United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 23, 2020 Decided March 19, 2021 

No. 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., 

APPELLANTS

v. 

DEBRA A. HAALAND, SECRETARY OF THE INTERIOR, 

 ET AL., 

APPELLEES

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:19-cv-01498) 

David J. Deerson argued the cause for appellants. With 

him on the briefs were Damien M. Schiff and Dominic M. 

Carollo. 

John L. Smeltzer, Attorney, U.S. Department of Justice, 

argued the cause for appellees. With him on the brief were 

Jeffrey Bossert Clark, Assistant Attorney General, Eric Grant, 

Deputy Assistant Attorney General, and Erika Kranz and 

Daron T. Carreiro, Attorneys. 
2 

Before: ROGERS, KATSAS and RAO, Circuit Judges. 

 Opinion for the Court by Circuit Judge ROGERS. 

 ROGERS, Circuit Judge: Ranchers in the Upper Klamath 

Basin region of the State of Oregon who hold irrigation water 

rights, sued to prevent the exercise of water rights that interfere 

with the irrigation of their lands. The district court dismissed 

their lawsuit for lack of standing under Article III of the 

Constitution. Viewing their standing to turn on whether the 

Klamath Tribes can call upon state officials to implement their 

superior instream water rights without the consent of the 

federal government, the ranchers challenge a Protocol 

Agreement executed by the United States and the Tribes. They 

contend that the federal government, as trustee of those water 

rights, unlawfully delegated its call-making authority to the 

Tribes and that absent such delegation, the Tribes would be 

unable to secure state implementation of their water rights. The 

ranchers maintain that the economic, environmental, and 

recreational injuries they suffered because of water cut offs 

imposed to satisfy the Tribes’ superior water rights are fairly 

traceable to the federal government’s delegation of its authority 

and could be redressed by invalidation of the Protocol, which 

would restore the federal government’s call-making authority. 

We conclude that the Protocol does not delegate federal 

authority to the Tribes but recognizes the Tribes’ preexisting 

authority to control their water rights under a Treaty in 1864 

with the United States. Accordingly, the ranchers have not 

established the causation or redressability necessary for 

standing, and the dismissal of their complaint is affirmed. 

I. 

The Klamath Tribes have hunted, fished, and lived in the 

Klamath River watershed of Southern Oregon for over a 
3 

thousand years. See Oregon Dep’t of Fish & Wildlife v. 

Klamath Indian Tribe, 473 U.S. 753, 766 (1985); United States 

v. Adair, 723 F.2d 1394, 1397–98 (9th Cir. 1983). In 1864, the 

Tribes entered into a treaty with the United States in which they 

ceded most of their aboriginal territory, approximately 22 

million acres, excluding approximately 1.9 million acres that 

the parties agreed would be held for the Tribes “as an Indian 

reservation.” Oregon Dep’t, 473 U.S. at 755 (internal 

quotation marks omitted) (quoting Treaty Between the United 

States of America and the Klamath and Moadoc Tribes and 

Yahooskin Band of Snake Indians (“1864 Treaty”) art. I, Oct. 

14, 1864, 16 Stat. 707, 707–08).1

 The Tribes reserved “the 

exclusive right of taking fish in the streams and lakes” on the 

reservation, 1864 Treaty art. I, 16 Stat. at 708, and of 

“gathering edible roots, seeds, and berries within its limits,” id., 

and the United States agreed to compensate the Tribes for the 

ceded lands in the form of federal expenditures to promote the 

Tribes’ well-being and “advance them in civilization . . . 

especially agriculture,” id. art. II, 16 Stat. at 708. 

After establishing the Klamath Reservation, Congress 

enacted the General Allotment Act of 1887, which authorized 

subdivision of the reservation and allotment of parcels granted 

in fee to individual members of the Tribes, as part of a policy, 

since repudiated, “to extinguish tribal sovereignty, erase 

reservation boundaries, and force the assimilation of Indians 

into the society at large.” Upper Skagit Indian Tribe v. 

