[00:00:01] Speaker 00:
Case number 20-5074, Gerald H. Hawkins, individually and as a trustee of the CN Hawkins Trust, and Gerald H. Hawkins and Carol H. Hawkins Trust et al, a balance, versus David Longley Bernhardt, Secretary of the Interior, et al.

[00:00:18] Speaker 00:
Mr. Deerson for the balance, Mr. Smeltzer for the appellees.

[00:00:23] Speaker 05:
Good morning, Council.

[00:00:24] Speaker 05:
Council for Appellants, please proceed.

[00:00:27] Speaker 02:
Good morning.

[00:00:28] Speaker 02:
Thank you very much.

[00:00:29] Speaker 02:
I am David Deerson for the plaintiff appellants.

[00:00:32] Speaker 02:
I'd like to reserve, if possible, two minutes for rebuttal.

[00:00:36] Speaker 02:
Thank you.

[00:00:36] Speaker 02:
The district court dismissed this case on standing ground, so it did not reach the government's motions to dismiss for failure to state a claim.

[00:00:45] Speaker 02:
We are asking both at this court to reverse the dismissal as to standing and also to rule that the government's 12b6 motions should be denied as well.

[00:00:54] Speaker 02:
I wanna begin by clarifying that the ranchers understand their rights are junior to the tribe's rights and that they don't seek to diminish or take the tribe's rights.

[00:01:03] Speaker 02:
Rather, they're seeking to vindicate certain important procedural principles, procedural rights, which ensure that when the government exercises its power, and especially when it exercises its power in a manner that has significant impacts on the environment,

[00:01:21] Speaker 02:
that it bears some modicum of political accountability and that the proper decision maker be in place to make those final decisions.

[00:01:29] Speaker 02:
For us to establish standing on a procedural injury claim like this, all that needs to be shown is that if the procedural error were corrected, then the government might reach a different decision, one that could alleviate the harms done to the appellants.

[00:01:45] Speaker 02:
The United States filed these water rights claims

[00:01:48] Speaker 02:
It litigated the claims in the Klamath basin adjudication, and it lends its requisite concurrence to calls placed on the water to effectuate the claims.

[00:01:57] Speaker 05:
Do you want to discuss redressability?

[00:02:00] Speaker 02:
Sure, Your Honor.

[00:02:02] Speaker 02:
The redressability here, as we see it, is that if these procedural errors are corrected, then someone in the government is taking a hard look at the serious environmental harms that are being done to the ranchers.

[00:02:17] Speaker 02:
And their injuries.

[00:02:19] Speaker 05:
My point is that what about, and I gather you don't deny, that the tribe could continue to make a full call.

[00:02:40] Speaker 02:
Yes, the tribes could continue to make calls.

[00:02:43] Speaker 02:
But where the rubber meets the road here is that the Oregon Water Resources Department, they're the ones who issued these shutoffs that lead to plaintiffs undisputed injuries.

[00:02:55] Speaker 02:
And as a matter of fact, and as a matter of Oregon state law, they don't effectuate those claims without having some concurrence from the United States government.

[00:03:06] Speaker 02:
And you can see that in the emails from

[00:03:10] Speaker 02:
from the Oregon Water Resources Department that are pages 62 and 63 of the appendix, of which the district court took judicial notice but did not mention in its opinion.

[00:03:22] Speaker 05:
So, of course, the claim requires us to agree that under Oregon law there is a concurrence requirement?

[00:03:35] Speaker 02:
Well, I don't think it requires that, Your Honor, because I think the alternative grounds to rule in our favor is that the United States' position as manager of the trust assets, the Department of Interior's and BIA's position as the entities with which Congress has charged the management of Indian affairs also places them in the final decision-making role.

[00:04:00] Speaker 04:
So Mr. Deerson, I think that is a question on which I'm quite interested.

[00:04:05] Speaker 04:
I think a lot of whether there is causation and traceability here depends on the nature of the trust relationship between the government

[00:04:18] Speaker 04:
and the tribes.

[00:04:20] Speaker 04:
And so I guess I want to understand, I think, so the Restoration Act, right, when it restores that relationship, you know, what type of trust relationship was established by the Restoration Act?

[00:04:35] Speaker 04:
You know, the government says it was a limited trust.

[00:04:38] Speaker 04:
You know, the ranchers suggest it's something more than that.

[00:04:43] Speaker 04:
You know, what is the evidence from the statute that there was a broader trust relationship created between the government and the tribes?

[00:04:52] Speaker 04:
And I guess what evidence is there?

[00:04:54] Speaker 04:
And then what is the content of that trust relationship?

[00:04:58] Speaker 02:
Thanks, Your Honor.

[00:04:59] Speaker 02:
The government does point to cases like the Mitchell case from the US Supreme Court that it's a limited trust.

[00:05:06] Speaker 02:
When you look at the decisions discussing limited trusts, the manner in which they are limited is that they don't limit the authority of the trustee.

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Rather, they, in some cases, limit the

[00:05:21] Speaker 02:
the ability of the trust beneficiary to enforce certain things against the trustee.

