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.
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.
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 email@example.com.
To contact the editor responsible for this story: John Sullivan at firstname.lastname@example.org.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)