United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 23, 2020 Decided March 19, 2021
No. 20-5074
GERALD H. HAWKINS, INDIVIDUALLY AND AS A TRUSTEE OF
THE CN HAWKINS TRUST AND GERALD H. HAWKINS AND
CAROL H. HAWKINS TRUST, ET AL.,
APPELLANTS
v.
DEBRA A. HAALAND, SECRETARY OF THE INTERIOR,
ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-01498)
David J. Deerson argued the cause for appellants. With
him on the briefs were Damien M. Schiff and Dominic M.
Carollo.
John L. Smeltzer, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Jeffrey Bossert Clark, Assistant Attorney General, Eric Grant,
Deputy Assistant Attorney General, and Erika Kranz and
Daron T. Carreiro, Attorneys.
2
Before: ROGERS, KATSAS and RAO, Circuit Judges.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Ranchers in the Upper Klamath
Basin region of the State of Oregon who hold irrigation water
rights, sued to prevent the exercise of water rights that interfere
with the irrigation of their lands. The district court dismissed
their lawsuit for lack of standing under Article III of the
Constitution. Viewing their standing to turn on whether the
Klamath Tribes can call upon state officials to implement their
superior instream water rights without the consent of the
federal government, the ranchers challenge a Protocol
Agreement executed by the United States and the Tribes. They
contend that the federal government, as trustee of those water
rights, unlawfully delegated its call-making authority to the
Tribes and that absent such delegation, the Tribes would be
unable to secure state implementation of their water rights. The
ranchers maintain that the economic, environmental, and
recreational injuries they suffered because of water cut offs
imposed to satisfy the Tribes’ superior water rights are fairly
traceable to the federal government’s delegation of its authority
and could be redressed by invalidation of the Protocol, which
would restore the federal government’s call-making authority.
We conclude that the Protocol does not delegate federal
authority to the Tribes but recognizes the Tribes’ preexisting
authority to control their water rights under a Treaty in 1864
with the United States. Accordingly, the ranchers have not
established the causation or redressability necessary for
standing, and the dismissal of their complaint is affirmed.
I.
The Klamath Tribes have hunted, fished, and lived in the
Klamath River watershed of Southern Oregon for over a
3
thousand years. See Oregon Dep’t of Fish & Wildlife v.
Klamath Indian Tribe, 473 U.S. 753, 766 (1985); United States
v. Adair, 723 F.2d 1394, 1397–98 (9th Cir. 1983). In 1864, the
Tribes entered into a treaty with the United States in which they
ceded most of their aboriginal territory, approximately 22
million acres, excluding approximately 1.9 million acres that
the parties agreed would be held for the Tribes “as an Indian
reservation.” Oregon Dep’t, 473 U.S. at 755 (internal
quotation marks omitted) (quoting Treaty Between the United
States of America and the Klamath and Moadoc Tribes and
Yahooskin Band of Snake Indians (“1864 Treaty”) art. I, Oct.
14, 1864, 16 Stat. 707, 707–08).1 The Tribes reserved “the
exclusive right of taking fish in the streams and lakes” on the
reservation, 1864 Treaty art. I, 16 Stat. at 708, and of
“gathering edible roots, seeds, and berries within its limits,” id.,
and the United States agreed to compensate the Tribes for the
ceded lands in the form of federal expenditures to promote the
Tribes’ well-being and “advance them in civilization . . .
especially agriculture,” id. art. II, 16 Stat. at 708.
After establishing the Klamath Reservation, Congress
enacted the General Allotment Act of 1887, which authorized
subdivision of the reservation and allotment of parcels granted
in fee to individual members of the Tribes, as part of a policy,
since repudiated, “to extinguish tribal sovereignty, erase
reservation boundaries, and force the assimilation of Indians
into the society at large.” Upper Skagit Indian Tribe v.
Lundgren, 138 S. Ct. 1649, 1652–53 (2018) (internal quotation
marks omitted) (quoting Cnty. of Yakima v. Confederated
1
The Klamath Tribes are federally recognized as a single tribal
entity, but that entity is composed of three historically distinct
groups: the Klamath tribe, the Modoc tribe, and the Yahooskin band
of Snake Indians. See 1864 Treaty preamble, 16 Stat. at 707. The
court follows the practice of the parties to refer to “the Tribes” while
some older sources refer to the Klamath as a single “tribe.”
4
Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251,
254 (1992)). Since then Congress has addressed the federal
government’s relationship to the Tribes in ways directly
relevant here. Nearly a century later, Congress ended the
federal government’s historical role as trustee while
reaffirming the Tribes’ reserved aboriginal water rights. By
1986, Congress had restored certain of its trustee services to the
Tribes, but again expressly left the Tribes’ aboriginal water
rights in the Tribes’ exclusive control.2
The Klamath Termination Act of 1954 terminated federal
supervision of the Tribes and provided for disposition of their
reservation land that had not been allotted. Pub. L. No. 83-587,
§ 1, 68 Stat. 718, 718. It closed the tribal roll and provided that
tribal members could elect to withdraw from the Tribes and
receive a cash payout of the individual’s interest in tribal
property. Termination Act §§ 3–5, 68 Stat. at 718–19. The
Tribes’ property could be appraised and sold to fund individual
cash payments. Id. § 5, 68 Stat. at 719. The property of the
remaining members of the Tribes would be managed by a
private trustee or corporation. Id. All restrictions on sale or
encumbrance of land owned by members of the Tribes would
be removed four years after the Act became effective. Id. § 8,
68 Stat. at 720. Specifically, the Termination Act provided:
Upon removal of Federal restrictions on the property
of the tribe and individual members thereof, the
2
Regarding the federal government’s trust relationship with Indian
tribes, see COHEN’S HANDBOOK OF FEDERAL INDIAN LAW
§§ 5.05(1)(b)–(2), 15.03, 19.06 (Nell Jessup Newton ed., 2017)
(hereinafter “COHEN’S HANDBOOK”); see also Reid Peyton
Chambers, Judicial Enforcement of the Federal Trust Responsibility
to Indians, 27 STAN. L. REV. 1213 (1975); Mary Christina Wood,
Indian Land and the Promise of Native Sovereignty: The Trust
Doctrine Revisited, 1994 UTAH L. REV. 1471.
