Legal Docket: Navajo Nation water rights

NICK EICHER, HOST: It’s Monday, April 3rd. So glad to have you along for today’s edition of The World and Everything in It. Good morning. I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket.

Just one opinion handed down by the US Supreme Court last week. I say “just” because the court’s heard 49 arguments so far this term, with only nine decisions having been handed down. Which is a much-slower pace compared to the recent past.

So it means we’ll have a slew of opinions soon.

EICHER: Okay, well, let’s talk about that one opinion we do have in Wilkins v United States. It’s a 6-3 victory for two landowners in Montana who sued the federal government.

They’d lived in peace for years under an easement owned by the government. That allowed loggers and ranchers to cross over their property to access a nearby forest.

But when the U.S. Forest Service opened the road up to the public, well, along with it came traffic, noise, and crime.

REICHARD: No more peace and quiet. So the landowners sued the government under the appropriately named Quiet Title Act.

The government argued they were too late to sue, per language in the law giving only twelve years to file suit. That time had already come and gone.

In this comment last fall during oral argument, Chief Justice John Roberts gave a clue as to the outcome:

JUSTICE ROBERTS: The people across the street are on clear notice that they’ve really got to spell it out if they want one of these time limits to be jurisdictional.

EICHER: The street he’s talking about is First Street Northeast, the street that separates the Supreme Court building from the Capitol building. So he’s putting his neighbor Congress on notice.

And as for time limits, he’s talking about two of them: one that’s “jurisdictional,” which you cannot waive, and one that’s a “claim processing rule” that you can.

Congress didn’t say which, so the default position says this is the kind of time limitation that can be waived.

The landowners may now proceed with their lawsuit, despite having filed after the twelve-year limit.

REICHARD: Now for our single oral argument of the day: two disputes consolidated into one with the caption Arizona v Navajo Nation.

On one side, the federally recognized Indian Tribe, the Nav60ajo.

On the other side, the US Department of the Interior, along with several states: Arizona, Nevada, and Colorado.

At one level, this is a dispute over water. As in, how to allocate the water in the Colorado River basin among competing groups.

On behalf of the Navajo Nation, attorney Shay Dvoretzky reviewed some history:

SHAY DVORETZKY: The Senate ratified two treaties with the Navajo Nation. In the 1868 treaty, the United States promised the Navajos a permanent homeland. Both parties understood that in promising the Navajos their land, the United States was also promising them the water it needed to sustain life in the arid southwest. Those treaties are specific sources of law that give the Nation rights to water and impose duties on the government to secure that water. But, for years, the United States has failed to fulfill that promise.

EICHER: Dvoretzky went on to say that the Navajo reservation is about the size of the state of West Virginia, with a population of 170-thousand, and the average person uses just seven gallons of water a day. The national average is 80-100 gallons.

DVORETZKY: The United States agrees that, on paper, the Nation has treaty rights to the water its people need. We're here because the United States says it doesn't have to do anything to secure the water it promised, even though the United States also says it speaks for the Navajos as trustee of the Nation's water rights.

And even though the main stem of the Colorado River isn’t mentioned in the treaties, the tribe argues the federal government is still obligated to protect its water rights from that source.

But the federal government says it has protected the Navajo water rights by way of tributaries of the Colorado River. Lawyer Frederick Liu:

FREDERICK LIU: When a reservation is established, that reservation isn't just the land. It's also a right to the timber on the land, a right to the minerals below the surface, and, under Winters, a right to water for the reservation. Each of those rights is a stick in the bundle that makes up the reservation, and when the Navajo Reservation was originally established and later expanded, the Navajo Nation got all of those sticks, and it still possesses them today. There's no dispute about that.

REICHARD: But there is a dispute about what the United States owes the Navajo Nation. Attorney Liu goes on:

LIU: The dispute here is about something different, whether the United States owes the Navajo Nation a judicially enforceable affirmative duty to assess the tribe's water needs, develop a plan to meet them, and then carry out that plan by building water supply infrastructure on the reservation. The answer to that question is no.

Because, he argued, managing Navajo water rights is very different from unmanaged rights to the water itself. Responsibility for infrastructure and so forth isn’t specified in any agreements.

And that’s the legal question: Does the United States have a duty to assess the Navajo’s water needs and then create a plan to meet them?

Let’s provide a little background so you can see why this is such a big deal: The Colorado River is nearly 1,500 miles long and the water in it is allocated to seven states. Millions of people depend upon it. Making matters worse, a decades-long drought reduced the river’s water by 20 percent.

EICHER: Competing needs, competing interests, and scarce resources.

So in one way, this is about water.

But in another way, it’s about what the tribe’s brief says in its opening sentence: “How did we get here, in this country, in the 21st century? Broken promises.”

