UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
GERALD H. HAWKINS, et al.,
Plaintiffs, Civil Action No. 19-1498 (BAH) v. Chief Judge Beryl A. Howell DAVID L. BERNHARDT, Secretary, U.S. Department of the Interior, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiffs, a group of landowners in the Upper Klamath Basin in Oregon, seek declaratory
and injunctive relief against defendants, officials in the Bureau of Indian Affairs (“BIA”) and the
Department of the Interior, to prevent enforcement of the Klamath Tribes’ reserved water rights.1
In particular, plaintiffs challenge two protocol agreements executed by the Klamath Tribes and
the BIA, setting forth procedures for the enforcement of the tribes’ water rights, arguing that in
signing the agreements, the BIA unlawfully delegated federal power to the tribes and,
additionally, violated the National Environmental Policy Act (“NEPA”). See Am. Compl. ¶¶
41–53; Pl.’s Opp’n to Mot. to Dismiss (“Pl.’s Opp’n”) at 1, ECF No. 19. Defendants move
pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss the plaintiffs’
amended complaint for lack of subject matter jurisdiction and for failure to state a claim. See
Defs.’ Mot. to Dismiss and Mem. Pts. and Auth. in Support (“Defs.’ Mot.”), ECF No. 17. The
1 The four named defendants are David L. Bernhardt, Secretary of the Interior; Tara Katuk MacLean Sweeney, Assistant Secretary-Indian Affairs; Darryl Lacounte, Director, U.S. Bureau of Indian Affairs; and Bryan Mercier, Regional Director, U.S. Bureau of Indian Affairs, Northwest Regional Office, each of whom are sued in their official capacities. Am. Compl. ¶¶ 1, 9–13, ECF No. 15.
1 defendants are correct that the plaintiffs lack standing, and thus the amended complaint is
dismissed under Rule 12(b)(1).2
I. BACKGROUND
The gravamen of this case is the repercussions to the plaintiffs of enforcement of tribal
water rights. To provide context for resolution of the pending motion, the applicable treaty, laws
and challenged protocol agreements are described below, followed by a summary of the
plaintiffs’ claims.
A. Overview of Legal Regime Governing Relationship Between United States and Klamath Tribes
For more than a thousand years, the Klamath Tribes “hunted, fished, and foraged in the
area of the Klamath Marsh and upper Williamson River,” in southern Oregon. United States v.
Adair, 723 F.2d 1394, 1397 (9th Cir. 1983).3 In 1864, the Tribes ceded approximately 12 million
acres of land to the United States by treaty, and, in exchange, the United States reserved roughly
800,000 acres for the Tribes. Id. at 1398; Treaty with the Klamath (“Klamath Treaty”), 16 Stat.
707 (1864). Article I of the Klamath Treaty granted the tribes “the exclusive right to hunt, fish,
and gather on their reservation.” Adair, 723 F.2d at 1398; 16 Stat. 708. Article II created a [trust
fund] designed to “advance [the Tribes] in civilization … especially in agriculture.” Id.
In 1954, Congress terminated federal supervision of the Tribes. See Klamath
Termination Act, 68 Stat. 718 (1954) (codified at 25 U.S.C. § 564, now omitted). “The express
purpose of [the Klamath Termination Act] was to terminate federal supervision over the Klamath
Tribe of Indians, to dispose of federally owned property acquired for the administration of Indian
2 Having reached the conclusion that dismissal is appropriate under Rule 12(b)(1), the alternative basis for dismissal, under Rule 12(b)(6), need not be addressed. See Defs.’ Mot. at 29–42. 3 The Klamath Tribes are currently a federally recognized nation consisting of three related tribes: the Klamath, Modoc, and Yahooskin. Older caselaw concerning the Tribes’ rights generally refers to the Tribes in the singular, as the “Klamath Tribe,” but the federal government, the parties and the Tribes themselves use the more accurate plural “Klamath Tribes.”
2 affairs, and to terminate the provision of federal services to the Indians solely because of their
status as Indians.” Kimball v. Callahan, 493 F.2d 564, 567 (9th Cir. 1974). The Termination
Act did not, however, abrogate the Tribes’ treaty rights to hunt, fish, and gather. Id. at 568–69;
Adair, 723 F.2d at 1411–12. Indeed, the Termination Act states explicitly, “[n]othing in this Act
shall abrogate any water rights of the tribe and its members” and “[n]othing in this Act shall
abrogate any fishing rights or privileges of the tribe or the members thereof enjoyed under
Federal Treaty.” 68 Stat. at 722, 25 U.S.C. § 564m.
Pursuant to the Termination Act, certain tribal members elected to withdraw from the
tribes in exchange for the cash value of their proportionate interest in the tribal property.
Kimball, 493 F.2d at 567. Reservation lands were sold “to pay the withdrawn members,” while a
smaller portion was retained in trust under a “nongovernmental tribal management plan.” Id.
In 1986, Congress restored the Klamath Tribes to federal recognition. See Klamath
Indian Tribe Restoration Act, 100 Stat. 849 (1986) (codified at 25 U.S.C. § 566). The
Restoration Act “restored the Tribes’ federal services, as well as the government-to-government
relationship between the Tribe and the United States,” but “did not alter existing property rights,”
meaning previously sold reservation lands were not returned. Klamath Tribe Claims Committee
v. United States, 106 Fed. Cl. 87, 90 (2012).
