KLAMATH IRRIGATION DISTRICT, Plaintiff-Appellant, and SHASTA VIEW IRRIGATION DISTRICT; TULELAKE IRRIGATION DISTRICT; KLAMATH WATER USERS ASSOCIATION; KLAMATH DRAINAGE DISTRICT; ROB UNRUH; VAN BRIMMER DITCH COMPANY; BEN DUVAL, Plaintiffs, v. UNITED STATES BUREAU OF RECLAMATION; DEB HAALAND, Secretary of the Interior, in her official capacity; CAMILLE CALIMLIM TOUTON, Commissioner of the Bureau of Reclamation, in her official capacity; ERNEST CONANT, Director of the Mid-Pacific Region, Bureau of Reclamation, in his official capacity; JARED BOTTCHER, in his official capacity as Acting Area Manager for the Klamath Area Reclamation Office, Defendants-Appellees, HOOPA VALLEY TRIBE; THE KLAMATH TRIBES, Intervenor-Defendants-Appellees.
No. 20-36009
United States Court of Appeals for the Ninth Circuit
September 8, 2022
D.C. Nos. 1:19-cv-00451-CL, 1:19-cv-00531-CL. Argued and Submitted December 7, 2021, San Francisco, California.
SHASTA VIEW IRRIGATION DISTRICT; TULELAKE IRRIGATION DISTRICT; KLAMATH WATER USERS ASSOCIATION; KLAMATH DRAINAGE DISTRICT; ROB UNRUH; VAN BRIMMER DITCH COMPANY; BEN DUVAL, Plaintiffs-Appellants, and KLAMATH IRRIGATION DISTRICT, Plaintiff, v. UNITED STATES BUREAU OF RECLAMATION; DEB HAALAND, Secretary of the Interior, in her official capacity; CAMILLE CALIMLIM TOUTON, Commissioner of the Bureau of Reclamation, in her official capacity; ERNEST CONANT, Director of the Mid-Pacific Region, Bureau of Reclamation, in his official capacity; JARED BOTTCHER, in his official capacity as Acting Area Manager for the Klamath Area Reclamation Office, Defendants-Appellees, HOOPA VALLEY TRIBE; THE KLAMATH TRIBES, Intervenor-Defendants-Appellees.
No. 20-36020
United States Court of Appeals for the Ninth Circuit
September 8, 2022
D.C. Nos. 1:19-cv-00451-CL, 1:19-cv-00531-CL. Appeal from the United States District Court for the District of Oregon, Michael J. McShane, District Judge, Presiding. Argued and Submitted December 7, 2021, San Francisco, California.
Opinion by Judge Wardlaw;
Concurrence by Judge Bumatay
The panel affirmed the district court’s dismissal, due to a lack of a required party under
Various parties appealed the dismissal of their action challenging Reclamation’s current operating procedures, which were adopted in consultation with other relevant federal agencies to maintain specific lake levels and instream flows to comply with the Endangered Species Act (“ESA”) and to safeguard the federal reserved water and fishing rights of the Hoopa Valley and Klamath Tribes (the “Tribes”). The Tribes intervened as of right, but then moved to dismiss the action on the ground that they were required parties who could not be joined due to their tribal sovereign immunity.
The panel held that the district court properly recognized that a declaration that Reclamation’s operating procedures were unlawful would imperil the Tribes’ reserved water and fishing rights. The panel affirmed the district court’s conclusion that the Tribes were required parties who could not be joined due to sovereign immunity, and that in equity and good conscience, the action should be dismissed.
Specifically, the panel first examined whether the absent party must be joined under
The panel next disagreed with the plaintiffs’ argument that even if the Tribes were required parties under
Finally, the panel examined whether in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The panel held that there was no way to shape relief to avoid the prejudice here because the plaintiffs’ claims and the Tribes’ claims are mutually exclusive. The panel concluded that the case must be dismissed in equity and good conscience.
Judge Bumatay concurred in the majority opinion except for Section V. He agreed with the majority opinion that
COUNSEL
Christopher A. Lisieski (argued) and John P. Kinsey, Wanger Jones Helsley PC, Fresno, California; Nathan R. Rietmann, Rietmann Law PC, Salem, Oregon; for Plaintiff-Appellant Klamath Irrigation District.