[00:05:26] Speaker 02:
And the cases that we have, cases discussing both the trust management, the trust relationship generally, cases like the White Mountain Apache case, the Shoshone-Bannock case and the Mitchell cases itself, suggest that the tribes cannot, you know, force the government to take some action unless Congress has

[00:05:47] Speaker 02:
empowered them to do so.

[00:05:49] Speaker 02:
The opposite is the case.

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It's the government that manages these trust assets.

[00:05:54] Speaker 02:
And specifically with regard to NEPA, we cite several cases in our reply brief at page 27, such as the Stand Up for California case, the Imsen case, and the Manygoats case, in which the 10th Circuit says,

[00:06:08] Speaker 02:
You know, the duties and responsibilities of the secretary may conflict with the interests of the tribes, but the secretary must act in accord with the obligation imposed by NEPA.

[00:06:20] Speaker 04:
But so what is though, you said the government has to manage the trust assets, right?

[00:06:25] Speaker 04:
But you agree that the tribes are the beneficial owners of those water rights.

[00:06:31] Speaker 04:
So what is the government's obligation with respect to managing those water rights?

[00:06:39] Speaker 02:
The government has several obligations and they may conflict and so there may be a balancing necessary, for example, the very Klamath treaty from which these water rights derive also has as an essential purpose, the promotion of agriculture.

[00:06:57] Speaker 02:
And it's not necessarily the case in every instance that, you know, merely because the tribes have been granted a ceiling on the water rights to satisfy their fishing interests.

[00:07:09] Speaker 02:
It's not necessarily the case that those rights have to be exercised to the fullest extent in every instance.

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And it's quite plausible that doing so, taking the full level of in-stream flow in every instance, frustrates one of the essential purposes of the Klamath Treaty, which is to promote agriculture.

[00:07:30] Speaker 02:
And I'd also point you to the memos from the Office of Legal Counsel that we cite in our briefs, which suggests that where there are such competing considerations, including

[00:07:41] Speaker 02:
considerations of the interests of Indian tribes and of citizens generally, and environmental interests as Congress has charged the government with taking care of with NEPA, that the government has to arrive at a unified position.

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And so some balancing may be necessary in order to effectuate the dual purposes of the Klamath Treaty Act.

[00:08:03] Speaker 05:
I guess the question is, and I thought this is what Judge Rao was getting at, is

[00:08:11] Speaker 05:
If hypothetically we were dealing with the state of Arizona that wanted to put dams up so that the flow of water to your clients would be adversely affected.

[00:08:31] Speaker 05:
The tribes are a sovereign nation here in that sense as to its

[00:08:39] Speaker 05:
water rights under the treaty.

[00:08:44] Speaker 05:
Where does the Restoration Act give the United States any authority to balance, as it were, Arizona's interest in its own agriculture versus your client's interest, other than through the political process?

[00:09:05] Speaker 02:
Well, the nature of the trust relationship doesn't really derive, I don't think, from the Restoration Act, but rather from the Klamath Treaty itself.

[00:09:16] Speaker 05:
And that is, that's, you know- So you're saying there's a qualification in the treaty to the tribes' aboriginal rights?

[00:09:32] Speaker 05:
I mean, the treaty was very specific as to what was reserved and what was not.

[00:09:38] Speaker 02:
Well, I think that's right.

[00:09:40] Speaker 02:
I think it reserved hunting and fishing rights.

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And it also was designed to promote agriculture.

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And it's plausible that the tribes could take less than the full in-stream flows awarded to them and still have enough water to preserve their fishing rights while also preserving the possibility of sustainable agriculture

[00:10:01] Speaker 02:
in the upper Klamath Basin community generally.

[00:10:05] Speaker 02:
And the Bureau of Indian Affairs.

[00:10:07] Speaker 05:
It's conceivable.

[00:10:08] Speaker 05:
But the question is, where does the right arise in the United States, as you're arguing, to limit what the treaty otherwise preserves?

[00:10:23] Speaker 02:
The United States as trustee, as manager of the trust assets is the entity that makes important management decisions about the trust.

[00:10:33] Speaker 02:
And I'll point you again to the cases at page 27 of our reply brief.

[00:10:39] Speaker 02:
You know, it's not unusual for the Bureau of Indian Affairs to perform NEPA analyses before it makes decisions.

[00:10:47] Speaker 05:
Sure, sure, sure.

[00:10:51] Speaker 05:
But I guess that's why I asked you and I gather you acknowledge that there is no concurrence obligation that affects the tribe under state law.

[00:11:04] Speaker 05:
And so you're relying on the treaty and the treaties promotion of agriculture.

[00:11:13] Speaker 02:
Your honor, I'm sorry if I wasn't clear.

[00:11:14] Speaker 02:
I'm speaking about the treaty because I took that to be, you know, the substance of Judge Rao's question about the nature of the federal Indian trust relationship.

[00:11:24] Speaker 02:
But no, actually, very importantly here, there is the requirement in Oregon

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That as a matter of fact, and to the extent that the question is a factual question, I think we're entitled to a presumption in our favor on that issue in the stage of litigation.