In 1975, the United States filed suit in Federal District Court in Oregon, seeking a
declaratory judgment to determine the respective water rights of the Klamath Tribes and
interested private land owners in Klamath County. See Am. Compl. At ¶ 15; Defs.’ Mot. at 9.
The Tribes intervened as a plaintiff, and Oregon intervened as a defendant. Defs.’ Mot. at 9.
The district court’s finding that the Tribes had implied water rights “necessary to preserve their
hunting and fishing rights,” under the 1864 Klamath Treaty, United States v. Adair, 478 F. Supp.
3 336, 350 (D. Or. 1979), was affirmed, Adair, 723 F.2d at 1399 (holding that the Tribes possessed
a right “to as much water on the Reservation lands as they need to protect their hunting and
fishing rights”). Specifically, the Ninth Circuit concluded that the Termination Act had not
abrogated Tribes’ water rights, id. at 1411–12, which took priority over those of private
landowners and allowed the tribes to “prevent other appropriators from depleting the streams and
waters below a protected level in any area where the[ir] non-consumptive right applies, id. at
1411.
While protecting the Tribes’ water rights, the Ninth Circuit did not determine the precise
water levels subject to protection. See United States v. Braren, 338 F.3d 971, 973 (9th Cir.
2003). Adjudication over protected water levels took place between 1976 and 2013 in lengthy
state-run administrative proceedings in Oregon. The United States, the Tribes, and private
landowners—including many of the plaintiffs in this case—filed thousands of claims in the
state’s administrative proceeding, known as the Klamath Basin Adjudication. See id. At the
close of the administrative phase of the Klamath Basin Adjudication, the Oregon Water
Resources Department (“OWRD”) issued findings of fact and an order of determination on
March 7, 2013, which was amended on February 14, 2014. Am. Compl. ¶ 19; Defs.’ Mot. at 11.
OWRD’s Amended and Corrected Findings of Fact and Order of Determination (“ACFFOD”)
provisionally determined more than 700 claims, including claims brought by the United States as
trustee on behalf of the Klamath Tribes. Am. Compl. ¶ 20. These determinations quantified
tribal water rights “for the Wood River and two of its tributaries, Fort Creek and Crooked Creek,
the Sprague River and several of its tributaries, including Five Mile Creek, and the lower
Williamson River and several of its tributaries, including Larkin Creek and Spring Creek.” Id.
4 Under Oregon Revised Statute (“ORS”) 539.150, parties subject to the ACFFOD may file
exceptions to OWRD’s determinations in Oregon state circuit court. Plaintiffs and the United
States both filed exceptions, see Defs.’ Mot. at 11, which remain pending and “are not likely to
be resolved for several more years,” Am. Compl. ¶ 20. Notwithstanding these appeals,
determined claims under the ACFFOD are in effect, pursuant to ORS 539.130(4). See Am.
Compl. ¶ 19. A watermaster appointed by the OWRD is tasked with enforcing such claims. See
ORS 540.045(a)-(b). To enforce their rights under the ACFFOD, water users issue “calls” to the
watermaster, who, upon investigation, regulates upstream usage to maintain necessary supply to
satisfy senior downstream water rights. See Defs.’ Mot. at 12.
B. Challenged Protocol Agreements Between United States and Klamath Tribes
In 2013, following OWRD’s preliminary determination, the BIA and the Klamath Tribes
entered into one of the two protocol agreements challenged in this lawsuit, in order to delineate
procedures for the issuance of calls enforcing the Tribes’ water rights. Am. Compl. ¶ 22; Defs.’
Mot., Ex. 1, Protocol Agreement Between the Klamath Tribes and the Bureau of Indian Affairs
(May 30, 2013) (“2013 Protocol Agreement”), ECF No. 17-1. The 2013 Protocol Agreement
established that a representative of the Tribes would, when necessary, “contact[] OWRD to make
calls for enforcement of the Tribal water rights.” 2013 Protocol Agreement ¶ 1. Prior to making
such a call, the Tribes would notify the BIA, two business days in advance, to provide “the
reasons for making such a call, including: the Tribal water right not being met, the water source
and amount for the call, and an assessment based on the Tribes’ information and belief that water
is currently being diverted from the source at issue and that a call would provide water for the
Tribal water right.” Id. ¶ 2. Pursuant to the agreement, the BIA would then “timely provide an
email response to the call notice stating either (i) agreement with making the proposed call, (ii)
changes to the scope of the proposed call, (iii) disagreement with making the proposed call and 5 the reasons for that disagreement, or (iv) that BIA needs an additional business day to complete
deliberations on the call notice.” Id. ¶ 3.
In the event of disagreement, the 2013 Protocol Agreement established additional
procedures for further discussion between the Tribal Chairman and the BIA’s Regional Director.
