Desert Water Agency v. United States Department of the Interior

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DESERT WATER AGENCY, No. 14-55461
Plaintiff-Appellant,
D.C. No.
v. 5:13-cv-00606-
DMG-OP
UNITED STATES DEPARTMENT OF
THE INTERIOR; KEVIN HAUGRUD,
Acting U.S. Secretary of the Interior; OPINION
UNITED STATES OF BUREAU OF
INDIAN AFFAIRS; MICHAEL S.
BLACK, Acting Assistant Secretary
of Indian Affairs,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding

Argued and Submitted August 3, 2016
Pasadena, California

Filed March 7, 2017

Before: Diarmuid F. O’Scannlain, Johnnie B. Rawlinson,
and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge O’Scannlain
2 DESERT WATER AGENCY V. DEP’T OF INTERIOR

SUMMARY*

Standing

The panel affirmed the district court’s dismissal for lack
of standing and ripeness of a complaint brought by the Desert
Water Agency (“DWA”), a political subdivision of the State
of California, against the United States Department of the
Interior and its Bureau of Indian Affairs, challenging a federal
regulation that DWA believed might preempt certain taxes
and fees DWA assessed against non-Indians who leased lands
within an Indian reservation.

New federal regulation 25 C.F.R. § 162.017 concerns
taxes applied to leases approved on Indian lands to third
parties. DWA provides water supplies and water services to
businesses and residences in Riverside County, California,
and charges fees and taxes to non-Indians who lease land
from the Agua Caliente Band of Cahuilla Indians within the
Agua Caliente Indian Reservation.

The panel held that § 162.017 did not purport to change
existing law, and therefore, did not itself operate to preempt
DWA’s charges, and did not command DWA to modify its
behavior by doing or refraining from doing anything. The
panel concluded that DWA lacked standing because it had not
suffered a cognizable injury at the hands of the Department
of the Interior. Finally, the panel held that it lacked
jurisdiction to issue a declaratory judgment that DWA’s
charges would survive a preemption challenge under White

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 DESERT WATER AGENCY V. DEP’T OF INTERIOR 3

Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980),
because the dispute between DWA and the Department of the
Interior was over.

COUNSEL

Roderick E. Walston (argued) and Steven G. Martin, Best
Best & Krieger LLP, Walnut Creek, California, for Plaintiff-
Appellant.

Matthew Littleton (argued), John H. Turner, Jr., Elizabeth
Ann Peterson, and William B. Lazarus, Attorneys; John C.
Cruden, Assistant Attorney General; Environment & Natural
Resources Division, United States Department of Justice,
Washington, D.C.; Bethany Sullivan and Jennifer L. Turner,
Office of the Solicitor, United States Department of the
Interior, Washington, D.C.; for Defendants-Appellees.
4 DESERT WATER AGENCY V. DEP’T OF INTERIOR

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether a political subdivision of the
State of California has standing to challenge a federal
regulation it believes might preempt certain taxes and fees it
assesses against non-Indians who have leased lands within an
Indian Reservation.

I

A

The Desert Water Agency (“DWA”) is a political
subdivision of the State of California.1 DWA provides water
supplies and water services to businesses and residences in
Riverside County. DWA charges those parties a variety of
fees and taxes in order to recoup its costs and expenses.
Parties subject to DWA’s charges include non-Indians who
lease lands from the Agua Caliente Band of Cahuilla Indians
(the “Tribe”) within the Agua Caliente Indian Reservation.
The lessees have erected a variety of permanent
establishments within the reservation, including homes and
businesses such as hotels, restaurants, and stores. DWA
imposes its charges on the lessees themselves, and not on the
Tribe or its members.

1
Because this case is before us on appeal from a motion to dismiss,
we recite the facts as alleged in DWA’s complaint, and we assume them
to be true. See, e.g., Harris v. Rand, 682 F.3d 846, 850–51 (9th Cir.
2012).
 DESERT WATER AGENCY V. DEP’T OF INTERIOR 5

The United States Department of the Interior (“Interior”)
is an executive department charged, among other duties, with
managing and administering the lands of Indian reservations.
The Bureau of Indian Affairs (“BIA”) is an agency within
Interior that oversees programs, activities, and operations
relating to Indian lands and affairs. 25 U.S.C. § 2.