[00:11:42] Speaker 02:
As a matter of fact, the Oregon Water Resources Department does not issue these shutoffs.

[00:11:48] Speaker 02:
unless they've gotten concurrence from the BIA.

[00:11:51] Speaker 02:
And in those emails at page 62 and 63 of the appendix, the department does not even take the tribe's word that BIA has concurred.

[00:12:01] Speaker 02:
The tribes write in and say, here's our proposal for a call.

[00:12:04] Speaker 02:
We've got BIA concurrence.

[00:12:05] Speaker 05:
So you're saying that a concurrence requirement has grown up by pattern and practice over time?

[00:12:14] Speaker 02:
No, Your Honor, I think those emails reveal the practice.

[00:12:17] Speaker 02:
But I also think that as a matter of Oregon state administrative law, to which the administration of these water rights are subject because of the McCarran Amendment, cases like the Fort Vinoy case that we cite, or the Climate Irrigation District case, suggest that as a matter of law in Oregon, it has to be the legal owner who goes to the water resources department and effectuates these calls.

[00:12:44] Speaker 02:
So it is both as a matter of fact and a matter of law, the shutoffs just don't happen unless BIA concurs.

[00:12:54] Speaker 05:
So both the McCarran Amendment and the Restoration Act indicate neither is affecting the tribes' rights under the treaty.

[00:13:07] Speaker 05:
Is that correct?

[00:13:09] Speaker 02:
I'm not sure I understand your question, especially the relationship to the McCarran Amendment.

[00:13:15] Speaker 05:
What don't you understand about it?

[00:13:18] Speaker 02:
Well, so the McCarran Amendment subjects the administration of the water rights to state law.

[00:13:24] Speaker 02:
That's the ruling of the United States Supreme Court in the Colorado River case.

[00:13:29] Speaker 05:
It says the United States can be joined as a party.

[00:13:34] Speaker 02:
Yeah, so the text of the McCarran amendment may not be completely clear on this matter, but the United States has decided in its Colorado River case that the effect of the McCarran amendment is to subject the administration of these federal water rights to a state administrative law.

[00:13:52] Speaker 02:
And I'd also point out that in the Adair case,

[00:13:55] Speaker 02:
in the Ninth Circuit in which the substance of these water rights was decided, they commended the district court for leaving that sort of administrative procedure to the state administrative apparatus.

[00:14:09] Speaker 04:
So Mr. Deerson, is your argument about the protocol then that the protocol is a problem because the government is delegating not only its ability to concur but also whatever

[00:14:24] Speaker 04:
whatever other discretionary fiduciary obligations it has over these reserved water rights.

[00:14:32] Speaker 02:
Right, I think that both, you know, the, the, the under the non delegation doctrine says that, you know, Congress charged

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Department of Interior and the Bureau of Indian Affairs with the management of these trust assets, and it didn't authorize them to subdelegate that federal authority beyond the boundaries of those departments.

[00:14:53] Speaker 02:
Furthermore, Congress passed NEPA, which said that when executive agencies are making decisions that have such deleterious effects on the human environment,

[00:15:05] Speaker 02:
And here there's a state of environmental crisis in the upper Klamath Basin community that it has to, at the very least, take those considerations into account.

[00:15:14] Speaker 02:
At no point in this process, from the filing of the claims to the litigation of the claims to the concurrence, is the United States ever made to consider the environmental effects, even though that's precisely what NEPA requires.

[00:15:31] Speaker 03:
Can I ask you about federal law?

[00:15:34] Speaker 03:
So after the 1954 Termination Act, but before the 1986 Restoration Act, wouldn't it have been obvious that the tribes owned and had a unilateral right to assert water rights?

[00:16:02] Speaker 02:
Your honor, I don't know, that may seem obvious as a matter of federal law.

[00:16:06] Speaker 02:
I do not know how the Oregon Water Resources Department.

[00:16:10] Speaker 03:
How could it not be?

[00:16:12] Speaker 03:
I mean, the right is reserved, the trust relationship is extinguished, and yet the Extinguishing Act explicitly says this has no impact on the reserved rights.

[00:16:28] Speaker 03:
So in the 1954 to 1986 world, who could possibly assert water rights other than the tribes water rights other than the tribes unilaterally?

[00:16:42] Speaker 02:
Yes, okay.

[00:16:42] Speaker 02:
So in the absence of that trust relationship, then yes, I suppose BIA would not be required to make the management decision.

[00:16:52] Speaker 03:
Okay, so now we throw into the mix the Restoration Act.

[00:16:57] Speaker 03:
which reestablishes a trust relationship, which might tend to help you, which might at least set up the question of what's the nature of that trust.

[00:17:08] Speaker 03:
But the Restoration Act very specifically says that nothing in that statute shall affect in any manner any fishing or water right of the tribe or its members.