See id. at 4. Although this agreement authorized the United States to initiate calls on behalf of
the tribes, should the Tribes not issue a call notice when necessary, see id. at 5, both the Tribes
and the United States retained an “independent right to make a call” such that if “the Parties
cannot agree on whether to make a call, either Party may independently make a call and the other
will not object to the call,” id. ¶ 7.
In 2019, the BIA and Klamath Tribes replaced the 2013 Protocol Agreement with an
Amended Protocol Agreement to provide for seasonal “standing calls” and enable “OWRD to
more consistently monitor, observe, and, when necessary, regulate junior water users.” Defs.’
Mot., Ex. 2, Protocol Agreement Between the Klamath Tribes and the Bureau of Indian Affairs
(Mar. 7, 2019) (“2019 Protocol Agreement”), Preamble, ECF No. 17-2. The 2019 Protocol
Agreement set forth procedures for issuing standing calls twice yearly, “one for the irrigation
season (beginning on or about March 1) and one for the non-irrigation season (beginning on or
about November 1).” Id. The Agreement also extended the time periods by which the BIA was
to respond to proposed calls, to seven business days for proposed standing calls, and three
business days for other calls. See id. ¶¶ 2–3. Again, the amended agreement retained the
“independent right” of each party to make a call without the other’s concurrence. Id. ¶ 12. In so
doing, however, the agreement stipulated that the United states “retains the right not to concur
with any call for water that is inconsistent with the ACFFOD or other legal obligations.” Id.
6 C. Implementation of ACFFOD
In June 2013, following enforcement calls made by the Tribes with the concurrence of
the BIA, pursuant to the Protocol Agreement, OWRD issued orders directing the plaintiffs and
other landowners in the Upper Klamath Basin to cease all irrigation. Am. Compl. ¶ 25. State
authorities then initiated settlement negotiations that, in April 2014, resulted in a comprehensive
water settlement between the tribes and landowners called the Upper Klamath Basin
Comprehensive Agreement (“UKBCA”). Id. ¶ 26. The UKBCA effectively lowered the water
levels protected by the Tribes’ rights, and established new, lower levels “designed to support fish
and wildlife resources important to the Klamath Tribes while also providing irrigation
opportunities for plaintiffs and other irrigators…” Id. ¶ 28. The Tribes and United States issued
calls between 2014 and 2016 to enforce these lower, agreed-to water levels (referred to as
“instream flows” and “streamflow levels”) under the UKBCA. Id. at ¶ 29.
On December 28, 2017, the former secretary of the Interior issued a Negative Notice in
the Federal Register terminating the UKBCA after Congress left the agreement unfunded. See
id. at ¶ 31; 82 Fed. Reg. 61582 (Dec. 28, 2017). In 2017 and 2018, after the UKBCA’s collapse,
the Tribes and the United States issued calls seeking to enforce the tribes’ water rights at the
levels previously determined by the ACFFOD rather than the lower levels specified in the
UKBCA. Am. Compl. ¶¶ 30–31. As in 2013, OWRD’s resulting enforcement of the tribes’
water rights resulted in the “severe curtailment of irrigation” and in certain cases in “complete
shut-offs” for plaintiffs and other landowners in the Upper Klamath Basin. Id. at ¶ 31. In April
2019, the Tribes and United States again issued calls to OWRD “for enforcement of the full
instream flow level water rights.” Id. at ¶ 32.
7 D. Plaintiffs’ Instant Claims
In May 2019, the plaintiffs, including over thirty individual ranchers and ranches located
in the Wood River Valley in Klamath County, brought this action seeking declaratory and
injunctive relief invalidating the 2019 Protocol Agreement, vacating those calls for enforcement
made between 2013 and 2019, and prohibiting the defendants from issuing further calls for
enforcement. See Complaint., Prayer for Relief (May 22, 2019), ECF No. 1; Am. Compl., Prayer
for Relief. In August, the plaintiffs filed an Amended Complaint, see Am. Compl., and in
September, the defendants filed the pending motion to dismiss the Amended Complaint.
Following grant of an extension requested by the plaintiffs, see Min. Order (Sept. 17, 2019), the
defendants’ motion to dismiss became ripe for review on December 14, 2019.4
II. LEGAL STANDARD
“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power
authorized by Constitution and statute.’” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quoting
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Under the Constitution
“the ‘judicial Power of the United States’ is limited to ‘Cases’ or ‘Controversies,’ U.S. Const.
art. III, §§ 1-2, and the requirement of standing is ‘rooted in the traditional understanding of a
case or controversy.’” Twin Rivers Paper Co. LLC v. SEC, 934 F.3d 607, 612–13 (D.C. Cir.
2019) (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016)). To establish standing, a
“plaintiff must show (1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury
and the conduct complained of,’ and (3) a ‘likel[lihood]’ the injury ‘will be redressed by a
favorable decision.’” Susan B. Anthony List v. Driehaus (SBA), 573 U.S. 149, 157–58 (2014)
4 The plaintiffs have requested a hearing, Pl.’s Opp’n at 1, n.1, but given the exhaustive briefing on the relevant issues, no hearing is necessary, see LCvR 7(f) (noting that “allowance” of party’s request for oral hearing, “shall be within the discretion of the Court”).
