docket no. 14-16864 in the united states court of … · lauren j. caster special deputy counsel...

Docket No. 14-16864

IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

NAVAJO NATION,

Plaintiff-Appellant,

v.

DEPARTMENT OF THE INTERIOR, SALLY JEWELL, Secretary of theInterior, BUREAU OF RECLAMATION and BUREAU OF INDIAN AFFAIRS,

Defendants-Appellees,

STATE OF ARIZONA, CENTRAL ARIZONA WATER CONSERVATIONDISTRICT, ARIZONA POWER AUTHORITY, SALT RIVER PROJECT

AGRICULTURAL IMPROVEMENT AND POWER DISTRICT, SALT RIVERVALLEY WATER USERS’ ASSOCIATION, IMPERIAL IRRIGATION

DISTRICT, METROPOLITAN WATER DISTRICT OF SOUTHERNCALIFORNIA, COACHELLA VALLEY WATER DISTRICT, STATE OF

NEVADA, COLORADO RIVER COMMISSION OF NEVADA, SOUTHERNNEVADA WATER AUTHORITY and STATE OF COLORADO,

Intervenors-Defendants-Appellees.

On Appeal from the United States District Court for the District of Arizona,No. 3:03-cv-00507-GMS Honorable G. Murray Snow

BRIEF OF INTERVENORS-DEFENDANTS-APPELLEES STATE OFNEVADA, COLORADO RIVER COMMISSION OF NEVADA, AND

SOUTHERN NEVADA WATER AUTHORITY

ADAM PAUL LAXALTAttorney General of NevadaJENNIFER T. CRANDELLSpecial Counsel Attorney General

FENNEMORE CRAIG, P.C.Lauren J. CasterSpecial Deputy CounselGregory L. Adams2394 East Camelback Rd., Suite 600Phoenix, AZ 85016-3429Telephone: (602) 916-5000Email: [email protected];[email protected]

Attorneys for State of Nevada, ColoradoRiver Commission of Nevada, andSouthern Nevada Water Authority

Case: 14-16864, 03/16/2015, ID: 9458799, DktEntry: 62-1, of 82

mailto:[email protected]

mailto:[email protected]

ii

TABLE OF CONTENTSPAGE

TABLE OF CONTENTS.......................................................................................... ii

TABLE OF AUTHORITIES .....................................................................................v

I. JURISDICTIONAL STATEMENT................................................................1

II. STATEMENT OF ISSUES PRESENTED FOR REVIEW............................2

III. STATEMENT OF THE CASE .......................................................................3

A. The Nevada Appellees..........................................................................3

B. Apportionment of the Colorado River..................................................4

C. Interim Surplus Guidelines Challenged in First Claim for Relief........5

D. Shortage Guidelines Challenged in Second Claim for Relief..............8

E. Implications of Persistent Drought.....................................................10

F. The Proceedings Below......................................................................13

IV. SUMMARY OF THE ARGUMENT............................................................14

V. ARGUMENT.................................................................................................15

A. Standards of Review...........................................................................15

B. Administrative Procedure Act and National EnvironmentalPolicy Act ...........................................................................................19

1. Administrative Procedure Act .................................................19

2. National Environmental Policy Act.........................................22

C. The Nation Lacks Standing. ...............................................................24


iii

1. The Nation Established No Injury in Fact. ..............................25

a. The Nation Has No Entitlement to Colorado RiverWater. ..................................................................................30

b. Even If the Nation Acquires an Entitlement toColorado River Water, the Challenged ActionsWould Not Impair That Entitlement. ..................................31

i. NEPA Analysis of the Interim SurplusGuidelines .................................................................31

ii. NEPA Analysis of the Shortage Guidelines ............34

c. The Nation Showed No Geographic Nexus Betweenan Environmental Impact of the Challenged Actionsand the Interest Allegedly Harmed. ....................................41

2. The Nation’s Lack of Entitlement to Colorado RiverWater Is Not Traceable to the Challenged Actions. ................42

3. The Nation’s Lack of Entitlement to Colorado RiverWater Is Not Redressable in This Action. ...............................48

D. The Nation Did Not State a Claim for Relief Under NEPAor the APA. .........................................................................................49

1. The Nation’s Asserted Interest Is Not Within the Zoneof Interests Protected by NEPA, Defeating the Nation’sNEPA and APA Claims...........................................................49

2. The Challenged Actions Were Not the Proximate Causeof the Nation’s Alleged Injury.................................................52

3. The Federal Defendants Complied with NEPA. .....................53

4. That Nation’s Request To Set Aside Decisions Underthe Interim Surplus Guidelines Is Moot. ................................54


iv

E. The District Court Properly Denied the Motion for SpecificRelief From the July 22 Order Pursuant to Rule 60(b)(6). ................55

CONCLUSION........................................................................................................55

CERTIFICATE OF COMPLIANCE.......................................................................57

STATEMENT OF RELATED CASES...................................................................58

CERTIFICATE OF SERVICE ................................................................................59

ADDENDUM ...................................................................................................ADD-i


v

TABLE OF AUTHORITIES

PAGES

CONSTITUTION

U.S. CONST. art. I, § 8, cl. 3 ..................................................................................... 46

U.S. CONST. art. I, § 9, cl. 7 ..................................................................................... 47

U.S. CONST. art. III § 2, cl. 1................................1, 14, 15, 16, 25, 26, 29, 42, 43, 50

CASES

Allen v. Wright, 468 U.S. 737 (1984), abrogated on other grounds,Lexmark Int’l, Inc. v. Static Control Components, Inc., __ U.S. __,134 S. Ct. 1377 (2014)..................................................................................42, 48

Aluminum Co. of America v. Administrator, Bonneville Power Admin.,175 F.3d 1156 (9th Cir. 1999), cert. denied, 528 U.S. 1138 (2000) ...................54

American Trucking Ass’n v. City of Los Angeles, 559 F.3d 1046 (9th Cir. 2009) ... 21

Arizona v. California, 547 U.S. 150 (2006)........................................... 4, 5, 6, 30, 44

Arizona v. California, 460 U.S. 605 (1983)....................................................... 36, 44

Arizona v. California, 376 U.S. 340 (1964)............................................................... 4

Arizona v. California, 373 U.S. 546 (1963)............................................... 3, 4, 36, 44

Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) .............................. 54

Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934 (9th Cir. 2005), cert.denied, 548 U.S. 903 (2006) ............................................................................... 51

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)............................................. 18

Broudy v. Mather, 460 F.3d 106 (D.C. Cir. 2006) ................................................. 27


vi

Califano v. Sanders, 430 U.S. 99 (1977) ........................................................... 19, 21

California v. Block, 690 F.2d 753 (9th Cir. 1982).................................................... 23

Cantrell v. City of Long Beach, 241 F.3d 674 (9th Cir. 2001) ......................25-26, 49

Center for Biological Diversity v. Kempthorne, 588 F.3d 701(9th Cir. 2009)................................................................................................ 21, 36

Center for Food Safety v. Vilsack, 636 F.3d 1166 (9th Cir. 2011)........................... 41

Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961(9th Cir. 2003) .................................................................................... 26, 27, 28, 49

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971),overruled in part on other grounds, Califano v. Sanders, 430 U.S. 99(1977)..................................................................................................................21

City of Sausalito v. O’Neill, 386 F.3d 1186 (9th Cir. 2004)..................................... 26

City of Shoreacres v. Waterworth, 420 F.3d 440 (5th Cir. 2005)............................. 46

Clarke v. Securities Indus. Ass’n, 479 U.S. 388 (1987) .................................... 20, 50

Conservation Congress v. Finley, 774 F.3d 611 (9th Cir. 2014).............................. 24

Conservation Force v. Salazar, 646 F.3d 1240 (9th Cir. 2011), cert. denied,__ U.S. __, 132 S. Ct. 1762 (2012)..................................................................... 17

Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989) ............................... 47

Dahlia v. Rodriguez, 735 F.3d 1060 (9th Cir. 2013) (en banc), cert. denied,__ U.S. __, 134 S. Ct. 1283 (2014)..................................................................... 18

Department of Transp. v. Public Citizen, 541 U.S. 752 (2004) ........................ 36, 46

Doe v. Holy See, 557 F.3d 1066 (9th Cir. 2009) (per curiam), cert. denied,__ U.S. __, 130 S. Ct. 3497 (2010) ....................................................................16


vii

Dubbs v. Head Start, Inc., 336 F.3d 1194 (10th Cir. 2003), cert. denied,540 U.S. 1179 (2004).......................................................................................... 18

Duval Ranching Co. v. Glickman, 965 F. Supp. 1427 (D. Nev. 1997) ................... 52

Earth Island Inst. v. Carlton, 626 F.3d 462 (9th Cir. 2010) ..................................... 23

El Dorado Estates v. City of Fillmore, 765 F.3d 1118 (9th Cir. 2014) .............. 49, 52

Federal Commc’ns. Comm’n v. Schreiber, 381 U.S. 279 (1965).......................38-39

Feldman v. Bomar, 518 F.3d 637 (9th Cir. 2008)..................................................... 54

Friends of the Earth Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167(2000).................................................................................................................. 24

Hall v. Norton, 266 F.3d 969 (9th Cir. 2001) ........................................................... 49

Israel v. Morton, 549 F.2d 128 (9th Cir. 1977) ........................................................ 45

Kleppe v. Sierra Club, 427 U.S. 390 (1976)............................................................ 24

Kohli v. Gonzales, 473 F.3d 1061 (9th Cir. 2007).................................................... 39

La Reunion Francaise SA v. Barnes, 247 F.3d 1022 (9th Cir. 2001) ...................... 16

Lands Council v. McNair, 629 F.3d 1070 (9th Cir. 2010)........................................ 22

Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (en banc), overruledin part on other grounds, American Trucking Ass’n v. City of LosAngeles, 559 F.3d 1046 (9th Cir. 2009) .............................................................. 21

Laub v. U.S. Dep’t of Interior, 342 F.3d 1080 (9th Cir. 2003) ................................ 49

Le v. Astrue, 558 F.3d 1019 (9th Cir. 2009) .............................................................. 2

Levitt v. Yelp! Inc., 765 F.3d 1123 (9th Cir. 2014) .................................................. 17

Lexmark Int’l, Inc. v. Static Control Components, Inc., __ U.S. __,134 S. Ct. 1377 (2014)...................................................................... 19, 42, 49, 52


viii

Lower Arkansas Valley Water Conservancy Dist. v. United States,578 F. Supp. 2d 1315 (D. Colo. 2008)...........................................................51-52

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .............................................. 25

Lujan v. National Wildlife Fed’n, 497 U.S. 871 (1990) .......................................... 20

Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025 (9th Cir. 2008) ........ 19

Maricopa-Stanfield Irrigation & Drainage Dist. v. United States, 158 F.3d428 (9th Cir. 1998), cert. denied, 526 U.S. 1130 (1999)..................................... 45

Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989) ...................... 53

Maya v. Centex Corp., 658 F.3d 1060 (9th Cir. 2011) ............................................. 26

Metlakatla Indian Cmty v. Adams, 427 F. Supp. 871 (D.D.C. 1977)...................... 52

Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766(1983)............................................................................................................ 50, 51

Montana Wilderness Ass’n v. Connell, 725 F.3d 988 (9th Cir. 2013)...................... 39

National Parks & Conservation Ass’n v. U.S. Dep’t of Transp.,222 F.3d 677 (9th Cir. 2000) ............................................................................... 53

Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233 (9th Cir. 2005) .... 19

Navajo Nation v. U.S. Dep’t of Interior, 34 F. Supp. 3d 1019(D. Ariz. 2014)........................................................................................ 13, 14, 29

Nevada Land Action Ass’n v. U.S. Forest Serv., 8 F.3d 713 (9th Cir. 1993) ........... 51

North Cnty. Commc’ns Corp. v. California Catalog & Tech., 594 F.3d 1149(9th Cir.), cert. denied, __ U.S. __, 131 S. Ct. 645 (2010).................................. 16

Northern Alaska Envtl. Center v. Kempthorne, 457 F.3d 969 (9th Cir. 2006)........ 43

Northwest Coal. for Alts. to Pesticides v. U.S. Envtl. Prot. Agency, 544 F.3d1043 (9th Cir. 2008)............................................................................................. 34


ix

Northwest Envtl. Def. Center v. Gordon, 849 F.2d 1241 (9th Cir. 1988) ............... 54

Nuclear Info. & Res. Serv. v. Nuclear Regulatory Comm’n, 457 F.3d 941(9th Cir. 2006) ...................................................................................................... 26

Office of Personnel Mgmt. v. Richmond, 496 U.S. 414 (1990) ............................... 47

ONRC Action v. Bureau of Land Mgmt., 150 F.3d 1132 (9th Cir. 1998) ................ 20

Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768 (9th Cir. 2006) ..........................49

Port of Astoria v. Hodel, 595 F.2d 467 (9th Cir. 1979)............................................ 51

Presidio Golf Club v. National Park Serv., 155 F.3d 1153 (9th Cir. 1998) ............. 51

Ranchers Cattlemen Action Legal Fund United Stockgrowers v. U.S. Dep’tof Agric., 415 F.3d 1078 (9th Cir. 2005) ............................................................. 51

Ray v. Proxmire, 581 F.2d 998 (D.C. Cir.) (per curiam), cert. denied,439 U.S. 933 (1978)............................................................................................ 27

Roberts v. Corrothers, 812 F.2d 1173 (9th Cir. 1987) ............................................. 16

Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530 (9th Cir. 1984).................. 18

Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)................ 22, 24

Safe Air for Everyone v. Meyer, 373 F.3d 1035 (9th Cir. 2004), cert. denied,544 U.S. 1018 (2005)......................................................................................... 17

Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220(9th Cir. 2008) ...................................................................................................... 49

Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113 (9th Cir. 2005)......................... 49

Schneider v. California Dep’t of Corr., 151 F.3d 1194 (9th Cir. 1998)................... 27

Schweiker v. Hansen, 450 U.S. 785 (1981) (per curiam) ........................................ 23

Sierra Club v. Penfold, 857 F.2d 1307 (9th Cir. 1988) ............................................ 54


x

Smith v. Central Arizona Water Conservation Dist., 418 F.3d 1028(9th Cir. 2005) ...................................................................................................... 45

Sturgeon v. Masica, 768 F.3d 1066 (9th Cir. 2014) ................................................. 29

Summers v. Earth Island Inst., 555 U.S. 488 (2009) ..................................... 1, 24, 25

Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115 (1974) ...................................... 54

Tourgeman v. Collins Fin. Servs., Inc., 755 F.3d 1109 (9th Cir. 2014) ................... 50

United States v. Alameda Gateway Ltd., 213 F.3d 1161 (9th Cir. 2000),cert. dismissed, 531 U.S. 1121 (2001)................................................................ 23

Vaughn v. Bay Envtl. Mgmt., Inc., 567 F.3d 1021 (9th Cir. 2009)........................... 19

Washington Envtl. Council v. Bellon, 732 F.3d 1131 (9th Cir. 2013),reh’g en banc denied, 741 F.3d 1075 (9th Cir. 2014) ............................. 43, 46, 48