Lundgren, 138 S. Ct. 1649, 1652–53 (2018) (internal quotation 

marks omitted) (quoting Cnty. of Yakima v. Confederated 

1

 The Klamath Tribes are federally recognized as a single tribal 

entity, but that entity is composed of three historically distinct 

groups: the Klamath tribe, the Modoc tribe, and the Yahooskin band 

of Snake Indians. See 1864 Treaty preamble, 16 Stat. at 707. The 

court follows the practice of the parties to refer to “the Tribes” while 

some older sources refer to the Klamath as a single “tribe.” 
4 

Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251, 

254 (1992)). Since then Congress has addressed the federal 

government’s relationship to the Tribes in ways directly 

relevant here. Nearly a century later, Congress ended the 

federal government’s historical role as trustee while 

reaffirming the Tribes’ reserved aboriginal water rights. By 

1986, Congress had restored certain of its trustee services to the 

Tribes, but again expressly left the Tribes’ aboriginal water 

rights in the Tribes’ exclusive control.2

The Klamath Termination Act of 1954 terminated federal 

supervision of the Tribes and provided for disposition of their 

reservation land that had not been allotted. Pub. L. No. 83-587, 

§ 1, 68 Stat. 718, 718. It closed the tribal roll and provided that 

tribal members could elect to withdraw from the Tribes and 

receive a cash payout of the individual’s interest in tribal 

property. Termination Act §§ 3–5, 68 Stat. at 718–19. The 

Tribes’ property could be appraised and sold to fund individual 

cash payments. Id. § 5, 68 Stat. at 719. The property of the 

remaining members of the Tribes would be managed by a 

private trustee or corporation. Id. All restrictions on sale or 

encumbrance of land owned by members of the Tribes would 

be removed four years after the Act became effective. Id. § 8, 

68 Stat. at 720. Specifically, the Termination Act provided: 

Upon removal of Federal restrictions on the property 

of the tribe and individual members thereof, the 

2

 Regarding the federal government’s trust relationship with Indian 

tribes, see COHEN’S HANDBOOK OF FEDERAL INDIAN LAW 

§§ 5.05(1)(b)–(2), 15.03, 19.06 (Nell Jessup Newton ed., 2017) 

(hereinafter “COHEN’S HANDBOOK”); see also Reid Peyton 

Chambers, Judicial Enforcement of the Federal Trust Responsibility 

to Indians, 27 STAN. L. REV. 1213 (1975); Mary Christina Wood, 

Indian Land and the Promise of Native Sovereignty: The Trust 

Doctrine Revisited, 1994 UTAH L. REV. 1471. 
5 

Secretary [of the Interior] shall publish in the Federal 

Register a proclamation declaring that the Federal 

trust relationship to the affairs of the tribe and its 

members has terminated. Thereafter individual 

members of the tribe shall not be entitled to any of the 

services performed by the United States for Indians 

because of their status as Indians and, except as 

otherwise provided in this Act, all statutes of the 

United States which affect Indians because of their 

status as Indians shall no longer be applicable to the 

members of the tribe, and the laws of the several 

States shall apply to the tribe and its members in the 

same manner as they apply to other citizens or persons 

within their jurisdiction. 

Id. § 18(a), 68 Stat. at 722. Regarding water and fishing rights, 

the Termination Act provided: 

(a) Nothing in this Act shall abrogate any water 

rights of the tribe and its members, and the 

laws of the State of Oregon with respect to the 

abandonment of water rights by nonuse shall 

not apply to the tribe and its members until 

fifteen years after the [termination of the 

federal trust relationship to the tribe]. 

(b) Nothing in this Act shall abrogate any fishing 

rights or privileges of the tribe or the members 

thereof enjoyed under Federal treaty. 

Id. § 14, 68 Stat. at 722. 

About 78% of the Tribes’ members elected to withdraw 

and receive a payout. Klamath & Modoc Tribes v. United 

States, 436 F.2d 1008, 1012 (Ct. Cl. 1971). Reservation 

property not set aside to pay their claims was transferred to a 
6 

private trustee. Id. In 1961, the Secretary of the Interior 

published a notice in the Federal Register that “the Federal trust 

relationship to the affairs of the tribe and its members is 

terminated.” Termination of the Federal Trust Relationship to 

the Property of the Klamath Tribe of Indians Located in the 

State of Oregon, and of Federal Supervision Over the Affairs 

of the Individual Members Thereof, 26 Fed. Reg. 7362, 7362 

(Aug. 12, 1961). 

In 1986, Congress unwound some of the effects of the 

Termination Act. The Klamath Indian Tribe Restoration Act 

of 1986 restored the Federal trust relationship with the Tribes. 