Richard S. Deitchman (argued), and Paul S. Simmons, Somach Simmons & Dunn PC, Sacramento, California; Nathan J. Ratliff, Parks & Ratliff PC, Klamath Falls, Oregon; Reagan L.B. Desmond, Clyde Snow & Sessions PC, Bend, Oregon; for Plaintiffs-Appellants Shasta View Irrigation District, Tulelake Irrigation District, Klamath Water Users Association, Klamath Drainage District, Rob Unruh, Van Brimmer Ditch Company, and Ben Duval.
Thane D. Somerville (argued) and Thomas P. Schlosser, Morisset Schlosser Jozwiak & Somerville, Seattle, Washington, for Intervenor-Defendant-Appellee Hoopla Valley Tribe.
Rachel Heron (argued) and John L. Smeltzer, Attorneys; Jean E. Williams, Acting Assistant Attorney General; Environment and Natural Resources Division; United States
Jeremiah D. Weiner (argued), Rosette LLP, Sacramento, California, for Intervenor-Defendant-Appellee Klamath Tribes.
OPINION
WARDLAW, Circuit Judge:
This appeal concerns the distribution of waters in the Klamath Water Basin by the Bureau of Reclamation, which owns and operates the Klamath Project, a federal irrigation project. Shasta View Irrigation District, Klamath Irrigation District, and other irrigators, farmers, and water users appeal the dismissal of their action challenging Reclamation’s current operating procedures, which were adopted in consultation with other relevant federal agencies to maintain specific lake levels and instream flows to comply with the Endangered Species Act and to safeguard the federal reserved water and fishing rights of the Hoopa Valley and Klamath Tribes. The Districts contend that compliance with those procedures violates the Administrative Procedure Act and the Reclamation Act because distributing water to fulfill the Tribal reserved waters deprives the Districts of waters they claim were lawfully appropriated to the Districts in a state adjudication proceeding. The Hoopa Valley and Klamath Tribes intervened as of right, but then moved to dismiss this action on the ground that they are required parties who cannot be joined due to their tribal sovereign immunity. Because the district court properly recognized that a declaration that Reclamation’s operating procedures are unlawful would imperil the Tribes’ reserved water and
I.
A. The Klamath Water Basin
The Klamath Water Basin (the Klamath Basin) stretches from south-central Oregon to northern California, occupying approximately 12,000 square miles. The Klamath Basin consists of a complex network of interconnected rivers, canals, lakes, marshes, dams, diversions, wildlife refuges, and wilderness areas.
Upper Klamath Lake (UKL), a major lake within the Klamath Basin, is shallow and averages only about six feet of usable water storage when full. Drought conditions in past years have led to “critically dry” conditions in the Klamath Basin, including in UKL. See Baley v. United States, 942 F.3d 1312, 1323–24 (Fed Cir. 2019). This problem has only grown more severe with time. Recently, the Klamath Basin has experienced “multiple extremely dry years that unfortunately appear to be the new normal.”
The waters of the Klamath Basin serve as a critical habitat for several species of fish that are listed as endangered pursuant to the Endangered Species Act (ESA),
B. The Tribes
1. Klamath Tribes
Since time immemorial, the Klamath Tribes have utilized the water and fish resources of the Klamath Basin for subsistence, cultural, ceremonial, religious, and commercial purposes. See United States v. Adair, 723 F.2d 1394, 1414 (9th Cir. 1983). In 1864, the United States and the Klamath Tribes entered into a treaty whereby the Tribes ceded their interests in millions of acres of land and retained a reservation of approximately 800,000 acres abutting UKL and several of its tributaries. The Klamath Tribes also retained “the exclusive right of taking fish in the streams and lakes included in said reservation, and of gathering edible roots, seeds, and berries within its limits.” Treaty between the United States of America and the Klamath and Moadoc Tribes and Yahooskin Band of Snake Indians, art. 1, Oct. 14, 1864, 16 Stat. 707 (the 1864 Treaty).