8 (quoting Lujan v. Defs. Of Wildlife, 504 U.S. 555, 560–61 (1992)); see also Woodhull Freedom
Foundation, et al. v. United States, No. 18-5298, 2020 WL 398625, at *6 (D.C. Cir. Jan. 24,
2020); Carbon Sequestration Council v. E.P.A., 787 F.3d 1129, 1133 (D.C. Cir. 2015); Grocery
Mfrs. Ass’n v. E.P.A., 693 F.3d 169, 174 (D.C. Cir. 2012). “The party invoking federal
jurisdiction bears the burden of establishing these elements.” Lujan, 504 U.S. at 561; see also
Twin Rivers Paper Co., 934 F.3d at 613 (same). Absent subject-matter jurisdiction, the court
must dismiss a case. See Arbaugh v. Y & H Corp., 546 U.S. 500, 506–07 (2006); FED. R. CIV. P.
12(h)(3).
III. DISCUSSION
Defendants move to dismiss the plaintiff’s Amended Complaint on the grounds that the
plaintiffs can demonstrate neither causation nor redressability and therefore lack standing. See
Defs.’ Mot. at 1. The plaintiffs counter that the requirements of standing are met due to two
procedural injuries: first, under the Protocol Agreements, the government unlawfully delegated
federal power to make calls for the enforcement of federal reserved water rights to the Tribes,
see Pl.’s Opp’n at 4; Am. Compl. ¶ 46 (First Claim for Relief); and second, that the government
violated NEPA “in each of 2013 and 2017 through 2019” by failing to conduct an environmental
impact study before acceding to the Tribes’ calls for enforcement, Pl.’s Opp’n at 5; Am. Compl.
¶ 53 (Second Claim for Relief).
Notwithstanding the hardships alleged by the plaintiffs arising from OWRD’s
enforcement of the Tribes’ water rights, which enforcement allegedly “resulted in widespread
and severe curtailment of irrigation, and in many cases complete shut-offs,” Am. Compl. ¶¶ 30,
31, 32, and concomitant “substantial injuries to their aesthetic, environmental, recreational and
other interests,” as well as loss of wildlife and grass plants, and a decrease in land value. id. ¶¶
9 36-37, due to nature of the tribal water rights central to this case, the plaintiffs have failed to
meet the standing requirements of causation and redressability. Thus, for the reasons explained
in more detail below, the defendants are correct, and the amended complaint must be dismissed.
A. Plaintiffs Have Established Neither Causation Nor Redressability
The plaintiffs allege that the defendants’ enforcement, in accordance with the Protocol
Agreements, of the Klamath Tribes’ water rights, suffers from the procedural defects of improper
delegation of federal power and violation of NEPA. See Pl.’s Opp’n at 2–16. To demonstrate
standing “a procedural-rights plaintiff must show not only that the defendant’s acts omitted some
procedural requirement, but also that it is substantially probable that the procedural breach will
cause the essential injury to the plaintiff’s own interest.” Fla. Audubon Soc. v. Bentsen, 94 F.3d
658, 664–65 (D.C. Cir. 1996) (en banc); see also National Parks Conservation Ass’n v. Manson,
414 F.3d 1, 5–6 (D.C. Cir. 2005).
When the alleged harm, however, stems from the government’s regulation of an
independent third party not before the court, rather than the plaintiff directly, standing is
“‘substantially more difficult’ to establish.” Lujan, 504 U.S. at 562 (quoting Allen v. Wright, 468
U.S. 737, 758 (1984)). In such cases, “causation and redressability ordinarily hinge on the
response of the regulated (or regulable) third party to the government action or inaction—and
perhaps on the response of others as well.” Id. To prove standing in these circumstances, the
plaintiff must “adduce facts showing that [third-party] choices have been or will be made in such
manner as to produce causation and permit redressability of injury.’” Ctr. For Law & Educ., 396
F.3d at 1161 (quoting Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 938 (D.C.
Cir. 2014)). In other words, the plaintiff must allege facts “sufficient to demonstrate a
substantial likelihood that the third party directly injuring the plaintiff would cease doing so as a
result of the relief the plaintiff sought.” Renal Physicians Ass’n v. U.S. Dep’t of Health and 10 Human Servs., 489 F.3d 1267, 1275 (D.C. Cir. 2007); see also Klamath Water Users Ass’n v.
F.E.R.C., 534 F.3d 737, 739 (D.C. Cir. 2008).
Here, the plaintiffs complain about harms derived from the enforcement of the rights of
an independent third party not before the Court, namely, the Klamath Tribes. In these
circumstances, plaintiffs lack standing because they have demonstrated neither causation nor
redressability. To understand why this is the case, the nature of the tribal water rights enforced
by the tribes, the BIA, and OWRD are explained first.
1. Federally Protected Tribal Water Rights
In Winters v. United States, 207 U.S. 564, 576 (1908), the Supreme Court held that a
treaty establishing an Indian reservation implicitly created water rights necessary to carry out the
purposes of the reservation. As the Court has since explained, “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 Arizona v. California, 373 U.S. 546, 600 (1963) (“The Court in Winters
concluded that the Government, when it created that Indian Reservation, intended to deal fairly
with the Indians by reserving for them the waters without which their lands would have been
useless.”).
