Chapter 4 Recent Court Decisions Impacting Water Rights
| Jurisdiction | United States |
Chapter 4 Recent Court Decisions Impacting Water Rights
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NATE BROADHURST is an Associate at Clyde Snow & Sessions in Salt Lake City, Utah. Prior to Clyde Snow, he completed judicial clerkships at the U.S. District Court for the District of Utah and the Utah Court of Appeals. Nate earned his J.D. at the University of Utah S.J. Quinney College of Law, and both his bachelor's and master's degrees at the University of Alabama. Nate focuses his practice on water litigation, and also maintains practices in environmental law, water rights issues, land use, general civil litigation, and everything in between. In the environmental and natural resources arena, he has worked at the local, state, and federal level, allowing him to draw on his multifaceted experience to find the best solutions for his clients. Further, his experience clerking in Utah's state and federal courts affords him with a unique perspective in working with clients to meet their litigation goals. Nate is an outdoor enthusiast and in his free time enjoys running, skiing, hiking, camping, and soaking up Utah's natural beauty with his family.
As with life, the only thing constant with water law is change. This past year was no different, with several significant developments in case law impacting those whose practices incorporate water resources. This Paper explores just a few of these cases touching on several important issues, including: (I) the federal government's obligations in developing tribal reserved water rights; (II) expanding Alaska's public trust doctrine to apply to groundwater; (III) the proper scope of NEPA review and ESA consultation for projects implicating downstream impacts to water resources and protected species therein; (IV) the interplay between water rights and federal authority under the ESA and when exercising such authority constitutes a physical or regulatory taking; and (V) clarifying the extent of a riparian landowner's water rights when they conflict with purported public trust interests under Wisconsin law.
I. Arizona v. Navajo Nation: Clarifying that Federal Government has no Affirmative Responsibility to Develop Tribal Reserved Water Rights Absent Explicit Directive Under Treaty or Statute
On June 22, the Supreme Court issued its long-awaited opinion in Arizona v. Navajo Nation, 599 U.S. 555 (2023). The case involves the federal obligations with respect to the tribal reserved water rights, specifically concerning the Navajo Nation in the southeastern United States. As explored below, the case resulted in multiple opinions, with stark disagreements between the justices—even over the relief the Nation was asking for in this lawsuit. Although the Court ultimately ruled that the federal government's trust obligations to the Navajo does not require the government to take "affirmative steps" to secure and develop the tribe's water rights, there are other important takeaways beyond the topline holding.
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Generally speaking, the Supreme Court "has long held that when the Federal Government withdraws its land from the public domain and reserves it for a federal purpose, the Government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation." Cappaert v. United States, 426 U.S. 128, 138 (1976). This principle was first recognized in Winters v. United States, 207 U.S. 564 (1908), with respect to Indian reservations, and has since been expanded to "other federal enclaves." Cappaert, 426 U.S. at 138.
The Navajo Nation is the largest Indian reservation in the United States, comprising more than 17 million acres, mostly in Arizona but also extending into New Mexico and Utah. Navajo, 599 U.S. at 559. The United States and the Nation entered into two treaties, one in 1849 and one in 1868. Id. at 559-60. The 1868 treaty created a reservation roughly within the Navajos' homeland as their "permanent home." Id. at 560. Under that treaty, the federal government "agreed (among other things) to build schools, a chapel, and other buildings; to provide teachers for at least 10 years; to supply seeds and agricultural implements for up to three years; and to provide funding for the purchase of sheep, goats, cattle, and corn." Id.
The Nation filed suit alleging, among other claims, a breach of trust claim against the federal government based on the 1868 treaty. Id. at 562. Concerning the alleged breach of trust, the tribe sought "injunctive and declaratory relief to compel the Federal Defendants to determine the water required to meet the needs of the Nation's lands in Arizona and devise a plan to meet those needs to fulfill the promise of the United States to make the Nation's Reservation lands a permanent homeland for the Navajo people." Id. at 584 (Gorsuch, J., dissenting).