We have acknowledged that “[i]n view of the historical importance of hunting and fishing, and the language of
Time and again, we have affirmed the critical importance of the Klamath Tribe’s water and fishing rights in the Klamath Basin and its distributaries. See, e.g., Adair, 723 F.2d at 1411 (recognizing that the Tribe’s fishing rights include “the right to prevent other appropriators from depleting the streams[’] waters below a protected level”).
2. Hoopa Valley Tribe
The Act of April 8, 1864, ch. 48, 13 Stat. 39, authorized the creation of the Hoopa Valley Reservation, which is located in northern California along the Klamath River and its largest tributary, the Trinity River, as a permanent homeland for the Hoopa Valley Tribe (Hoopa). We have long held that traditional fishing is one of the central purposes for which, like the Klamath Reservation, the Hoopa Valley Reservation was created. Parravano v. Babbitt, 70 F.3d 539, 546 (9th Cir. 1995) (“Our interpretation accords with the general understanding that hunting and fishing rights arise by implication when a reservation is set
C. The U.S. Bureau of Reclamation
The U.S. Bureau of Reclamation (Reclamation), a federal agency housed within the U.S. Department of the Interior, oversees water resource management. The Reclamation Act authorizes Reclamation to carry out water management projects in accordance with state law regarding the control, appropriation, use, and distribution of water for irrigation purposes, except where state law conflicts with superseding federal law.
Reclamation has the “nearly impossible” task of balancing multiple competing interests in the Klamath Basin. Klamath Irrigation Dist. v. United States Bureau of Reclamation, 489 F. Supp. 3d 1168, 1173 (D. Or. 2020). First, Reclamation maintains contracts with individual irrigators and the irrigation districts that represent them, under which the United States has agreed to supply water
Reclamation is also responsible for managing the Klamath Project in a manner consistent with its obligations under the ESA. The ESA “requires Reclamation to review its programs and utilize them in furtherance of the purposes of the [Act].” Letter from the Solicitor at 9. Specifically, the ESA, among other obligations, requires federal agencies to consult with specified federal fish and wildlife agencies to ensure that “any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence” of any species listed for protection under the Act “or result in the destruction or adverse modification of” the species’ critical habitat.
Finally, Reclamation must operate the Project consistent with the federal reserved water and fishing rights of the Klamath, Hoopa Valley, and Yurok Tribes that predated the Project and any resulting Project rights. “The [P]roject’s
D. The Klamath Basin Adjudication
In 1975, the State of Oregon convened the Klamath Basin Adjudication (KBA) to adjudicate the relative rights of use of the Klamath River and its tributaries in accordance with its general stream adjudication law. See
In 2013, the Adjudicator issued findings of fact and an order of determination, and in 2014, the Adjudicator submitted the Amended Corrected Findings of Fact and Order of Determination to the Klamath County Court (the ACFFOD). See Amended Corrected Findings of Fact and Order of Determination, In the Matter of the Determination of the Relative Rights to Use of the Water of the Klamath River and Its Tributaries, Oregon Water Resources Dept. (Feb. 28, 2014).1 In accordance with
E. Present Dispute
1. Biological Opinions and Operating Procedures
Reclamation issued a Biological Assessment in 2018 following consultation with the Fish and Wildlife Service and the National Marine Fisheries Service (collectively, the Services) pursuant to section 7(c) of the ESA,
2. The Water Users
Klamath Irrigation District (KID) and Shasta View Irrigation District (SVID) (collectively, the Districts) are special irrigation districts in Oregon formed to deliver irrigation water from UKL to their members. Additional water users who are parties to this action include other irrigation and drainage districts, farmers, and landowners
II.
On March 27, 2019, KID and other water users filed this action for declaratory and injunctive relief against the Bureau of Reclamation and its officials. Shortly thereafter, SVID and other water users also filed a complaint for declaratory and injunctive relief against Reclamation and its officials, alleging similar claims. All parties stipulated to consolidate the two cases. KID and SVID sought a declaration that Reclamation’s operation of the Klamath Project pursuant to the 2019 Amended Proposed Action based on the Services’ biological assessments was unlawful under the Administrative Procedure Act (APA). KID and SVID also sought to enjoin Reclamation from using water from UKL for instream purposes and limiting the amount of water available to the irrigation districts.