Winters’ recognition of water rights “rests on the idea that the reservation of public lands
for a public purpose implies the reservation of unappropriated, and thus available, water
appurtenant to the land to the extent necessary to fulfill that purpose.” Shoshone Bannock Tribes
v. Reno, 56 F.3d 1476, 1479 (D.C. Cir. 1995). Such rights are “federal right[s], derived from the
federal reservation of the land,” and thus “do[] not depend on state law.” Id.; see also Cappaert,
11 426 U.S. at 145 (reserved water rights are “governed by federal law,” and are “not dependent
upon state law or state procedures.”); F. Cohen, Handbook of Federal Indian Law (“Cohen’s
Handbook”) 1210 (2012) (“Indian reserved rights to water are determined by federal, not state,
law.”). As a general rule, reserved tribal water rights persist, regardless of actual use, unless they
are relinquished by treaty or explicitly abrogated by Congress. See United States v. Dion, 476
U.S. 734, 738–39 (1986) (“We have required that Congress’ intention to abrogate Indian treaty
rights be clear and plain” since “Indian treaty rights are too fundamental to be easily cast
aside.”); Navajo Nation v. Dep’t of the Interior, 876 F.3d 1144, 1155 (9th Cir. 2017) (“Winters
rights, unlike water rights gained through prior appropriation, are not lost through non-use.”
(citing Colville Confederated Tribes v. Walton, 647 F.2d 42, 51 (9th Cir. 1981)).
The water rights of the Klamath Tribes are reserved treaty rights of exactly the nature
expressly protected in Winters. In Adair, the Ninth Circuit held that the 1864 Klamath Treaty,
which explicitly gave the Tribes a right to maintain their traditional hunting and fishing
practices, implicitly created a water right necessary to fulfill that purpose. The Tribes’ water
right is “non-consumptive,” meaning that the Tribes are not entitled to “withdraw water from the
stream for agricultural, industrial, or other consumptive uses.” Adair, 723 F.2d at 1411. Instead,
“the entitlement consists of the right to prevent other appropriators from depleting the streams
below a protected level in any area where the non-consumptive right applies.” Id; see also Baley
v. United States, 942 F.3d 1312, 1322 (Fed. Cir. 2019) (characterizing the Klamath Tribes’ water
rights, as determined in Adair, in similar terms).5
5 Thus, despite the plaintiffs’ NEPA claim here, enforcement of the Tribes’ water rights actually serves an environmental purpose, since those rights entitle the Tribes to maintain water levels necessary to prevent the extinction of certain fish the Tribes traditionally hunted. See Baley, 942 F.3d at 1328–29 (explaining, as the Court of Federal Claims found, that the Klamath Tribes have an “aboriginal right to take fish [that] entitles them to prevent junior appropriators from withdrawing water from Upper Klamath Lake and its tributaries in amounts that would cause the extinction of the Lost River and short nose suckers.” (internal quotations omitted)); see also Defs.’ Reply
12 The priority date of the Tribes’ water rights—meaning the date at which the rights were
perfected—is “time immemorial.” Adair, 723 F.2d at 1414. That is because, as the Ninth
Circuit held in Adair, “[t]he rights were not created by the 1864 Treaty, rather, the treaty
confirmed the continued existence of these rights.” Id; see also Baley, 942 F.3d at 1328, 1341
(affirming the Court of Federal Claims’ conclusion that the Klamath Tribes’ water right carries a
“time immemorial” priority date).
As a result, as the plaintiffs concede, the Tribes’ water rights are senior to and take
priority over the subsequently established water rights of the plaintiffs. See Am. Compl. ¶ 15. In
Oregon, as in most Western states, state-law water rights are determined according to the
doctrine of prior appropriation. Adair, 723 F.2d at 1410. Prior appropriation is essentially a
first-in-time rule. Under this doctrine, “the one who first appropriates water and puts it to
beneficial use thereby acquires a vested right to continue to divert and use that quantity of water
against all claimants junior to him in point of time.” Arizona, 373 U.S. at 555. In Adair, the
Ninth Circuit held that the “Klamath Tribe is entitled to a reservation of water, with a priority
date of immemorial use, sufficient to support exercise of treaty hunting and fishing rights.”
Adair, 723 F.2d at 1415. Applying this federally protected right as against the state-law rights of
neighboring junior appropriators, the Klamath Basin Adjudication then quantified the specified
water levels to which the Tribes were entitled. See Am. Compl. ¶ 20 (describing the conclusions
of the ACFFOD).
Thus, the Klamath Tribes have a legally enforceable federal right to maintain streamflow
levels as quantified in the ACFFOD. That right, as is the case with all reserved tribal rights,
belongs to the tribes. Shoshone Bannock Tribes, 56 F.3d at 1479 (“With respect to reserved
at 17, n.8 (noting that “enforcement of the Tribes’ water rights is important to efforts to avoid adverse impacts to the health of the treaty-protected fishery.”).