5
Secretary [of the Interior] shall publish in the Federal
Register a proclamation declaring that the Federal
trust relationship to the affairs of the tribe and its
members has terminated. Thereafter individual
members of the tribe shall not be entitled to any of the
services performed by the United States for Indians
because of their status as Indians and, except as
otherwise provided in this Act, all statutes of the
United States which affect Indians because of their
status as Indians shall no longer be applicable to the
members of the tribe, and the laws of the several
States shall apply to the tribe and its members in the
same manner as they apply to other citizens or persons
within their jurisdiction.
Id. § 18(a), 68 Stat. at 722. Regarding water and fishing rights,
the Termination Act provided:
(a) Nothing in this Act shall abrogate any water
rights of the tribe and its members, and the
laws of the State of Oregon with respect to the
abandonment of water rights by nonuse shall
not apply to the tribe and its members until
fifteen years after the [termination of the
federal trust relationship to the tribe].
(b) Nothing in this Act shall abrogate any fishing
rights or privileges of the tribe or the members
thereof enjoyed under Federal treaty.
Id. § 14, 68 Stat. at 722.
About 78% of the Tribes’ members elected to withdraw
and receive a payout. Klamath & Modoc Tribes v. United
States, 436 F.2d 1008, 1012 (Ct. Cl. 1971). Reservation
property not set aside to pay their claims was transferred to a
6
private trustee. Id. In 1961, the Secretary of the Interior
published a notice in the Federal Register that “the Federal trust
relationship to the affairs of the tribe and its members is
terminated.” Termination of the Federal Trust Relationship to
the Property of the Klamath Tribe of Indians Located in the
State of Oregon, and of Federal Supervision Over the Affairs
of the Individual Members Thereof, 26 Fed. Reg. 7362, 7362
(Aug. 12, 1961).
In 1986, Congress unwound some of the effects of the
Termination Act. The Klamath Indian Tribe Restoration Act
of 1986 restored the Federal trust relationship with the Tribes.
It provided:
All rights and privileges of the tribe and the members
of the tribe under any Federal treaty, Executive order,
agreement, or statute, or any other Federal authority,
which may have been diminished or lost under the
[1954 Termination Act] are restored, and the
provisions of such Act, to the extent that they are
inconsistent with this Act, shall be inapplicable to the
tribe and to members of the tribe after the date of the
enactment of this Act.
Pub. L. No. 99-398, § 2(b), 100 Stat. 849, 849. The Tribes were
restored to the status of a federally recognized tribe. Id. § 2(a),
100 Stat. at 849. The Act specified that it did not “alter any
property right or obligation,” and thus did not restore
previously alienated lands to the Tribes’ land base. See id.
§§ 2(d), 6, 100 Stat. at 850. It also expressly provided that the
Act would not “affect in any manner any hunting, fishing,
trapping, gathering, or water right of the tribe and its
members.” Id. § 5, 100 Stat. at 850. The United States
presently recognizes the Tribes as a tribal sovereign, 25 U.S.C.
§§ 3601(3), 5123(h), with inherent powers of self-government,
7
including powers over land and water rights except as reserved
by Congress. See Kahawaiolaa v. Norton, 386 F.3d 1271, 1273
(9th Cir. 2004); Burlington N. R.R. Co. v. Blackfeet Tribe of the
Blackfeet Indian Rsrv., 924 F.2d 899, 902 (9th Cir. 1991),
overruled on other grounds by Big Horn Cnty. Elec. Co-op.,
Inc. v. Adams, 219 F.3d 944, 953 (9th Cir. 2000); see also
Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 788 (2014);
Oregon Dep’t, 473 U.S. at 765–66; United States v. Shoshone
Tribe of Indians of Wind River Rsrv., 304 U.S. 111, 116–17
(1938); Indian Entities Recognized by and Eligible to Receive
Services from the United States Bureau of Indian Affairs, 84
Fed. Reg. 1200, 1202 (Feb. 1, 2019).
A.
Prior to passage of the Restoration Act, the determination
of competing claims to water in the Klamath Basin was
underway in the federal courts and under Oregon law. The
Tribes’ reserved water rights arise as an exception to the
doctrine of prior appropriation governing rights to use water
from river systems in Oregon and other western states, based
on acknowledgement that the establishment of an Indian
reservation and other federal reservations impliedly reserves
then-unappropriated water “to the extent needed to accomplish
the purpose of the reservation.” Cappaert v. United States, 426
U.S. 128, 138 (1976).