Weeks v. Bayer, 246 F.3d 1231 (9th Cir. 2001)....................................................... 55

Western Radio Servs. Co. v. Espy, 79 F.3d 896 (9th Cir.), cert. denied,519 U.S. 822 (1996)........................................................................................... 51

Western Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir.),cert. denied, __ U.S. __, 132 S. Ct. 366 (2011)............................................ 41, 42

WildEarth Guardians v. U.S. Envtl. Prot. Agency, 759 F.3d 1064(9th Cir. 2014) ................................................................................................ 46, 48

Wilderness Soc’y, Inc. v. Rey, 622 F.3d 1251 (9th Cir. 2010).................................. 25

Wolfe v. Strankman, 392 F.3d 358 (9th Cir. 2004) ................................................... 16

Wood v. City of San Diego, 678 F.3d 1075 (9th Cir. 2012)...................................... 17

Ybarra v. McDaniel, 656 F.3d 984 (9th Cir. 2011), cert. denied,__ U.S. __, 133 S. Ct. 424 (2012)................................................................. 14, 15


xi

STATUTES

Federal

Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. (2013)............................... 13

5 U.S.C. § 702 (2013) .............................................................................................. 20

5 U.S.C. § 706(2)(A)-(C) (2013) ............................................................................. 20

28 U.S.C. § 1291 (2013) ............................................................................................ 1

28 U.S.C. § 1331 (2013) ...................................................................................... 1, 19

28 U.S.C. § 1362 (2013) ............................................................................................ 1

National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq.(2013).................................................................................................................. 13

42 U.S.C. §§ 4332 (2013) ........................................................................................ 50

42 U.S.C. §§ 4342 et seq. (2013)............................................................................. 22

Federal Statutes at Large

Arizona Water Settlements Act, Pub. L. No. 108-451, Title I, 118 Stat. 3478(2004)................................................................................................35, 36, 45, 46

Colorado River Basin Project Act, Pub. L. No. 90-537, Title III, 82 Stat. 885(1968).................................................................................................................. 38

Nevada

NEV. REV. STAT. § 538.171(1) (2013/2014R1) ......................................................... 3

REGULATIONS

40 C.F.R. § 1500.1 (2014) ....................................................................................... 22

40 C.F.R. § 1500.3 (2014) ....................................................................................... 22


xii

40 C.F.R. § 1508.14 (2014) ............................................................................... 23, 51

43 C.F.R. Part 46 (2014).......................................................................................... 22

RULES

FED. R. APP. P. 3(c)(1)(B) .......................................................................................... 2

FED. R. CIV. P. 8(a)(2).............................................................................................. 18

FED. R. CIV. P. 12(b)(1)...................................................................................... 16, 26

FED. R. CIV. P. 12(b)(6).................................................................... 16, 17, 18, 19, 26

FED. R. CIV. P. 12(d) ................................................................................................ 18

FED. R. CIV. P. 15(a) .......................................................................................... 15, 55

FED. R. CIV. P. 59(e) .......................................................................................... 15, 55

FED. R. CIV. P. 60(b) .................................................................................... 2, 15, 55

FEDERAL AGENCY MATERIALS

Amended and Restated Contract with the Southern Nevada Water Authority,Nevada, for the Delivery of Colorado River Water, Contract No. 2-07-30-W0266, Amendment No. 1 (Nov. 17, 1994) ................................................. 3

Annual Operating Plan for Colorado River Reservoirs 2015 (Nov. 4, 2014) ......... 10

Bureau of Reclamation Indian Trust Asset Policy and NEPA ImplementingProcedures, Questions and Answers About the Policy and Procedures(Aug. 31, 1994) ..............................................................................................22-23

Central Arizona Project, Arizona; Water Allocations and Water ServiceContracting; Record of Decision, 48 Fed. Reg. 12,446 (March 24, 1983) ........ 45

Colorado River Accounting and Water Use Report, Arizona, California andNevada, Calendar Year 2013 (May 2014).......................................................... 12


xiii

Environmental Assessment, Lake Mead Intake No. 3, Lake Mead NationalRecreation Area, Clark County, Nevada (Oct. 2006)......................................... 12

Final Environmental Impact Statement, Colorado River Interim Guidelinesfor Lower Basin Shortages and Coordinated Operations for Lake Powelland Lake Mead (Oct. 2007) ........................8, 9, 13, 14, 30, 35, 37, 38, 39, 40, 41

Final Environmental Impact Statement, Colorado River Interim SurplusCriteria (Dec. 2000) ................................................5, 7, 13, 15, 30, 31, 32, 33, 54

Lake Mead Area and Capacity Tables (Sept. 2011) ................................................ 12

National Environmental Policy Act Handbook (Oct. 1990; revised Oct.1991), ................................................................................................................. 23

Operation Plan for Colorado River System Reservoirs, March 201524-Month Study, Hoover Dam – Lake Mead .................................................... 11

Reclamation’s NEPA Handbook (Feb. 2012) ................................................... 22, 23

Record of Decision, Colorado River Interim Guidelines for Lower BasinShortages and the Coordinated Operations for Lake Powell and LakeMead (Dec. 2007), published at 73 Fed. Reg. 19,873(April 11, 2008) ................................................................. 8, 9, 10, 12, 13, 40, 54

Record of Decision, Colorado River Interim Surplus Guidelines; FinalEnvironmental Impact Statement, published at 66 Fed. Reg. 7,772(Jan. 25, 2001)..................................................................................... 5, 6, 7, 8, 13

United States Census Bureau: People QuickFacts, Clark County, Nevada ............ 11

STATE AGENCY MATERIAL

Water Resource Plan, Southern Nevada Water Authority....................................... 11


1

I. JURISDICTIONAL STATEMENT

Article III, § 2, cl. 1 of the United States Constitution limits federal judicial

power to “all Cases, in Law and Equity, arising under this Constitution, the Laws

of the United States, and Treaties made, or which shall be made, under their

Authority;” and “to Controversies to which the United States shall be a Party . . . .”

“In limiting the judicial power to ‘Cases’ and ‘Controversies,’ Article III . . .

restricts it to the traditional role of Anglo-American courts, which is to redress or

prevent actual or imminently threatened injury to persons caused by private or

official violation of law. Except when necessary in the execution of that function,

courts have no charter to review and revise legislative and executive action.”

Summers v. Earth Island Inst., 555 U.S. 488, 492 (2009) (citations omitted). The

standing doctrine reflects the “Cases” and “Controversies” limitation. Id. at 493.

While the Navajo Nation (“Nation”) invokes 28 U.S.C. § 1291 as the basis of this

Court’s jurisdiction, and cited 28 U.S.C. §§ 1331 and 1362 to support the District

Court’s jurisdiction, Congress cannot excuse a plaintiff from proving injury-in-fact

to establish Article III standing. Summers v. Earth Island Inst., 555 U.S. at 497.

The Nation alleged no injury-in-fact, traceability or redressability necessary to

establish Article III standing. Therefore, the District Court and this Court lack

subject matter jurisdiction over the Nation’s claims.


2

The Nation did not appeal from the District Court’s Judgment of Dismissal

in a Civil Case, D. Ariz. Doc. 306, contrary to Rule 3(c)(1)(B), FED. R. APP. P. See

Notice of Appeal, Appellant’s Excerpts of Record (“ER”) 31; Amended Notice of

Appeal, ER 21. The Court must inquire into its own jurisdiction. See Le v. Astrue,

558 F.3d 1019, 1021 (9th Cir. 2009). Under the standards articulated by this Court,

id. at 1022-25, failure to mention the Judgment of Dismissal in the notices of

appeal should not affect this Court’s review.

The Nation’s request that the Court set aside decisions based on the Interim

Surplus Guidelines is moot for the reasons stated infra at 54.

II. STATEMENT OF ISSUES PRESENTED FOR REVIEW

(1) Did the District Court err in dismissing the First Claim without

prejudice?

(2) Did the District Court err in dismissing the Second Claim without

prejudice?

(3) Did the District Court err in dismissing the Seventh Claim without

prejudice?

(4) Did the District Court err in denying the Motion for Specific Relief

From the July 22 Order Pursuant to Rule 60(b)(6), D. Ariz. Doc. 310?


3

III. STATEMENT OF THE CASE

A. The Nevada Appellees

The State of Nevada, Colorado River Commission of Nevada, and Southern

Nevada Water Authority (collectively, “Nevada”), submit this Brief. The State of

Nevada was apportioned 300,000 acre feet per annum of Colorado River water.

See Arizona v. California, 373 U.S. 546, 564-65 (1963). The Colorado River

Commission of Nevada holds Nevada’s Colorado River apportionment in trust for

the State. See NEV. REV. STAT. § 538.171(1) (2013/2014R1).1 The Southern

Nevada Water Authority, a Nevada political subdivision, has a contract to divert

and deliver the vast majority of Nevada’s Colorado River apportionment, as well

as any surplus Colorado River water to which Nevada is entitled.2 3

1 Available at http://www.leg.state.nv.us/NRS/NRS-538.html#NRS538Sec171 (lastvisited March 11, 2015).2 See, e.g., Amended and Restated Contract with the Southern Nevada WaterAuthority, Nevada, for the Delivery of Colorado River Water, Contract No. 2-07-30-W0266, Amendment No. 1, ¶¶ 4(a), 5 (Nov. 17, 1994), available athttp://www.snwa.com/assets/pdf/ws_river_bor_contract.pdf (last visited March 11,2015); Motion for Judicial Notice by Intervenors-Defendants-Appellees State ofNevada, Colorado River Commission of Nevada, and Southern Nevada WaterAuthority (“NV MJN”) at 59-60, 66, filed with this Brief.3 Nevada cites federal and state documents and publications (including the NEPAcompliance documents challenged in the First and Second Claims for Relief).Links to government websites where complete versions of these materials can beviewed are found in footnotes 2, 4, 6-9, 11-12, 14, 16-17, 19, 30. All of thesematerials are appropriate for judicial notice. See NV MJN at 1-2. Excerpts ofthese materials are included in the NV MJN, or in Supplemental Excerpts ofRecord of Intervenors-Defendants-Appellees State of Nevada, Colorado River


4

Nevada does not address the appeal from dismissal of the Seventh Claim.

B. Apportionment of the Colorado River

The Colorado River courses from Colorado to Utah and Arizona, and along

the Arizona-Nevada and Arizona-California boundaries to Mexico. It receives

tributary waters from Wyoming, Colorado, Utah, Nevada, New Mexico and

Arizona. Arizona v. California, 373 U.S. at 552. The 1922 Colorado River

Compact apportioned the beneficial consumptive use of 7.5 million acre feet per

year to the Upper Basin (Colorado, Utah, Wyoming, New Mexico and the portion

of Arizona tributary to the Colorado River upstream of Lee Ferry) and 7.5 million

acre feet per year to the Lower Basin (California, Nevada and the portion of

Arizona tributary to the Colorado River downstream of Lee Ferry). Id. at 557.

The Supreme Court resolved a dispute over the Lower Basin water in

Arizona v. California, 373 U.S. 546 (1963), entering a decree in Arizona v.

California, 376 U.S. 340 (1964); see also Arizona v. California, 547 U.S. 150

(2006) (Consolidated Decree). Normal year mainstream Colorado River water in

the Lower Basin was apportioned as follows: 300,000 acre feet to Nevada;

2,800,000 acre feet to Arizona; and 4,400,000 acre feet to California. Arizona v.

California, 373 U.S. at 564-65.

Commission of Nevada, and Southern Nevada Water Authority (“NV SER”) filedwith this Brief.


5

A vital body of law governing the Colorado River, known as the Law of the

River, developed atop this legal foundation. It is comprised of additional Supreme

Court decisions and decrees, Federal statutes and regulations, an International

Treaty, Guidelines, and Records of Decision. The Nation challenges critical

elements of the Law of the River. The challenged actions were developed through

cooperation among the Basin States to meet shifting challenges, and require

continued cooperation to succeed.

C. Interim Surplus Guidelines Challenged in First Claim for Relief

The Nation challenged, in its First Claim, the Final Environmental Impact

Statement, Colorado River Interim Surplus Criteria (Dec. 2000) (“Interim Surplus

Guidelines FEIS”),4 and the Record of Decision, Colorado River Interim Surplus

Guidelines; Final Environmental Impact Statement, published at 66 Fed. Reg.

7,772 (Jan. 25, 2001) (“Interim Surplus Guidelines ROD”), NV SER 244.

Article II(B)(6) of the Consolidated Decree in Arizona v. California, 547

U.S. at 156, allows the Secretary of the Interior to release Colorado River water

apportioned to but unused by one Lower Basin State for consumptive use in other

Lower Basin States. The Secretary issued the Interim Surplus Guidelines in part

under this authority. Those Guidelines provided a mechanism by which the

Secretary, based on how much apportioned water was unused, would allocate that

4 Available at http://www.usbr.gov/lc/region/g4000/surplus/SURPLUS_FEIS.html(last visited March 11, 2015), excerpts found in NV SER at 255-337.


6

unused water according to a defined priority. Interim Surplus Guidelines ROD

§ 1(B), 66 Fed. Reg. at 7,780, NV SER 252. The Guidelines differentiated

between a Normal and Shortage year on one hand, and a Surplus year on the other,

based on the surface elevation in Lake Mead. Id. §§ 2(A) & (B), 66 Fed. Reg.

at 7,780-81, NV SER 252-53. The Secretary’s authority in this regard stems from

Article II(B)(2) of the Consolidated Decree, 547 U.S. at 155. Interim Surplus

Guidelines ROD § III, 66 Fed. Reg. at 7,774, NV SER 246. The Guidelines

anticipated that California would use less Colorado River water, adopting measures

like the California Colorado River Water Use Plan designed to return California’s

consumptive use to its apportioned 4.4 million acre feet. Id.; id. § 5(A) at 7,782,

NV SER 254.

Colorado River water will continue to be allocated for useamong the Lower Division States in a manner consistent with theprovisions of the Decree. It is expected that Lower Division Statesand individual contractors for Colorado River water will adoptarrangements that will affect utilization of Colorado River waterduring the effective period of these guidelines. It is expected thatwater orders from Colorado River contractors will be submitted toreflect forbearance and reparation arrangements by Lower DivisionStates and individual contractors. The Secretary will deliverColorado River water to contractors in a manner consistent with thesearrangements, provided that any such arrangements are consistentwith the BCPA [Boulder Canyon Project Act of 1928], the Decreeand do not infringe on the rights of third parties. Surplus water willonly be delivered to entities with contracts for surplus water.

Id. § 2(C), 66 Fed. Reg. at 7,781, NV SER 253.