13 water rights on Indian reservations, these federally-created rights belong to the Indians rather
than to the United States.”); see also Cohen’s Handbook at 1238 (“Reserved rights to water are
property rights held by tribes and their members.”). The United States holds legal title “only as
trustee.” Shoshone Bannock Tribes, 56 F.3d at 1479. Consistent with the United States’ trust
obligation to protect Indian treaty rights, the government can bring suit to enforce those rights,
but the rights themselves clearly “belong to the Tribes.” United States v. Washington, 853 F.3d
946, 967 (9th Cir. 2017), aff’d by an equally divided court, 138 S. Ct. 735 (2018).
2. Plaintiffs’ Focus on the Protocol Agreements is Misplaced
Set against these clearly established legal principles surrounding federally protected tribal
water rights, the plaintiffs cannot establish causation or redressability. First, with regard to
causation, the plaintiffs’ injuries are not “fairly traceable” to the Protocol Agreements. Lujan,
504 U.S. at 560 (internal quotation marks omitted). Nor is it “substantially probable” that the
procedural breaches alleged by the plaintiffs have caused or will cause “the essential injury to the
plaintiff’s own interest.” Fla. Audubon Soc., 94 F.3d at 665. The Protocol Agreements are not
the source of the Tribes’ authority to enforce their water rights against those of junior
appropriators, including plaintiffs. That authority is clearly established in federal law and stems
from the 1864 Treaty. With a priority date of “time immemorial,” as held in Adair, the Tribes’
federal water right is senior to plaintiffs’ water rights.
Meanwhile, the plaintiffs do not allege that the Protocol Agreements amplified or
otherwise distorted the Tribes’ federally protected rights to the detriment of the plaintiffs. The
calls for enforcement made between 2013 and 2018 by the Tribes and the BIA were calls to
enforce to the levels quantified by the ACFFOD or to lesser agreed-upon levels. See Am.
Compl. ¶¶ 25, 29, 32. In other words, the complained of calls, implemented in accordance with
14 the Protocol Agreements, did nothing to increase the Tribes’ water rights entitlement. In 2013,
2017, and 2018, the calls simply sought to protect the Tribes’ non-consumptive right as
quantified by the ACFFOD. See id. ¶¶ 25, 32. Between 2014 and 2016, the Tribes sought less
water, in accord with the now defunct UKBCA settlement agreement reached between the Tribes
and the plaintiffs. See id. ¶¶ 28–29. Thus, the ultimate cause of plaintiff’s essential injuries—
the waterflow reductions and shut-offs instituted by OWRD—is the Klamath Tribes’ federally
protected, senior water right, not the Protocol Agreements. The Protocol Agreements simply
establish a consultation procedure, as well as points of contact to facilitate communication with
OWRD when necessary.
Second, the plaintiffs have also failed to demonstrate redressability. When, as here, the
complained of harm depends on the behavior of a third party not before the Court, the plaintiffs
must allege facts “sufficient to demonstrate a substantial likelihood that the third party directly
injuring the plaintiff would cease doing so as a result of the relief the plaintiff sought.” Renal
Physicians Ass’n, 489 F.3d at 1275; see also Klamath Water Users Ass’n, 534 F.3d at 739. The
plaintiffs argue that invalidating the Protocol Agreements would redress their ultimate injuries.
See Pl.’s Opp’n at 13–15. Yet, even if the Protocol Agreements were invalidated, plaintiffs
provide no reason to believe the Klamath Tribes would cease to seek enforcement of their water
rights. As discussed, these rights, held in trust by the United States, belong to the Tribes. See
Shoshone Bannock Tribes, 56 F.3d at 1479; United States v. Washington, 853 F.3d at 967. With
or without the Protocol Agreements, the Tribes thus remain entitled to seek enforcement of their
water rights at the levels quantified by the ACFFOD.
The redressability problem plaintiffs face is analogous to that in St. John’s United Church
of Christ v. F.A.A., 520 F.3d 460 (D.C. Cir. 2008), a case that also involved harm caused by a
15 third-party. There, the D.C. Circuit held that the plaintiffs lacked standing to challenge the
procedure by which the Federal Aviation Administration (“FAA”) approved grant funding for an
airport extension project carried out by the city of Chicago. The plaintiffs alleged procedural
injury, arguing that the FAA violated the Religious Freedom Restoration Act in approving the
grant money. Nonetheless, the Circuit found no redressability since the plaintiffs failed to show
a “substantial probability” that the city—the third-party source of plaintiff’s complained of
harm—would have abandoned the airport extension without the FAA’s grant funds. St. John’s
United Church, 520 F.3d at 463. The “redressability obstacle the petitioners face,” the Circuit
explained, “is uncertainty over what Chicago would do—not the FAA.” Id.
