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 ...
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