In 1975, the United States sued in federal court for a
declaration of water rights in the Williamson River drainage in
the Klamath Basin. Adair, 723 F.2d at 1398. The Tribes
intervened as a plaintiff. Id. at 1399. The State of Oregon
intervened as defendant and moved unsuccessfully for the
federal court to abstain to state proceedings. Id. The Court of
Appeals for the Ninth Circuit concluded that the Tribes held a
right to “a quantity of the water flowing through the reservation
8
. . . for the purpose of maintaining the [Tribes’] treaty right to
hunt and fish on reservation lands.” Id. at 1410. The right is
“non-consumptive” in that the holder is not entitled to
withdraw water from the stream but has “the right to prevent
other appropriators from depleting the stream[’s] waters below
a protected level in any area where the non-consumptive right
applies.” Id. at 1411. Further, the right carried a priority date
of “time immemorial,” and the amount of water protected
under the right was not to the flows present at the 1864 Klamath
Treaty, but rather to “the amount of water necessary to support
its hunting and fishing rights as currently exercised to maintain
the livelihood of Tribe members.” Id. at 1414–15.
Additionally, the court concluded that:
[T]he [federal] [g]overnment has no ownership
interest in, or right to control the use of, the Klamath
Tribe’s hunting and fishing water rights. The hunting
and fishing rights from which these water rights arise
by necessary implication were reserved by the Tribe
in the 1864 treaty with the United States. The hunting
and fishing rights themselves belong to the Tribe and
may not be transferred to a third party. Because the
Klamath Tribe’s treaty right to hunt and fish is not
transferable, it follows that no subsequent transferee
may acquire that right of use or the reserved water
necessary to fulfill that use.
Id. at 1418 (citations omitted). The court proceeded to
determine the extent of the federal government’s own water
right, id. at 1418–19, while leaving the quantification of the
Tribes’ water right to be determined in the state proceeding, id.
at 1399, 1407. In 1952, Congress had adopted the McCarran
Amendment, 43 U.S.C. § 666(a), which waived the United
States’ sovereign immunity and granted consent to join the
9
United States in any suit for the adjudication of rights to use of
a river system or other source.
Under Oregon law, a call system is used to allocate water.
The process, as relevant, begins when the Oregon Water
Resources Department (“OWRD”) collects the water claims
submitted by various persons, resolves objections to them, and
as needed holds a hearing on the claims. Or. Rev. Stat.
§§ 539.021, .030, .100, .110. OWRD will issue “findings of
fact and an order of determination . . . establishing the several
rights to the waters of the stream.” Id. § 539.130(1). Upon
issuance of the order, OWRD’s administrative determination is
in “full force and effect.” Id. § 539.130(4). OWRD files its
findings and order, along with the administrative record, in
Oregon Circuit Court for a non-jury adjudication, where
exceptions can be filed. Id. § 539.130(1), .150. While the
matter is pending before the Circuit Court, the division of water
from the stream involved in the appeal is made in accordance
with the order of OWRD. Id. § 539.170. Upon the “final
determination” of water rights, OWRD will issue “a certificate
setting forth the name and post-office address of the owner of
the right; the priority of the date, extent and purpose of the
right, and if the water is for irrigation purposes, a description
of the legal subdivisions of land to which the water is
appurtenant.” Id. § 539.140. To administer determined water
rights, OWRD has established water districts, id. § 540.010,
whose “watermasters” allocate water in accordance with the
users’ existing water rights of record in the OWRD, id.
§§ 540.020, .045(1)(a), with authority — when a holder of
water rights has placed a “call” for water — to suspend
conflicting upstream usages, see Or. Admin. R. 690-025-0025.
In 1975, the Klamath Basin Adjudication began when
OWRD announced the intent to investigate usage of the
Klamath River. The Tribes and the federal government filed
10
the water enforcement claims at issue in 1997. The federal
government’s claims (Nos. 625–40) included claims on behalf
of the Tribes, whose trust relationship had by then been
restored; the Tribes filed their own claim (No. 612), which
incorporated the claims made by the federal government.
Following a lengthy administrative process, an administrative
law judge in 2011 issued a proposed order approving the claims
of the federal government and the Tribes and quantifying the
flows “necessary to establish a healthy and productive habitat
to allow the exercise of the Klamath Tribes’ hunting, fishing,
trapping, and gathering rights guaranteed by the treaty of
1864.”3 OWRD’s Administrative Determination largely
confirmed the ALJ’s proposal as to the federal government’s
claims, but dismissed the Tribes’ omnibus claim (No. 612) as
“duplicative of the United States’ claims, not additive,”
because “[t]he United States holds the rights recognized herein
in trust for the Klamath Tribes.” Administrative
Determination, supra note 3, at 4898, 5074 (citing Colorado
River Water Conservation Dist. v. United States, 424 U.S. 800,
810 (1976)). It also provisionally confirmed water rights
claimed by the ranchers with priority dates of 1864 or later,
including irrigation water rights acquired from reservation
allottees. See Am. Compl. ¶¶ 5, 8. OWRD filed its
Administrative Determination in the Oregon Circuit Court, Or.
Rev. Stat. § 539.130(1), and the parties here, and other
claimants, filed exceptions, id. § 539.150. The Oregon Circuit
Court recently issued an opinion on Phase 3, Part 1, Group C
Motions, In re Waters of the Klamath River Basin, No.
3
Amended Corrected Findings of Fact and Order of Determination
at 5153, Klamath River Basin General Stream Adjudication (Feb. 28,
2014), https://www.oregon.gov/owrd/programs/WaterRights/
Adjudications/KlamathRiverBasinAdj/Pages/ACFFOD.aspx
(hereinafter “Administrative Determination”).
11
WA1300001 (Or. Cir. Ct. Feb. 24, 2021) (“Or. Cir. Ct. Op.,
Feb. 24, 2021”).