Likewise, in Klamath Water Users Association, the D.C. Circuit found no redressability
when a plaintiff failed to show that third-party regulatory decisions responsible for alleged harm
were likely to change as a result of a favorable decision. In that case, the Klamath Water Users
Association sought relief against the Federal Energy Regulatory Commission (“FERC”), which
had decided not to renew a contract provision setting low electricity rates for Klamath Basin
irrigators in Oregon and California in FERC’s lease agreement with PacifiCorp, a power
company, for the Link River Dam. 534 F.3d at 736–38. Separately, the Oregon Public Utility
Commission and California Public Utilities Commission, which had “independent authority to
fix the rates charged … to [their] retail customers,” id. at 736, decided to charge irrigators in the
Klamath Basin “full tariff rates” rather than the lower rates established in FERC’s prior contract,
Id. at 738. The Circuit held that the water association “failed to demonstrate redressability,” id.
at 739, because it “offered no reason to believe that a decision requiring FERC to include the
1956 contract in PacifiCorp’s annual licenses would have such an effect on the retail rate
decisions of California and Oregon,” id. at 740. The court further explained that, when “relief
16 for the petitioner depends on actions by a third party not before the court, the petitioner must
demonstrate that a favorable decision would create ‘a significant increase in the likelihood that
the plaintiff would obtain relief that directly redresses the injury suffered.’” Id. at 739 (quoting
Utah v. Evans, 536 U.S. 452, 464 (2002)). That was not the case in Klamath Water Users, since
the ultimate harm—increased power costs—was unlikely to be redressed by a favorable decision
as to FERC, given Oregon and California’s independent rate-setting authority.6
In yet another closely analogous case, Ashley v. U.S. Dep’t of the Interior, 408 F.3d 997
(8th Cir. 2005), the Eighth Circuit applied this same principle concerning the lack of
redressability when dependent on a third party’s choices. There, the Sioux tribe issued bonds
and, with government approval, assigned certain funds received from a federal development
grant to the purchaser of the bonds. Id. at 999. The plaintiffs challenged the government’s
approval, arguing—as plaintiffs do here, Am. Compl. ¶¶ 44, 46—that the government’s action
was ultra vires. Finding that no order in the case “would be likely to remedy the injuries
complained of” since “the Tribe is not a defendant and none of the defendants controls the
Tribe’s challenged behaviors,” id. at 999–1000, the case was dismissed for lack of standing, id.
at 999. The court reasoned that undoing the government’s approval of the bond issuance would
do nothing “to prevent the Tribe from spending trust money on a new bond deal of the same
6 The D.C. Circuit recently found that plaintiffs had sufficiently met the redressability requirement for standing when their alleged harm was due, in part, to the decision of a third party not before the court. See Woodhull Freedom Foundation v. United States, No. 18-5298, 2020 WL 398625, (D.C. Cir. Jan. 24, 2020). Woodhull confirmed the long-standing redressability standard that “[w]here the requested relief for the [plaintiff] depends on actions by a third party not before the court, the plaintiff must demonstrate that a favorable decision would create a significant increase in the likelihood that the plaintiff would obtain relief that directly redresses the injury suffered.” Id. at *6 (internal quotation marks omitted) (citing Klamath Water Users Ass’n, 534 F.3d at 739)). Applying this standard, the Court found that the third party in the case—Craigslist—would act differently if the challenged statute, the Allow States and Victims to Fight Online Sex Trafficking Act (“FOSTA”), were struck down, citing evidence that Craigslist had removed the plaintiff’s massage listings, which caused the complained of harm, to avoid anticipated liability under FOSTA, and had clearly expressed “its desire” to restore such listings if legally feasible in the future. See id. at *6. Woodhull is thus distinguishable from this litigation, where plaintiffs, as explained above, have failed to demonstrate that the Klamath Tribes are likely to abandon enforcement of their senior water rights absent the challenged Protocol Agreements.
17 sort.” Id. at 1000. “The underlying difficulty for the plaintiffs,” as in St. John’s United Church,
was that “they ‘seek to change the defendant’s [i.e., the government’s] behavior only as a means
to alter the conduct of a third party [the Tribe], not before the court, who is the direct source of
the plaintiff[‘s] injury.’” Id. at 1003 (alterations in original) (quoting Common Cause v. Dep’t of
Energy, 702 F.2d 245, 251 (D.C. Cir. 1983)).
Here, as in St. John’s United Church, Klamath Water Users Association, and Ashley, the
plaintiffs challenge government action in order to remedy harm ultimately caused by
enforcement of a third-party’s senior water rights. Yet the third party, the Klamath Tribes, are
entitled to enforce their senior water rights, as established in Adair and quantified by the
ACFFOD, regardless of whether the Protocol Agreements stand. In these circumstances, the
plaintiffs have not shown, as they must, that the Tribes are likely to abandon enforcement if the
remedy plaintiffs seek—rescission of the challenged Protocol Agreements, see Am. Compl.,
Prayer for Relief—is granted.
Accordingly, this case must be dismissed due to the plaintiffs’ lack of standing.
B. The Plaintiffs’ State-Law Arguments Are Unavailing
In a last-gasp effort to proceed with this lawsuit, the plaintiffs argue that another Federal
law, plus Oregon state law and a state administrative decision, would prevent the Tribes from
enforcing their rights independently. See Pl.’s Opp’n at 8–12. These arguments are incorrect.