Litigation over the Colorado River has been going on for years. Treaties, compacts, court opinions, you name it. Lawyers and justices referred to all of them during oral argument.

Justice Neil Gorsuch laid out treaty language that promised the Navajo a permanent homeland. He addressed Liu for the government on that point:

JUSTICE GORSUCH: Is it possible to have a permanent home, farm, and raise animals without water?

LIU: No.

GORSUCH: And could the United States dam the Little Colorado right above the reservation and prevent water from flowing into the reservation?

LIU: It could do that as a matter of fact.

GORSUCH: Well, as a matter of fact --

LIU: Right. Not legally.

GORSUCH: -- but, as a matter of law, could it do that?

LIU: No.

GORSUCH: Okay. So, clearly, there is a duty to provide some water to this tribe under the treaty, right?

LIU: No.

GORSUCH: Well, hold on. What am I missing? We just agreed you can't dam the Little Colorado because that would breach the treaty.

LIU: Right.

GORSUCH: That's water, right?

LIU: Correct.

GORSUCH: So there's some obligation with respect to water in this treaty.

REICHARD: Liu hedged, and Justice Gorsuch pressed on, not with the tribe’s breach of trust claim, but with another type of claim:

GORSUCH: If you'd just answer my question. Could I bring a good breach-of-contract claim for someone who promised me a permanent home, the right to conduct agriculture and raise animals if it turns out it's the Sahara Desert?

LIU: I don't think you would be able to bring a breach-of-contract claim.

GORSUCH: Really?

LIU: I -- I think -- I --

GORSUCH: You don't think that's a breach of good faith and fair dealing?

EICHER: Liu had quite a rough ride. Listen to Justice Sonia Sotomayor state the Navajo perspective:

JUSTICE SOTOMAYOR: They agreed to sit to a land that would permit them to return to agriculture, and the bargain they got in return was we, the United States, took away all of your other lands, we gave you this piece of land here, survive, even if it turns into a desert condition, where you admit significant water needs on the reservation, but the tribe can’t do anything about it.

REICHARD: Well, Liu said the tribe signed treaties saying it would handle its own affairs. So it’s not for the federal government to figure out Navajo water access and infrastructure

Justice Samuel Alito asked Liu for the federal government about the practical effects if the tribe should win here.

LIU: Well, there are 500 or so tribal reservations. The government has entered into about 30 or so water agreements since the late 1970s. There's ongoing litigation in, in courts across the country. I think this would impose on the United States a sort of amorphous duty to take a -- take another look at all those issues.

REICHARD: Justice Alito probed as to the situation on the ground when the 1868 Treaty was signed:

JUSTICE ALITO: In -- in 1868, was the reservation adjacent to the Colorado River?

LIU: It was not. The 1868 reservation straddled the New Mexico-Arizona border, which is hundreds of miles away from the Lower Colorado River mainstream.

ALITO: So, if we are looking at the expectations of the treaty parties, do we look at what their expectations would have been in 1868 or at the time of the expansion of the reservation subsequently?

LIU: We look to the 1868 time frame, and in that time frame, what they were thinking about was the land set aside for the original reservation, not the land that's at issue today.

Therefore, Liu argued, there’s no going forward with the tribe’s breach of trust claim here, because the 1868 treaty said nothing about what the tribe is asking for now.

The tribe’s lawyer faced hard questions, too. Listen to this exchange with Chief Justice Roberts and lawyer Dvoretzky:

JUSTICE ROBERTS: The treaty specifically mentions a variety of things that would be necessary for agriculture, you know, the 15,000 sheep, however many cattle, the seeds. Why wasn't the water mentioned, as -- your argument now is it's necessarily implicit, but the other things were spelled out. Wouldn't you have spelled out the water at the time?

DVORETZKY: Well, the other things were spelled out with -- with numbers. They could be very specifically enumerated in that way. Water was something that was simply inherent in the permanent homeland and -- and making it suitable both as a permanent homeland and for the very purpose of agriculture.

Finally, this exchange with Justice Brett Kavanaugh, who mentioned a familiar thread in oral arguments of late:

JUSTICE KAVANAUGH: It's not clear you can ever get what you really want out of the court system, as we've danced around today, we should leave it to Congress. So that’s I think their theory and I just want to get your response to that?

DVORETZKY: As a practical matter, the government says leave it to Congress, leave it to the political branches. We've been waiting half a century for the political branches to solve this problem for the Nation. It hasn't happened.

REICHARD: I won’t predict any outcome here. The justices seem divided, and not neatly ideologically. Not to mention this area of the law is a big mess. Allocation of scarce resources that have alternative uses is at the root of economics, and the court probably isn’t the best place to resolve this.

But it will, at least on some narrow basis, by the end of June—even if it means dropping it on the front steps of the neighbor across the street.

And that’s this week’s Legal Docket.

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