7

The Guidelines established periodic benchmarks for reduction in California

agriculture’s use of Colorado River water. Id. § 5(C), 66 Fed. Reg. at 7,782, NV

SER 254. They anticipated that designated California Colorado River contractors

and the Secretary would execute the Quantification Settlement Agreement by

December 31, 2001. If all parties did not sign that document by December 31,

2002, however, or if the benchmarks for reduction of California agricultural use of

Colorado River water were not met, the interim surplus determinations under

§§ 2(B)(1) and 2(B)(2) of the Guidelines would be suspended and replaced with

the “70R Strategy,” see §§ 5(B) & (C), 66 Fed. Reg. at 7,782, NV SER 254, which

the Bureau of Reclamation (“Bureau” or “Reclamation”) used for planning

purposes and surplus studies in prior years. See 66 Fed. Reg. at 7,774-75, NV SER

246-47. The Bureau noted: “The interim surplus criteria will not alter the quantity

or priority of Tribal entitlements. In fact, as noted by the description of the Tribes’

water rights in Section 3.14, the Tribes have the highest priority water rights on the

Colorado River. . . . Interim surplus criteria is [sic] also intended to complement

efforts by California to reduce its over reliance on surplus water.”5

Nevada wants California to divert no more than its apportioned Colorado

River water in normal years. Historically, California was able to divert more than

that because Arizona and Nevada had not utilized their apportionments fully. It

5 Interim Surplus Guidelines FEIS, Vol. III at B-204, NV SER 322.


8

was evident in 2001 that that circumstance was ending. See 66 Fed. Reg. at 7,774,

NV SER 246.

D. Shortage Guidelines Challenged in Second Claim for Relief

The Nation challenged, in its Second Claim, the Final Environmental Impact

Statement, Colorado River Interim Guidelines for Lower Basin Shortages and

Coordinated Operations for Lake Powell and Lake Mead (Oct. 2007) (“Shortage

Guidelines FEIS”),6 and the Record of Decision; Colorado River Interim

Guidelines for Lower Basin Shortages and the Coordinated Operations for Lake

Powell and Lake Mead (Dec. 2007), published at 73 Fed. Reg. 19,873 (April 11,

2008) (“Shortage Guidelines ROD”), NV SER 21.

The Shortage Guidelines ROD provides for coordinated operation of Lakes

Powell and Mead, specifies when shortages will be taken by the Lower Basin, and

encourages water conservation projects by allowing “storage” of conserved and

imported water in Lake Mead through Intentionally Created Surplus (ICS). Lower

Basin water contractors can create ICS through measures such as fallowing fields,

irrigation improvements, lining canals, building regulating reservoirs, and

introducing imported water into the Colorado River system. Water saved or

imported through these projects can be “banked” for later use. The Bureau

explained the purposes of the Guidelines:

6 Available at http://www.usbr.gov/lc/region/programs/strategies/FEIS/#VolI (lastvisited March 11, 2015), excerpts found in NV SER 41-243.


9

The purpose of the proposed federal action is to: 1) improveReclamation’s management of the Colorado River by considering thetrade-offs between the frequency and magnitude of reductions ofwater deliveries, and considering the effects on water storage in LakePowell and Lake Mead, water supply, power production, recreation,and other environmental resources; 2) provide mainstream UnitedStates users of Colorado River water, particularly those in the LowerDivision states, a greater degree of predictability with respect to theamount of annual water deliveries in future years, particularly underdrought and low reservoir conditions; and, 3) provide additionalmechanisms for the storage and delivery of water supplies in LakeMead.

Shortage Guidelines FEIS Vol. I at 1-3, NV SER 43. The Guidelines

are not intended to, and do not: . . . 4. Change the apportionmentsmade for use within individual States . . .; . . . 7. Affect the rights ofany holder of present perfected rights or reserved rights, which rightsshall be satisfied within the apportionment of the State within whichthe use is made, and in the Lower Basin, in accordance with theConsolidated Decree . . . .

Shortage Guidelines ROD, 73 Fed. Reg. at 19,884, NV SER 32. Reclamation

concluded that “[n]o vested water right of any kind, quantified or unquantified,

including federally reserved Indian rights to Colorado River water, rights pursuant

to the Consolidated Decree or Congressionally-approved water right settlements

utilizing CAP [Central Arizona Project] water, will be altered as a result of any of

the alternatives under consideration.” Shortage Guidelines FEIS Vol. I at 4-249,

NV SER 65. “The proposed federal action would not result in any significant

cumulative impacts.” Id. at ES-24, NV SER 42.


10

Nevada needs as much certainty as possible concerning the quantity of

Colorado River water available for diversion, especially during drought and low

reservoir conditions. The Shortage Guidelines serve that objective.

E. Implications of Persistent Drought

“The period from 2000 to 2013 is shaping up to be the lowest 14-year period

in the over 100-year historical record for the Colorado River. Tree-ring

reconstructions of streamflow indicate that the current 14-year period, which began

in 2000, is one of the lowest in the Basin in over 1,200 years.”7 Due to the

drought, Lake Mead received 7.48 million acre feet from Lake Powell in 2014, its

smallest annual delivery ever, in contrast to the normal delivery of 8.23 million

acre feet.8

The Shortage Guidelines declare that in years when Lake Mead’s surface

elevation is at or above 1050 feet and at or below 1075 feet on January 1, Nevada’s

share of the Lower Basin supply drops to 287,000 acre feet. Shortage Guidelines

ROD, 73 Fed. Reg. at 19,886, NV SER 34. The surface of Lake Mead is projected

7 Colorado River Basin: Hearing Before the S. Subcomm. On Water & Power ofthe Comm. on Energy & Natural Res., 113th Cong. 7 (July 16, 2013) (preparedstatement of Michael L. Connor, Comm’r, Bureau of Reclamation, Dep’t of theInterior, available at http://www.gpo.gov/fdsys/pkg/CHRG-113shrg86774/pdf/CHRG-113shrg86774.pdf (last visited March 11, 2015), NVMJN 17.8 See Annual Operating Plan for Colorado River Reservoirs 2015 (Nov. 4, 2014)at 17, 20, available at http://www.usbr.gov/lc/region/g4000/aop/AOP15.pdf (lastvisited March 11, 2015), NV MJN 6, 9.


11

to fall below elevation 1075 in June 2015.9 The Bureau predicts that Lake Mead’s

elevation will decline through 2016.10

Nevada’s apportionment of 300,000 acre feet per year provides southern

Nevada with 90% of its water supply.11 The population of Clark County, Nevada

in 2013 was estimated at 2,027,86812 out of an estimated statewide population of

2,790,136.13 Southern Nevada is the largest population center in the State and the

State’s economic engine. Planning for Nevada’s current and future water needs

requires certainty the Law of the River, including the challenged actions, provides.

The Intentionally Created Surplus (ICS) program is seeing Nevada through a

potential short-term crisis. Southern Nevada Water Authority has two intake

structures and pumping plants drawing water from Lake Mead. Lake Mead’s

surface elevation is nearing the shallower of the Authority’s existing intakes.

Intake No. 1, with its associated 600 million gallon per day pump station, will

9 Operation Plan for Colorado River System Reservoirs, March 2015 24-MonthStudy, Hoover Dam – Lake Mead, available athttp://www.usbr.gov/lc/region/g4000/24mo/2015/MAR15.pdf (last visitedMarch 11, 2015), NV MJN 2.10 Id.11 Water Resource Plan, Southern Nevada Water Authority at vii, available athttp://www.snwa.com/assets/pdf/wr_plan.pdf (last visited March 11, 2015), NVMJN 36.12 See United States Census Bureau, People QuickFacts, Clark County, Nevada,available at http://quickfacts.census.gov/qfd/states/32/32003.html (last visitedMarch 11, 2015) NV MJN 3.13 Id.


12

become inoperable if the surface of Lake Mead drops to elevation 1050.14 This

would leave southern Nevada with only one operable intake structure and pumping

plant until a third deeper intake facility and pumping plant can be completed in

future years. On February 28, 2015 the Lake’s elevation was 1088.98 feet. See

NV MJN 2. Below elevation 1000, neither of the Authority’s existing intakes or

pumping stations would be operable.15

Continued drought will reduce Nevada’s water supply as dictated by the

Shortage Guidelines ROD. Water has been retained in Lake Mead through that

ROD and ICS, keeping the surface elevation higher than it otherwise would have

been. The ICS program retained 1,118,164 acre feet in Lake Mead as of

December 31, 2013.16 This is the approximate capacity of Lake Mead between

elevations 1050 and 1065.17

14 See Environmental Assessment, Lake Mead Intake No. 3, Lake Mead NationalRecreation Area, Clark County, Nevada (Oct. 2006) at 4, available athttp://www.nps.gov/lake/parkmgmt/loader.cfm?csModule=security/getfile&PageID=138944 (last visited March 11, 2015), NV MJN 41.15 Id. at 9, NV MJN 46.16 See Colorado River Accounting and Water Use Report, Arizona, California andNevada, Calendar Year 2013 at 45 (May 2014), available athttp://www.usbr.gov/lc/region/g4000/4200Rpts/DecreeRpt/2013/2013.pdf (lastvisited March 11, 2015), NV MJN 13.17 See Lake Mead Area and Capacity Tables at 74, 79 (Sept. 2011), available athttp://www.usbr.gov/lc/region/g4000/LM_AreaCapacityTables2009.pdf (lastvisited March 11, 2015), NV MJN 27, 32.


13

F. The Proceedings Below

The Nation filed this action in March 2003 alleging in part that the Federal

Defendants violated the National Environmental Policy Act of 1969, 42 U.S.C.

§§ 4321 et seq. (2013) (NEPA), and the Administrative Procedure Act, 5 U.S.C.

§§ 701 et seq. (2013) (APA), in compiling the Interim Surplus Guidelines FEIS

and the Interim Surplus Guidelines ROD. D. Ariz. Doc. 1 ¶¶ 72-75; Prayers E

& F. The Nation filed its First Amended Complaint for Declaratory and Injunctive

Relief, D. Ariz. Doc. 226, on July 10, 2013. The NEPA and APA challenges to the

Interim Surplus Guidelines FEIS and Interim Surplus Guidelines ROD were

embodied in ¶¶ 60-67 and Prayers A and B. The First Amended Complaint also

alleged that the Shortage Guidelines FEIS and Shortage Guidelines ROD violated

NEPA and the APA. Id ¶¶ 68-71; Prayers C & D. The Nation filed its Second

Amended Complaint for Declaratory and Injunctive Relief, D. Ariz. Doc. 281, on

November 14, 2013, after the Federal Defendants and Intervenor-Defendants

moved to dismiss the action.

The District Court granted the Federal Defendants’ motion to dismiss, and

dismissed the Second Amended Complaint without prejudice on July 22, 2014.

Navajo Nation v. U.S. Dep’t of Interior, 34 F. Supp. 3d 1019, 1030 (D. Ariz.

2014); Judgment of Dismissal in a Civil Case, D. Ariz. Doc. 306. It denied


14

Nevada’s motion to dismiss as moot because it granted the Federal Defendants’

motion. 34 F. Supp. 3d at 1031.

The Nation appealed only the dismissal of its First, Second and Seventh

Claims.

IV. SUMMARY OF THE ARGUMENT

This Court may affirm the judgment on any ground supported by the record,

even if it differs from the District Court’s rationale. Ybarra v. McDaniel, 656 F.3d

984, 989 (9th Cir. 2011), cert. denied, __ U.S. __, 133 S. Ct. 424 (2012). Dismissal

of the Nation’s First and Second Claims was proper under all of these independent,

equally sound grounds.

First, the Nation has no Entitlement18 to Colorado River water. It lacks

Article III standing to bring the First and Second Claims because 1) there is no

injury in fact, as the challenged actions did not deny the Nation an Entitlement or

impair or diminish any Entitlement the Nation might one day acquire; 2) even if

the Nation suffered an injury, it is not traceable to the challenged actions; and

3) any such injury is not redressable in this litigation.

Second, the Nation asserts an interest that is not within the zone of interests

protected by NEPA, and the Nation therefore fails to state a claim under NEPA and

18 As used in this Brief, “Entitlement” means an authorization to consumeColorado River water beneficially pursuant to a decreed right, a contract with theUnited States through the Secretary of the Interior, or a Secretarial reservation ofwater. See, e.g., Shortage Guidelines FEIS, Vol. I at Glo-5, ER 269.


15

lacks statutory standing under the APA. Even if the asserted interest were within

NEPA’s protected zone of interests, the Nation fails to state a claim under NEPA

and lacks statutory standing under the APA because the alleged injury was not

proximately caused by the challenged actions for the same reasons it is not

traceable to those actions.

Third, even if the Nation had demonstrated Article III and statutory standing,

which it did not, the Federal Defendants complied with NEPA.

Apart from those grounds, the Nation’s request that the Court set aside

decisions based on the Interim Surplus Guidelines FEIS is moot.

Finally, the District Court properly denied the Motion for Specific Relief

From the July 22 Order Pursuant to Rule 60(b)(6), D. Ariz. Doc. 310. Once the

action was dismissed, the Nation was required to comply with FED. R. CIV. P. 59(e)

or (60)(b) in seeking relief; FED. R. CIV. P. 15(a) was inapplicable. The Nation

made no attempt to show that it satisfied Rules 59(e) or 60(b).

V. ARGUMENT

A. Standards of Review

As noted above, this Court may affirm the judgment on any ground

supported by the record, even if it differs from the District Court’s rationale.

Ybarra v. McDaniel, 656 F.3d at 989.


16

This Court reviews de novo dismissals under FED. R. CIV. P. 12(b)(1) and

12(b)(6). North Cnty. Commc’ns Corp. v. California Catalog & Tech., 594 F.3d

1149, 1154 (9th Cir.), cert. denied, __ U.S. __, 131 S. Ct. 645 (2010).

The District Court’s findings of fact relevant to its determination of subject

matter jurisdiction are reviewed for clear error. La Reunion Francaise SA v.

Barnes, 247 F.3d 1022, 1024 (9th Cir. 2001).

Nevada moved to dismiss under Rules 12(b)(1) and 12(b)(6). D. Ariz. Doc.

254 at 1. Challenges to a complaint under Rule 12(b)(1) may be facial or factual.

In a facial attack the challenger asserts that the allegations are insufficient on their

face to invoke federal jurisdiction. This Court assumes that plaintiff’s allegations

of material fact are true and draws all reasonable inferences in the plaintiff’s favor.

Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). It does not accept the truth

of legal conclusions cast as factual allegations. Doe v. Holy See, 557 F.3d 1066,

1073 (9th Cir. 2009) (per curiam), cert. denied, __ U.S. __, 130 S. Ct. 3497 (2010).

It also does not assume the truth of factual allegations controverted by undisputed

facts in the record. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987).

Nevada presented a facial attack in arguing that the Nation lacks Article III

standing.

The challenger in a factual attack under Rule 12(b)(1) disputes the truth of

the allegations that otherwise would invoke federal jurisdiction. In resolving a


17

factual attack on jurisdiction, the District Court may review evidence beyond the

complaint without transforming the motion to dismiss into a motion for summary

judgment. The Court need not presume the truthfulness of the plaintiff’s

allegations in a factual attack. Once the moving party has presented affidavits or

other evidence properly before the Court in a factual attack, the opposing party

must furnish affidavits or other evidence necessary to establish subject matter

jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004),

cert. denied, 544 U.S. 1018 (2005). Nevada presented a factual attack by disputing

that the Federal Defendants violated NEPA.