It provided: 

All rights and privileges of the tribe and the members 

of the tribe under any Federal treaty, Executive order, 

agreement, or statute, or any other Federal authority, 

which may have been diminished or lost under the 

[1954 Termination Act] are restored, and the 

provisions of such Act, to the extent that they are 

inconsistent with this Act, shall be inapplicable to the 

tribe and to members of the tribe after the date of the 

enactment of this Act. 

Pub. L. No. 99-398, § 2(b), 100 Stat. 849, 849. The Tribes were 

restored to the status of a federally recognized tribe. Id. § 2(a), 

100 Stat. at 849. The Act specified that it did not “alter any 

property right or obligation,” and thus did not restore 

previously alienated lands to the Tribes’ land base. See id.

§§ 2(d), 6, 100 Stat. at 850. It also expressly provided that the 

Act would not “affect in any manner any hunting, fishing, 

trapping, gathering, or water right of the tribe and its 

members.” Id. § 5, 100 Stat. at 850. The United States 

presently recognizes the Tribes as a tribal sovereign, 25 U.S.C. 

§§ 3601(3), 5123(h), with inherent powers of self-government, 
7 

including powers over land and water rights except as reserved 

by Congress. See Kahawaiolaa v. Norton, 386 F.3d 1271, 1273 

(9th Cir. 2004); Burlington N. R.R. Co. v. Blackfeet Tribe of the 

Blackfeet Indian Rsrv., 924 F.2d 899, 902 (9th Cir. 1991), 

overruled on other grounds by Big Horn Cnty. Elec. Co-op., 

Inc. v. Adams, 219 F.3d 944, 953 (9th Cir. 2000); see also 

Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 788 (2014);

Oregon Dep’t, 473 U.S. at 765–66; United States v. Shoshone 

Tribe of Indians of Wind River Rsrv., 304 U.S. 111, 116–17 

(1938); Indian Entities Recognized by and Eligible to Receive 

Services from the United States Bureau of Indian Affairs, 84 

Fed. Reg. 1200, 1202 (Feb. 1, 2019). 

A. 

Prior to passage of the Restoration Act, the determination 

of competing claims to water in the Klamath Basin was 

underway in the federal courts and under Oregon law. The 

Tribes’ reserved water rights arise as an exception to the 

doctrine of prior appropriation governing rights to use water 

from river systems in Oregon and other western states, based 

on acknowledgement that the establishment of an Indian 

reservation and other federal reservations impliedly reserves 

then-unappropriated water “to the extent needed to accomplish 

the purpose of the reservation.” Cappaert v. United States, 426 

U.S. 128, 138 (1976). 

In 1975, the United States sued in federal court for a 

declaration of water rights in the Williamson River drainage in 

the Klamath Basin. Adair, 723 F.2d at 1398. The Tribes 

intervened as a plaintiff. Id. at 1399. The State of Oregon 

intervened as defendant and moved unsuccessfully for the 

federal court to abstain to state proceedings. Id. The Court of 

Appeals for the Ninth Circuit concluded that the Tribes held a 

right to “a quantity of the water flowing through the reservation 
8 

. . . for the purpose of maintaining the [Tribes’] treaty right to 

hunt and fish on reservation lands.” Id. at 1410. The right is 

“non-consumptive” in that the holder is not entitled to 

withdraw water from the stream but has “the right to prevent 

other appropriators from depleting the stream[’s] waters below 

a protected level in any area where the non-consumptive right 

applies.” Id. at 1411. Further, the right carried a priority date 

of “time immemorial,” and the amount of water protected 

under the right was not to the flows present at the 1864 Klamath 

Treaty, but rather to “the amount of water necessary to support 

its hunting and fishing rights as currently exercised to maintain 

the livelihood of Tribe members.” Id. at 1414–15. 

Additionally, the court concluded that: 

[T]he [federal] [g]overnment has no ownership 

interest in, or right to control the use of, the Klamath 

Tribe’s hunting and fishing water rights. The hunting 

and fishing rights from which these water rights arise 

by necessary implication were reserved by the Tribe 

in the 1864 treaty with the United States. The hunting 

and fishing rights themselves belong to the Tribe and 

may not be transferred to a third party. Because the 

Klamath Tribe’s treaty right to hunt and fish is not 

transferable, it follows that no subsequent transferee 

may acquire that right of use or the reserved water 

necessary to fulfill that use. 