The Tribes and the federal government executed a
Protocol Agreement following OWRD’s Administrative
Determination in order “to position themselves to make [water
rights] calls in a timely and effective manner.” Protocol at 1
(May 2013). It provided that “[e]ach Party retains its
independent right to make a call” and that if after following a
consultation procedure “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. at 3. As amended in
2019, the Protocol extends some consultation deadlines and
adds that “the United States retains the right not to concur with
any call for water that is inconsistent with the [Administrative
Determination] or other legal obligations.” Protocol at 4 (Mar.
2019).
In June 2013, the Tribes issued enforcement calls to
OWRD. Am. Compl. ¶ 25. Oregon, the Tribes, and
landowners including most of the ranchers here then entered
into the Upper Klamath Basin Comprehensive Agreement (the
“Upper Basin Agreement”). Id. ¶ 26. The Tribes agreed to
forbear from enforcing the full extent of their reserved instream
water rights in exchange for commitments by the other parties
as to water use, riparian protection, and economic
development. Notice Regarding Upper Klamath Basin
Comprehensive Agreement, 82 Fed. Reg. 61,582, 61,582–83
(Dec. 28, 2017) (“Notice”). During 2014–16, the Tribes made
calls for flows at these lower levels. Am. Compl. ¶ 29. But, in
2017, citing a lack of progress in implementing the promised
benefits, the Tribes reverted to the higher water levels under
OWRD’s Administrative Determination. Id. ¶ 30. The federal
government terminated the Upper Basin Agreement in view of
Congress’s failure to approve the necessary funding. Notice,
12
82 Fed. Reg. at 61,583–84. In 2018 and 2019, the Tribes again
issued calls for the full enforcement of their water rights. Am.
Compl. ¶¶ 31–32.
B.
The ranchers filed the instant lawsuit against the federal
government in May 2019. In their amended complaint, they
alleged that after termination of the Upper Basin Agreement,
the Tribes “by and through the power and authority delegated
by” the federal government issued calls for enforcement of the
full extent of their instream flow water rights. Am. Compl.
¶¶ 31–32. OWRD’s enforcement of these calls, they alleged,
resulted in “widespread and severe curtailment” of water rights
for irrigation use on their lands, resulting in environmental and
economic injury, and that similar injury will result from future
calls. Id. ¶¶ 31–38. Specifically, the ranchers alleged they
have suffered and will continue to suffer the following injuries:
(1) reduction of wildlife on their ranches, (2) infestation of
undesirable plants, (3) the loss of plant communities, (4) lost
revenues, and (5) reduced property values. Id. ¶¶ 36–37. The
ranchers argued that the Protocol constitutes an unlawful
delegation to the Tribes of the federal government’s authority
to decide whether to concur in a call. Id. ¶¶ 41–46. Further,
they argued that the calls made in 2013 and 2017–19
constituted major federal actions for which an environmental
impact statement should have been prepared under the National
Environmental Policy Act (“NEPA”). Id. ¶¶ 47–53. As a
remedy, they asked the district court to set aside the Protocol,
all previous calls, and to enjoin any future calls by the federal
government until it “fully complied with the law,” including
“to make a final, independent decision on the propriety of a
call, having taken into account the general public interest and
welfare, as well as NEPA.” Id.
13
The district court dismissed the complaint for lack of
Article III standing. The court determined that the Klamath
Tribes “are entitled to enforce their senior water rights . . .
regardless of whether the Protocol . . . stand[s].” Mem. Op. 18
(Jan. 31, 2020). The ranchers thus could not demonstrate that
their injuries were traceable to the challenged Protocol or to
any action of the federal government. Id. at 10–15. Nor could
they show redressability because even if the federal
government were prohibited from enforcing the Tribes’ rights,
the district court concluded, the Tribes would do so themselves,
resulting in the same hardships to the ranchers. Id. at 15–21.
The ranchers appeal.
II.
To establish standing to litigate in the federal courts,
Article III of the Constitution requires a plaintiff to “present an
injury that is concrete, particularized, and actual or imminent;
fairly traceable to the defendant’s challenged behavior; and
likely to be redressed by a favorable ruling.” Dep’t of
Commerce v. New York, 139 S. Ct. 2551, 2565 (2019) (internal
quotation marks omitted) (quoting Davis v. Fed. Election
Comm’n, 554 U.S. 724, 733 (2008)). Causation requires a
“fairly traceable connection between the plaintiff’s injury and
the complained-of conduct of the defendant.” Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 103 (1998). And
redressability requires a litigant to demonstrate “a likelihood
that the requested relief will redress the alleged injury.” Id.
The ranchers frame their claims in terms of procedural
injury. They concede that as junior appropriators they have no
right to water that infringes the Tribes’ instream rights,
Appellants’ Br. 5–7, and priority enforcement of water rights
through a call system is in accordance with the nature of those
rights under Oregon law, see Montana v. Wyoming, 563 U.S.
14
368, 375–76 (2011); Klamath Irrigation Dist. v. United States,
227 P.3d 1145, 1150 (Or. 2010).
To establish traceability in a procedural-injury case, “an
adequate causal chain must contain at least two links:” (1) a
connection between the omitted procedure and a government
decision and (2) a connection between the government decision
and the plaintiff’s particularized injury. WildEarth Guardians
v. Jewell, 738 F.3d 298, 306 (D.C. Cir. 2013) (internal
quotation marks omitted) (quoting Fla. Audubon Soc’y v.