When considering the viability of a complaint, the Court must determine

whether factual allegations taken as true “‘plausibly suggest an entitlement to

relief, such that it is not unfair to require the opposing party to be subjected to the

expense of discovery and continued litigation.’” See Levitt v. Yelp! Inc., 765 F.3d

1123, 1135 (9th Cir. 2014) (citation omitted).

Even assuming that the plaintiff had standing, this Court may affirm

dismissal of the claim if the claim fails as a matter of law. Wood v. City of San

Diego, 678 F.3d 1075, 1086 (9th Cir. 2012).

The District Court could have dismissed this action pursuant to Rule

12(b)(6), though it did not. A Rule 12(b)(6) motion “‘tests the sufficiency of a

claim.’” Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011)


18

(citation omitted), cert. denied, __ U.S. __, 132 S. Ct. 1762 (2012). “‘The court’s

function on a Rule 12(b)(6) motion is not to weigh potential evidence that the

parties might present at trial, but to assess whether the plaintiff’s complaint alone

is legally sufficient to state a claim for which relief may be granted.’” Dubbs v.

Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations omitted), cert.

denied, 540 U.S. 1179 (2004). “Factual allegations must be enough to raise a right

to relief above the speculative level . . . .” Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555 (2007) (citation omitted); see FED. R. CIV. P. 8(a)(2). Dismissal can

be based on the lack of a cognizable legal theory or insufficient facts under a

cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530,

534 (9th Cir. 1984). In considering such a motion, the Court must accept all factual

allegations of the complaint as true and draw all reasonable inferences in favor of

the nonmoving party. Dahlia v. Rodriguez, 735 F.3d 1060, 1066 (9th Cir. 2013)

(en banc), cert. denied, __ U.S. __, 134 S. Ct. 1283 (2014). If, on a Rule 12(b)(6)

motion, matters outside the pleadings are presented to and not excluded by the

Court, the motion is treated as a motion for summary judgment. FED. R. CIV. P.

12(d). However, the Court may consider documents attached to or incorporated in

the complaint and matters of which the Court may take judicial notice without

converting the motion to dismiss to a motion for summary judgment. See


19

Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1030-31 (9th Cir.

2008).

The Supreme Court decided Lexmark Int’l, Inc. v. Static Control

Components, Inc., __ U.S. __, 134 S. Ct. 1377 (2014), after the close of briefing

below. The Court ruled that the zone of interests test is not an appropriate part of

the prudential standing analysis. Id. at 1387. In light of that decision, Nevada’s

contention that the Nation’s claims do not fall within NEPA’s protected zone of

interests should be analyzed as an assertion that the Nation failed to establish

statutory standing, warranting dismissal under Rule 12(b)(6). Vaughn v. Bay Envtl.

Mgmt., Inc., 567 F.3d 1021, 1024 (9th Cir. 2009).

B. Administrative Procedure Act and National Environmental Policy Act

1. Administrative Procedure Act

NEPA provides no private cause of action to enforce its terms. Courts

review actions subject to NEPA pursuant to the APA. Native Ecosystems Council

v. U.S. Forest Serv., 428 F.3d 1233, 1238 (9th Cir. 2005). The APA is not an

implied jurisdictional grant. Califano v. Sanders, 430 U.S. 99, 104-07 (1977).

Rather, 28 U.S.C. § 1331 (2013) bestows on federal district courts “original

jurisdiction of all civil actions arising under the Constitution, laws, or treaties of

the United States.”


20

The First and Second Claims allege that the challenged actions violated 5

U.S.C. § 706(2)(A)-(C) (2013). D. Ariz. Doc. 281 ¶¶ 67, 71. The Nation does not

contest the Federal Defendants’ authority to undertake the challenged actions, but

rather faults the manner in which that authority was discharged.

Judicial review under the APA is available only to “[a] person suffering

legal wrong because of agency action, or adversely affected or aggrieved by

agency action within the meaning of a relevant statute . . . .” 5 U.S.C. § 702

(2013). “[T]o be ‘adversely affected or aggrieved . . . within the meaning’ of a

statute, the plaintiff must establish that the injury he complains of (his

aggrievement, or the adverse effect upon him) falls within the ‘zone of interests’

sought to be protected by the statutory provision whose violation forms the legal

basis for his complaint.” Lujan v. National Wildlife Fed’n, 497 U.S. 871, 883

(1990) (citation omitted). These are the elements of statutory standing under the

APA. ONRC Action v. Bureau of Land Mgmt., 150 F.3d 1132, 1135 (9th Cir.

1998). The person seeking review under § 702 must set forth specific facts

showing that he has satisfied its terms. Lujan, 497 U.S. at 884.

The Supreme Court articulated the “zone of interest” test as gloss on § 702.

Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 395-96 (1987).

The “zone of interest” test is a guide for deciding whether, inview of Congress’ evident intent to make agency actionpresumptively reviewable, a particular plaintiff should be heard tocomplain of a particular agency decision. In cases where the plaintiff


21

is not itself the subject of the contested regulatory action, the testdenies a right of review if the plaintiff’s interests are so marginallyrelated to or inconsistent with the purposes implicit in the statute thatit cannot reasonably be assumed that Congress intended to permit thesuit.

Id. at 399 (citation omitted).

To determine whether an action was arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law, the Court must decide whether

the decision was based on consideration of the relevant factors and whether there

has been a clear error of judgment. Citizens to Preserve Overton Park, Inc. v.

Volpe, 401 U.S. 402, 416 (1971), overruled in part on other grounds, Califano v.

Sanders, 430 U.S. 99, 105 (1977). This inquiry is to be “searching and careful,”

but “the ultimate standard of review is a narrow one. The court is not empowered

to substitute its judgment for that of the agency.” Id. 401 U.S. at 416. The courts

are highly deferential to the agency, Lands Council v. McNair, 537 F.3d 981,

992-93 (9th Cir. 2008) (en banc), overruled in part on other grounds, American

Trucking Ass’n v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009), and

presume the agency action is valid. Center for Biological Diversity v. Kempthorne,

588 F.3d 701, 707 (9th Cir. 2009). “Such deference is especially warranted when

‘reviewing the agency’s technical analysis and judgments, based on an evaluation

of complex scientific data within the agency’s technical expertise.’” Id. (citation

omitted).


22

2. National Environmental Policy Act

“NEPA imposes a procedural requirement on federal agencies to ‘ ‘take[] a

‘hard look’ at the potential environmental consequences of the proposed

action.’ ’. . . . NEPA’s purpose is twofold: (1) ensure that agencies carefully

consider information about significant environmental impacts, and (2) guarantee

that relevant information is available to the public. . . . . Federal agencies are

required to prepare an environmental impact statement to assess the impact of

federal actions ‘significantly affecting the quality of the human environment.’”

Lands Council v. McNair, 629 F.3d 1070, 1075 (9th Cir. 2010) (citations omitted).

NEPA created the Council on Environmental Quality (“CEQ”). 42 U.S.C.

§§ 4342 et seq. (2013). The CEQ promulgated regulations on implementation of

NEPA. 40 C.F.R. §§ 1500.1 et seq. (2014). Those regulations bind all federal

agencies except where they may be inconsistent with other statutory requirements.

40 C.F.R. § 1500.3 (2014); see Executive Order 11991, § 2, 42 Fed. Reg. 26,967,

26,968 (May 25, 1977). The CEQ’s regulations are entitled to substantial

deference. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 355-56

(1989). The Secretary of the Interior supplemented with her own regulations. See

43 C.F.R. Part 46 (2014).19

19 The Nation mentions unidentified “departmental policies” and “Reclamation’sNEPA Handbook” as protecting tribal interests. E.g., Brief at 10, 14, 22. It citedin the District Court the Bureau of Reclamation Indian Trust Asset Policy and


23

Key to this litigation is the definition of “human environment” found in 40

C.F.R. § 1508.14 (2014):

Human environment shall be interpreted comprehensively to includethe natural and physical environment and the relationship of peoplewith that environment. . . . This means that economic or socialeffects are not intended by themselves to require preparation of anenvironmental impact statement. When an environmental impactstatement is prepared and economic or social and natural or physicalenvironmental effects are interrelated, then the environmental impactstatement will discuss all of these effects on the human environment.

(emphasis added).

NEPA Implementing Procedures, Questions and Answers About the Policy andProcedures (Aug. 31, 1994), NV SER 15, part of Attachment 9 to Reclamation’sNEPA Handbook (Feb. 2012) (available athttp://www.usbr.gov/nepa/docs/NEPA_Handbook2012.pdf (last visited March 11,2015), NV SER 10. See D. Ariz. Doc. 282 at 47-48, 55. As Nevada noted,D. Ariz. Doc. 290 at 18-19, the 1994 Policy is preceded by a note cautioning that“these answers are not definitive legal opinions; whenever there is doubt about alegal point, the Solicitor’s Office should be consulted.” NV SER 16. As Nevadaexplained, D. Ariz. Doc. 290 at 18-20, reliance on Reclamation’s NEPA Handbookis also improper, because i) the Handbook post-dated the actions challenged in theFirst and Second Claims for Relief, and the agency cannot be held to standards thatdid not exist when the challenged actions were taken. See California v. Block, 690F.2d 753, 769 (9th Cir. 1982). ii) The Handbook is expressly non-binding,Handbook at i, 1-3, and lacks the force of law. See Schweiker v. Hansen, 450 U.S.785, 789-90 (1981) (per curiam); Earth Island Inst. v. Carlton, 626 F.3d 462,473-74 (9th Cir. 2010). iii) The courts will not review allegations that an agencyfailed to comply with a nonbinding statement. United States v. Alameda GatewayLtd., 213 F.3d 1161, 1167-68 (9th Cir. 2000), cert. dismissed, 531 U.S. 1121(2001). The predecessor to the 2012 Handbook was the National EnvironmentalPolicy Act Handbook (Oct. 1990; revised Oct. 1991), NV SER 19. As Nevada alsoexplained, D. Ariz. Doc. 290 at 19, reliance on the 1990/91 Handbook isinappropriate because it also was intended to be nonbinding, NV SER 20 [1990/91Handbook at vii], and the courts will not review a claim that an agency failed tocomply with a nonbinding document. Alameda Gateway Ltd., 213 F.3d at 1167-68.


24

“[I]t is now well settled that NEPA itself does not mandate particular

results, but simply prescribes the necessary process.” Robertson v. Methow Valley

Citizens Council, 490 U.S. at 350 (citations omitted). “NEPA merely prohibits

uninformed—rather than unwise—agency action.” Id. at 351.

“Neither the statute [NEPA] nor its legislative history contemplates that a

court should substitute its judgment for that of the agency as to the environmental

consequences of its actions. . . . . The only role for a court is to insure that the

agency has taken a ‘hard look’ at environmental consequences; it cannot ‘interject

itself within the area of discretion of the executive as to the choice of the action to

be taken.’” Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976) (citations

omitted).

Courts employ a rule of reason in deciding whether an environmental impact

statement contains a reasonably thorough discussion of the significant aspects of

probable environmental consequences. Conservation Congress v. Finley, 774 F.3d

611, 621 (9th Cir. 2014).

C. The Nation Lacks Standing.

The plaintiff must have standing at the commencement of the action,

Friends of the Earth Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189

(2000), and show that it has standing for each type of relief sought. Summers v.

Earth Island Inst., 555 U.S. at 493.


25

The “irreducible constitutional minimum of standing” consists of three

elements: “First, the plaintiff must have suffered an ‘injury in fact’ – an invasion

of a legally protected interest, which is (a) concrete and particularized, . . . and

(b) ‘actual or imminent, not ‘conjectural’ or ‘hypothetical’’ . . . .” Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations omitted). Past injury is

insufficient to confer standing. Wilderness Soc’y, Inc. v. Rey, 622 F.3d 1251, 1256

(9th Cir. 2010). “Second, there must be a causal connection between the injury and

the conduct complained of – the injury has to be ‘fairly . . . trace[able] to the

challenged action of the defendant, and not . . . th[e] result [of] the independent

action of some third party not before the court.’” Lujan, 504 U.S. at 560 (citation

omitted). “Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the

injury will be ‘redressed by a favorable decision.’” Id. at 561 (citation omitted).

1. The Nation Established No Injury in Fact.

The requirement of an injury in fact is a “hard floor of Article III jurisdiction

that cannot be removed by statute.” Summers v. Earth Island Inst., 555 U.S.

at 497. Deprivation of a procedural right, without some concrete interest affected

by the deprivation – a procedural right in vacuo – does not create Article III

standing. Id. at 496; Wilderness Soc’y, Inc. v. Rey, 622 F.3d at 1255-58, 1260.

Contrary to the Nation’s argument, the fact that a plaintiff is seeking to enforce a

procedural right does not affect the injury in fact analysis. Cantrell v. City of Long


26

Beach, 241 F.3d 674, 679 (9th Cir. 2001); see also City of Sausalito v. O’Neill, 386

F.3d 1186, 1197 (9th Cir. 2004).

“‘To satisfy the injury in fact requirement, a plaintiff asserting a procedural

injury must show that the procedures in question are designed to protect some

threatened concrete interest of his that is the ultimate basis of his standing.’”

Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 969 (9th Cir.

2003) (citations omitted). In a procedural injury case, “‘to show a cognizable

injury in fact, [a plaintiff] must allege . . . that (1) the [agency] violated certain

procedural rules; (2) these rules protect [a plaintiff’s] concrete interests; and (3) it

is reasonably probable that the challenged action will threaten their concrete

interests.’” Nuclear Info. & Res. Serv. v. Nuclear Regulatory Comm’n, 457 F.3d

941, 949 (9th Cir. 2006) (citations omitted). “Concrete interest” requires “‘a

‘geographic nexus’ between the individual asserting the claim and the location

suffering the environmental impact.’” Id. at 950 (citations omitted).

The Nation did not allege that the challenged actions resulted in actual or

threatened environmental harm or impact. In deciding the propriety of dismissal

under Rule 12(b)(1) for lack of Article III standing, the Court may examine the

complaint as supplemented by amendment, and affidavits. Maya v. Centex Corp.,

658 F.3d 1060, 1067 (9th Cir. 2011). In determining the propriety of a Rule

12(b)(6) dismissal, the Court focuses on the content of the complaint, not briefing.


27

Schneider v. California Dep’t of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).

Here the outcome is the same because the District Court considered the Second

Amended Complaint, and the Nation filed no affidavits. Arguments by the

Nation’s counsel are no substitute for allegations absent from the complaint. See

Broudy v. Mather, 460 F.3d 106, 121, 122-23 (D.C. Cir. 2006); Ray v. Proxmire,

581 F.2d 998, 1002 n.19 (D.C. Cir.) (per curiam), cert. denied, 439 U.S. 933

(1978).

The Nation insists that “it is logical to assert that ill-informed guidelines for

managing the Colorado River threaten Navajo interests in adjacent trust lands and

related Reservation water needs.” Brief at 24. It argues that a plaintiff need not

assert that any specific injury will occur if it alleges that impacts might be

overlooked due to deficient NEPA analysis, citing Citizens for Better Forestry v.