Id. at 1418 (citations omitted). The court proceeded to 

determine the extent of the federal government’s own water 

right, id. at 1418–19, while leaving the quantification of the 

Tribes’ water right to be determined in the state proceeding, id.

at 1399, 1407. In 1952, Congress had adopted the McCarran 

Amendment, 43 U.S.C. § 666(a), which waived the United 

States’ sovereign immunity and granted consent to join the 
9 

United States in any suit for the adjudication of rights to use of 

a river system or other source. 

Under Oregon law, a call system is used to allocate water. 

The process, as relevant, begins when the Oregon Water 

Resources Department (“OWRD”) collects the water claims 

submitted by various persons, resolves objections to them, and 

as needed holds a hearing on the claims. Or. Rev. Stat. 

§§ 539.021, .030, .100, .110. OWRD will issue “findings of 

fact and an order of determination . . . establishing the several 

rights to the waters of the stream.” Id. § 539.130(1). Upon 

issuance of the order, OWRD’s administrative determination is 

in “full force and effect.” Id. § 539.130(4). OWRD files its 

findings and order, along with the administrative record, in 

Oregon Circuit Court for a non-jury adjudication, where 

exceptions can be filed. Id. § 539.130(1), .150. While the 

matter is pending before the Circuit Court, the division of water 

from the stream involved in the appeal is made in accordance 

with the order of OWRD. Id. § 539.170. Upon the “final 

determination” of water rights, OWRD will issue “a certificate 

setting forth the name and post-office address of the owner of 

the right; the priority of the date, extent and purpose of the 

right, and if the water is for irrigation purposes, a description 

of the legal subdivisions of land to which the water is 

appurtenant.” Id. § 539.140. To administer determined water 

rights, OWRD has established water districts, id. § 540.010, 

whose “watermasters” allocate water in accordance with the 

users’ existing water rights of record in the OWRD, id.

§§ 540.020, .045(1)(a), with authority — when a holder of 

water rights has placed a “call” for water — to suspend 

conflicting upstream usages, see Or. Admin. R. 690-025-0025. 

In 1975, the Klamath Basin Adjudication began when 

OWRD announced the intent to investigate usage of the 

Klamath River. The Tribes and the federal government filed 
10 

the water enforcement claims at issue in 1997. The federal 

government’s claims (Nos. 625–40) included claims on behalf 

of the Tribes, whose trust relationship had by then been 

restored; the Tribes filed their own claim (No. 612), which 

incorporated the claims made by the federal government. 

Following a lengthy administrative process, an administrative 

law judge in 2011 issued a proposed order approving the claims 

of the federal government and the Tribes and quantifying the 

flows “necessary to establish a healthy and productive habitat 

to allow the exercise of the Klamath Tribes’ hunting, fishing, 

trapping, and gathering rights guaranteed by the treaty of 

1864.”3

 OWRD’s Administrative Determination largely 

confirmed the ALJ’s proposal as to the federal government’s 

claims, but dismissed the Tribes’ omnibus claim (No. 612) as 

“duplicative of the United States’ claims, not additive,” 

because “[t]he United States holds the rights recognized herein 

in trust for the Klamath Tribes.” Administrative 

Determination, supra note 3, at 4898, 5074 (citing Colorado 

River Water Conservation Dist. v. United States, 424 U.S. 800, 

810 (1976)). It also provisionally confirmed water rights 

claimed by the ranchers with priority dates of 1864 or later, 

including irrigation water rights acquired from reservation 

allottees. See Am. Compl. ¶¶ 5, 8. OWRD filed its 

Administrative Determination in the Oregon Circuit Court, Or. 

Rev. Stat. § 539.130(1), and the parties here, and other 

claimants, filed exceptions, id. § 539.150. The Oregon Circuit 

Court recently issued an opinion on Phase 3, Part 1, Group C 

Motions, In re Waters of the Klamath River Basin, No. 

3

 Amended Corrected Findings of Fact and Order of Determination 

at 5153, Klamath River Basin General Stream Adjudication (Feb. 28, 

2014), https://www.oregon.gov/owrd/programs/WaterRights/

Adjudications/KlamathRiverBasinAdj/Pages/ACFFOD.aspx 

(hereinafter “Administrative Determination”). 
11 

WA1300001 (Or. Cir. Ct. Feb. 24, 2021) (“Or. Cir. Ct. Op., 

Feb. 24, 2021”). 