Bentsen, 94 F.3d 658, 668 (D.C. Cir. 1996)). The plaintiff is
not required to “show that but for the alleged procedural
deficiency the agency would have reached a different
substantive result. ‘All that is necessary is to show that the
procedural step was connected to the substantive result.’” Id.
(citations omitted) (quoting Massachusetts v. EPA, 549 U.S.
497, 518 (2007)). Claims for procedural violations also receive
a “relaxed redressability requirement” in which the plaintiff
need only show that “correcting the alleged procedural
violation could still change the substantive outcome in the
[plaintiff’s] favor” not “that it would effect such a change.”
Narragansett Indian Tribal Historic Pres. Office v. FERC, 949
F.3d 8, 13 (D.C. Cir. 2020). These relaxed standards do not
apply to the link between the government decision and the
plaintiff’s injury. See WildEarth Guardians, 738 F.3d at 306.
“[Alt]hough the plaintiff in a procedural-injury case is relieved
of having to show that proper procedures would have caused
the agency to take a different substantive action, the plaintiff
must still show that the agency action was the cause of some
redressable injury to the plaintiff.” Arpaio v. Obama, 797 F.3d
11, 21 (D.C. Cir. 2015) (internal quotation marks omitted)
(quoting Renal Physicians Ass’n v. U.S. Dep’t of Health &
Human Servs., 489 F.3d 1267, 1279 (D.C. Cir. 2007)).
15
Notably here, “[w]here traceability and redressability
depend on the conduct of a third party not before the court
‘standing is not precluded, but it is ordinarily substantially
more difficult to establish.’” Competitive Enter. Inst. v. FCC,
970 F.3d 372, 381 (D.C. Cir. 2020) (quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 562 (1992)). “The party invoking our
jurisdiction must show that the third party will act ‘in such
manner as to produce causation and permit redressability of
injury.’” Id. A permissible theory of standing “does not rest
on mere speculation about the decisions of third parties; it relies
instead on the predictable effect of Government action on the
decisions of third parties.” Dep’t of Commerce, 139 S. Ct. at
2566.
The ranchers trace their alleged injuries to OWRD orders
that compelled them to curtail irrigation of their lands. Am.
Compl. ¶¶ 25, 30–32. Those orders follow from the Tribes’
calls for enforcement of their reserved water rights. Id. ¶¶ 22–
25, 29–33. The Tribes and OWRD are third parties not joined
as defendants in the ranchers’ lawsuit here. Instead, the
ranchers sued only the federal government on the premise that
the Tribes would be unable to obtain enforcement of their calls
for water in the absence of concurrence by the federal
government. Am. Compl. ¶¶ 2, 38. To determine whether the
ranchers have standing, the court must determine whether the
federal government’s concurrence in or non-objection to the
Tribes’ enforcement calls will have a predictable effect on the
OWRD watermaster’s issuance of orders that require the
ranchers to curtail irrigation of their lands. For the following
reasons, we conclude that no such concurrence requirement
exists under federal or Oregon law, and that, consequently, the
ranchers cannot establish the causation or redressability
necessary for standing.
16
A.
The Tribes’ water rights have their source in federal law.
The 1864 Klamath Treaty extinguished the Tribes’ title to
ceded lands while preserving their “exclusive right” to hunt and
fish on reservation land. Art. I, 16 Stat. at 707–08. The scope
of the Tribes’ water rights under the Treaty is a question of
federal law. Under the “reserved water rights” doctrine, when
the federal government creates an Indian reservation, it
impliedly reserves “that amount of water necessary to fulfill the
purpose of the reservation.” Cappaert, 426 U.S. at 141. The
1864 Treaty thus reserved to the Tribes “a quantity of the water
flowing through the reservation . . . for the purpose of
maintaining [their] treaty right to hunt and fish on reservation
lands.” Adair, 723 F.2d at 1410. The nature of the federal
government’s trust relationship with the Tribes is also
governed by federal law, and the ranchers’ understanding of
the federal government’s role and the Protocol is
“fundamentally in error.” Appellees’ Br. 24.
The principles announced by the Supreme Court disfavor
the ranchers’ assertion of standing. In United States v. Mitchell
(“Mitchell I”), 445 U.S. 535 (1980), individual Indians who
had been allotted former reservation land sought damages from
the federal government for failing its fiduciary duties to
maximize the value of timber on the allotted land. Id. at 537.
The Supreme Court concluded that under the General
Allotment Act “the trust Congress placed on allotted lands is of
limited scope,” and held, therefore, that the Act did not give
rise to a claim for breach of fiduciary duty of timber
management. Id. at 542–43, 546. On remand, the U.S. Court
of Claims interpreted various statutes and regulations related to
timber management to impose fiduciary duties on the federal
government as trustee. The Supreme Court affirmed, holding
in United States v. Mitchell (“Mitchell II”), 463 U.S. 206
17
(1983), that the cited statutes and regulations vested in the
federal government “full responsibility to manage Indian
resources and land for the benefit of the Indians” and thereby
“establish[ed] a fiduciary relationship and define[d] the
contours of the United States’ fiduciary responsibilities.” Id.
at 224. Although this conclusion was “reinforced by the
undisputed existence of a general trust relationship between the
United States and the Indian people,” the Court principally
grounded its holding on the text of the statues and regulations,
which “clearly establish[ed] fiduciary obligations of the
[federal government] in the management” of the lands and
resources at issue. Id. at 224–26; see also COHEN’S HANDBOOK
§ 5.05(1)(b).