One of Interior’s responsibilities is to approve the leasing
of Indian land to third parties. See, e.g., id. § 415(a). Interior
has promulgated a host of regulations governing the
administration of such leases, codified at 25 C.F.R. part 162.
Beginning in 2011, Interior overhauled such regulations
through notice and comment rulemaking; the new rules
became effective January 4, 2013. See Residential, Business,
and Wind and Solar Resource Leases on Indian Land, 77 Fed.
Reg. 72,440 (Dec. 5, 2012) (codified at 25 C.F.R. pt. 162).

Among the new regulations is 25 C.F.R. § 162.017,
entitled “What taxes apply to leases approved under this
part?” The relevant subsection states that, “[s]ubject only to
applicable Federal law, the leasehold or possessory interest is
not subject to any fee, tax, assessment, levy, or other charge
imposed by any State or political subdivision of a State.
Leasehold or possessory interests may be subject to taxation
by the Indian tribe with jurisdiction.” 25 C.F.R. § 162.017(c).
Subsection (a) applies the same language to “permanent
improvements on the leased land,” while subsection (b) does
likewise for “activities under a lease conducted on the leased
premises.” 25 C.F.R. § 162.017(a)–(b).

Concerned by the possibility that Interior had just
attempted to preempt its charges, DWA promptly brought suit
in federal district court under the Administrative Procedure
6 DESERT WATER AGENCY V. DEP’T OF INTERIOR

Act, 5 U.S.C. § 702, naming Interior and the BIA as
defendants.

B

Before describing the substance of DWA’s complaint, it
will be helpful to summarize the law that has long governed
Indian preemption claims.

For many decades courts have struggled to determine
whether and when States may regulate the conduct of non-
Indians engaged in activities on tribal lands. In White
Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980), the
Supreme Court held that courts must undertake a fact-specific
balancing test in order to decide whether federal law
preempts any particular state effort to regulate non-Indian
conduct on tribal lands. Bracker explains that “[t]his inquiry
is not dependent on mechanical or absolute conceptions of
state or tribal sovereignty, but has called for a particularized
inquiry into the nature of the state, federal, and tribal interests
at stake, an inquiry designed to determine whether, in the
specific context, the exercise of state authority would violate
federal law.” Id. at 144–45.

C

DWA’s complaint advances two different theories, each
premised on a different interpretation of § 162.017. DWA’s
first claim is that § 162.017’s reference to “applicable federal
law” incorporates the Bracker test and other existing federal
statutes, such that § 162.017 does not effect any substantive
change in federal Indian preemption law. If we agree with
such interpretation, DWA asks for a declaratory judgment
stating that § 162.017 “does not apply to and preclude the
 DESERT WATER AGENCY V. DEP’T OF INTERIOR 7

application of DWA’s charges upon lessees of lands within
the Agua Caliente Indian Reservation, because DWA’s
charges fall within the exception provided in the regulation
for taxes and other charges authorized under ‘applicable
federal law.’” In other words, DWA is asking us not only to
say that Bracker is still the law of the land, but also to declare
that, under Bracker, all of DWA’s charges are enforceable
and definitively not preempted.

DWA’s alternative claim is that if § 162.017 does not
incorporate Bracker and related statutory law—in other
words, if § 162.017 purports to displace existing law and to
preempt DWA’s charges immediately, of its own force—then
§ 162.017 must be declared invalid on the theory that Interior
had no authority to issue legislative rules preempting DWA’s
charges.