The Tribes and the federal government executed a 

Protocol Agreement following OWRD’s Administrative 

Determination in order “to position themselves to make [water 

rights] calls in a timely and effective manner.” Protocol at 1 

(May 2013). It provided that “[e]ach Party retains its 

independent right to make a call” and that if after following a 

consultation procedure “the Parties cannot agree on whether to 

make a call, either Party may independently make a call and 

the other will not object to the call.” Id. at 3. As amended in 

2019, the Protocol extends some consultation deadlines and 

adds that “the United States retains the right not to concur with 

any call for water that is inconsistent with the [Administrative 

Determination] or other legal obligations.” Protocol at 4 (Mar. 

2019). 

In June 2013, the Tribes issued enforcement calls to 

OWRD. Am. Compl. ¶ 25. Oregon, the Tribes, and 

landowners including most of the ranchers here then entered 

into the Upper Klamath Basin Comprehensive Agreement (the 

“Upper Basin Agreement”). Id. ¶ 26. The Tribes agreed to 

forbear from enforcing the full extent of their reserved instream 

water rights in exchange for commitments by the other parties 

as to water use, riparian protection, and economic 

development. Notice Regarding Upper Klamath Basin 

Comprehensive Agreement, 82 Fed. Reg. 61,582, 61,582–83 

(Dec. 28, 2017) (“Notice”). During 2014–16, the Tribes made 

calls for flows at these lower levels. Am. Compl. ¶ 29. But, in 

2017, citing a lack of progress in implementing the promised 

benefits, the Tribes reverted to the higher water levels under 

OWRD’s Administrative Determination. Id. ¶ 30. The federal 

government terminated the Upper Basin Agreement in view of 

Congress’s failure to approve the necessary funding. Notice, 
12 

82 Fed. Reg. at 61,583–84. In 2018 and 2019, the Tribes again 

issued calls for the full enforcement of their water rights. Am. 

Compl. ¶¶ 31–32. 

B. 

The ranchers filed the instant lawsuit against the federal 

government in May 2019. In their amended complaint, they 

alleged that after termination of the Upper Basin Agreement, 

the Tribes “by and through the power and authority delegated 

by” the federal government issued calls for enforcement of the 

full extent of their instream flow water rights. Am. Compl. 

¶¶ 31–32. OWRD’s enforcement of these calls, they alleged, 

resulted in “widespread and severe curtailment” of water rights 

for irrigation use on their lands, resulting in environmental and 

economic injury, and that similar injury will result from future 

calls. Id. ¶¶ 31–38. Specifically, the ranchers alleged they 

have suffered and will continue to suffer the following injuries: 

(1) reduction of wildlife on their ranches, (2) infestation of 

undesirable plants, (3) the loss of plant communities, (4) lost 

revenues, and (5) reduced property values. Id. ¶¶ 36–37. The 

ranchers argued that the Protocol constitutes an unlawful 

delegation to the Tribes of the federal government’s authority 

to decide whether to concur in a call. Id. ¶¶ 41–46. Further, 

they argued that the calls made in 2013 and 2017–19 

constituted major federal actions for which an environmental 

impact statement should have been prepared under the National 

Environmental Policy Act (“NEPA”). Id. ¶¶ 47–53. As a 

remedy, they asked the district court to set aside the Protocol, 

all previous calls, and to enjoin any future calls by the federal 

government until it “fully complied with the law,” including 

“to make a final, independent decision on the propriety of a 

call, having taken into account the general public interest and 

welfare, as well as NEPA.” Id. 
13 

The district court dismissed the complaint for lack of 

Article III standing. The court determined that the Klamath 

Tribes “are entitled to enforce their senior water rights . . . 

regardless of whether the Protocol . . . stand[s].” Mem. Op. 18 

(Jan. 31, 2020). The ranchers thus could not demonstrate that 

their injuries were traceable to the challenged Protocol or to 

any action of the federal government. Id. at 10–15. Nor could 

they show redressability because even if the federal 

government were prohibited from enforcing the Tribes’ rights, 

the district court concluded, the Tribes would do so themselves, 

resulting in the same hardships to the ranchers. Id. at 15–21. 

The ranchers appeal. 

II. 