U.S. Dep’t of Agric., 341 F.3d at 971-72. Brief at 23.

Plaintiffs in Citizens for Better Forestry alleged that the challenged action

threatened environmental harm. They sought to enjoin a policy based in part on a

violation of NEPA. No environmental analysis accompanied the rule, which noted

the existence of an environmental assessment and finding of no significant impact

on which the public had no opportunity to comment. 341 F.3d at 967. Denial of

the opportunity to comment violated NEPA. Id. at 970-71. This Court ruled that

the plaintiffs sufficiently alleged they would suffer harm by virtue of their


28

geographic proximity to and use of areas affected by the challenged policy. Id.

at 971. As explained infra at 41-42, the Nation showed no geographic nexus

between an alleged environmental impact and its Reservation. Unlike the Nation’s

claims, the interest at stake in Citizens for Better Forestry was “preventing

environmental damage to national forests and grasslands due to decreased

regulatory oversight . . . .” Id. at 976. This Court found that the plaintiffs “are

plainly trying to protect the environment . . . .” Id. The plaintiffs therefore had

standing. Id. “Citizens need not assert that any specific injury will occur in any

specific national forest that their members visit. ‘The ‘asserted injury is that

environmental consequences might be overlooked’ as a result of deficiencies in the

government’s analysis under environmental statutes.’” Id. at 971-72 (emphasis

added). The Nation incorrectly cites the decision as excusing an allegation of

specific injury altogether. Rather, once a geographic nexus has been shown

between the plaintiffs’ interest and the alleged environmental harm, the Court

excused the assertion of a specific injury at specific locations having that nexus.

The District Court held that the Nation did not demonstrate it was

“reasonably probable” that the challenged actions threaten its interests, even

though that Court assumed without deciding that the Nation could show a violation

of NEPA and that NEPA’s rules protect the Nation’s interest:

Under the third prong [of the NEPA injury inquiry], the Nation mustdemonstrate that it is “reasonably probable” that the challenged


29

administrative actions will threaten their interests. The Nation has notdone so. As explained above, the only injury the Nation asserts in thiscase is that the challenged administrative actions will create a systemof reliance that will somehow make it harder for the Nation to satisfyits water rights, even though the Nation concedes that thesechallenged actions do not vitiate those rights or otherwise legally alterthose rights under Winters. The Nation does not explain how any“system of reliance” created by the challenged administrative actionscould nonetheless injure the Nation’s interests. Without thisconnection, the Nation has not demonstrated that it is “reasonablyprobable” that the actions will threaten their interests. Thus, inClaims One, Two, Three, and Five, the Nation fails to establish injuryunder the standard for establishing a NEPA procedural injury andtherefore the Nation does not have Article III standing to bring thoseclaims.

34 F. Supp. 3d at 1027. The following discussion shows that there is no basis for

assuming that the Nation could demonstrate a violation of NEPA or that NEPA’s

rules protect the interest the Nation invokes. Even if those assumptions were

sound, however, the District Court correctly found as a factual matter that the

Nation failed to show the challenged actions will threaten the Nation’s interests.

The District Court’s findings of fact relating to subject matter jurisdiction are

reviewed for clear error. See supra at 16. The record supports no other conclusion.

The Nation pleas for special treatment as a sovereign in the analysis of

standing. Brief at 22. But this Court insists that even sovereigns demonstrate

actual, imminent injury to establish standing. E.g., Sturgeon v. Masica, 768 F.3d

1066, 1072-75 (9th Cir. 2014).


30

a. The Nation Has No Entitlement to Colorado River Water.

The Nation concedes that the extent to which it holds rights to the Colorado

River has not been determined. Brief at 3-4. More concisely, the Nation has no

Entitlement to Colorado River water. The Bureau noted this in the Interim Surplus

Guidelines FEIS,20 and in the Shortage Guidelines FEIS.21 It explained that “[t]he

NEPA process is not the vehicle to determine water rights of any party.”22

The Nation also notes that “the precise nature of any Navajo entitlement [to

Colorado River water] is unknown.” Brief at 25. Before the District Court,

however, the Nation argued that while there is a dispute among the parties over the

priority of any right the Nation may have to Colorado River water, that priority

should be no later than 1900. See Transcript at 11-14, NV SER 3-6. “Present

Perfected Rights,” for purposes of Arizona v. California, are “perfected rights, as

here defined, existing as of June 25, 1929, the effective date of the Boulder Canyon

Project Act.” Arizona v. California, 547 U.S. at 154. “Perfected right,” as relevant

to the Nation’s claims, “shall include water rights created by the reservation of

mainstream water for the use of federal establishments under federal law whether

20 Interim Surplus Guidelines FEIS, Vol. I, § 3.14.2.3 at 3.14-4, NV SER 259;Vol. II, Attachment Q, Tables Q-1 (Upper Basin) & Q-3 (Lower Basin), NV SER296, 301.21 Shortage Guidelines FEIS, Vol. I, § 3.10.1.1 at 3-88 – 3-90, NV SER 46-48, &Table 3.10-1 at 3-88, NV SER 46; Vol. I, § 3.10.1.2 at 3-90 – 3-95, NV SER48-53, & Table 3.10-2 at 3-92, NV SER 50; Vol. I, § 3.10.5.1 at 3-96, NV SER 54.22 Interim Surplus Guidelines FEIS, Vol. III at B-205, NV SER 323.


31

or not the water has been applied to beneficial use.” Id. The Nation thus argued

that it is entitled to a Present Perfected Right. This is important in understanding

the Bureau’s NEPA analyses discussed below.

b. Even If the Nation Acquires an Entitlement to ColoradoRiver Water, the Challenged Actions Would Not ImpairThat Entitlement.

Reclamation’s NEPA analyses demonstrate that the challenged actions

would not impair any Entitlement the Nation might someday secure.

i. NEPA Analysis of the Interim Surplus Guidelines

Despite the Nation’s lack of an Entitlement to Colorado River water, the

Bureau consulted with the Nation directly, and through the Ten Tribes Partnership

of which the Nation was a member, in the course of its NEPA analysis of the

Interim Surplus Guidelines.23 The Nation submitted its own written comments on

the draft environmental impact statement,24 and as a member of the Ten Tribes

Partnership submitted additional comments on that draft.25 The Bureau considered

and responded to those comments.26

23 Interim Surplus Guidelines FEIS, Vol. I, § 3.14.1 at 3.14-1 – 3.14-2, NV SER256-57; Vol. I, § 5.4 at 5-6, NV SER 269, & Table 5-1 at 5-9, NV SER 270.24 Id. Vol. III at B-187 et seq., NV SER 305-08.25 Id. at B-194 et seq., NV SER 312-37.26 Id. at B-188 et seq., B-196 et seq., NV SER 306-08, 314-33.


32

Reclamation analyzed thoroughly the relationship between the Interim

Surplus Guidelines and Indian Trust Assets.27 It described how the Nation’s

demand points in tributary watersheds were reflected in the Colorado River

Simulation System (CRSS) model.28 The Bureau responded to concerns expressed

by the Ten Tribes Partnership, concerns echoed by the Nation below, D. Ariz. Doc.

282 at 16, 35-37, and in this Court, e.g., Brief at 27.

The Ten Tribes have a significant amount of undeveloped waterrights. The current availability of surplus water on the Colorado Riveris primarily a direct result of unused existing entitlements, includingthose of the Tribes. The Ten Tribes have raised significant concernsthat interim surplus criteria could: 1) foster a reliance on surpluswater on the part of other entitlement holders; 2) provide adisincentive for those entitlement holders to support future Tribaldevelopment; and 3) have the practical effect of diminishing theTribes’ ability to utilize their entitlements.

The interim surplus criteria will not alter the quantity or priority oftribal entitlements. In fact, as noted by the description of the TenTribes’ water rights above, the Tribes have the highest priority waterrights on the Colorado River. Surplus determinations have been madesince 1996. The interim surplus criteria would not make anyadditional surplus water available as compared with currentconditions, but rather would provide more objective criteria forsurplus determinations. Moreover, the preferred alternative wouldquantify the amounts of surplus water to be made available.Reclamation does not believe that identifying the limited amounts ofsurplus water will provide any additional disincentives for Tribal

27 See id. Vol. I, § 3.14 at 3.14-1 et seq., NV SER 256-66.28 Id. Vol. I, § 3.14.2.3 at 3.14-4, NV SER 259. For information on the CRSSmodel, see id. Vol. II, Attachment J, NV SER 275-92. Using information providedby tribes with Entitlements to the Colorado River, the Bureau supplemented themodel with the tribes’ diversion points as they requested. Id. Vol. I, § 5.4 at 5-6,NV SER 269.


33

water development. Interim surplus criteria are intended to assist inthe effort to reduce the overreliance by California on surplus water.The selection of any of the alternatives of this proposed action doesnot preclude any entitlement holder from using its water.

Interim Surplus Guidelines FEIS, Vol. I, § 3.14.2.11 at 3.14-10, NV SER 265. The

Bureau also analyzed the potential impact of the Interim Surplus Guidelines on

tribes in the context of effects on minority and low-income populations.29

The Bureau explained that only one Lower Basin tribe, holding an

entitlement to Fourth Priority30 Colorado River water under Arizona’s

apportionment, was at risk of shortage:

Under normal conditions, deliveries to Lower Basin users are alwaysequal to the normal depletion schedules, including those for theTribes. Under shortage conditions, only CAP [Central ArizonaProject] and SNWA [Southern Nevada Water Authority] share in theshortage until CAP goes to zero (which was not observed in any of themodeling runs done for this EIS). Therefore, the Tribes of the TenTribe Partnership in the Lower Basin would receive their scheduleddepletion, with the exception of the Cocopah Tribe that has someArizona Priority 4 water. However, adoption of the interim surpluscriteria would not significantly increase the risk of shortages toholders of Arizona Priority 4 water. For example, the modelinganalysis indicates that under the preferred alternative, the occurrenceof Priority 4 shortages would be approximately four percent greaterthan under baseline conditions.

Id. Vol. I, § 3.14.2.11.2 at 3.14-11, NV SER 266.

29 Id. Vol. I, § 3.15 at 3.15-1 et seq., NV SER 267-68.30 See http://www.usbr.gov/lc/region/g4000/contracts/entitlements/AZpriorities.pdf(last visited March 11, 2015), NV MJN 74-75, for an explanation of ColoradoRiver priorities within Arizona.


34

A party contesting an agency’s modeling results must present evidence in

support of its contention. See Northwest Coal. for Alts. to Pesticides v. U.S. Envtl.

Prot. Agency, 544 F.3d 1043, 1048-51 (9th Cir. 2008). Here the Nation did not

contest the Bureau’s modeling, let alone establish that it was contrary to law or

arbitrary and capricious.

ii. NEPA Analysis of the Shortage Guidelines

As it did in analyzing the Interim Surplus Guidelines, the Bureau consulted

with the Nation and other tribes in studying the Shortage Guidelines under

NEPA.31 The Nation and other tribes commented on the draft environmental

impact statement.32 The Bureau considered and responded to the Nation’s

comments,33 and to the comments of other tribes.34

Reclamation determined that no quantified water right Indian Trust Assets

existed within the study area upstream of Lake Mead, but noted that two tribes had

asserted that they have unquantified water right trust assets and other Indian Trust

31 Shortage Guidelines FEIS, Vol. I, § 3.15 at 3-142 – 3-143, NV SER 57-58, &Figure 3.15-1, NV SER 57; Vol. I, § 4.10.4 at 4-250, NV SER 66; Vol. I, § 6.4at 6-4, NV SER 75, & Table 6.9-1 at 6-8, NV SER 79; Vol. II, Appendix I at I-7 –I-8, NV SER 83-84, I-15 – I-18, NV SER 85-88, I-29 – I-38, NV SER 89-98, I-45– I-53, NV SER 99-107.32 Id. Vol. IV at IT-1 et seq., NV SER 142-243 (all commenting tribes), & IT-103et seq., ER 109-117 (Navajo Nation’s comments).33 Id. Vol. IV at IT-103 et seq., ER 109-117.34 Id. Vol. IV at IT-1 et seq., NV SER 142-243.


35

Assets that would be affected by the Shortage Guidelines.35 The Nation was one of

those tribes. The Bureau discussed the Nation’s contentions:

The Navajo Nation is a federally recognized Indian tribe whose 12.5million-acre reservation was initially established by treaty in 1868 andexpanded by a series of executive orders in 1884, 1900, and 1930.The Navajo Nation economy is historically based on livestockherding, dry farming, and mining. Under the Winters doctrineestablished by the United States Supreme Court, the United Statesimplicitly reserved water in an amount necessary to fulfill thepurposes of an Indian reservation. The existence of a federallyreserved right for the Navajo Nation to mainstream Colorado Riverwater has not been judicially determined at this time. Unquantifiedwater rights of the Navajo Nation are considered an ITA [Indian TrustAsset].

During consultation on this proposed federal action, the NavajoNation wrote Reclamation a letter dated August 21, 2006 identifying awater budget of 76,732 afy [acre feet per year] that the Navajo Nationbelieves must be satisfied out of the Colorado River mainstream. Thewater budget of the Navajo Nation is premised on the use of 63,000afy from the Little Colorado River which would otherwise contributeto the supply available in Lake Mead. In addition, the Navajo Nationasked Reclamation to consider the effects of the proposed federalaction on 6,411 afy of CAP [Central Arizona Project] 3 NIA [ThirdNon-Indian Agricultural] Priority Water identified for use by theNavajo Nation in the Arizona Water Settlements Act of 2004. Thiswater is included in the 76,732 afy that the Navajo Nation believesmust be satisfied out of the Colorado River mainstream. Overall, theNavajo Nation has asked the Secretary to account for the needs of theNavajo Nation as the Secretary undertakes the difficult task ofdeveloping guidelines to deal with Lake Powell and Lake Mead intime of shortage (Navajo Nation letter dated August 21, 2006).

Shortage Guidelines FEIS, Vol. I, § 3.10.5.1 at 3-96 – 3-97, NV SER 54-55.

35 Id. Vol. I, § 3.10.5 at 3-96, NV SER 54.


36

The Nation’s August 2006 water budget36 embodied serious flaws. First, to

the extent that the Nation asked the Secretary to include water of the Little

Colorado River in her NEPA analysis, its request exceeded the Secretary’s

authority. Only the mainstream of the Colorado River in the Lower Basin was

apportioned, not its tributaries, and the Supreme Court did not adjudicate rights to

those tributaries. Arizona v. California, 373 U.S. at 568-75, 591; Arizona v.

California, 460 U.S. 605, 609 (1983). The Secretary is not the water master on

Arizona’s tributaries. The Nation’s right to the Little Colorado River will be

determined in a pending state court general stream adjudication. See In re General

Adjudication of All Rights to Use Water in Little Colorado River Sys. & Source,

Cause No. CV 6417 (Ariz. Super. Ct., Apache Cnty.). Second, in 2004 Congress

conditioned the Nation’s access to the 6,411 acre feet per year of Central Arizona

Project water until December 31, 2030 on completion of a congressionally

approved settlement of the Nation’s water right claims in Arizona. Arizona Water

Settlements Act, Pub. L. No. 108-451, Title I, § 104(a)(1)(B)(ii), 118 Stat. 3478,

3487 (2004). No such settlement exists.