Despite its apprehensions about § 162.017, DWA’s
complaint does not allege that it has changed its behavior in
any way (for example, by ceasing to assess charges). Nor
does its complaint allege that Interior or the BIA has
threatened to take any enforcement action against DWA in
response to its decision to continue assessing charges. And
the complaint does not allege that any leaseholders have
withheld payment or objected to paying DWA’s charges.2

2
About nine months after DWA brought this action against Interior,
the Tribe filed suit against Riverside County, invoking § 162.017 and
seeking declaratory and injunctive relief barring the County from
assessing a possessory interest tax on lessees of Reservation lands. We
GRANT DWA’s request that we take judicial notice of the Tribe’s
complaint. The district court in that action held that § 162.017 did not
replace Bracker or otherwise preempt the County’s tax on its own, and the
Tribe subsequently dismissed its suit voluntarily. In addition, after DWA
filed its complaint, the County received a handful of letters from lessees
8 DESERT WATER AGENCY V. DEP’T OF INTERIOR

The district court dismissed DWA’s complaint for lack of
standing. The district court emphasized that DWA’s
complaint never alleged that any leaseholder had refused to
pay charges; never alleged that Interior or the BIA had
threatened or planned any enforcement proceeding against it;
and never alleged that DWA had done anything to change its
behavior in response to § 162.017. Hence, the district court
concluded that there is no evidence that DWA had suffered
(or immediately would suffer) injury of any sort due to the
regulation.

The district court also held that DWA’s suit is not
prudentially ripe. The district court reasoned that even if the
regulation purports to change existing law by operating to
preempt State taxes on applicable leases, it is not yet clear
whether any of DWA’s charges would be affected, because
the regulation also has a “grandfather clause” stating that it
does not apply to certain leases approved before January 4,
2013. The district court also reasoned that DWA has not
shown any hardship, again for the reason that DWA has not
alleged that it has changed its behavior or that any lessees
have refused to pay.

DWA timely appealed.

and members of the Tribe asserting that county taxes (including DWA’s
charges) are prohibited under § 162.017. DWA also received one claim
for a reimbursement, which it denied.
 DESERT WATER AGENCY V. DEP’T OF INTERIOR 9

II

A

We review the district court’s standing and ripeness
determinations de novo. La Asociacion de Trabajadores de
Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1087 (9th
Cir. 2010). The parties on appeal have largely collapsed their
discussion of the two concepts into a discussion of standing.
We will do the same.

B

The “irreducible constitutional minimum of standing”
consists of three elements: the plaintiff must have (1) suffered
an injury in fact; (2) that was caused by the defendant’s
challenged conduct; and (3) that would be redressed by the
remedy the plaintiff seeks. Lujan v. Defs. of Wildlife,
504 U.S. 555, 560–61 (1992).

In order to determine whether DWA has standing to
challenge § 162.017, we must first decide what exactly
§ 162.017 purports to do—that is, in what way, if any, it
purports to change the authority States like California
currently enjoy to tax non-Indian lessees on tribal lands. The
parties disagree sharply about how best to understand
§ 162.017. But only by first determining what that regulation
means can we determine how (if at all) it injures DWA, and
to what extent (if any) such injury would be redressed by the
declaratory judgment DWA seeks.3

3
Consistent with the above principles, the law of standing draws a
crucial distinction between plaintiffs who are the “object” of challenged
agency action, and those who are not. Defs. of Wildlife, 504 U.S. 561–62.
10 DESERT WATER AGENCY V. DEP’T OF INTERIOR

On appeal, DWA argues that it has standing to bring this
lawsuit because, it claims, § 162.017 purports to preempt its
laws directly and immediately. That is, DWA believes that
the agency meant § 162.017 to displace the Bracker balancing
test and to command DWA to change its behavior
immediately by ceasing to charge leaseholders on tribal lands.
DWA’s briefing is devoted overwhelmingly—almost
exclusively—to the proposition that a State has standing to
challenge a federal statute or regulation that preempts its
laws.