To establish standing to litigate in the federal courts, 

Article III of the Constitution requires a plaintiff to “present an 

injury that is concrete, particularized, and actual or imminent; 

fairly traceable to the defendant’s challenged behavior; and 

likely to be redressed by a favorable ruling.” Dep’t of 

Commerce v. New York, 139 S. Ct. 2551, 2565 (2019) (internal 

quotation marks omitted) (quoting Davis v. Fed. Election 

Comm’n, 554 U.S. 724, 733 (2008)). Causation requires a 

“fairly traceable connection between the plaintiff’s injury and 

the complained-of conduct of the defendant.” Steel Co. v. 

Citizens for a Better Env’t, 523 U.S. 83, 103 (1998). And 

redressability requires a litigant to demonstrate “a likelihood 

that the requested relief will redress the alleged injury.” Id.

The ranchers frame their claims in terms of procedural 

injury. They concede that as junior appropriators they have no 

right to water that infringes the Tribes’ instream rights, 

Appellants’ Br. 5–7, and priority enforcement of water rights 

through a call system is in accordance with the nature of those 

rights under Oregon law, see Montana v. Wyoming, 563 U.S. 
14 

368, 375–76 (2011); Klamath Irrigation Dist. v. United States, 

227 P.3d 1145, 1150 (Or. 2010). 

To establish traceability in a procedural-injury case, “an 

adequate causal chain must contain at least two links:” (1) a 

connection between the omitted procedure and a government 

decision and (2) a connection between the government decision 

and the plaintiff’s particularized injury. WildEarth Guardians 

v. Jewell, 738 F.3d 298, 306 (D.C. Cir. 2013) (internal 

quotation marks omitted) (quoting Fla. Audubon Soc’y v. 

Bentsen, 94 F.3d 658, 668 (D.C. Cir. 1996)). The plaintiff is 

not required to “show that but for the alleged procedural 

deficiency the agency would have reached a different 

substantive result. ‘All that is necessary is to show that the 

procedural step was connected to the substantive result.’” Id.

(citations omitted) (quoting Massachusetts v. EPA, 549 U.S. 

497, 518 (2007)). Claims for procedural violations also receive 

a “relaxed redressability requirement” in which the plaintiff 

need only show that “correcting the alleged procedural 

violation could still change the substantive outcome in the 

[plaintiff’s] favor” not “that it would effect such a change.” 

Narragansett Indian Tribal Historic Pres. Office v. FERC, 949 

F.3d 8, 13 (D.C. Cir. 2020). These relaxed standards do not 

apply to the link between the government decision and the 

plaintiff’s injury. See WildEarth Guardians, 738 F.3d at 306. 

“[Alt]hough the plaintiff in a procedural-injury case is relieved 

of having to show that proper procedures would have caused 

the agency to take a different substantive action, the plaintiff 

must still show that the agency action was the cause of some 

redressable injury to the plaintiff.” Arpaio v. Obama, 797 F.3d 

11, 21 (D.C. Cir. 2015) (internal quotation marks omitted) 

(quoting Renal Physicians Ass’n v. U.S. Dep’t of Health & 

Human Servs., 489 F.3d 1267, 1279 (D.C. Cir. 2007)). 
15 

Notably here, “[w]here traceability and redressability 

depend on the conduct of a third party not before the court 

‘standing is not precluded, but it is ordinarily substantially 

more difficult to establish.’” Competitive Enter. Inst. v. FCC, 

970 F.3d 372, 381 (D.C. Cir. 2020) (quoting Lujan v. Defs. of 

Wildlife, 504 U.S. 555, 562 (1992)). “The party invoking our 

jurisdiction must show that the third party will act ‘in such 

manner as to produce causation and permit redressability of 

injury.’” Id. A permissible theory of standing “does not rest 

on mere speculation about the decisions of third parties; it relies 

instead on the predictable effect of Government action on the 

decisions of third parties.” Dep’t of Commerce, 139 S. Ct. at 

2566. 

The ranchers trace their alleged injuries to OWRD orders 

that compelled them to curtail irrigation of their lands. Am. 