36 The Nation gave the Bureau the water budget five years after completion of theInterim Surplus Guidelines NEPA analysis. Knowledge of its content cannot beimputed to the Bureau when it conducted that analysis. A participant in the NEPAprocess must structure its participation so that it is meaningful, and alerts theagency to the participant’s position and contentions. See, e.g., Department ofTransp. v. Public Citizen, 541 U.S. 752, 764-65 (2004); Center for BiologicalDiversity v. Kempthorne, 588 F.3d at 710.


37

Reclamation simulated water deliveries to Arizona under the No Action

Alternative and the action alternatives for the Shortage Guidelines.37 It also

modeled the distribution of shortages to and within the Lower Basin States.38

Modeling for Arizona39 showed that under none of the alternatives would Present

Perfected Rights, which the Nation claims to have, sustain a shortage in 2017,

2026, 2027, 2040 or 2060.40 Again, the Nation did not challenge the Bureau’s

modeling or demonstrate that is contrary to law or arbitrary and capricious.

The Bureau explained that the Shortage Guidelines would not adversely

affect tribal water rights, again except for tribes holding Arizona Fourth Priority

rights:

No vested water right of any kind, quantified or unquantified,including federally reserved Indian rights to Colorado River water,rights pursuant to the Consolidated Decree or Congressionally-approved water right settlements utilizing CAP [Central ArizonaProject] water, will be altered as a result of any of the alternativesunder consideration.

To the extent that additional Tribal water rights are developed,established or quantified during the interim period of the proposedfederal action, the United States will manage Colorado River facilitiesto deliver water consistent with such additional water rights, if any,pursuant to federal law. Thus, modifications to system operations, inaccordance with pertinent legal requirements, will consider Tribalwater rights, and will be exercised in accordance with applicable law.

37 Shortage Guidelines FEIS, Vol. I, § 4.4.5.1 at 4-123 – 4-127, ER 228-232.38 Id. Vol. I, § 4.4.7 at 4-141 et seq., ER 246-252.3.39 Id. Vol. I, § 4.4.7.1 at 4-142 – 4-146, ER 247-251.40 Id. Vol. I, Tables 4.4-16 through 4.4-20 at 4-144 – 4-146, ER 249-251.


38

Water deliveries to the Fort Mojave, Chemehuevi, CRIT [ColoradoRiver Indian Tribes of the Colorado River Indian Reservation], andFort Yuma Indian Reservations will not be affected by the proposedfederal action due to their early priority dates. For the CocopahIndian Reservation, its 1915 and 1917 PPRs [Present PerfectedRights] would also not be affected. However, the 1974 priority dateof 2,026 afy [acre feet per year] of the Cocopah Indian Reservationmay be reduced during certain shortage conditions, as summarized inSection 4.4 (Water Deliveries). Similarly, the CAP Settlement tribes,with their post-1968 CAP Priority, would also be subject to shortages.However, even when water deliveries are reduced to these IndianReservations, the underlying water rights would not be affected.

Water delivery reductions may result in fallowing of some Indianlands; however, these changes in land-use are expected to betemporary and no permanent changes in land-use would occur.

Shortage Guidelines FEIS, Vol. I, § 4.10.1 at 4-249, NV SER 65. Reclamation

explained that any shortage suffered by Central Arizona Project contractors is

dictated by a federal statutory priority,41 not by the proposed federal action, and

would occur regardless of the alternative selected. Id. Vol. I, § 4.15.2 at 4-329,

NV SER 67.

The Nation dismisses the Bureau’s promise to manage Colorado River

facilities consistent with tribal water rights as ignoring political and practical

realities. Brief at 24-25. Agencies are entitled to a presumption that they act

properly and according to law. See Federal Commc’ns. Comm’n v. Schreiber, 381

41 See Colorado River Basin Project Act, Pub. L. No. 90-537, Title III, § 301(b), 82Stat. 885, 888 (Sept. 30, 1968).


39

U.S. 279, 296 (1965); Kohli v. Gonzales, 473 F.3d 1061, 1068 (9th Cir. 2007). The

Nation’s skepticism does not overcome that presumption.

Reclamation also evaluated the impacts of the Shortage Guidelines in the

context of historic properties managed by the Nation,42 physical integrity of tribal

sacred sites,43 tribal cultural resources,44 and biological resources.45

The Bureau summarized: “Tribal trust assets identified in the study area

would not be adversely affected by any of the anticipated environmental impacts

stemming from the proposed federal action.”46 In concluding its cumulative

impacts analysis Reclamation stated: “The proposed federal action would not

result in any substantive effects on ITAs [Indian Trust Assets]. Therefore, it would

not contribute to any cumulative effects.”47

The Nation represents that the Bureau “devoted less than a page to its

analysis of the effects of the proposed action on Indian trust assets . . . .” Brief

at 8. As the preceding discussion shows, that is not true. The Bureau’s decision to

organize its discussion relating to Indian Trust Assets by topic is within its

discretion. See Montana Wilderness Ass’n v. Connell, 725 F.3d 988, 1002-04 (9th

Cir. 2013).

42 Shortage Guidelines FEIS, Vol. I, § 4.9.3 at 4-244, NV SER 60.43 Id. Vol. I, § 4.9.8 at 4-247, NV SER 63.44 Id. Vol. I, § 4.10.3 at 4-250, NV SER 66.45 Id. Vol. I, § 4.10.4 at 4-250, NV SER 66.46 Id. Vol. I, § 4.10.5 at 4-250, NV SER 66.47 Id. Vol. I, § 5.2.7.7 at 5-12, NV SER 71.


40

The Nation complains that Reclamation failed to consider whether the

Shortage Guidelines would hinder the Nation’s ability to develop its own surplus

supplies in the future. Brief at 26. That is incorrect. When issuing the Shortage

Guidelines FEIS, Reclamation declined to address several ill-defined expressions

of interest in future Intentionally Created Surplus projects.48 Instead, it included

draft guidelines for administration of the ICS program applicable to future projects

in the Shortage Guidelines FEIS.49 The Shortage Guidelines ROD contained the

final guidelines for the ICS program.50 The ROD defined “contractor” to mean “an

entity holding an entitlement to Mainstream water under (a) the Consolidated

Decree, (b) a water delivery contract with the United States through the Secretary,

or (c) a reservation of water by the Secretary, whether the entitlement is obtained

under (a), (b) or (c) before or after the adoption of these Guidelines.”51 The Nation

may participate in the ICS program if it satisfies the program’s requirements. The

Nation does not assert that the final guidelines are deficient. In analyzing several

projects that were appropriate for study, Reclamation concluded that the Bureau of

Land Management had identified no Indian Trust Assets in the area affected by

those projects, and no Indian tribes, groups or individuals had identified any

specific Indian Trust Assets during the public notification and scoping process.

48 Id. Vol. I, § 4.16 at 4-333, ER 255.49 Id. Vol. III, Appendix S, NV SER 109-39.50 73 Fed. Reg. at 19,883 et seq., NV SER 31-40.51 § XI(F)(9), 73 Fed. Reg. at 19,884 (emphasis added), NV SER 32.


41

Therefore, it anticipated no impacts on Indian Trust Assets from implementation of

those projects.52

c. The Nation Showed No Geographic Nexus Between anEnvironmental Impact of the Challenged Actions and theInterest Allegedly Harmed.

The Nation contends that it satisfies the second element of the procedural

injury test in part because a geographic nexus exists between its Reservation and

the Colorado River, Brief at 19, citing Center for Food Safety v. Vilsack, 636 F.3d

1166 (9th Cir. 2011), and Western Watersheds Project v. Kraayenbrink, 632 F.3d

472 (9th Cir.), cert. denied, __ U.S. __, 132 S. Ct. 366 (2011). The allegations

considered in those decisions described a geographic nexus between those

asserting an injury and the location of the alleged environmental impact. In Center

for Food Safety, the plaintiffs’ declarations established a geographic nexus

between the locations of their organic farming operations and the sites of

authorized plantings of genetically modified crops. 636 F.3d at 1172. In

Kraayenbrink, declarations submitted by Western Watersheds Project established

that lands its members visit and study would be subject to the challenged

regulations. 632 F.3d at 484-85. There was no dispute that those regulations

would have diminished public oversight of grazing on public lands. Id. at 487.

The plaintiffs alleged that the challenged regulations would have damaged the

52 Shortage Guidelines FEIS, Vol. I, § 4.16.2.7 at 4-340, ER 262.


42

environment. Id. at 489. As those decisions make clear, the geographic nexus

between the plaintiff and the alleged environmental impact is what matters. A

geographic nexus between the Navajo Reservation and the Colorado River is not

sufficient to prove a concrete interest where, as here, there is no allegation of

environmental harm or impact.

2. The Nation’s Lack of Entitlement to Colorado River Water Is NotTraceable to the Challenged Actions.

The Nation argues that it satisfies the causation or traceability requirement

of standing because it alleged the reasonable probability of threat to its interests

from risks created by uninformed decisions, the threat to the Reservation from

guidelines predetermining when the Secretary will declare a surplus or shortage,

and the resulting disincentive for the Federal Defendants to fulfill their obligations

concerning the Navajo Reservation, and that each allegation of threat is a direct

result of the Federal Defendants’ conduct. Brief at 28-29. These allegations do

not satisfy the causation test.

The “fairly traceable” or causation component of constitutional standing

examines the causal connection between the assertedly unlawful conduct and the

alleged injury. Allen v. Wright, 468 U.S. 737, 753 n.19 (1984), abrogated on other

grounds, Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct.

at 1386-88. This Court articulated the causality or traceability element of

Article III standing as follows:


43

To satisfy the causality element for Article III standing,Plaintiffs must show that the injury is causally linked or “fairlytraceable” to the Agencies’ alleged misconduct, and not the result ofmisconduct of some third party not before the court. . . . “The line ofcausation between the defendant’s action and the plaintiff’s harmmust be more than attenuated.” . . . “[W]here the causal chaininvolves numerous third parties whose independent decisionscollectively have a significant effect on plaintiffs’ injuries, . . . thecausal chain is too weak to support standing.”

Washington Envtl. Council v. Bellon, 732 F.3d 1131, 1141-42 (9th Cir. 2013)

(citations omitted), reh’g en banc denied, 741 F.3d 1075 (9th Cir. 2014).

The Nation alleged that the Federal Defendants failed to consider the “rights

of the Navajo Nation to or the needs of the Navajo Nation and its members from

the waters of the Lower Basin of the Colorado River,” or words to that effect, in

connection with actions challenged in the First and Second Claims. D. Ariz. Doc.

281 ¶¶ 64, 65, 67, 70, 71. It acknowledged that its “right” to Colorado River water

is “unquantified.” Id. ¶¶ 65, 67, 71. However, an agency cannot be expected to

analyze the unknown. See, e.g., Northern Alaska Envtl. Center v. Kempthorne,

457 F.3d 969, 973, 977 (9th Cir. 2006). The Bureau would have had to guess at the

quantity, priority, rate of diversion (and whether that rate is constant or variable

with the season), and point or points of diversion, all key attributes of an

Entitlement.

The reality is that the Nation has no Entitlement to Colorado River water,

either diverted from the River or delivered through the Central Arizona Project.


44

Whether the Nation ever will have such an Entitlement, and if so, the attributes of

that Entitlement, are purely a matter of conjecture, and cannot be determined by

the Federal Defendants or this Court. The Federal Defendants refrained from

speculating about the unknowable, and analyzed the information available to them.

That is all NEPA requires.

The Consolidated Decree in Arizona v. California, 547 U.S. at 152, provides

“a single convenient reference to ascertain the rights and obligations of the parties

adjudicated in this original proceeding . . . .” Subdivision II(D) of the Decree

enjoins the United States, its officers, attorneys, agents and employees

From releasing water controlled by the United States for use inthe States of Arizona, California, and Nevada for the benefit of anyfederal establishment named in this subdivision (D) except inaccordance with the allocations made herein . . . .

Id. at 154, 157. The Decree allocates no water to the Nation.

The Supreme Court “retains jurisdiction of this suit for the purpose of any

order, direction, or modification of the decree, or any supplementary decree, that

may at any time be deemed proper in relation to the subject matter in controversy.”

Id. at 166-67. While the Secretary has considerable control over Colorado River

waters, Arizona v. California, 373 U.S. at 593, only the Supreme Court (and

perhaps Congress) may recognize an entitlement to natural flow mainstream

Colorado River water. See, e.g., Arizona v. California, 460 U.S. at 641.


45

Central Arizona Project water is “project water,” i.e. water that would not be

available but for the fact that it has been developed by the United States. See

Israel v. Morton, 549 F.2d 128, 132 (9th Cir. 1977). “It is not there for the

taking . . ., but for the giving by the United States. The terms upon which it can be

put to use, and the manner in which rights to continued use can be acquired, are for

the United States to fix.” Id. at 132-33. The Secretary allocated Central Arizona

Project water in 1983. See Central Arizona Project, Arizona; Water Allocations

and Water Service Contracting; Record of Decision, 48 Fed. Reg. 12,446

(March 24, 1983), NV MJN 67.53 The Nation did not receive an allocation. Id.

at 12,447, NV MJN 68. In 2004, Congress authorized reallocation of non-Indian

agricultural priority Central Arizona Project water to specific tribes (not including

the Nation) and for future Arizona tribal water right settlements. Congress

prohibited the Secretary from reallocating the water made available for future

settlements before December 31, 2030 absent a congressionally-approved

settlement of a tribe’s water right claims in Arizona. See Arizona Water

Settlements Act, Title I, §§ 104(a)(1)(A)(iii) & (B)(i), 118 Stat. at 3487.54

Congress directed the Secretary to retain 6,411 acre feet per year of non-Indian

53 For an overview of the history and statutory framework of the Central ArizonaProject, see Maricopa-Stanfield Irrigation & Drainage Dist. v. United States, 158F.3d 428, 431 & n.3, 436-38 (9th Cir. 1998), cert. denied, 526 U.S. 1130 (1999).54 This legislation essentially modified the 1983 Secretarial allocations. See Smithv. Central Arizona Water Conservation Dist., 418 F.3d 1028, 1031 n.3 (9th Cir.2005).


46

agricultural priority Central Arizona Project water until December 31, 2030 for use

by the Nation, but conditioned the Nation’s access to that water on completion of a

congressionally approved settlement of the Nation’s water right claims in Arizona.

Id. § 104(a)(1)(B)(ii), 118 Stat. at 3487. The Nation has no such settlement. See

D. Ariz. Doc. 192 at 5-6. The 2004 Act also capped the quantity of Central

Arizona Project water that could be under contract to Arizona Indian tribes and

available to the Secretary for allocation to Arizona tribes. Arizona Water

Settlements Act, Title I, § 104(c)(1)(A)(i), 118 Stat. at 3490.