Interior’s view is the polar opposite. According to
Interior, DWA fundamentally misunderstands § 162.017.
Interior says that, so far as preemption is concerned,
§ 162.017 has no legal effect at all: it does not purport to
preempt any specific state taxes—including DWA’s—or to
alter the judge-made and judge-administered balancing test
that has governed Indian preemption cases since at least 1980,
when the Supreme Court decided Bracker. The only thing
§ 162.017 does, according to Interior, is to state publicly the
agency’s interpretation of existing law (namely, Bracker),
and to clarify its opinion that under Bracker, the federal and
tribal interests at stake are strong enough to have a
preemptive effect in the generality of cases. But on the
ultimate question of whether any specific state tax or charge
is preempted under Bracker, Interior is agnostic; courts must
answer such questions in the same way they always have, by

But naturally, in order to say whether a plaintiff is the “object” of a given
regulation—whether it purports to regulate the plaintiff’s primary
conduct—a court must first determine how, if at all, such regulation alters
his rights, obligations, privileges, powers, or liabilities. Given the parties’
deep disagreement over the nature of § 162.017, it should come as no
surprise that they also disagree about whether DWA is an “object” of the
regulation.
 DESERT WATER AGENCY V. DEP’T OF INTERIOR 11

applying the Bracker test de novo. Interior’s views as set out
in § 162.017 may well influence courts when they gauge the
federal and tribal interests under Bracker, but Interior does
not contend that § 162.017 has any independent legal effect.
Interior has consistently advanced this interpretation of the
regulation in its briefs in this case, in an amicus brief filed in
an unrelated lawsuit brought by the Tribe against Riverside
County, and at oral argument here.

C

We read § 162.017 as Interior does. The regulation does
not purport to change existing law, and therefore it does not
operate to preempt DWA’s charges. We adopt this reading
for several reasons.

1

First, it is consistent with the text of § 162.017. As
Interior emphasizes, § 162.017 begins with a caveat:
“[s]ubject only to applicable Federal law, the leasehold or
possessory interest is not subject to any fee, tax, assessment,
levy, or other charge imposed by any State or political
subdivision of a State.” 25 C.F.R. § 162.017(c) (emphasis
added). Interior construes the italicized language as a sort of
savings clause, asserting that “the Bracker test is subsumed
within the phrase ‘applicable Federal law.’” Indeed, Interior
claims that it “could have rephrased § 162.017 ‘to state
simply that taxes may be assessed if permitted by applicable
law on land, improvements, and activities,’” as one
commenter had proposed doing with respect to a related
regulation. See Rights-of-Way on Indian Land, 80 Fed. Reg.
72,492-01, 72,507 (Nov. 19, 2015) (codified at 25 C.F.R. pt.
169). Consistent with that understanding, the preamble to
12 DESERT WATER AGENCY V. DEP’T OF INTERIOR

§ 162.017’s Notice of Proposed Rulemaking says that the
regulation simply “[c]larif[ies]” the agency’s view “that
improvements on trust or restricted land are not taxable by
States or localities.” Residential, Business, and Wind and
Solar Resource Leases on Indian Land, 76 Fed. Reg. 73,784-
01, 73,785 (Nov. 29, 2011) (to be codified at 25 C.F.R. pt.
162) (emphasis added). Clarifying the agency’s
understanding of how existing law applies in general is very
different from attempting to change existing law.

To be sure, there is other language—mostly in the
preamble to the final rule—that arguably supports DWA’s
interpretation. In particular, the preamble states that “[t]he
Federal statutes and regulations governing leasing on Indian
lands . . . occupy and preempt the field of Indian leasing. The
Federal statutory scheme for Indian leasing is comprehensive,
and accordingly precludes State taxation.” 77 Fed. Reg. at
72,447. But that statement comes immediately after the
preamble which implies that the judge-administered Bracker
regime remains controlling law. Id. (“Federal courts apply a
balancing test to determine whether State taxation of non-
Indians engaging in activity or owning property on the
reservation is preempted. White Mountain Apache Tribe v.
Bracker, 448 U.S. 136, 143 (1980). The Bracker balancing
test requires a particularized examination of the relevant
State, Federal, and tribal interests. In the case of leasing on
Indian lands, the Federal and tribal interests are very
strong.”).