Compl. ¶¶ 25, 30–32. Those orders follow from the Tribes’ 

calls for enforcement of their reserved water rights. Id. ¶¶ 22–

25, 29–33. The Tribes and OWRD are third parties not joined 

as defendants in the ranchers’ lawsuit here. Instead, the 

ranchers sued only the federal government on the premise that 

the Tribes would be unable to obtain enforcement of their calls 

for water in the absence of concurrence by the federal 

government. Am. Compl. ¶¶ 2, 38. To determine whether the 

ranchers have standing, the court must determine whether the 

federal government’s concurrence in or non-objection to the 

Tribes’ enforcement calls will have a predictable effect on the 

OWRD watermaster’s issuance of orders that require the 

ranchers to curtail irrigation of their lands. For the following 

reasons, we conclude that no such concurrence requirement 

exists under federal or Oregon law, and that, consequently, the 

ranchers cannot establish the causation or redressability 

necessary for standing. 
16 

A. 

The Tribes’ water rights have their source in federal law. 

The 1864 Klamath Treaty extinguished the Tribes’ title to 

ceded lands while preserving their “exclusive right” to hunt and 

fish on reservation land. Art. I, 16 Stat. at 707–08. The scope 

of the Tribes’ water rights under the Treaty is a question of 

federal law. Under the “reserved water rights” doctrine, when 

the federal government creates an Indian reservation, it 

impliedly reserves “that amount of water necessary to fulfill the 

purpose of the reservation.” Cappaert, 426 U.S. at 141. The 

1864 Treaty thus reserved to the Tribes “a quantity of the water 

flowing through the reservation . . . for the purpose of 

maintaining [their] treaty right to hunt and fish on reservation 

lands.” Adair, 723 F.2d at 1410. The nature of the federal 

government’s trust relationship with the Tribes is also 

governed by federal law, and the ranchers’ understanding of 

the federal government’s role and the Protocol is 

“fundamentally in error.” Appellees’ Br. 24. 

The principles announced by the Supreme Court disfavor 

the ranchers’ assertion of standing. In United States v. Mitchell

(“Mitchell I”), 445 U.S. 535 (1980), individual Indians who 

had been allotted former reservation land sought damages from 

the federal government for failing its fiduciary duties to 

maximize the value of timber on the allotted land. Id. at 537. 

The Supreme Court concluded that under the General 

Allotment Act “the trust Congress placed on allotted lands is of 

limited scope,” and held, therefore, that the Act did not give 

rise to a claim for breach of fiduciary duty of timber 

management. Id. at 542–43, 546. On remand, the U.S. Court 

of Claims interpreted various statutes and regulations related to 

timber management to impose fiduciary duties on the federal 

government as trustee. The Supreme Court affirmed, holding 

in United States v. Mitchell (“Mitchell II”), 463 U.S. 206 
17 

(1983), that the cited statutes and regulations vested in the 

federal government “full responsibility to manage Indian 

resources and land for the benefit of the Indians” and thereby 

“establish[ed] a fiduciary relationship and define[d] the 

contours of the United States’ fiduciary responsibilities.” Id.

at 224. Although this conclusion was “reinforced by the 

undisputed existence of a general trust relationship between the 

United States and the Indian people,” the Court principally 

grounded its holding on the text of the statues and regulations, 

which “clearly establish[ed] fiduciary obligations of the 

[federal government] in the management” of the lands and 

resources at issue. Id. at 224–26; see also COHEN’S HANDBOOK 

§ 5.05(1)(b). 

This court applied these principles in Shoshone-Bannock 

Tribes v. Reno, 56 F.3d 1476 (D.C. Cir. 1995). There, as here, 

a state had commenced a general stream adjudication and 

joined the United States. Id. at 1478. The Shoshone-Bannock 

Tribes argued that they were entitled to water rights beyond 

their reservation’s boundaries based on a treaty provision 

granting them the right to hunt on unoccupied land outside the 

reservation. Id. When the federal government declined to 

assert the off-reservation claims on their behalf, the tribes filed 

suit seeking to compel the U.S. Attorney General to file their 

claims. Id. at 1479. This court acknowledged that under the 

federal doctrine reserved water rights on Indian reservations 

“belong to the Indians rather than to the United States, which 

holds them only as trustee.” Id. Recognizing that the Attorney 

General generally retained discretion to conduct litigation on 

behalf of the United States, the court noted that the tribes had 

identified no statute or other restriction limiting that discretion. 

Id. at 1480–82. Explaining, the court stated: 

While it is true that the United States acts in a 

fiduciary capacity in its dealings with Indian tribal 
18 

property, it is also true that the government’s fiduciary 

responsibilities necessarily depend on the substantive 

laws creating those obligations. We agree with the 

district court that an Indian tribe cannot force the 

government to take a specific action unless a treaty, 

statute or agreement imposes, expressly or by 

implication, that duty. 