This court applied these principles in Shoshone-Bannock
Tribes v. Reno, 56 F.3d 1476 (D.C. Cir. 1995). There, as here,
a state had commenced a general stream adjudication and
joined the United States. Id. at 1478. The Shoshone-Bannock
Tribes argued that they were entitled to water rights beyond
their reservation’s boundaries based on a treaty provision
granting them the right to hunt on unoccupied land outside the
reservation. Id. When the federal government declined to
assert the off-reservation claims on their behalf, the tribes filed
suit seeking to compel the U.S. Attorney General to file their
claims. Id. at 1479. This court acknowledged that under the
federal doctrine reserved water rights on Indian reservations
“belong to the Indians rather than to the United States, which
holds them only as trustee.” Id. Recognizing that the Attorney
General generally retained discretion to conduct litigation on
behalf of the United States, the court noted that the tribes had
identified no statute or other restriction limiting that discretion.
Id. at 1480–82. Explaining, the court stated:
While it is true that the United States acts in a
fiduciary capacity in its dealings with Indian tribal
18
property, it is also true that the government’s fiduciary
responsibilities necessarily depend on the substantive
laws creating those obligations. We agree with the
district court that an Indian tribe cannot force the
government to take a specific action unless a treaty,
statute or agreement imposes, expressly or by
implication, that duty.
Id. at 1482 (citations omitted). The “‘mere existence’ of the
Treaty [did not] require[] the federal government to protect
whatever [water claims] the Tribes may wish to advance.” Id.
Neither the 1864 Klamath Treaty, nor the 1954
Termination Act, nor the 1986 Restoration Act establish a trust
relationship between the federal government and the Tribes
that requires the federal government to concur in the Tribes’
calls for enforcement of their reserved instream water rights.
Article I of the Treaty guaranteed the Tribes’ “exclusive”
hunting and fishing rights on the reservation. That exclusive
right was expressly acknowledged by Congress as to the
reserved water rights in both the Termination Act and the
Restoration Act. Those Acts provided as well that nothing in
their provisions would “affect in any manner any . . . water right
of the tribe and its members,” Restoration Act § 5, 100 Stat. at
850, or “abrogate any water rights of the tribe and its
members,” Termination Act § 14(a), 68 Stat. at 722. Despite
restoring federal recognition to the Tribes and the “rights and
privileges” that might have been diminished under the
Termination Act, section 5 of the Restoration Act expressly
carved out the Tribes’ exclusive rights guaranteed by the
Treaty. The federal government’s historical trustee
relationship with Indian tribes was thereby limited so as not to
interfere with the Tribes’ exclusive rights under Article I of the
1864 Treaty.
19
In short, as was true before the Restoration Act, the federal
government has “no ownership interest in, or right to control
the use of, the Klamath Tribe’s hunting and fishing” rights and
attendant reserved water rights. Adair, 723 F.2d at 1418; see
Oregon Dep’t, 473 U.S. at 765–68. Neither statutory text nor
the historical trusteeship that existed prior to the Termination
Act indicate that Congress intended in the Restoration Act to
require the federal government’s concurrence for the Tribes’
instream calls to be effective. They do not require the federal
government to assume “elaborate control,” Mitchell II, 463
U.S. at 224–25, over the Tribes’ water rights. Nor would such
a requirement be a “right,” “privilege,” “service,” or “benefit”
within the meaning of section 2 of the Restoration Act, 100
Stat. at 849. To the contrary, such a concurrence requirement
would directly interfere with the Tribes’ exercise of their
sovereignty, here their assertion and control of their reserved
water rights. See Restoration Act § 5, 100 Stat. at 850. See
generally COHEN’S HANDBOOK § 19.06. Indeed the federal
government maintains that it was obligated, if asked, to concur
in lawful water calls proposed by the Tribes. This court
previously held that despite the existence of a trust relationship
“an Indian tribe cannot force the government to take a specific
action unless a treaty, statute, or agreement imposes, expressly
or by implication, that duty.” Shoshone-Bannock Tribes, 56
F.3d at 1482. The court need not consider whether that
standard was met here given our conclusion that the Tribes
were free to make calls in the exercise of their treaty rights.
B.
The heart of the ranchers’ argument is that a concurrence
requirement is found in Oregon law, which is made applicable
to the Klamath Basin Adjudication by the McCarran
20
Amendment of 1952, 43 U.S.C. § 666(a).4 Appellants’ Br. 13–
24. In Colorado River Water Conservation District v. United
States, 424 U.S. 800 (1976), the Supreme Court held that the
McCarran Amendment is properly understood to reach Indian
reserved water rights held in trust on behalf of Indians. Id. at
809. The Supreme Court emphasized that in “resolv[ing]
conflicting claims to a scarce resource,” id. at 812, such state
jurisdiction “in no way abridges any substantive claim on
behalf of Indians under the doctrine of reserved rights,” id. at
813. The McCarran Amendment, then, does not change the
fact that the substance and scope of tribal water rights is
governed by federal law. Arizona v. San Carlos Apache Tribe
of Ariz., 463 U.S. 545, 571 (1983). Necessarily, “[s]tate courts,
as much as federal courts, have a solemn obligation to follow
federal law.” Id. Still, in submitting federal water right
4
The McCarran Amendment provides:
Consent is given to join the United States as a defendant in
any suit (1) for the adjudication of rights to the use of water
of a river system or other source, or (2) for the
administration of such rights, where it appears that the
United States is the owner of or is in the process of
acquiring water rights by appropriation under State law, by
purchase, by exchange, or otherwise, and the United States
is a necessary party to such suit. The United States, when
a party to any such suit, shall (1) be deemed to have waived
any right to plead that the State laws are inapplicable or
that the United States is not amenable thereto by reason of
its sovereignty, and (2) shall be subject to the judgments,
orders, and decrees of the court having jurisdiction, and
may obtain review thereof, in the same manner and to the
same extent as a private individual under like
circumstances: Provided, That no judgment for costs shall
be entered against the United States in any such suit.