Even if a purely textual analysis might present a close
call, we ultimately conclude that the language tips in favor of
Interior’s view. As noted, the language of the regulation
itself—as distinct from the preamble—is perfectly consistent
with the agency’s view that § 162.017 leaves Bracker in place
 DESERT WATER AGENCY V. DEP’T OF INTERIOR 13

while merely setting forth the agency’s interpretation of how
Bracker should apply over the generality of cases, without
operating to preempt any specific state law. Indeed, recall
that DWA’s own complaint asserted that § 162.017 does not
change the current legal regime, precisely because Bracker
“is an ‘applicable federal law’ within the meaning of the
federal regulation.” That, of course, is exactly Interior’s
position. And while DWA is not bound by an argument it
made in the alternative, the fact that DWA made it at all
attests to its plausibility.

To the extent that the language in the regulation is
ambiguous, we defer to Interior’s interpretation. Auer v.
Robbins, 519 U.S. 452, 461–62 (1997). Here, as in Auer, we
have “no reason to suspect that the interpretation does not
reflect the agency’s fair and considered judgment on the
matter in question,” id., and the regulation more than
“comfortably bears” Interior’s reading, id. at 461.4

4
At oral argument, Interior expressly disclaimed the possibility that
§ 162.017’s language concerning preemption could constitute a
“legislative rule.” We agree; indeed, it is not clear that Interior has the
authority to preempt state laws, and it has never claimed such power.
Moreover, its consistently held interpretation of § 162.017 demonstrates
that it “never meant for the disputed [language] to have [preemptive]
effect.” Am. Tort Reform Ass’n v. Occupational Safety & Health Admin.,
738 F.3d 387, 390 (D.C. Cir. 2013). Because the preemption-related
language in § 162.017 does not “create ‘adverse effects of a strictly legal
kind’” and does not “‘command anyone to do anything or to refrain from
doing anything,’” Nat’l Park Hospitality Ass’n v. Dep’t of Interior,
538 U.S. 803, 809 (2003) (quoting Ohio Forestry Ass’n, Inc. v. Sierra
Club, 523 U.S. 726, 733 (1998)), such language appears to be nothing
more than an “interpretative rule, statement, guideline, or policy statement
[that] merely informs the public of the agency's views on the subject,” Am.
Tort Reform Ass’n, 738 F.3d at 393.
14 DESERT WATER AGENCY V. DEP’T OF INTERIOR

2

Furthermore, the reading of the regulation we adopt today
is consistent with the interpretation made by the Eleventh
Circuit, as well as with comments we have previously made
about the regulation, albeit in dicta.

First, the Eleventh Circuit recently decided a lawsuit
brought by the Seminole Tribe of Florida against Florida’s
Department of Revenue. Seminole Tribe of Fla. v. Stranburg,
799 F.3d 1324 (11th Cir. 2015). The Tribe alleged that two
Florida taxes were preempted by federal law, id. at 1326, and
they relied on § 162.017 to support their case, id. at 1337–38.
The Eleventh Circuit agreed with the Tribe in part, id. at
1326, but importantly for our purposes, the court effectively
construed § 162.017 as Interior construes it here: the court
conducted “a de novo Bracker analysis,” “declin[ing] to
accord the regulations deference” on the question whether the
specific Florida taxes were preempted, id. at 1335. Like
Interior does here, the Eleventh Circuit read § 162.017 to do
no more than “outline[] the Bracker balancing test and . . .
appl[y] it generally,” rather than to express a view on its
application to any specific tax or charge. Id. at 1337. Hence,
while the court acknowledged that the regulation might
“serve as evidence of the federal and tribal interests
involved,” the court concluded that § 162.017 “did not
examine Florida’s interests in imposing this particular Rental
Tax,” and so it could do no more than “inform the Bracker
balancing inquiry” which courts must undertake themselves.
Id. at 1338–39. The court therefore conducted a Bracker
inquiry just as it would have done had § 162.017 never been
promulgated.
 DESERT WATER AGENCY V. DEP’T OF INTERIOR 15

The Eleventh Circuit’s analysis aligns with Interior’s
representation that it “took no position in this case regarding
the validity of any particular charge imposed by DWA,”
precisely “[b]ecause the issue had not been presented to
Interior during the administrative process.”