Plaintiffs rely first on the McCarran Amendment, 43 U.S.C. § 666, a federal statute enacted in
1952 that waives federal sovereign immunity to allow for “the joinder of the federal government
in state suits for the general adjudication of all water rights in river systems and for the
administration of the adjudicated rights.” Cohen’s Handbook at 1242; see also Colo. River
Water Conservation Dist. v. United States, 424 U.S. 800, 802–03 (1976). While the McCarran
Amendment’s sovereign immunity waiver applies to Indian water rights held in trust by the 18 federal government, see Colo. River Water, 424 U.S. at 809–12, the Supreme Court has made
clear this law “in no way changes the substantive law by which Indian rights in state water
adjudications must be judged,” Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 571 (1983);
see also Colo. River Water, 424 U.S. at 813 (“The Amendment in no way abridges any
substantive claim on behalf of Indians under the doctrine of reserved rights.”). The fact that the
Klamath Tribes’ reserved rights were quantified in state proceedings, and are physically enforced
by the state’s water department, does nothing to alter the substantive rights themselves. That is
to say, the McCarran Amendment does not—as plaintiffs seem to suggest, see Pl.’s Opp’n at 11–
13—compromise, revise, or otherwise diminish the Klamath Tribes’ water rights.
Plaintiffs rely on two Oregon supreme court cases to bolster their position, but neither
case supports the proposition that the Klamath Tribes lack the ability to enforce their water rights
absent the Protocol Agreements. In Fort Vannoy Irr. Dist. v. Water Resources Com’n, 188 P.3d
277 (Or. 2008), the Oregon Supreme Court interpreted a state statute, ORS 540.510(1),
governing the diversion or transfer of certificated water use, as part of the determination whether
a private water user could make such a transfer without the consent of the irrigation district of
which he was a member. The state statute at issue and the broader question addressed by the
court—“whether the ownership of water rights resides with a water organization or its
members,” see id. at 286—play no role in the outcome of this case. Fort Vannoy says nothing
about Indian law and tribal water rights, for which the substantive basis is federal law, not state
law. The Klamath Tribes’ rights important to this case derive from the Klamath Treaty, not the
doctrine of prior appropriation or, as was dispositive in Fort Vannoy, “the intent of [the Oregon]
legislature as expressed in the Water Rights Act and the Irrigation District Law.” Id. at 286–87.
19 The plaintiffs’ reliance on Klamath Irr. Dist. v. United States, 227 P.3d 1145 (Or. 2010)
(en banc), see Pls.’ Opp’n at 11, is similarly misplaced because it deals solely with questions of
state law, not with federal reserved rights. In Klamath Irrigation District, the Oregon Supreme
Court addressed three questions certified by the Federal Circuit, the second of which was
“whether beneficial use alone is sufficient to acquire a beneficial or equitable property interest in
a water right to which another person holds legal title.” Id. at 1160. The state court’s subsequent
analysis about how to establish a beneficial use right through appropriation is not relevant here,
since the Klamath Tribes’ rights are established by treaty, not by appropriation. Indeed, after the
certified state-law questions had been answered, the Court of Federal Claims and the Federal
Circuit held that the water rights of the private landowner appellants in the case “were
subordinate to the Tribes’ federal reserved water rights,” Baley, 942 F.3d at 1341, and that the
“the superior water rights of the Tribes required that the Bureau [of Reclamation] temporarily
halt deliveries of water to [private landowner] appellants,” id. at 1331.
Finally, the plaintiffs argue that OWRD “expressly rejected the Tribes’ attempt to secure
legal title in their own name to a water right,” Pl.’s Opp’n at 8, by pointing to a 2014 order of
determination issued as part of the Klamath Basin Adjudication, see Amended Mot. Requesting
Judicial Notice, Ex. 4, Corrected Partial Order of Determination (“Corrected Partial Order”)
(Feb. 28, 2014), ECF No. 21-6. The order of determination, however, simply does not do what
the plaintiffs say it does. During the adjudication, the United States filed multiple claims
concerning the “hunting, trapping, fishing and gathering purposes of the Klamath Treaty of
1864” on behalf of the tribes. See Corrected Partial Order at 12. The Tribes then filed an
additional claim “incorporate[ing] the United States’ claims in this case by reference.” Id.
ORWD dismissed this additional claim, which simply restated by reference the claims already
20 filed, as “duplicative of the United States’ claims,” id., not because the Tribes lacked authority to
seek enforcement of their rights. In other words, the order did not “expressly reject[] the Tribes’
attempt to secure legal title in their own name to a water right,” Pl.’s Opp’n at 8, but merely
disregarded a set of duplicative claims. Plaintiffs’ state-law arguments are thus entirely
unavailing.
The plaintiffs have fallen far short of demonstrating that the harms they allege are caused
by the challenged Protocol Agreements or would be redressed by rescission of those agreements,
since the relief they seek, including “prohibiting defendants from issuing any more calls,” Am.
Compl., Prayer for Relief, ¶ 4, would not stop enforcement of the water rights held by the
Klamath Tribes, a third party not before the Court. For either of these shortcomings, the
plaintiffs lack standing.
IV. CONCLUSION
For the foregoing reasons, the defendants’ Motion to Dismiss, ECF No. 17, is granted
because the plaintiffs lack standing. An accompanying Order consistent with this Memorandum
Opinion will be entered contemporaneously.
Date: January 31, 2020
__________________________ BERYL A. HOWELL Chief Judge