The Federal Defendants lack authority to grant or deny the Nation an

Entitlement to Colorado River water. The Nation’s injury is not traceable to the

contested actions. See Department of Transp. v. Public Citizen, 541 U.S.

at 768-70; WildEarth Guardians v. U.S. Envtl. Prot. Agency, 759 F.3d 1064, 1071

(9th Cir. 2014); Washington Envtl. Council v. Bellon, 732 F.3d at 1142-43; see also

City of Shoreacres v. Waterworth, 420 F.3d 440, 452 (5th Cir. 2005).

The Nation not only lacks an Entitlement, it lacks the infrastructure needed

to utilize an Entitlement should it receive one. This Court and the Federal

Defendants cannot alter that circumstance either. The Constitution gives Congress

the authority “[t]o regulate Commerce . . . with the Indian Tribes . . . .” U.S.

CONST. art. I, § 8, cl. 3. “[T]he central function of the Indian Commerce Clause is

to provide Congress with plenary power to legislate in the field of Indian


47

affairs . . . .” Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989)

(citations omitted). The Constitution also provides that “No Money shall be drawn

from the Treasury, but in Consequence of Appropriations made by Law . . . .” U.S.

CONST. art. I, § 9, cl. 7. The Appropriations Clause “‘means simply that no money

can be paid out of the Treasury unless it has been appropriated by an act of

Congress.’” Office of Personnel Mgmt. v. Richmond, 496 U.S. 414, 424 (1990)

(citation omitted). “The command of the Clause is not limited to the relief

available in a judicial proceeding seeking payment of public funds. Any exercise

of a power granted by the Constitution to one of the other branches of Government

is limited by a valid reservation of congressional control over funds in the

Treasury.” Id. at 425. Congress has not appropriated funds for a Navajo diversion

system where no Entitlement exists and may never exist.

This Court lacks jurisdiction to award the Nation an Entitlement, as did the

Federal Defendants in complying with NEPA. Neither this Court nor the Federal

Defendants can enable the Nation to utilize an Entitlement if it had one. Those

forms of relief can only be bestowed by decision-makers beyond the control of this

Court and the Federal Defendants. The Nation beckons this Court to intrude on

authority the Constitution conferred on others. The Court should decline the

invitation.


48

3. The Nation’s Lack of Entitlement to Colorado River Water Is NotRedressable in This Action.

The redressability component of constitutional standing examines the causal

connection between the alleged injury and the judicial relief requested. Allen v.

Wright, 468 U.S. at 753 n.19. Redressability requires a substantial likelihood that

the injury will be redressed by a favorable judicial decision. Washington Envtl.

Council v. Bellon, 732 F.3d at 1146. The Nation failed to show that its alleged

injury can be redressed by a favorable decision here. It did not show that further

consideration of a theoretical right to Colorado River water could alter the

challenged actions. The Federal Defendants could not assume the Nation’s use of

Colorado River water because the Nation makes no use of that water and has no

Entitlement to do so. The Nation’s asserted interest could not affect the NEPA

analyses challenged here. Moreover, should the Nation divert Colorado River

water in the future, that diversion would not invalidate NEPA compliance

undertaken when the prospects for such a diversion were speculative. If this Court

were to order the Federal Defendants to repeat or supplement the NEPA analyses

in the manner the Nation requests, the Nation would still have no Entitlement and

its alleged injury would be unredressed.

This Court cannot remedy the basic harm of which the Nation complains –

that is, the lack of access to Colorado River water. See WildEarth Guardians v.

U.S. Envtl. Prot. Agency, 759 F.3d at 1071; Washington Envtl. Council v. Bellon,


49

732 F.3d at 1146-47; Salmon Spawning & Recovery Alliance v. Gutierrez, 545

F.3d 1220, 1226-29 (9th Cir. 2008). This contrasts with the circumstances

considered in the decisions upon which the Nation relies. See Brief at 29. In all of

those instances this Court concluded that a revised NEPA analysis or appropriate

court order could provide relief. See Pit River Tribe v. U.S. Forest Serv., 469 F.3d

768, 777, 779-80, 786-87 (9th Cir. 2006); Save Our Sonoran, Inc. v. Flowers, 408

F.3d 1113, 1121-22, 1124-25 (9th Cir. 2005); Laub v. U.S. Dep’t of Interior, 342

F.3d 1080, 1084, 1087 (9th Cir. 2003); Citizens for Better Forestry v. U.S. Dep’t of

Agric., 341 F.3d at 970, 976; Hall v. Norton, 266 F.3d 969, 973-74, 976-77 (9th Cir.

2001); Cantrell v. City of Long Beach, 241 F.3d at 677, 678-79, 682. That is not

the situation here.

D. The Nation Did Not State a Claim for Relief Under NEPA or the APA.

1. The Nation’s Asserted Interest Is Not Within the Zone of InterestsProtected by NEPA, Defeating the Nation’s NEPA and APAClaims.

The First and Second Claims allege violations of NEPA. The Nation argues

that NEPA’s protected “zone of interests” is irrelevant to this appeal, citing

Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. at 1386-90, and

El Dorado Estates v. City of Fillmore, 765 F.3d 1118, 1122 (9th Cir. 2014).

Lexmark ruled that the zone of interests test is not properly considered under the

rubric of prudential standing, but rather asks whether the plaintiff falls within the


50

class of plaintiffs Congress authorized to sue under the statute at issue. 134 S. Ct.

at 1387. It noted that the modern zone of interests test originated as a limitation on

judicial review under the APA, which the Nation seeks here, though the test

applies to all statutorily created causes of action. Id. at 1388; see also Clarke v.

Securities Indus. Ass’n, 479 U.S. at 395-96. If the Court determines that Article III

does not preclude Congress from creating the cause of action asserted, the zone of

interests test controls this appeal. See Tourgeman v. Collins Fin. Servs., Inc., 755

F.3d 1109, 1117 (9th Cir. 2014).

The Supreme Court explained the type of impact that must be evaluated

under NEPA:

The theme of § 102 [42 U.S.C. § 4332] is sounded by the adjective“environmental”: NEPA does not require the agency to assess everyimpact or effect of its proposed action, but only the impact or effecton the environment. If we were to seize the word “environmental”out of its context and give it the broadest possible definition, thewords “adverse environmental effects” might embrace virtually anyconsequence of a governmental action that someone thought“adverse.” But we think the context of the statute shows thatCongress was talking about the physical environment—the worldaround us, so to speak. NEPA was designed to promote humanwelfare by alerting governmental actors to the effect of theirproposed actions on the physical environment.

Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 772

(1983). NEPA requires “a reasonably close causal relationship between a change

in the physical environment and the effect at issue.” Id. at 774. A string of

causation sufficient to establish Article III standing does not necessarily satisfy


51

NEPA’s more demanding standard. Presidio Golf Club v. National Park Serv.,

155 F.3d 1153, 1163 (9th Cir. 1998). “[E]conomic or social effects are not

intended by themselves to require preparation of an environmental impact

statement.” 40 C.F.R. § 1508.14.

The Nation claims the Federal Defendants failed to assess adequately the

challenged actions’ impact on the Nation’s access to Colorado River water. Those

claims are asserted to protect the Nation’s economic, or at most socio-economic,

self-interest and have nothing to do with the physical environment. The Nation

does not even allege that the challenged actions caused or may cause

environmental harm or impact. The interests asserted are not within the zone of

interests NEPA protects.

This Court has often rejected NEPA claims where the asserted interests were

purely economic. E.g., Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934,

939-40, 945 (9th Cir.), cert. denied, 548 U.S. 903 (2006); Ranchers Cattlemen

Action Legal Fund United Stockgrowers v. U.S. Dep’t of Agric., 415 F.3d 1078,

1102-04 (9th Cir. 2005); Western Radio Servs. Co. v. Espy, 79 F.3d 896, 902-03 (9th

Cir.), cert. denied, 519 U.S. 822 (1996); Nevada Land Action Ass’n v. U.S. Forest

Serv., 8 F.3d 713, 716 (9th Cir. 1993); Port of Astoria v. Hodel, 595 F.2d 467, 475

(9th Cir. 1979); see also Metropolitan Edison Co. v. People Against Nuclear

Energy, 460 U.S. at 774-79; Lower Arkansas Valley Water Conservancy Dist. v.


52

United States, 578 F. Supp. 2d 1315, 1338 (D. Colo. 2008); Duval Ranching Co. v.

Glickman, 965 F. Supp. 1427, 1441 (D. Nev. 1997); Metlakatla Indian Cmty. v.

Adams, 427 F. Supp. 871, 874-76 (D.D.C. 1977).

The plaintiff in an APA action must establish that the injury it complains of

falls within the zone of interests protected by the statute the plaintiff claims was

violated. See supra at 20-21. Failure to come within the zone of interests NEPA

protects defeats the Nation’s statutory standing under the APA.

El Dorado Estates v. City of Fillmore is inapposite. There this Court noted

the Lexmark decision, and stated that if raised, the question of whether a

legislatively conferred cause of action under the Fair Housing Act encompassed

El Dorado’s claim should be addressed by the district court on remand. 765 F.3d

at 1122. In contrast, the issue of whether the Nation’s claims fall within NEPA’s

protected zone of interests was briefed thoroughly below. E.g., D. Ariz. Doc. 254

at 49-53; D. Ariz. Doc. 290 at 16-21; D. Ariz. Doc. 282 at 44-49; D. Ariz. Doc.

240-1 at 52-54.

2. The Challenged Actions Were Not the Proximate Cause of theNation’s Alleged Injury.

The Court in Lexmark assumed that Congress did not intend to displace the

common-law requirement of proximate cause in creating a cause of action unless

Congress provides otherwise. 134 S. Ct. at 1390-91. As noted at 42-47 above, the


53

Nation failed to show that the challenged actions caused the basic harm of which it

complains. It therefore failed to demonstrate proximate cause under NEPA.

3. The Federal Defendants Complied with NEPA.

The Federal Defendants took the “hard look” NEPA requires. Even though

the Nation has no Entitlement to Colorado River water, Reclamation consulted

with the Nation and gave detailed consideration to the Nation’s interests. See

supra at 31-41. It concluded that no vested water rights, quantified or

unquantified, would be impaired by the challenged actions. Present Perfected

Rights (which the Nation claims) would not be impacted by either action. Any

right to Central Arizona Project water the Nation may one day acquire would be

subject to the same terms controlling comparable CAP rights, including a junior

priority imposed by federal statute, not by the challenged actions. Reclamation

even established a means by which the Nation and others could participate in the

Intentionally Created Surplus program in the future.

Disagreement with Reclamation’s evaluation of the environmental effects of

the challenged actions, even if the Nation had alleged such effects, would not

justify overturning those actions. See Marsh v. Oregon Natural Res. Council, 490

U.S. 360, 385 (1989); National Parks & Conservation Ass’n v. U.S. Dep’t of

Transp., 222 F.3d 677, 682 (9th Cir. 2000). The Nation’s allegations of NEPA

violations are meritless.


54

4. The Nation’s Request To Set Aside Decisions Under the InterimSurplus Guidelines Is Moot.

“To qualify as a case fit for federal-court adjudication, ‘an actual

controversy must be extant at all stages of review, not merely at the time the

complaint is filed.’” Arizonans for Official English v. Arizona, 520 U.S. 43, 67

(1997) (citations omitted). “The basic question in determining mootness is

whether there is a present controversy as to which effective relief can be granted.”

Northwest Envtl. Def. Center v. Gordon, 849 F.2d 1241, 1244 (9th Cir. 1988). A

request for one form of relief can become moot while another remains viable. See,

e.g., Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 121-22 (1974).

The Nation asked the District Court to “set[] aside . . . any decision based

on . . . [the Interim Surplus Guidelines FEIS] . . . .” D. Ariz. Doc. 281 at 34,

Prayer B. This Court cannot undo decisions predating the 2008 Shortage

Guidelines ROD, which modified the Interim Surplus Guidelines in critical

respects. It can provide no effective relief. E.g., Feldman v. Bomar, 518 F.3d 637,

642-44 (9th Cir. 2008); Aluminum Co. of America v. Administrator, Bonneville

Power Admin., 175 F.3d 1156, 1163 (9th Cir. 1999), cert. denied, 528 U.S. 1138

(2000); Sierra Club v. Penfold, 857 F.2d 1307, 1318 (9th Cir. 1988). This claim for

relief is moot.


55

E. The District Court Properly Denied the Motion for Specific Relief Fromthe July 22 Order Pursuant to Rule 60(b)(6).

The Nation argues that the District Court abused its discretion in denying the

Nation’s request for leave to amend its Second Amended Complaint. Brief at 15.

The Nation did not seek leave to amend in conformance with LRCiv. 15.1

(D. Ariz.) between filing of the Second Amended Complaint on November 14,

2013 and dismissal of the action on July 22, 2014. During the July 11, 2014

hearing, the Nation offered only the vaguest outlines of what its complaint would

contain if it were allowed to amend again. See Transcript at 48-50, NV SER 7-9.

The Judgment of Dismissal in a Civil Case, D. Ariz. Doc. 306, was filed on

July 22, 2014. The Nation filed its Motion for Specific Relief From the July 22

Order Pursuant to Rule 60(b)(6), D. Ariz. Doc. 310, on August 18, 2014. After

judgment has been entered, FED. R. CIV. P. 15(a) is not the standard for granting

leave to amend. Rather, a plaintiff must satisfy FED. R. CIV. P. 59(e) or 60(b). See

Weeks v. Bayer, 246 F.3d 1231, 1236 (9th Cir. 2001). The Nation made no attempt

below or here to show it was entitled to relief under Rules 59(e) or 60(b), insisting

instead that it made the showing required by Rule 15(a). The District Court

correctly denied the Nation’s post-judgment motion.

CONCLUSION

This Court should affirm dismissal of the First and Second Claims for

Relief.


56

Respectfully submitted on this 16th day of March, 2015.

STATE OF NEVADA AND COLORADO RIVERCOMMISSION OF NEVADA

ADAM PAUL LAXALTAttorney General of Nevada

By Jennifer T. Crandell, Special Counsel AttorneyGeneral

SOUTHERN NEVADA WATER AUTHORITY

By Dana R. Walsh, Deputy Counsel

By James H. DavenportJHDavenport LLCCounsel for Southern Nevada Water Authority

FENNEMORE CRAIG, P.C.

By s/Lauren J. CasterLauren J. Caster, Special Deputy Counsel andAttorney of RecordGregory L. AdamsAttorneys for State of Nevada, Colorado

River Commission of Nevada, and SouthernNevada Water Authority


57

CERTIFICATE OF COMPLIANCE

Pursuant to FED R. CIV. P. 32(a)(7)(C) and Circuit Rule 32-1, I certify that

this brief complies with the type-volume limitations of FED R. CIV. P. 32(a)(7)(B)

because it contains 13,993 words, excluding the parts of the brief exempted by FED

R. CIV. P. 32(a)(7)(B)(iii). I certify that this brief complies with the typeface

requirements of FED R. CIV. P. 32(a)(5) and the type style requirements of FED R.