Similarly, we recently declared that § 162.017 “‘merely
clarifies and confirms’ what [existing law] ‘already
conveys.’” Confederated Tribes of Chehalis Reservation v.
Thurston Cty. Bd. of Equalization, 724 F.3d 1153, 1157 n.6
(9th Cir. 2013) (quoting Watters v. Wachovia Bank, N.A.,
500 U.S. 1, 20–21 (2007)).

Thus, both the Eleventh Circuit (in a thorough analysis)
and a panel of our court (in dicta) have construed § 162.017
in a way that is incompatible with DWA’s assertion that the
regulation must be read to preempt its charges directly and
immediately. Rather, those cases echo the position we reach
today: that § 162.017 does not displace or modify
Bracker—or otherwise change existing law—and therefore it
does not of its own force operate to preempt any specific state
tax.5

III

Once we conclude that § 162.017 does not preempt
DWA’s charges, or otherwise require or forbid DWA to
change its behavior in any way, it follows that DWA lacks
standing to challenge the regulation. As we noted above,

5
To be clear, neither we nor Interior takes the position that DWA’s
specific charges are not preempted under Bracker. Such charges might
well be preempted, but courts will have to make that call, just as they
would have done if § 162.017 had never been passed.
16 DESERT WATER AGENCY V. DEP’T OF INTERIOR

DWA’s arguments are devoted almost entirely to the
proposition that a State has standing to challenge a federal
statute or regulation that preempts its laws. Obviously, such
argument loses much of its force if § 162.017 does not
preempt DWA’s charges at all.

As far as we can tell, DWA makes a single argument as
to why it would have standing to challenge § 162.017 even if
it has no preemptive effect. The argument seems to be that
§ 162.017 injures DWA because it encourages leaseholders
to object to paying DWA’s charges. And, the theory appears
to be, an order declaring the regulation invalid would redress
such injury because then the leaseholders would pay DWA’s
charges without objection. We think this theory is
inadequate.

DWA’s theory cannot be squared with the injury-in-fact
and redressability requirements in our standing jurisprudence.
With respect to injury-in-fact, mere “encouragement” of an
objection absent an imminent, concrete loss is insufficient to
establish standing. With respect to redressability, DWA is
asking us to invalidate § 162.017 in the hope that such relief
will cause a group of third parties who are not before the
court (i.e., non-Tribal leaseholders) to modify their behavior
in a way that DWA thinks will redound to its benefit. But the
problem is that the Supreme Court has consistently said that
a plaintiff in DWA’s position lacks standing if,
notwithstanding the relief sought, the third parties would
retain discretion to continue their harmful behavior or,
alternatively, if it is too speculative to conclude that they
would modify their behavior in the way the plaintiff desires.
Either reading of the redressability doctrine precludes DWA’s
standing under the circumstances presented here.
 DESERT WATER AGENCY V. DEP’T OF INTERIOR 17

For example, in Linda R.S. v. Richard D., 410 U.S. 614,
615–16 (1973), a single mother brought a lawsuit asking the
court to order the local district attorney to initiate child
support enforcement proceedings against the father of her
child. The Supreme Court held that she lacked standing
because even if she “were granted the requested relief, it
would result only in the jailing of the child’s father. The
prospect that prosecution will, at least in the future, result in
payment of support can, at best, be termed only speculative.”
Id. at 618. That is, even if the court were to order the local
prosecutor to go after the father of the plaintiff’s child, such
order would not have created a legal obligation on the part of
the father to pay child support (and whether he would in fact
pay support was anybody’s guess). The same is true here.
Invalidating § 162.017 would have no effect on leaseholders’
legal entitlement to bring a preemption suit against DWA;
and as was true of the father in Linda R.S., it is impossible to
conclude that the non-Indian leaseholders will change their
behavior in the way DWA anticipates even if it were to
prevail in this lawsuit.

