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,

(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.

; Treaty with the Klamath (“Klamath Treaty”),

(1864). Article I of the Klamath Treaty granted the tribes “the exclusive right to hunt, fish,

and gather on their reservation.” Adair,

;

. Article II created a [trust

fund] designed to “advance [the Tribes] in civilization … especially in agriculture.”

In 1954, Congress terminated federal supervision of the Tribes. See Klamath

Termination Act,

(1954) (codified at

, 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,

(9th Cir. 1974). The Termination

Act did not, however, abrogate the Tribes’ treaty rights to hunt, fish, and gather.

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,

. Reservation lands were sold “to pay the withdrawn members,” while a

smaller portion was retained in trust under a “nongovernmental tribal management plan.”

In 1986, Congress restored the Klamath Tribes to federal recognition. See Klamath

Indian Tribe Restoration Act,

(1986) (codified at

). 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,

(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,

(D. Or. 1979), was affirmed, Adair,

(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,

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,

.

While protecting the Tribes’ water rights, the Ninth Circuit did not determine the precise

water levels subject to protection. See United States v. Braren,

(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

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.”

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;

(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,

(2013) (quoting

Kokkonen v. Guardian Life Ins. Co. of Am.,

(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,

, 612–13 (D.C. Cir.

2019) (quoting Spokeo, Inc. v. Robins,

(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),

, 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,

, 560–61 (1992)); see also Woodhull Freedom

Foundation, et al. v. United States, No. 18-5298,

, at *6 (D.C. Cir. Jan. 24,

2020); Carbon Sequestration Council v. E.P.A.,

(D.C. Cir. 2015); Grocery

Mfrs. Ass’n v. E.P.A.,

(D.C. Cir. 2012). “The party invoking federal

jurisdiction bears the burden of establishing these elements.” Lujan,

; see also

Twin Rivers Paper Co.,

(same). Absent subject-matter jurisdiction, the court

must dismiss a case. See Arbaugh v. Y & H Corp.,

, 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.

¶¶

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,

, 664–65 (D.C. Cir. 1996) (en banc); see also National Parks Conservation Ass’n v. Manson,

, 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,

(quoting Allen v. Wright,

(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.”

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.,

(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.,

(D.C. Cir. 2007); see also Klamath Water Users Ass’n v.

F.E.R.C.,

(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,

(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,

(1976); see also Arizona v. California,

(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,

(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

(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,

, 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,

(9th Cir. 2017) (“Winters

rights, unlike water rights gained through prior appropriation, are not lost through non-use.”

(citing Colville Confederated Tribes v. Walton,

(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,

. 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,

(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,

. 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,

(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,

. 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,

. 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,

. 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,

(“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,

. 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,

, 967 (9th Cir. 2017), aff’d by an equally divided court,

(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,

(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.,

. 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,

; see also Klamath Water Users Ass’n,

. 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,

; 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.,

(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,

. The “redressability obstacle the petitioners face,” the Circuit

explained, “is uncertainty over what Chicago would do—not the FAA.”

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,

(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,

(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.

. 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,”

at 999–1000, the case was dismissed for lack of standing,

. 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,

, (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,

)). 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,

(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,

, 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,

, 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,

(1983);

see also Colo. River Water,

(“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,

(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

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.”

at 286–87.

19 The plaintiffs’ reliance on Klamath Irr. Dist. v. United States,

(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.”

. 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,

, 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,”

.

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.”

ORWD dismissed this additional claim, which simply restated by reference the claims already

20 filed, as “duplicative of the United States’ claims,”

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

21