[00:17:20] Speaker 03:
So if they had the right, if they could have unilaterally asserted their water rights

[00:17:26] Speaker 03:
before the Restoration Act seems pretty obvious they can do the same thing after the Restoration Act because there's a very specific clause addressing that question.

[00:17:38] Speaker 02:
Your honor, I disagree.

[00:17:39] Speaker 02:
I think that that clause is better read to be talking about the substance of the rights.

[00:17:43] Speaker 02:
And it's true that nothing about the substance of the rights has changed.

[00:17:48] Speaker 02:
But the McCarran Amendment, as I've said, subjects the administration of the rights to Oregon state law.

[00:17:53] Speaker 02:
And again, leaving federal law aside, I think it's key here that at the end of the day, it is the Oregon Water Resources Department who is issuing these calls.

[00:18:04] Speaker 02:
and they don't do so without BIA's concurrence.

[00:18:09] Speaker 03:
But we can't leave federal law aside to the extent it is supreme.

[00:18:17] Speaker 03:
I mean, your argument about what the state is doing only works if, as a matter of federal law, the ownership of the water rights is a question of administration under McCarran rather than

[00:18:34] Speaker 03:
within the scope of this reservation in the Restoration Act?

[00:18:39] Speaker 02:
Well, Your Honor, I also think that I don't think that the United States government could force the Oregon administrative apparatus to implement its regulatory programs.

[00:18:53] Speaker 02:
That, I think, would be a violation of the 10th Amendment.

[00:18:57] Speaker 02:
It would be a commandeering issue.

[00:18:59] Speaker 02:
And for the purposes of standing and causation and redressability, it is the Oregon Water Resources Department that's issuing the shutoffs.

[00:19:10] Speaker 02:
And they don't do so without BIA's concurrence.

[00:19:13] Speaker 02:
And Your Honor, I think if you look at the government's brief, they move away from the issue of concurrence a little bit towards the issue of discretion.

[00:19:24] Speaker 02:
And I think that's because of the strength

[00:19:29] Speaker 02:
Of the argument that that the concurrence is required.

[00:19:32] Speaker 02:
You can also, by the way, look at the protocol itself.

[00:19:36] Speaker 02:
Which I think is the government's biggest hurdle in in trying to make both the arguments about concurrence and discretion, the protocol itself discusses, you know, in exact terms required concurrence and

[00:19:50] Speaker 02:
The protocol also requires that when the tribes want to make a call, they have to submit their proposal to the Bureau of Indian Affairs with the reasons why they want to make a call.

[00:20:00] Speaker 02:
The Bureau of Indian Affairs then deliberates over whether or not they will agree, disagree or want to change the scope of those calls.

[00:20:08] Speaker 02:
And the United States actually has the right in the protocol unilaterally to make a call even over tribal objections.

[00:20:17] Speaker 02:
The very provision that the ranchers are challenging here.

[00:20:20] Speaker 03:
But the more important point is that the tribe retains its independent right to make a call.

[00:20:28] Speaker 02:
Sure.

[00:20:28] Speaker 02:
And the tribes are free to make calls to the Oregon Water Resources Department.

[00:20:33] Speaker 02:
But again, as a matter of fact, the Oregon Water Resources Department will not effectuate or implement those calls unless they've gotten some concurrence from the Bureau of Indian Affairs.

[00:20:44] Speaker 02:
And again, the question.

[00:20:47] Speaker 05:
Excuse me.

[00:20:48] Speaker 05:
We can take that as a matter of fact.

[00:20:52] Speaker 02:
Yes, I think so.

[00:20:54] Speaker 02:
And based on the emails, and I think also that we make the argument that it's a matter of Oregon administrative law in cases like the Fort Vinoy case.

[00:21:03] Speaker 02:
If you're not convinced on the legal question, perhaps it's an issue for certification to the Oregon state courts.

[00:21:10] Speaker 02:
But for the purposes of standing in causation, where the rubber meets the road is at the Oregon Water Resources Department.

[00:21:16] Speaker 02:
And they do not issue the shutoffs unless they have

[00:21:23] Speaker 02:
some concurrence from the Bureau of Indian Affairs.

[00:21:28] Speaker 04:
Mr. Deerson, under the Restoration Act, when the statute speaks about real property, does that include water rights in your view?

[00:21:43] Speaker 02:
Your Honor, I'm not sure.

[00:21:44] Speaker 02:
What about real property does the statute say that you're trying to ask about?

[00:21:51] Speaker 04:
Well, I mean, for instance, well, I mean, they talks about real property in a number of contexts, and I believe there are some Supreme Court decisions suggesting that water rights are included with real property rights.

[00:22:04] Speaker 02:
Yes, I think it's fair to characterize them as real property, although I'd also point out that they're a special form of property, and particularly in the Western United States where they have the system of prior appropriation rather than pertinent water rights.

[00:22:20] Speaker 04:
So I guess, I mean, putting aside the Oregon state law requirements, I mean, what is your strongest argument that under federal law, the government maintains the right to manage this water, even though the water rights are held by the tribes?

[00:22:40] Speaker 04:
What are the cases or statutes under federal law that are your strongest case for that?