The Hoopa Valley and Klamath Tribes successfully moved to intervene as of right, arguing that they were required parties to the suit. KID and SVID then filed Second Amended Complaints (SACs) seeking declaratory relief only.
The Districts asked the court, inter alia, to “[d]eclare Defendants [sic] actions under the APA unlawful” and “for declaratory relief setting forth the rights of the parties’ rights [sic] under the ACFFOD, the Reclamation Act and the Fifth Amendment . . . .” Specifically, the Districts’ SACs alleged that Reclamation’s Amended Proposed Action failed to abide by the ACFFOD because Reclamation intended to use water stored in UKL for its own instream purposes without
The Tribes moved to dismiss the case under
III.
The district court had jurisdiction over this action pursuant to
We review a district court’s decision to dismiss a case for failure to join a required party under
IV.
Failure to join a party that is required under
A.
A party is a “required party” and must be joined under
“(A) in that [party’s] absence, the court cannot accord complete relief among existing parties; or (B) that [party] claims an interest relating to the subject of the action and . . . disposing of the action in [their] absence may: (i) as a practical matter impair or impede the person’s ability to protect the interest . . . or (ii) leave an existing party subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent obligations because of the interest.”
“Although an absent party has no legally protected interest at stake in a suit seeking only to enforce compliance with administrative procedures, our case law makes clear that an absent party may have a legally protected interest at stake in procedural claims where the effect of a plaintiff’s successful suit would be to impair a right already granted.”
Dine Citizens Against Ruining Our Env’t v. Bureau of Indian Affs., 932 F.3d 843, 852 (9th Cir. 2019), cert. denied, 141 S. Ct. 161 (2020). In this case, the Districts argue that, as a result of the ACFFOD, Reclamation has neither a right nor any other legal authorization to use water stored in the UKL reservoir for instream purposes, a claim that, “as a practical matter,” would impair Reclamation’s ability to comply with its ESA and tribal obligations.
We have long recognized that the Tribes have “federally reserved fishing rights.” See Parravano, 70 F.3d at 541. Indeed, in Adair we held that the Klamath Tribe has “the right to prevent other appropriators from depleting the streams waters below a protected level.” Adair, 723 F.2d at 1411. In addition, the Federal Circuit has held that both the Hoopa and Klamath Tribes “have [] implied right[s] to water to the extent necessary for them to accomplish hunting, fishing, and gathering.” Baley, 942 F.3d at 1337 (citation omitted). We agree with the district court that our case law establishes that the Tribes’ water rights are “at a minimum
B.
The Districts argue that the Tribes are not required parties to this suit because the Tribes’ interests are adequately represented by Reclamation. We disagree.
“[A]n absent party’s ability to protect its interest will not be impaired by its absence from the suit where its interest will be adequately represented by existing parties to the suit.” Dine Citizens, 932 F.3d at 852 (quoting Alto v. Black, 738 F.3d 1111, 1127 (9th Cir. 2013)). Whether an existing party may adequately represent an absent required party’s interests depends on three factors: (1) “whether the interests of a present party to the suit are such that it will undoubtedly make all of the absent party’s arguments;” (2) “whether the party is capable of and willing to make such arguments;” and (3) “whether the absent party would offer any necessary element to the proceedings that the present parties would neglect.” Id. (quoting Alto, 738 F.3d at 1127–28).
Three years ago, in Dine Citizens, we addressed the application of
although an absent party has no legally protected interest at stake in a suit seeking only to enforce compliance with administrative procedures, our case law makes clear that an absent party may have a legally protected interest at stake in procedural claims where the effect of a plaintiff’s successful suit would be to impair a right already granted.
