—is consistent with
case law in almost all our sibling circuits. In Trudeau v. FTC,
for example, the D.C. Circuit rejected a government agency’s
argument that § 702’s waiver is “restricted to conduct that
falls within th[e] compass” of final agency action. 456 F.3d
178, 186 (D.C. Cir. 2006). The court noted, as have we, that
the language of the APA “provides no support” for a cramped
reading of the waiver incorporating § 704’s final agency
action requirement, and that the legislative history likewise
offers no basis for that position. Id. at 187. Rather, both the
statutory language and its history counsel a broad waiver of
“any” and “all” immunity for non-monetary claims. Id.
35
We draw confidence from this court’s varying characterizations of
the issue in Gallo Cattle: whether the APA “vested [the court] with
jurisdiction,” 159 F.3d at 1196; the court “had jurisdiction to review” the
denial of relief “pursuant to the judicial review provisions of the [APA],”
id. at 1198; the order was “reviewable,” id.; or the APA “vest[ed] the
district court with jurisdiction to review the order,” id. at 1199. Only once
does Gallo Cattle characterize the issue as one of sovereign immunity. Id.
at 1198.
50 NAVAJO NATION V. DEP’T OF INTERIOR
(internal citations omitted). Other circuits are in near-
unanimity.36
In sum, pigeonholing Presbyterian Church as a case
about constitutional claims alone, as the district court did, is
not supported by the statute, the language of the case, or any
of our case law interpreting the statute, before or after
Presbyterian Church. Instead, we read Gallo Cattle in light
of its facts to be a case primarily about the justiciability of
APA claims challenging non-final action. This reading does
not trench at all upon Presbyterian Church or our other cases
recognizing that § 702 enacted a broad, unqualified waiver
for all non-monetary claims for relief against federal
36
See Red Lake Band of Chippewa Indians v. Barlow, 846 F.2d 474,
475–76 (8th Cir. 1988) (rejecting the argument that § 702’s waiver “exists
only to allow review of a final agency decision” in Indian trust claims and
holding that it depends only “on the suit against the government being one
for non-monetary relief”); Treasurer of N.J. v. U.S. Dep’t of Treasury,
684 F.3d 382, 400 (3d Cir. 2012) (“Section 704 concerns whether a
plaintiff has a cause of action under the APA that can survive a motion to
dismiss under Rule 12(b)(6) but does not provide a basis for dismissal on
grounds of sovereign immunity”); Michigan v. U.S. Army Corps of
Eng’rs, 667 F.3d 765, 775 (7th Cir. 2011) (“[T]he conditions of § 704
affect the right of action contained in the first sentence of § 702, but they
do not limit the waiver of immunity in § 702’s second sentence.”) (citing
VCS I, 644 F.3d at 866–68); Muniz-Muniz v. U.S. Border Patrol, 741 F.3d
668, 672 (6th Cir. 2013) (same); Delano Farms Co. v. Cal. Table Grape
Comm’n, 655 F.3d 1337, 1344 (Fed. Cir. 2011) (same); see also United
States v. Mitchell, 463 U.S. 206, 227 & n.32 (1983) (noting that Congress
“enacted a general consent” in § 702 to claims for declaratory and
injunctive relief in a case alleging breach of fiduciary duty regarding tribal
timber resources). The Fifth Circuit appears to be alone in holding to the
contrary. See Alabama-Coushatta Tribe of Texas v. United States,
757 F.3d 484, 489 (5th Cir. 2014) (“the plaintiff must identify some
‘agency action’ affecting” it as defined under 5 U.S.C. § 551(13) to avail
itself of § 702’s waiver).
NAVAJO NATION V. DEP’T OF INTERIOR 51
agencies. And, our reading best squares the holdings of
Presbyterian Church and Gallo Cattle in light of the text of
§ 702, the legislative history of the provision, and the strong
weight of authority in the federal courts.
C. The Nation’s Breach of Trust Claims
Here, the Nation in its breach of trust claim against
Interior seeks “relief other than money damages” for claims
“that an agency or an officer or employee thereof acted or
failed to act in an official capacity.” 5 U.S.C. § 702. The
waiver of sovereign immunity in § 702 applies squarely to the
Nation’s breach of trust claim.
The district court expressed some tentative views on the
merits of this claim but ultimately rested its dismissal
squarely on the bar of sovereign immunity. We therefore
remand to the district court to consider fully 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.