CIV. P. 32(a)(6) because it has been prepared in a proportionally spaced type face

using Microsoft Word version 14.0.7015.1000 in 14 point Times New Roman font.






58

STATEMENT OF RELATED CASES

Pursuant to Circuit Rule 28-2.6, Intervenors-Defendants-Appellees State of

Nevada, Colorado River Commission of Nevada, and Southern Nevada Water

Authority state that they are unaware of any related cases pending in this Court.






59

CERTIFICATE OF SERVICE

I certify that I electronically filed the foregoing Brief of Intervenors-

Defendants-Appellees State of Nevada, Colorado River Commission of Nevada,

and Southern Nevada Water Authority and the attached Addendum with the Clerk

of the Court for the United States Court of Appeals for the Ninth Circuit using the

appellate CM/ECF system on March 16, 2015.

I certify that all participants in the case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system.






ADD - i

ADDENDUM

Except for the following, all applicable statutes, etc., are contained in theaddendum of the Brief of Appellant.

TABLE OF CONTENTS

U.S. CONST. art. I, § 8, cl. 3 ............................................................................. ADD-1

U.S. CONST. art. I, § 9, cl. 7 ............................................................................. ADD-1

U.S. CONST. art. III § 2, cl. 1............................................................................ ADD-1

5 U.S.C. § 701 (2013) ...................................................................................... ADD-1

28 U.S.C. § 1291 (2013) .................................................................................. ADD-2

28 U.S.C. § 1331 (2013) .................................................................................. ADD-3

28 U.S.C. § 1362 (2013) .................................................................................. ADD-3

Arizona Water Settlements Act, Pub. L. No. 108-451, Title I, §§ 104(a)(1)(A)& (B)(i) & (ii), 104(c)(A)(i), 118 Stat. 3478, 3487, 3490 (2004) ..............ADD-3

Colorado River Basin Project Act, Pub. L. No. 90-537, Title III, § 301(b), 82Stat. 885, 887-88 (1968) ............................................................................. ADD-4

NEV. REV. STAT. § 538.171(1) (2013/2014R1) ............................................... ADD-5

40 C.F.R. § 1500.1 (2014) ............................................................................... ADD-5

40 C.F.R. § 1500.3 (2014) ............................................................................... ADD-6

40 C.F.R. § 1508.14 (2014) ............................................................................. ADD-6

FED. R. APP. P. 3(c)(1)(b)................................................................................. ADD-7

FED. R. CIV. P. 8(a)(2)...................................................................................... ADD-7

FED. R. CIV. P. 12(b)(1) & (6).......................................................................... ADD-7


ADD - ii

FED. R. CIV. P. 12(d) ........................................................................................ ADD-8

FED. R. CIV. P. 59(e) ........................................................................................ ADD-8

FED. R. CIV. P. 60(b) ...................................................................................... ADD-8


ADD - 1

U.S. CONST. art. I, § 8, cl. 3

The Congress shall have power . . .

To regulate Commerce with foreign Nations, and among the several States, andwith the Indian Tribes; . . . .

_____________________________

U.S. CONST. art. I, § 9, cl. 7

No Money shall be drawn from the Treasury, but in Consequence ofAppropriations made by Law; and a regular Statement and Account of the Receiptsand Expenditures of all public Money shall be published from time to time.

_____________________________

U.S. CONST. art. III, § 2, cl. 1

The judicial Power shall extend to all Cases, in Law and Equity, arising under thisConstitution, the Laws of the United States, and Treaties made, or which shall bemade, under their Authority;—to all Cases affecting Ambassadors, other publicMinisters and consuls;—to all Cases of admiralty and maritime Jurisdiction;—toControversies to which the United States shall be a Party;—to Controversiesbetween two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claimingLands under Grants of different States, and between a State, or the Citizensthereof, and foreign States, Citizens or Subjects.

_____________________________

5 U.S.C. § 701 (2013) Application; definitions

(a) This chapter applies, according to the provisions thereof, except to the extentthat—

(1) statutes preclude judicial review; or(2) agency action is committed to agency discretion by law.

(b) For the purpose of this chapter—


ADD - 2

(1) “agency” means each authority of the Government of the United States,whether or not it is within or subject to review by another agency, but doesnot include—

(A) the Congress;(B) the courts of the United States;(C) the governments of the territories or possessions of the UnitedStates;(D) the government of the District of Columbia;(E) agencies composed of representatives of the parties or ofrepresentatives of organizations of the parties to the disputesdetermined by them;(F) courts martial and military commissions;(G) military authority exercised in the field in time of war or inoccupied territory; or(H) functions conferred by sections 1738, 1739, 1743, and 1744 oftitle 12; subchapter II of chapter 471 of title 49; or sections 1884,1891-1902, and former section 1641(b)(2), of title 50, appendix; and

(2) “person”, “rule”, “order”, “license”, “sanction”, “relief”, and “agencyaction” have the meanings given them by section 551 of this title.

_____________________________

28 U.S.C. § 1291 (2013) Final decisions of district courts

The courts of appeals (other than the United States Court of Appeals for theFederal Circuit) shall have jurisdiction of appeals from all final decisions of thedistrict courts of the United States, the United States District Court for the Districtof the Canal Zone, the District Court of Guam, and the District Court of the VirginIslands, except where a direct review may be had in the Supreme Court. Thejurisdiction of the United States Court of Appeals for the Federal Circuit shall belimited to the jurisdiction described in sections 1292(c) and (d) and 1295 of thistitle.

_____________________________


ADD - 3

28 U.S.C. § 1331 (2013) Federal question

The district courts shall have original jurisdiction of all civil actions arising underthe Constitution, laws, or treaties of the United States.

_____________________________

28 U.S.C. § 1362 (2013) Indian tribes

The district courts shall have original jurisdiction of all civil actions, brought byany Indian tribe or band with a governing body duly recognized by the Secretary ofthe Interior, wherein the matter in controversy arises under the Constitution, laws,or treaties of the United States.

_____________________________

Arizona Water Settlements Act, Pub. L. No. 108-451, Title I, §§ 104(a)(1)(A)& (B)(i) & (ii), 104(c)(1)(A)(i), 118 Stat. 3478, 3487, 3490 (2004)

(a) NON-INDIAN AGRICULTURAL PRIORITY WATER.—(1) REALLOCATION TO ARIZONA INDIAN TRIBES.—

(A) IN GENERAL.—The Secretary shall reallocate 197,500 acre-feet ofagricultural priority water made available pursuant to the master agreementfor use by Arizona Indian tribes, of which—

(i) 102,000 acre-feet shall be reallocated to the Gila River IndianCommunity;

(ii) 28,200 acre-feet shall be reallocated to the Tohono O’odhamNation; and

(iii) subject to the conditions specified in subparagraph (B),67,300 acre-feet shall be reallocated to Arizona Indian tribes.(B) CONDITIONS.—The reallocation of agricultural priority water

under subparagraph (A)(iii) shall be subject to the conditions that—(i) such water shall be used to resolve Indian water claims in

Arizona, and may be allocated by the Secretary to Arizona IndianTribes in fulfillment of future Arizona Indian water rights settlementagreements approved by an Act of Congress. In the absence of anArizona Indian water rights settlement that is approved by an Act ofCongress after the date of enactment of this Act, the Secretary shallnot allocate any such water until December 31, 2030. Any allocationsmade by the Secretary after such date shall be accompanied by a


ADD - 4

certification that the Secretary is making the allocation in order toassist in the resolution of an Arizona Indian water right claim. Anysuch water allocated to an Arizona Indian Tribe pursuant to a waterdelivery contract with the Secretary under this clause shall be countedon an acre-foot per acre-foot basis against any claim to water for thatTribe’s reservation;

(ii) notwithstanding clause (i), the Secretary shall retain 6,411acre-feet of water for use for a future water rights settlementagreement approved by an Act of Congress that settles the NavajoNation’s claims to water in Arizona. If Congress does not approvethis settlement before December 31, 2030, the 6,411 acre-feet of CAPwater shall be available to the Secretary under clause (i); . . . .

(C) LIMITATIONS.—(1) AMOUNT.—

(A) IN GENERAL.—The total amount of entitlements under long-termcontracts (as defined in the repayment stipulation) for the delivery of CentralArizona Project water in the State shall not exceed 1,415,000 acre-feet, ofwhich—

(i) 650,724 acre-feet shall be—(I) under contract to Arizona Indian tribes; or(II) available to the Secretary for allocation to Arizona

Indian tribes; . . . .

_____________________________

Colorado River Basin Project Act, Pub. L. No. 90-537, Title III, § 301(b),82 Stat. 885, 887-88 (1968)

(b) Article II(B)(3) of the decree of the Supreme Court of the United Statesin Arizona against California (376 U.S. 340) shall be so administered that in anyyear in which, as determined by the Secretary, there is insufficient main streamColorado River water available for release to satisfy annual consumptive use ofseven million five hundred thousand acre-feet in Arizona, California, and Nevada,diversions from the main stream for the Central Arizona Project shall be so limitedas to assure the availability of water in quantities sufficient to provide for theaggregate annual consumptive use by holders of present perfected rights, by otherusers in the State of California served under existing contracts with the UnitedStates by diversion works heretofore constructed, and by other existing Federal


ADD - 5

reservations in that State, of four million four hundred thousand acre-feet ofmainstream water, and by users of the same character in Arizona and Nevada.Water users in the State of Nevada shall not be required to bear shortages in anyproportion greater than would have been imposed in the absence of this subsection301(b). This subsection shall not affect the relative priorities, among themselves,of water users in Arizona, Nevada, and California which are senior to diversionsfor the Central Arizona Project, or amend any provisions of said decree.

_____________________________

NEV. REV. STAT. § 538.171(1) (2013/2014R1) Protection of water, water rightsand rights to power; appropriation and use of water; certain uses of waterfrom Muddy River or Virgin River

1. The Commission shall receive, protect and safeguard and hold in trust for theState of Nevada all water and water rights, and all other rights, interests or benefitsin and to the waters described in NRS 538.041 to 538.251, inclusive, and to thepower generated thereon, held by or which may accrue to the State of Nevadaunder and by virtue of any Act of the Congress of the United States or anyagreements, compacts or treaties to which the State of Nevada may become aparty, or otherwise.

_____________________________

40 C.F.R. § 1500.1 (2014) Purpose

(a) The National Environmental Policy Act (NEPA) is our basic national charterfor protection of the environment. It establishes policy, sets goals (section 101),and provides means (section 102) for carrying out the policy. Section 102(2)contains “action-forcing” provisions to make sure that federal agencies actaccording to the letter and spirit of the Act. The regulations that follow implementsection 102(2). Their purpose is to tell federal agencies what they must do tocomply with the procedures and achieve the goals of the Act. The President, thefederal agencies, and the courts share responsibility for enforcing the Act so as toachieve the substantive requirements of section 101.

(b) NEPA procedures must insure that environmental information is available topublic officials and citizens before decisions are made and before actions are taken.The information must be of high quality. Accurate scientific analysis, expertagency comments, and public scrutiny are essential to implementing NEPA. Most


ADD - 6

important, NEPA documents must concentrate on the issues that are trulysignificant to the action in question, rather than amassing needless detail.

(c) Ultimately, of course, it is not better documents but better decisions that count.NEPA’s purpose is not to generate paperwork—even excellent paperwork—but tofoster excellent action. The NEPA process is intended to help public officialsmake decisions that are based on understanding of environmental consequences,and take actions that protect, restore, and enhance the environment. Theseregulations provide the direction to achieve this purpose.

_____________________________

40 C.F.R § 1500.3 (2014) Mandate

Parts 1500 through 1508 of this title provide regulations applicable to and bindingon all Federal agencies for implementing the procedural provisions of the NationalEnvironmental Policy Act of 1969, as amended (Pub. L. 91–190, 42 U.S.C. 4321 etseq.) (NEPA or the Act) except where compliance would be inconsistent with otherstatutory requirements. These regulations are issued pursuant to NEPA, theEnvironmental Quality Improvement Act of 1970, as amended (42 U.S.C. 4371 etseq.) section 309 of the Clean Air Act, as amended (42 U.S.C. 7609) and ExecutiveOrder 11514, Protection and Enhancement of Environmental Quality (March 5,1970, as amended by Executive Order 11991, May 24, 1977). These regulations,unlike the predecessor guidelines, are not confined to sec. 102(2)(C)(environmental impact statements). The regulations apply to the whole of section102(2). The provisions of the Act and of these regulations must be read together asa whole in order to comply with the spirit and letter of the law. It is the Council’sintention that judicial review of agency compliance with these regulations notoccur before an agency has filed the final environmental impact statement, or hasmade a final finding of no significant impact (when such a finding will result inaction affecting the environment), or takes action that will result in irreparableinjury. Furthermore, it is the Council’s intention that any trivial violation of theseregulations not give rise to any independent cause of action.

_____________________________

40 C.F.R. § 1508.14 (2014) Human environment

Human environment shall be interpreted comprehensively to include the naturaland physical environment and the relationship of people with that environment.


ADD - 7

(See the definition of “effects” (§ 1508.8).) This means that economic or socialeffects are not intended by themselves to require preparation of an environmentalimpact statement. When an environmental impact statement is prepared andeconomic or social and natural or physical environmental effects are interrelated,then the environmental impact statement will discuss all of these effects on thehuman environment.

_____________________________

FED. R. APP. P. 3(c)(1)(b)

(c) Contents of the Notice of Appeal.

(1) The notice of appeal must:. . . .

(B) designate the judgment, order, or part thereof being appealed; . . . .

_____________________________

FED. R. CIV. P. 8(a)(2)

(a) Claim for Relief. A pleading that states a claim for relief must contain:. . . .

(2) a short and plain statement of the claim showing that the pleader isentitled to relief; . . . .

_____________________________

FED. R. CIV. P. 12(b)(1) & (6)

(b) How to Present Defenses. Every defense to a claim for relief in any pleadingmust be asserted in the responsive pleading if one is required. But a party mayassert the following defenses by motion:

(1) lack of subject-matter jurisdiction;. . . .

(6) failure to state a claim upon which relief can be granted; . . . .

_____________________________


ADD - 8

FED. R. CIV. P. 12(d)

(d) Result of Presenting Matters Outside the Pleadings. If, on a motion underRule 12(b)(6) or 12(c), matters outside the pleadings are presented to and notexcluded by the court, the motion must be treated as one for summary judgmentunder Rule 56. All parties must be given a reasonable opportunity to present allthe material that is pertinent to the motion.

_____________________________

FED. R. CIV. P. 59(e)

(e) Motion to Alter or Amend a Judgment. A motion to alter or amend ajudgment must be filed no later than 28 days after the entry of the judgment.

_____________________________

FED. R. CIV. P. 60(b)

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. Onmotion and just terms, the court may relieve a party or its legal representative froma final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could nothave been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic),misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released or discharged; it is based on anearlier judgment that has been reversed or vacated; or applying itprospectively is no longer equitable; or

(6) any other reason that justifies relief.


docket no. 14-16864 in the united states court of … · lauren j. caster special deputy counsel...

Documents