[00:22:47] Speaker 02:
Sure.

[00:22:48] Speaker 02:
So I think those cases include the Shoshone-Bannock case, the Mitchell cases from the United States Supreme Court, and the White Mountain Apache case, in all of which the court spoke of the affirmative obligation of the United States to manage the trust assets in the manner that it believes appropriate and that the tribes could not strong arm the United States as trustee into making the decisions that the tribes prefer.

[00:23:16] Speaker 02:
And furthermore, specifically with respect to NEPA, there are those cases at page 27 of the reply brief, including the many goats case in which the 10th circuit said, again, you know, the interests of the government under NEPA may conflict with the interests of the tribes and the government still must follow the strictures of NEPA.

[00:23:39] Speaker 02:
I'd also point out that Congress

[00:23:42] Speaker 02:
you know, charged the Department of Interior and the Bureau of Indian Affairs with the management of Indian Affairs.

[00:23:49] Speaker 02:
And when it comes to management decisions that have such serious environmental impacts, those certainly seem to be the type of major decisions which Congress has placed in BIA and Interior and which Congress has not permitted to be delegated beyond the bounds of those agencies.

[00:24:12] Speaker 04:
So you think it's impermissible for the government to decide to exercise its management authority, its discretionary management authority, by leaving those decisions to the tribes?

[00:24:25] Speaker 02:
By leaving them wholesale to the tribes?

[00:24:26] Speaker 02:
Yes, Your Honor, I do.

[00:24:27] Speaker 02:
I think that's the ruling from FCCV Telecom, or rather from the US Telecom case, from this court, as regards the general non-delegation argument.

[00:24:39] Speaker 02:
I think that the case law I've cited supports the notion that when it comes to NEPA considerations, it must be the government that makes the considerations.

[00:24:49] Speaker 02:
They certainly can and should incorporate

[00:24:53] Speaker 02:
You know the tribes is position as an element of their decision making and and certainly the tribes are in a good position to know, or to have a good information about what level of in stream flows will be necessary in a given instance, but know your honor they cannot.

[00:25:09] Speaker 02:
wholesale delegate that decision-making authority.

[00:25:13] Speaker 02:
And that's all that the ranchers are seeking here.

[00:25:16] Speaker 02:
Again, at no point has the government been made to consider the serious environmental crisis that they're facing.

[00:25:23] Speaker 02:
And all they ask is that somebody who's politically accountable to them, somebody in the government, be the one who's finally making these decisions and that the government not pass the buck onto the tribes, as it were.

[00:25:37] Speaker 05:
All right.

[00:25:38] Speaker 05:
Why don't we hear

[00:25:40] Speaker 05:
from council for appellee, and we'll give you a couple of minutes on rebuttal.

[00:25:45] Speaker 02:
Thank you.

[00:25:48] Speaker 01:
May it please the court, John Smeltzer for the Department of the Interior.

[00:25:53] Speaker 01:
Your Honor, the linchpin of this case is the question of the scope of the tribe's authority to manage their own water rights.

[00:26:03] Speaker 01:
Under federal law, the climate tribes are a sovereign entity with the power and authority to exercise and control their own water rights.

[00:26:11] Speaker 01:
In the protocol agreement, the tribes agreed to consultation and coordination with BIA before making a call on their water rights.

[00:26:19] Speaker 01:
But the protocol agreement didn't give the tribes their authority to exercise their water rights or to make water rights calls.

[00:26:27] Speaker 01:
And for that reason, all of the plaintiff's claims failed.

[00:26:32] Speaker 01:
They lied standing because there is no injury traceable to the protocol agreement.

[00:26:38] Speaker 01:
And their claims on the merits fail because there's been no delegation of authorities.

[00:26:45] Speaker 01:
There's no implication of the non-delegation doctrine.

[00:26:48] Speaker 01:
And there is no federal action that has the possibility of having environmental effects for which there needs to be a NEPA review.

[00:26:58] Speaker 01:
Even if, Your Honors, this court were to decide that somehow the United States and BIA does have management authority

[00:27:06] Speaker 01:
Over the exercise of these rights, though the plaintiffs claim still fail because the non delegation doctrine does not apply to a revocable assignment of a property right.

[00:27:17] Speaker 01:
nor does NEBA apply because there's a clear NEBA exemption which council did not address.

[00:27:24] Speaker 04:
If I can ask you the same question, similar question to what I asked Mr. Deerson.

[00:27:28] Speaker 04:
So in the government's view, what is the nature of the trust relationship between the government and the tribes here, right?

[00:27:35] Speaker 04:
What is the government's obligations or rights and responsibilities as trustee for these water rights?

[00:27:44] Speaker 01:
And this is the classic case of a limited trust.

[00:27:47] Speaker 01:
These are real property rights that the tribes reserved unto themselves and which were reserved for them in the 1864 treaty.

[00:27:56] Speaker 01:
And the United States government and United States law recognizes the tribes as sovereigns with rights of self-government and control over their own interests, including their own property rights.