43 U.S.C. § 666(a).
21
controversies to state courts for “adjudication” or
“administration,” the Supreme Court concluded that state
procedural rules apply because the McCarran Amendment
“bespeaks a policy that recognizes the availability of
comprehensive state systems for adjudication of water rights,”
which advance the goal of avoiding piecemeal proceedings and
inconsistent dispositions. Colorado River, 424 U.S. at 819; see
United States v. Idaho ex rel. Idaho Dep’t of Water Res., 508
U.S. 1, 6–8 (1993).
The ranchers maintain that requiring the concurrence of
the legal title holder (i.e., the trustee) is a state procedural rule
to which the McCarran Amendment subjects the Tribes’
reserved water rights. The federal government suggests that
even if there were such a rule, it would be a substantive one
that flows from the nature of the trust relationship, not state
procedure. Appellees’ Br. 32–33. We need not resolve that
question because none of the four sources of an Oregon-law
concurrence requirement offered by the ranchers show that
Oregon law requires the federal government to concur in the
Tribes’ calls for their reserved water rights held in trust.
(1) Fort Vannoy Irrigation District v. Water Resources
Commission, 188 P.3d 277 (Or. 2008). The ranchers
characterize Fort Vannoy as establishing a general rule that “a
call for the implementation of water rights that are held in trust
must be approved by the holder of legal title.” Appellants’ Br.
16. No such broad proposition is found in Fort Vannoy. There,
Ken-Wal Farms had filed an application to change the points
of diversion for water under two water rights certificates, which
had been issued to the Fort Vannoy Irrigation District. Fort
Vannoy, 188 P.3d at 280–81. By Oregon statute, the “holder
of any water use subject to transfer” is given the authority to
seek a change of the point of diversion. Id. at 281 (quoting Or.
Rev. Stat. § 540.510(1)). An irrigation district to facilitate the
22
construction of irrigation works is formed upon proposal of
landowners, governed by an elected board of directors, and has
the power to acquire lands for reservoirs or other purposes. Id.
at 286. The “legal title to all such property ‘vests in the
irrigation district and is held by it in trust.’” Id. (alterations
omitted) (quoting Or. Rev. Stat. § 545.253). The narrow
question in Fort Vannoy was whether such a district is the
“holder of any water use subject to transfer,” when it receives
the certificate to a particular water right. Id. at 286, 288.
In identifying the “holder,” the court in Fort Vannoy
examined the trust relationship between the irrigation district
and its members. Id. at 295. The trust relationship was not
governed by federal Indian law; instead, a state statute
established that property acquired by the district would be held
in trust and the board was empowered “to hold, use, acquire,
manage, occupy, possess and dispose of the property as
provided in the Irrigation District Law.” Id. (quoting Or. Rev.
Stat. § 545.253). Relying in part on the Oregon law of private
trusts, the court in Fort Vannoy concluded that “the phrase
‘holder of any water use subject to transfer’ cannot be
construed as referring to Ken–Wal, because such a construction
would run afoul of the trust relationship by permitting a
beneficiary to manage the trust property.” Id. at 295–96.
As is evident, Fort Vannoy did not establish a general
procedural rule governing calls to enforce water rights held in
trust and its construction of the state statutes governing
irrigation districts has nothing to say about a trust relationship
created by federal Indian law.
(2) State statutes related to water rights certificates. The
ranchers urge that the necessity of a concurrence by the legal
title holder is reflected in Oregon’s procedures for stream
adjudication. Appellants’ Br. 17. At the conclusion of a stream
23
adjudication, they state, OWRD issues a certification listing the
owner of the right, which original certificate is sent to the
owner and used by the watermasters to determine whether
action should be taken. See Or. Rev. Stat. § 539.140. The
owner of an equitable interest, they continue, does not receive
a certificate. Appellants’ Br. 17–18. The ranchers maintain
that the reasonable inference from this administrative process
is that implementation of water rights is “keyed” to the
certification, and implementation of the Tribes’ equitable water
right depends at least in part on the federal government’s say.
Id. at 18. Even were the court to assume for purposes of
argument that the ranchers have accurately described the
process, they do not demonstrate that OWRD regulations
authorizing enforcement of the Administrative Determination
require such a certificate. The OWRD watermasters are to
allocate water in accordance with the claims determined in the
Determination. See Or. Admin. R. 690-025-0020(1)–
(2), -0025(1). Those claims list rights in the name of both the
Tribes and the federal government. See, e.g., Administrative
Determination at 5076 (listing the Tribes as the “claimants”
and the federal government as “trustee” for the Tribes).
Nothing in the ranchers’ cited authority on certificates imposes
a concurrence requirement here.
(3) Denial of the Tribes’ independent claim in OWRD’s
Administrative Determination. As noted, OWRD reasoned
that the Tribes’ composite claim (No. 612) was “duplicative of
the [federal government’s] claims, not additive. The [federal
government] holds the rights recognized herein in trust for the
Klamath Tribes. Colorado River Water Conservation Dist. v.