V. RULE 60(B) RELIEF FROM JUDGMENT
After the district court entered judgment against the
Nation, the Nation moved for relief under Federal Rule of
Civil Procedure 60(b)(6), seeking to re-open the proceedings
so that it could amend its pleadings. Where none of Rule
60(b)’s five enumerated circumstances applies, its catch-all
provision permits a court to grant relief for “any other reason
that justifies relief.” Fed. R. Civ. P. 60(b)(6). The district
court denied the motion because the Nation had failed to cure
its pleading deficiencies in previous amendments, did not
explain why its claims would be time-barred after dismissal
without prejudice, and did not spell out with sufficient
52 NAVAJO NATION V. DEP’T OF INTERIOR
specificity how it intended to amend its complaint. “We
review the district court’s denial of a Rule 60(b) motion for
an abuse of discretion.” Delay v. Gordon, 475 F.3d 1039,
1043 (9th Cir. 2007).
Because we reverse the district court’s dismissal of the
Nation’s breach of trust claim, its appeal from the district
court’s denial of its 60(b) motion is moot to the extent the
Nation sought to amend its complaint to plead additional or
alternative waivers of sovereign immunity. See Thompson v.
Calderon, 151 F.3d 918, 920 (9th Cir. 1998) (en banc). Our
affirmance of the district court’s dismissal of the Nation’s
NEPA claims, however, requires us to address this appeal
insofar as the Nation sought to replead those claims.
A court should “freely give leave [to amend] when justice
so requires,” Fed. R. Civ. P. 15(a)(2), a policy “to be applied
with extreme liberality.” Morongo Band of Mission Indians
v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). But “after final
judgment has been entered, a Rule 15(a) motion may be
considered only if the judgment is first reopened under Rule
59 or 60.” Lindauer v. Rogers, 91 F.3d 1355, 1356 (9th Cir.
1996).
In contrast to the “freely give[n]” dispensation to amend
in Rule 15, Rule 60(b) relief should be granted “sparingly” to
avoid “manifest injustice” and “only where extraordinary
circumstances prevented a party from taking timely action to
prevent or correct an erroneous judgment.” United States v.
Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir.
1993) (emphasis added). “Rule 60(b)(6) relief normally will
not be granted unless the moving party is able to show both
injury and that circumstances beyond its control prevented
timely action to protect its interests.” Id. After judgment,
 NAVAJO NATION V. DEP’T OF INTERIOR 53
then, “our policy of promoting the finality of judgments”
somewhat displaces Rule 15’s openhandedness. Lindauer, 91
F.3d at 1357.
Contrary to the district court, we do think the Nation
sufficiently explained why the district court’s dismissal of
claims was effectively with prejudice—because the relevant
statutes of limitations had run on those claims. See 28 U.S.C.
§ 2401(a) (six-year statute of limitations against the United
States). Nonetheless, the district court did not abuse its
discretion in denying the Nation relief from final judgment to
allow leave to amend.
The Nation amended its complaint twice before the court
dismissed its claims. Although the Nation argues that it
amended its complaint each time for other reasons,37 it had
ample opportunity at those junctures to address the
deficiencies in its pleading—deficiencies which, at least at
the time the Second Amended Complaint was filed, the
defendants had identified in their motions to dismiss. See
Premo v. Martin, 119 F.3d 764, 772 (9th Cir. 1997); Weeks
v. Bayer, 246 F.3d 1231, 1236 (9th Cir. 2001). The Nation
also had time after filing its Second Amended Complaint, but
before the court dismissed its claims, to seek further leave to
amend. See Premo, 119 F.3d at 772 (noting the plaintiff’s
“ample opportunity to file an amended complaint with new
allegations before the court issued its final judgment”).
Based on the Nation’s past failures to amend its complaints
and its present failure specifically to identify how it would
amend its pleading to overcome its standing problems, the
37
The Nation first amended its complaint to bring it up to date after
a nearly decade-long stay pending unsuccessful settlement talks. It later
amended the complaint to voluntarily strike one of its claims.
54 NAVAJO NATION V. DEP’T OF INTERIOR
district court reasonably concluded that the Nation had not
negated futility.
Given the Nation’s opportunities (and failures) to amend,
the district court acted within its discretion in refusing post-
judgment leave to amend.
VI. CONCLUSION
The Nation lacks Article III standing for its NEPA claims
and is not entitled to relief from judgment under Rule 60(b)
to amend its pleadings as to those allegations. The Nation’s
breach of trust claim, however, is not barred by sovereign
immunity. As the dismissal of that claim on sovereign
immunity grounds was unwarranted, we remand to the district
court to consider the claim on its merits, after entertaining
any request to amend it.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.