Id. at 852. We concluded that “[a]lthough Federal Defendants ha[d] an interest in defending their decisions, their overriding interest . . . must be in complying with environmental laws such as . . . the ESA. This interest differs
Under Dine Citizens, Reclamation’s and the Tribes’ interests, though overlapping, are not so aligned as to make Reclamation an adequate representative of the Tribes. The Tribes’ primary interest is in ensuring the continued fulfillment of their reserved water and fishing rights, while Reclamation’s primary interest is in defending its Amended Proposed Action taken pursuant to the
In Dine Citizens, we distinguished Southwest Center for Biological Diversity v. Babbitt, 150 F.3d 1152 (9th Cir. 1998) (per curiam), which the Districts cite heavily in support of their argument that the Tribes are adequately represented by Reclamation. In Southwest Center, we held that the government was an adequate representative of a tribe in a suit brought to stall the government from utilizing a newly built dam pending further environmental study. 150 F.3d at 1154–55. We concluded that the government and the tribe shared the same interest in “ensuring that the [dam was] available for use as soon as possible.” Id. at 1154. Dine Citizens was distinguishable because “while Federal Defendants [in Dine Citizens had] an interest in defending their own analyses that formed the basis of the approvals at issue, [] they [did] not share an interest in the outcome of the approvals.” Dine Citizens, 932 F.3d at 855 (emphasis omitted). The present action is analogous. While Reclamation has an interest in defending its interpretations of its obligations under the
The Districts argue that Reclamation is an adequate representative of the Tribes because the federal government acts as a trustee for the federal reserved water and fishing rights of Native American tribes. The Districts contend that this relationship results in a “unity of interest.” But a unity of some interests does not equal a unity of all interests. As discussed above, Reclamation and the Tribes share an interest in the ultimate outcome of this case for very different reasons. Further, our case law has firmly rejected the notion that a trustee-trustor relationship alone is sufficient to create adequate representation. See id.
Further, outside of this case, the Tribes are in active litigation over the degree to which Reclamation is willing to protect the Tribes’ interests in several species of fish. This fact further increases the likelihood that Reclamation would not “undoubtedly” make all of the same arguments that the Tribes would make in this case, and would materially limit Reclamation’s representation of the Tribes’ interests. For all of these reasons, Reclamation is not an adequate representative of the Tribes, so the Tribes are required parties to this suit under
The Districts argue that even if the Tribes are required parties under
Native American tribes are “domestic dependent nations that exercise inherent sovereign authority.” Michigan v. Bay Mills Indian Comm., 572 U.S. 782, 788 (2014) (internal quotation marks and citations omitted). “Tribal sovereign immunity protects Indian tribes from suit absent express authorization by Congress or clear waiver by the tribe.” Dine Citizens, 932 F.3d at 856 (quoting Cook v. AVI Casino Enters., Inc., 548 F.3d 718, 725 (9th Cir. 2008)). “That immunity . . . is a necessary corollary to Indian sovereignty and self-governance,” Bay Mills, 572 U.S. at 788 (internal quotation marks and citations omitted), and is critically important for the protection of tribal resources.
The McCarran Amendment waives the United States’ sovereign immunity in suits:
(1) for the adjudication of rights to the use of water of a river system or other source, or
(2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit.
An “administration” of water rights under
The parties do not dispute that the Klamath Adjudication that resulted in the ACFFOD is an adjudication within the meaning of the McCarran Amendment. Indeed, we agree that the Klamath Basin Adjudication was a McCarran Amendment case. However, the parties disagree as to whether this case is an administration of that general stream adjudication within the meaning of the McCarran Amendment.
We conclude that this lawsuit is not an administration of previously determined rights but is instead an
VI.
Having determined that the Tribes are required parties under
To determine whether a suit should proceed among the existing parties where a required party cannot be joined, courts consider (i) potential prejudice, (ii) possibility to reduce prejudice, (iii) adequacy of a judgment without the required party, and (iv) adequacy of a remedy with dismissal.
The balancing of equitable factors under
Rule 19(b) almost always favors dismissal when a tribe cannot be joined due to tribal sovereign immunity. . . . If the necessary party is immune from suit, there may be very little need for balancingRule 19(b) factors because immunity itself may be viewed as the compelling factor . . . . [T]here is a wall of circuit authority in favor of dismissing actions in which a necessary party cannot be joined due to tribal sovereign immunity—virtually all the cases to consider the question appear to dismiss underRule 19 , regardless of whether [an alternative] remedy isavailable, if the absent parties are Indian tribes invested with sovereign immunity.