[00:28:06] Speaker 01:
So the trust designation with respect to the property rights, including the water rights,

[00:28:12] Speaker 01:
is largely a designation as to whether those rights can be alienated and the nature of the rights.

[00:28:20] Speaker 01:
The rights are ultimately held by the United States in perpetuity for the tribal interests, so the tribe can't alienate the rights.

[00:28:28] Speaker 01:
But beyond that limited designation, in order to have a trust obligation under federal law, there has to be a statute that imposes

[00:28:36] Speaker 04:
Well, so why, in your view, does the Restoration Act not impose a broader trust obligation?

[00:28:44] Speaker 01:
Because it just restores the standard trust relationship that would exist between the United States and a tribe with respect to its reservation, its reserved rights, and its water rights originally.

[00:28:56] Speaker 01:
And as Judge Katz has pointed out, there was the Termination Act in 1954.

[00:29:03] Speaker 01:
The tribes went to court, asserted their water rights.

[00:29:06] Speaker 01:
The Ninth Circuit determined that they had full control over those rights and those rights existed.

[00:29:12] Speaker 01:
So there's no question about that.

[00:29:14] Speaker 01:
And the 86 Restoration Act said it wasn't going to impact pre-existing rights.

[00:29:19] Speaker 04:
Well, but the thing is, I think, you know, so the Adair case from the Ninth Circuit, right, is decided in between these two times when there is no trust relationship between the government and the tribes.

[00:29:30] Speaker 04:
And so it seems to me that the language of that case talking about control is all in the context of there not being a trusty relationship.

[00:29:41] Speaker 04:
And so I think, you know, we have to look at, you know, what type of control might have been reestablished by the Restoration Act.

[00:29:48] Speaker 01:
Sure, Your Honor.

[00:29:49] Speaker 01:
And if you take away the Termination Act, take away the Restoration Act, and just treat it as though it were tribal property throughout, the same result, you get to the same place.

[00:30:01] Speaker 01:
Because under federal law, the property rights of the tribe are theirs to control and exercise.

[00:30:09] Speaker 01:
The only exception to that is when Congress steps in and provides a specific management authority that may lead to a particular obligation, a trust obligation.

[00:30:18] Speaker 04:
Well, what about in the Restoration Act, the authority under section eight for economic development that the secretary shall put forth a plan for economic development?

[00:30:34] Speaker 04:
Does that give the government some greater role as a trustee?

[00:30:39] Speaker 01:
I don't believe it would be sufficiently specific to give rise to any particular obligations certainly that gives the BIA discretion to work with the tribe.

[00:30:53] Speaker 04:
It's not a discretionary duty.

[00:30:55] Speaker 04:
It says that it shall submit such a plan.

[00:31:00] Speaker 01:
I don't think there's any suggestion that the government's broad authority or obligation to assist with the tribe and to

[00:31:08] Speaker 01:
develop a particular plan for the tribe is contrary to the idea that the tribe retains its sovereign powers and authorities over its own.

[00:31:17] Speaker 01:
water rights.

[00:31:18] Speaker 04:
I just think that I think that you're answering a different question from the one that I'm asking.

[00:31:22] Speaker 04:
It doesn't seem to me necessarily true that because they have they're a sovereign and because they have property rights that that means the government doesn't also have some obligation as a trustee to exercise some fiduciary control over how the tribes exercise those rights.

[00:31:41] Speaker 04:
And so I want to understand

[00:31:43] Speaker 04:
why the government's position is, is that it has no fiduciary role, essentially, in this trust relationship.

[00:31:51] Speaker 04:
And I guess that's the question that I feel like is not getting answered here.

[00:31:55] Speaker 01:
Sorry, Your Honor.

[00:31:56] Speaker 01:
Let me try again.

[00:31:57] Speaker 01:
The United States Supreme Court has held that federal trust obligations, fiduciary obligations to tribes, are obligations that derive from statute.

[00:32:05] Speaker 01:
They do not.

[00:32:06] Speaker 01:
There is no

[00:32:07] Speaker 01:
on specific trust obligation writ large that gives the United States either the authority or the duty to manage tribal resources.

[00:32:17] Speaker 01:
They derive from statute.

[00:32:18] Speaker 01:
That's United States versus Hickory Apache Tribe is one of the most recent cases to address that proposition.

[00:32:26] Speaker 01:
So all of the cases that council cited about where there were some trust obligations found were all cases where there were statutes

[00:32:37] Speaker 01:
with a trust duty imposed.

[00:32:41] Speaker 01:
The White Mountain cases are cases where there are statutes and regulations that require the government specifically to manage timber resource.

[00:32:50] Speaker 01:
And in that context, then, of course, the tribe's sovereign control over its own timber resources are reduced to some extent, and the government has been the fiduciary obligation as

[00:32:59] Speaker 01:
manager of the corpus to ensure that that resource is managed productively for the tribe.

[00:33:05] Speaker 01:
But that derives from those particular set of statutes.

[00:33:08] Speaker 01:
And in the Mitchell line of cases, the Supreme Court specifically said that there is no obligation and there is no trust duty except that duty that are accepted and acknowledged by statute.

