Oct. 8 -- An Arizona tribe failed to identify the legal
basis for its claim that the federal government must provide a certain quality
of drinking water for its reservation, a federal court ruled (The Hopi Tribe
v. United States, 2013 BL 173432, Fed. Cl., No. 12-00045, 10/4/13).
The U.S. Court of Federal Claims in an Oct. 4 opinion and order granted the federal government's motion
to dismiss the Hopi Tribe's suit for lack of subject matter jurisdiction. The
court found that the tribe could not point to laws creating a legally
enforceable duty for the federal government to ensure that the arsenic level in
the reservation's water supply complied with EPA standards.
claims that the federal government, through the Bureau of Indian Affairs,
committed a breach of trust by failing to provide an adequate supply of drinking
water that contains acceptable levels of arsenic. It seeks damages from the
federal government for the alleged breach of trust.
According to the
opinion, the primary questions in this case concern the scope of the federal
government's duties as a trustee with respect to the tribe and whether the tribe
identified a trust duty that mandates damages.
The Hopi tribe is federally recognized and resides on the Hopi
Reservation, about 100 miles northeast of Flagstaff.
It alleges that
public water systems serving villages on the eastern portion of the reservation
contain levels of arsenic in excess of EPA standards. It claims that the federal
government committed a breach of trust by failing to provide an adequate supply
of drinking water.
It also claims that the federal government's trust
duties could be found in the executive order creating the reservation and the
Act of 1958, which incorporates the executive order. Taken together, it alleges
that the executive order and Act of 1958 create a duty to hold the land,
including the reservation's water supply, in trust.
government moved to dismiss, contending that the tribe did not identify sources
of law creating a legal duty for the federal government to provide drinking
water of a certain quality for the reservation. Although the federal government
acknowledges that it holds the tribe's water rights in trust, it argues that
this trust relationship does not extend to water quality.
government also argues that the act incorporating the executive order, as well
as the Safe Drinking Water Act, does not mandate money damages for
The U.S. Court of Federal Claims
granted the motion to dismiss.
It applied a test for determining the
existence of a substantive right that is enforceable in the U.S. Court of
Federal Claims under the Indian Tucker Act, 28 U.S.C. § 1505, and the Tucker
Act, 28 U.S.C. § 1481(a)(1).
In the first part of the test, “the tribe
must identify a substantive source of law that establishes specific fiduciary or
other duties, and allege that the Government has failed to perform those
duties.” (United States v. Navajo Nation, 556 U.S. 287, 290, 129 S. Ct.
1547, 173 L. Ed. 2d 429 (2009)).
Additionally, this duty cannot be found
in the general trust relationship, and the source of this relationship must be
interpreted as requiring compensation from the federal government for damages,
according to the opinion.
The court concluded that nothing in the act or
the order “mentions any duty on the part of [the federal government] to protect
the quality of drinking water on the Reservation.”
It reasoned that the
executive order plainly describes the land on which the reservation is located
and sets it aside for the reservation, and the Act of 1958 states that the land
is “to be held by the United States in trust for the Hopi Indians.” The court
also found that the Act of 1958 is silent as to the federal government's duty to
protect water supply and manage water resources.
Relying on Navajo
Nation, the court also rejected the tribe's argument that a duty may be
inferred from the trust relationship due to a high degree of federal
Michael Goodstein of Hunsucker, Goodstein PC represents the
Maureen Rudolph of the Justice Department represents the federal
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