Id. (alteration in original) (internal citations and quotations omitted).
“[P]rejudice to any party resulting from a judgment militates toward dismissal of the suit.” Makah Indian Tribe v. Verity, 910 F.2d 555, 560 (9th Cir. 1990) (emphasis omitted). Reclamation and the Tribes argue that if the Districts succeed in this suit, the government will be unable, as trustee of the Tribes’ water rights, to operate consistent with those rights, and this will imperil tribal water rights. Specifically, Hoopa argues that the government’s, and therefore the Tribes’, water rights are senior to those of the irrigators, but a decision for the Districts on the merits in this suit could threaten that understanding.
In some circumstances, a court may lessen the prejudice to a nonparticipating party, and therefore push the balance against dismissal, if it provides protective provisions in its judgment, thoughtfully shapes the relief it grants, or takes other ameliorative measures. See
However, there is no way to shape relief to avoid the prejudice here because the Districts’ claims and the Tribes’ claims are mutually exclusive. The Districts seek a declaration that they hold senior water rights from UKL following the ACFFOD, and the Tribes seek to preserve their reserved water rights in those same waters. For example, fulfilling the Districts’ irrigation needs in the spring and
VII.
Because the Tribes are required parties under
BUMATAY, Circuit Judge, concurring:
Our precedent requires us to affirm here. In Dine Citizens Against Ruining Our Environment v. Bureau of Indian Affairs, we made it “clear that an absent party may have a legally protected interest at stake in procedural claims where the effect of a plaintiff’s successful suit would be to impair a right already granted.” 932 F.3d 843, 852 (9th Cir. 2019). Given Dine Citizens, I agree with the majority that the Hoopa Valley and Klamath Tribes are necessary parties, they are entitled to tribal sovereign immunity, and the Irrigation Districts’ actions must be dismissed under
Yet I write separately because the Klamath Irrigation District’s arguments on the McCarran Amendment are much closer than the majority presents. While I ultimately agree that this case is not a McCarran Amendment case, the analysis requires more attention. I thus join the majority opinion except for Section V.
The McCarran Amendment is a “virtually unique federal statute.” Arizona v. San Carlos Apache Tribe of Ariz., 463 U.S. 545, 571 (1983). It waives federal sovereign immunity in “any suit” for the “adjudication” or “administration” of the “rights to the use of water of a river system or other source.”
And the Supreme Court has construed the Amendment to strip sovereign immunity over tribal water rights held as “reserved rights” by the federal government. United States v. District Court for Eagle Cnty., 401 U.S. 520, 524 (1971). Based on its text and underlying policy, the Court has held that the Amendment “reach[es] federal water rights reserved on behalf of Indians.” Colo. River Water Conservation Dist., 424 U.S. at 811. Because of the “ubiquitous nature of
Given the unique nature of the McCarran Amendment, our
Putting these pieces together, if a case falls within the scope of the McCarran Amendment, then sovereign immunity over reserved tribal water rights is stripped and the federal government becomes an adequate representative to fully defend those rights in court. Such a situation would render dismissal under
The important question here is, thus, whether the Irrigation Districts have brought a suit subject to the McCarran Amendment. I ultimately conclude that this case is not a McCarran Amendment case because of the presence
But things are different with the Klamath Tribe. The Klamath Tribe is in Oregon and the Klamath Basin Adjudication did rule on its water rights. See United States v. Oregon, 44 F.3d 758, 769 (9th Cir. 1994). So if the Irrigation Districts seek to “execute [the Klamath Basin Adjudication], to enforce its provisions, to resolve conflicts as to its meaning, [or] to construe and to interpret its language,” S. Delta Water Agency, 767 F.2d at 541 (simplified), as to the Klamath Tribe, then this case would be a McCarran Amendment “administration.” I thus disagree with the majority’s suggestion that Administrative Procedure Act challenges or cases involving Endangered Species Act obligations can never be McCarran Amendment cases. See Maj. Op. Section V.