[00:33:23] Speaker 01:
The trust designation generically, the limited trust that exists for any federal reservation

[00:33:29] Speaker 01:
or property rights that belong to the tribes that were reserved by the tribes themselves is again, largely just a designation with respect to alienation, the extent to which the rights can be alienated and also a reference to Congress's plenary authority, right?

[00:33:44] Speaker 01:
To step in and to legislate if Congress chooses to provide a scheme for management of rights.

[00:33:53] Speaker 01:
But there is no such scheme in this case.

[00:33:55] Speaker 01:
And again, the cases that are cited

[00:33:58] Speaker 01:
in the plaintiff's brief are cases where there's either a statute or where the United States is being called under the McCarran Amendment to adjudicate tribal claims.

[00:34:09] Speaker 01:
Because the United States Supreme Court has held that the McCarran Amendment, even though it doesn't say so on its face, applies to Federal Reserve rights that are held on behalf of tribes.

[00:34:20] Speaker 01:
And therefore, the government has, when it adjudicates in a McCarran Amendment adjudications, has some

[00:34:28] Speaker 01:
obligation and authority to assert claims on behalf of tribes.

[00:34:34] Speaker 01:
Judge Casas?

[00:34:35] Speaker 03:
Yes.

[00:34:36] Speaker 03:
Suppose I agree with you that as a matter of federal law, the tribes have unilateral control over their water rights.

[00:34:48] Speaker 03:
It still seems that the Oregon State Agency has taken a different position

[00:34:58] Speaker 03:
and we can't review or reverse their decision.

[00:35:07] Speaker 03:
So for standing purposes, don't we have to take as a given that on their understanding of the law, even if we think it's wrong,

[00:35:21] Speaker 03:
the government needs to concur in the call in order for the water right to be enforced?

[00:35:30] Speaker 01:
Your honor, I don't think so because there's been no formal legal determination.

[00:35:34] Speaker 01:
Also, let me address the notion that it's a factual question.

[00:35:38] Speaker 03:
I'm sorry, the notion that I didn't hear.

[00:35:41] Speaker 01:
That it's a factual issue for which this court defers to some sort of factual determination.

[00:35:48] Speaker 01:
It's not a factual issue.

[00:35:49] Speaker 01:
It's a legal issue as to

[00:35:50] Speaker 01:
whether there's a concurrence requirement.

[00:35:53] Speaker 01:
And so what we submit to the court is there is no concurrence requirement under federal law for reasons we have just talked about.

[00:36:00] Speaker 01:
There's also no federal concurrence requirement under state law.

[00:36:03] Speaker 01:
And those issues were briefed by both sides.

[00:36:06] Speaker 01:
On this point to the Fort Benoit case, which was not a case about calling on water rights, it was a case about transferring the place of use of water rights under a statute that specifically

[00:36:18] Speaker 01:
addressed or use the term the holder of a water right and said the holder has to have to concur in that and that state court.

[00:36:26] Speaker 03:
Suppose I agree.

[00:36:28] Speaker 03:
Suppose I also agree with you that it's a legal question rather than fact question.

[00:36:33] Speaker 03:
We still have indicia from the Oregon agency tending to show that right rightly or wrongly they.

[00:36:45] Speaker 03:
they think as a legal matter that concurrence is required.

[00:36:49] Speaker 01:
Well, sure.

[00:36:49] Speaker 01:
But if this court were to affirm what is the law, which is there is no concurrence requirement, I had no expectation that the Oregon state officials would disagree with the judgment of this court.

[00:37:02] Speaker 01:
And even if, for some reason, they were, that doesn't change the sort of legal causation that's required, both for standing and specifically for NEPA.

[00:37:12] Speaker 03:
Well, I mean, but standing is

[00:37:14] Speaker 03:
injury in fact, and even if we were completely right in our conviction that the tribe unilaterally controls these rights and even if the state agency were completely wrong in its conviction to the contrary, as a matter of fact, their issuance of

[00:37:44] Speaker 03:
Their enforcement of the water right will depend on whether or not the United States concurs in the tribe's call.

[00:37:52] Speaker 01:
Yeah.

[00:37:52] Speaker 01:
And again, what I would say, Your Honor, is that causation, even for standing, this Court has suggested this sort of bug for mechanical causation.

[00:38:01] Speaker 01:
But if this Court were to determine that, for that mere reason, because there are employees of the Oregon Water Resources Department who are not following federal and state law in terms of honoring

[00:38:13] Speaker 01:
the calls from the tribe, that that provides standing here.

[00:38:17] Speaker 01:
There clearly is still not a claim under the non-delegation doctrine, because there's no authority that's been delegated.

[00:38:25] Speaker 01:
And there's also no claim under NEPA, because under the Supreme Court's ruling in public citizen, it's absolutely clear that you need legal causation to have a NEPA claim.

[00:38:33] Speaker 01:
There has to be more than just bug for causation.

