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Court Rules Arizona Tribe Failed to Identify Legal Basis for Drinking Water Quality Claims

Wednesday, October 9, 2013

By Lars-Eric Hedberg

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.

The tribe 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.

Claims, Motion to Dismiss

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.

The federal 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.

The federal government also argues that the act incorporating the executive order, as well as the Safe Drinking Water Act, does not mandate money damages for violations.

Court Grants Motion

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 control.

Michael Goodstein of Hunsucker, Goodstein PC represents the tribe.

Maureen Rudolph of the Justice Department represents the federal government.

To contact the reporter on this story: Lars-Eric Hedberg in Washington at lhedberg@bna.com.

To contact the editor responsible for this story: John Sullivan at jsullivan@bna.com.