Ninth Circuit Rules In Favor Of Navajo Nation Water Rights

water river

This week, the United States Ninth Circuit Court of Appeals reversed the decision of the District Court for the District of Arizona that previously dismissed the Navajo Nation’s 2003 lawsuit against the U.S. Department of the Interior, related to the Nation’s water rights.

In the 2003 lawsuit, the Navajo Nation asserted that the Secretary of Interior had taken various actions relating to the management of the Colorado River in breach of the federal government’s trust obligations to protect the water resources of the Navajo Nation or to secure and protect water supplies from the Colorado River necessary for the needs of the Navajo Nation in Arizona.

“Water resources are becoming a greater concern for the southwest portion of the United States. Over 150 years after the signing of the Treaty of 1868 between the Navajo people and the United States, we are still having to fight for water allocations. Today’s ruling is due to the hard work and commitment of the Navajo Nation Department of Justice, under Attorney General Doreen McPaul. I commend their team and offer my continued support for them,” said Navajo Nation President Jonathan Nez.

The U.S. District Court of Arizona previously dismissed the Navajo Nation’s lawsuit on the grounds that the U.S. had not waived its sovereign immunity. The Navajo Nation appealed to the Ninth Circuit, and in 2017, the Court joined the majority of Circuits in holding that the Administrative Procedures Act waives the sovereign immunity of the U.S. for all causes of action not seeking monetary damages, reversing the decision of the district court and remanding the case to allow the Navajo Nation’s breach of trust claim to proceed. On remand, however, the district court again dismissed the Navajo Nation’s case on the grounds that the Nation had failed to identify an enforceable cause of action against the U.S.

In its reversal, the Ninth Circuit determined that the Navajo Nation had identified provisions in the Nation’s treaties with the U.S. and related statutes and executive orders establishing the “Navajo reservation” that give rise to enforceable duty by the U.S. to protect the water resources of the Navajo Nation. The Court remanded the case back to the district court with instructions to permit the Navajo Nation to amend its complaint.

Navajo Nation Attorney General Doreen N. McPaul stated that most significant aspect of the Ninth Circuit’s decision is its recognition that an enforceable trust duty arises from the implied reservation of water, recognized in Winters, to serve the permanent homeland needs of the Navajo Nation, as found and supported in the treaties establishing the “Navajo reservation” and setting the terms for the relationship between the Navajo Nation and the United States, the federal statutory and regulatory governance of the Colorado River and the Secretary’s pervasive control of the river’s management; the United States’ prior actions in Arizona v. California; and very importantly, the impacts of COVID-19 on the Navajo people due in part to the lack of water.

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