[00:38:36] Speaker 01:
The United States has to have some discretionary authority

[00:38:40] Speaker 01:
over the action or the agency has to have discretionary authority over the action which is subject to NEPA.

[00:38:49] Speaker 01:
And so, you know, even if some, like I said, there's some sort of mechanical standing, there would not be a claim, a valid claim under either theory of the case that the plaintiffs are putting forward here.

[00:39:05] Speaker 01:
And, you know, I would also,

[00:39:08] Speaker 01:
argue or advise the court in addition that if somehow there was some authority that had been delegated or is being exercised here, there's still not valid claims because this is not a case like U.S.

[00:39:23] Speaker 01:
telecom where there's a delegation of regulatory authority.

[00:39:29] Speaker 01:
This is simply an assignment, a revocable assignment of a property right by

[00:39:35] Speaker 01:
If it's the case, a trustee who has authority over to the beneficiary in a context where there is no suggestion or possibility of a violation of a fiduciary trust and providing that revocable assignment of a property right to a beneficiary, there's no precedent or law that would support the idea that that somehow implicates a non-delegation doctrine, delegation of regulatory authority like in U.S.

[00:40:04] Speaker 01:
telecom.

[00:40:05] Speaker 01:
And then also with respect to the NEPA context, of course, there's an express exemption for civil enforcement actions and a call system exists solely to enable enforcements of adjudications and judgments in water rights cases.

[00:40:28] Speaker 01:
And on its face, that exemption applies to what is happening here.

[00:40:35] Speaker 01:
And what the court has to keep in mind with respect to that exemption is the purpose for the exemption and the purposes that you can't plausibly do NEPA in the context of a civil litigation and applying an injunction.

[00:40:50] Speaker 01:
And also the purposes of the, I'm sorry, what a civil enforcement action does is preserve the status quo.

[00:41:01] Speaker 01:
And again, we're talking about in-stream water rights that

[00:41:05] Speaker 01:
The exercise of the tribes right means that those flows remain in the water and the junior water users, plaintiffs or others are unable to take water out of the system.

[00:41:19] Speaker 01:
And so that's simply maintaining the status quo and falls clearly on the face within, squarely within the NEPA exemption.

[00:41:28] Speaker 01:
I see my time has rolled over.

[00:41:33] Speaker 01:
If judges have any other questions, I'd be happy to answer them.

[00:41:36] Speaker 01:
All set.

[00:41:37] Speaker 05:
Anything further?

[00:41:39] Speaker 05:
Judge Rao?

[00:41:42] Speaker 01:
All set.

[00:41:42] Speaker 05:
Thank you, counsel.

[00:41:44] Speaker 02:
Thank you.

[00:41:45] Speaker 05:
Your counsel for appellants.

[00:41:48] Speaker 02:
Thank you, and may it please the court.

[00:41:51] Speaker 02:
I think that there's been a lot of discussion regarding the concurrence requirement.

[00:41:57] Speaker 02:
and discussion to the effect that perhaps the United States concurrence is not required as a matter of federal law or even as a matter of state administrative law in order to effectuate the water rights.

[00:42:10] Speaker 02:
But again, I think when you're deciding this case, which is challenging the protocol amendment, probably the first thing you'll look at is the protocol itself, which speaks of required concurrence.

[00:42:22] Speaker 02:
The very provision that the ranchers are challenging

[00:42:25] Speaker 02:
is one in which the government promises not to withhold required concurrence.

[00:42:31] Speaker 02:
And I think the implication is quite clear that its concurrence would be required, at least in some circumstances.

[00:42:40] Speaker 02:
And furthermore, that absent such a promise, it may have reason to disagree with the tribe's decision to place a call, or even just the scope of a call in a given case, and that it may actually withhold such concurrence.

[00:42:55] Speaker 02:
And as far as competing obligations, specific competing obligations of the United States in terms of interests that it has to balance, again, the Klamath Treaty from which the water rights derive and which created this trust relationship, one of the purposes of the Klamath Treaty was to promote agriculture.

[00:43:18] Speaker 02:
And the deleterious effects, the deleterious environmental effects here may well frustrate that purpose of promoting agriculture.

[00:43:28] Speaker 02:
Although I'll admit, frankly, it's somewhat hard to say again, because the government is avoiding its obligations underneath, but to consider those effects.

[00:43:36] Speaker 02:
And with the ranchers succeed in this case, all they're trying to do is to restore some measure of political accountability where there currently is none.

[00:43:45] Speaker 02:
Again, at no point in this process was the government made to consider the serious environmental harms being done to the ranchers and to the upper Klamath Basin agricultural community, generally, and it's perhaps the NEPA analysis reveals that the tribes should get precisely what they asked for.

[00:44:02] Speaker 02:
But I think the fair implications from the allegations in our pleadings is that some balancing may be appropriate and that the United States could in fact arrive at a position that preserves enough water for the tribes to have their fishing rights while still permitting sustainable agriculture in the region.

[00:44:20] Speaker 05:
Thank you, Council.

[00:44:20] Speaker 05:
We'll take the case under advisement.