Similarly, in Simon v. Eastern Kentucky Welfare Rights
Organization, 426 U.S. 26, 28–32 (1976), a group of indigent
plaintiffs challenged an IRS ruling that allowed nonprofit
hospitals to reduce the availability of free services and still
retain their charitable organization status. The plaintiffs
alleged that the IRS ruling made such hospitals less likely to
grant free services to indigents like themselves, id. at 33, but
the Court held that they lacked standing because their alleged
injury “result[ed] from the independent action of some third
party not before the court,” id. at 42—i.e., the hospitals who
denied them service, rather than the IRS, who was the named
defendant. The Court said it was too speculative to conclude
that the denials of service were caused by the IRS ruling, or
18 DESERT WATER AGENCY V. DEP’T OF INTERIOR

that the indigents would be granted free hospital access if the
IRS invalidated its ruling. Id. at 42–44. Likewise, because
§ 162.017 does not operate to preempt DWA’s charges,
whatever injury DWA suffers results from the independent
actions of third party lessees who are not before the court.
And DWA’s complaint does no more than speculate that
§ 162.017 makes such lessees more likely to object to paying
their charges.6

In short, if § 162.017 does not itself preempt DWA’s
charges, then § 162.017 cannot be said to have injured DWA
in a way that is both non-speculative and redressable by the
remedy DWA seeks. That means DWA lacks standing, as the
District Court properly held.

IV

Finally, we certainly lack jurisdiction to issue a
declaratory judgment that DWA’s charges would survive a
preemption challenge under Bracker. DWA is asking us to
decide whether leaseholders would have a valid defense
(preemption) in the event they refuse to pay and DWA brings
an enforcement action to collect, or a valid claim for
injunctive relief against DWA on the basis of federal
preemption. The proper vehicle to resolve that question is a
suit between DWA and one of the leaseholders, if one of

6
Whatever evidence DWA now alludes to (for example, the lone
reimbursement claim it received) postdates the filing of its complaint, and
is therefore irrelevant for purposes of standing. Defs. of Wildlife, 504 U.S.
at 569 n.4 (noting “our longstanding rule that jurisdiction is to be assessed
under the facts existing when the complaint is filed,” and that “a plaintiff
cannot retroactively create jurisdiction based on postcomplaint litigation
conduct”).
 DESERT WATER AGENCY V. DEP’T OF INTERIOR 19

them either sues DWA or refuses to pay DWA’s charges.7
But the leaseholders are not parties to this case, which is
between DWA and Interior. “The declaratory judgment
procedure . . . may not be made the medium for securing an
advisory opinion in a controversy which has not arisen.”
Coffman v. Breeze Corp., 323 U.S. 316, 324 (1945). The
question DWA wants us to answer—are the leaseholders
obligated to continue paying its charges?—is simply not
within the scope of the case or controversy between DWA
and Interior, which asks only whether Interior has changed
the law in such a way as automatically to render DWA’s
charges preempted. Because we decide that Interior has not
done so, the dispute between DWA and Interior is over.

V

We agree with Interior that § 162.017 does not itself
operate to preempt DWA’s charges, and does not command
DWA to modify its behavior by doing or refraining from
doing anything. Accordingly, we conclude that DWA lacks
standing because it has not suffered a cognizable injury at the
hands of Interior. The judgment of the district court is
therefore

AFFIRMED.

7
We note that DWA likely could not sue a leaseholder in federal
court, seeking a declaratory judgment that its charges are not preempted.
See Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1,
21–22 (1983) (“[F]ederal courts should not entertain suits by the States to
declare the validity of their regulations despite possibly conflicting federal
law. . . . [A] State’s suit for a declaration of the validity of state law . . .
is not within the original jurisdiction of the United States district courts.”).