United States, 424 [U.S.] 800, 810 (1976).” Administrative
Determination at 4898, 5074. The citation to Colorado River
reveals this ruling was grounded in OWRD’s understanding of
federal law. Right or wrong, OWRD’s decision to deny the
24
Tribes’ claim cannot reasonably be understood to impose a
state law concurrence requirement.
The ranchers’ view is that recognizing the Tribes’
authority to exercise their own water rights is inconsistent with
OWRD’s determination that the federal government “holds”
the water rights “in trust” for the Tribes. See Appellants’ Br.
21–23. The ranchers also point to the recent decision of the
Oregon Circuit Court indicating that the Tribes’ water rights
are held by the United States “in trust,” and declining to disturb
the Administrative Determination on this point. Or. Cir. Ct.
Op., Feb. 24, 2021, at 8–9; Appellants’ FED. R. APP. P. 28(j)
Ltr. of Mar. 3, 2021. This misunderstands the nature of the
limited trust involved. Although Congress may abrogate or
diminish treaty rights by clearly expressed intent, Minnesota v.
Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 202
(1999), the Termination Act abrogated the Tribes’ land rights
but it did not abrogate any reserved water rights of the Tribes.
The Restoration Act restored the federal trust relationship with
the Tribes while expressly stating in section 5 that it would not
“affect in any manner any . . . water right of the [Tribes].” 100
Stat. at 850. Unlike in Mitchell II, where federal statutes and
regulations “establish[ed] ‘comprehensive’ responsibilities” in
the federal government for managing the harvesting of Indian
timber, 463 U.S. at 222 (quoting White Mountain Apache Tribe
v. Bracker, 448 U.S. 136, 145 (1980)), the relevant federal
statutes have preserved the Tribes’ instream water rights
impliedly reserved in the 1864 Treaty for tribal fisheries and
fishing rights. Absent a treaty or statutory provisions clearly
abrogating or diminishing the Tribes’ exclusive instream
rights, their beneficial ownership of reservation lands includes
“all rights normally associated with ‘fee simple absolute title.’”
Blackfeet Tribe, 924 F.2d at 902 (quoting Shoshone Tribe of
Wind River, 304 U.S. at 117). In denying the Tribes’
independent claim, OWRD relied on the principle of federal
25
law that water rights reserved for Indians are held in trust by
the federal government, whose limited trust designation does
not imply federal authority or obligations to control or manage
the trust resource. Given the specific text of the Termination
Act and the Restoration Act, the Tribes retain full authority to
control the use of their water right. See Oregon Dep’t., 473
U.S. at 765–67; Adair, 723 F.2d at 1418; Blackfeet Tribe, 924
F.2d at 902. Nothing in the recent opinion of the Oregon
Circuit Court could alter the federal law that defines and
determines the scope of the Tribes’ reserved water rights. The
ranchers do not contest the well-established legal federal
precedent that the substance of the Tribes’ reserved water
rights remains governed by federal law even in state water
adjudicatory proceedings. See Appellants’ Br. 13.
(4) Emails from OWRD employees suggesting the federal
government’s concurrence was necessary. The ranchers’
reliance on informal communications between OWRD
employees is unavailing. In 2017, upon receiving a call from
the Tribes, an OWRD employee emailed another employee,
“[W]e need to await concurrence from [the Bureau of Indian
Affairs] on this.” In 2018, an OWRD employee inquired about
whether the federal government would again provide an
“official concurrence.” Even assuming the emails indicate
these employees thought the federal government’s concurrence
was needed for an effective Tribal call, in the absence of a legal
basis for a concurrence requirement these emails are
insufficient to show that OWRD would predictably decline to
enforce the Tribes’ instream rights without a concurrence by
the federal government. Insofar as the emails reflect a
misunderstanding of the federal trust relationship, that would
presumably be corrected by today’s decision, which explains
that there is no federal law concurrence requirement for the
Tribes’ water rights. State agency adjudicators, like the state
courts reviewing their decisions, can be expected to discharge
26
their “solemn obligation to follow federal law.” San Carlos
Apache Tribe, 463 U.S. at 571.
Moreover, to the extent the ranchers point to the clause in
the 2019 Protocol that the parties would not “withhold any
required concurrence” in a call made by the other party after
following the consultation procedures, they overlook a key
word. The Protocol states that “either Party may independently
make a call and the other party will not withhold any required
concurrence or object to the call,” except that the United States
reserves the right not to concur in a call that is inconsistent with
the Administrative Determination or other legal obligations.
Protocol at 4. Inclusion of the word “any” belies the ranchers’
suggestion that the federal government had concluded such
concurrence was “required.”
In sum: There is no concurrence requirement imposed by
federal law on the Tribes’ reserved instream water rights,
whether by the 1864 Klamath Treaty or the federal
government’s trust relationship. The McCarran Amendment
subjects the Tribes’ reserved water rights to state procedural
rules in its quantification proceedings, but the substance and
scope of the Tribes’ rights remain governed by federal law.
Oregon law does not require federal government concurrence
to enforce the Tribes’ water rights, and we leave for another
day the question of what, if any, legal effect such a state
requirement could have. Therefore, invalidating the Protocol,
and requiring the federal government to independently assess
whether it would concur in the Tribes’ calls, would not remedy
the ranchers’ injuries. The Tribes would continue to make calls
in the exercise of their Treaty rights, and OWRD would enforce
the calls. Because the ranchers fail to show their alleged
injuries are fairly traceable to federal government action or
inaction, or would be redressed by striking the Protocol, they
27
lack Article III standing. Accordingly, the dismissal of the
ranchers’ complaint for lack of standing is affirmed.