The case has been appealed to the Ninth Circuit twice following motions to dismiss, with the district court dismissing the case outright once, the Ninth Circuit reversing to allow the
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Nation's breach of trust claim to proceed, the district court granting dismissal again based on futility of amendment with respect to the breach of trust claim, and the Ninth Circuit reversing on lack of futility. See Navajo Nation v. U.S. Dep't of Interior, 36 F.4th 794, 803-04, 814 (9th Cir. 2022) (setting forth procedural history), rev'd sub nom. Navajo, 599 U.S. 555. The second Ninth Circuit reversal prompted the appeal to the Supreme Court. Navajo, 599 U.S. at 563.
Justice Kavanaugh wrote the majority opinion, which begins by providing a general history of the Navajo, as well as recognizing that under the "Court's longstanding reserved water rights doctrine," "the Navajo Reservation includes not only the land within the boundaries of the reservation, but also water rights." Id. at 560-61. Importantly—and fatally, it would seem—the majority repeatedly characterized the relief being sought by the Navajo as a request for the federal government "to take affirmative steps to secure water" for the tribe. See, e.g., id. at 558, 562-63, 566. According to the Court, such steps include "assessing the Tribe's water needs, developing a plan to secure the needed water, and potentially building pipelines, pumps, wells, or other water infrastructure." Id. at 563.
The majority also set forth that, to maintain a breach of trust claim, an Indian tribe "must establish, among other things, that the text of a treaty, statute, or regulation imposed certain duties on the United States." Id. at 563. In recognizing this general showing, Justice Kavanaugh relied extensively on United States v. Jicarilla Apache Nation, 564 U.S. 162 (2011). See Navajo, 599 U.S. at 564-65. Crucially, he rejected the Navajos' argument that Jicarilla and related cases "apply only in the context of claims seeking damages from the United States pursuant to the Tucker Act and Indian Tucker Act." Id. at 564 n.1. Instead, the opinion holds that "Jicarilla's framework for determining the trust obligations of the United States applies to any claim seeking to impose trust duties on the United States, including claims seeking equitable relief because
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that case's rationale purportedly relied on "separation of powers principles—not on the particulars of the Tucker Acts." Id. Justice Kavanaugh also pointed to Jicarilla's clarification that the United States' trust obligations come from "treaty, statute, or regulation, rather than by the common law of trusts," because the United States is a sovereign. Id. (citing 564 U.S. at 165).
Based on this substantive underpinning, the Court proceeded to analyze the 1868 treaty, concluding that it says "nothing about any affirmative duty for the United States to secure water." Id. at 565. Justice Kavanaugh reasoned that so finding would be "anomalous" compared to the federal government's obligations to the land, noting that the federal government "has no duty to farm the land, mine the minerals, [] harvest the timber . . . [or] build roads and bridges on the reservation." Id.
The majority addressed specific provisions of the 1868 treaty that the Navajo put forth as potentially speaking to the federal government's purported water obligations. The first was the language stating the Navajo Reservation would be the tribe's "permanent home." Id. at 567 (quoting 15 Stat. 671). The majority found "that assertion finds no support in the treaty's text or history, or in any of this Court's precedents," noting the variety of other specific obligations the treaty imposed on the federal government. Id. Second, the Nation pointed to a provision requiring the government to provide "seeds and agricultural implements" for three years, id. (quoting 15 Stat.669), pointing out that such things would not be usable without water. The Court rejected this as well, noting that the Navajo are not blocked from using water sources they historically "used and continue to rely on," and that this specific provision again demonstrates the treaty authors "knew how to impose specific affirmative duties on the United States when they wanted to do so." Id. at 568.
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The Navajo also pointed to the degree of control the federal government exercises over the Colorado River, as well as the government's opposition to the Nation intervening in prior litigation over the River. Id. The majority also rejected this argument, finding that the "'Federal Government's liability' on a breach-of-trust claim 'cannot be premised on control alone.'" Id. (quoting United States v. Navajo Nation, 556 U.S. 287, 301 (2009)). The Court also suggested the Navajo may not be similarly foreclosed in the future, stating that...
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