Id. at 1482 (citations omitted). The “‘mere existence’ of the 

Treaty [did not] require[] the federal government to protect 

whatever [water claims] the Tribes may wish to advance.” Id. 

Neither the 1864 Klamath Treaty, nor the 1954 

Termination Act, nor the 1986 Restoration Act establish a trust 

relationship between the federal government and the Tribes 

that requires the federal government to concur in the Tribes’ 

calls for enforcement of their reserved instream water rights. 

Article I of the Treaty guaranteed the Tribes’ “exclusive” 

hunting and fishing rights on the reservation. That exclusive 

right was expressly acknowledged by Congress as to the 

reserved water rights in both the Termination Act and the 

Restoration Act. Those Acts provided as well that nothing in 

their provisions would “affect in any manner any . . . water right 

of the tribe and its members,” Restoration Act § 5, 100 Stat. at 

850, or “abrogate any water rights of the tribe and its 

members,” Termination Act § 14(a), 68 Stat. at 722. Despite 

restoring federal recognition to the Tribes and the “rights and 

privileges” that might have been diminished under the 

Termination Act, section 5 of the Restoration Act expressly 

carved out the Tribes’ exclusive rights guaranteed by the 

Treaty. The federal government’s historical trustee 

relationship with Indian tribes was thereby limited so as not to 

interfere with the Tribes’ exclusive rights under Article I of the 

1864 Treaty. 
19 

In short, as was true before the Restoration Act, the federal 

government has “no ownership interest in, or right to control 

the use of, the Klamath Tribe’s hunting and fishing” rights and 

attendant reserved water rights. Adair, 723 F.2d at 1418; see 

Oregon Dep’t, 473 U.S. at 765–68. Neither statutory text nor 

the historical trusteeship that existed prior to the Termination 

Act indicate that Congress intended in the Restoration Act to 

require the federal government’s concurrence for the Tribes’ 

instream calls to be effective. They do not require the federal 

government to assume “elaborate control,” Mitchell II, 463 

U.S. at 224–25, over the Tribes’ water rights. Nor would such 

a requirement be a “right,” “privilege,” “service,” or “benefit” 

within the meaning of section 2 of the Restoration Act, 100 

Stat. at 849. To the contrary, such a concurrence requirement 

would directly interfere with the Tribes’ exercise of their 

sovereignty, here their assertion and control of their reserved 

water rights. See Restoration Act § 5, 100 Stat. at 850. See 

generally COHEN’S HANDBOOK § 19.06. Indeed the federal 

government maintains that it was obligated, if asked, to concur 

in lawful water calls proposed by the Tribes. This court 

previously held that despite the existence of a trust relationship 

“an Indian tribe cannot force the government to take a specific 

action unless a treaty, statute, or agreement imposes, expressly 

or by implication, that duty.” Shoshone-Bannock Tribes, 56 

F.3d at 1482. The court need not consider whether that 

standard was met here given our conclusion that the Tribes 

were free to make calls in the exercise of their treaty rights. 

B. 

The heart of the ranchers’ argument is that a concurrence 

requirement is found in Oregon law, which is made applicable 

to the Klamath Basin Adjudication by the McCarran 
20 

Amendment of 1952, 43 U.S.C. § 666(a).4

 Appellants’ Br. 13–

24. In Colorado River Water Conservation District v. United 

States, 424 U.S. 800 (1976), the Supreme Court held that the 

McCarran Amendment is properly understood to reach Indian 

reserved water rights held in trust on behalf of Indians. Id. at 

809. The Supreme Court emphasized that in “resolv[ing] 

conflicting claims to a scarce resource,” id. at 812, such state 

jurisdiction “in no way abridges any substantive claim on 

behalf of Indians under the doctrine of reserved rights,” id. at 

813. The McCarran Amendment, then, does not change the 

fact that the substance and scope of tribal water rights is 

governed by federal law. Arizona v. San Carlos Apache Tribe 

of Ariz., 463 U.S. 545, 571 (1983). Necessarily, “[s]tate courts, 

as much as federal courts, have a solemn obligation to follow 

federal law.” Id. Still, in submitting federal water right 

4

 The McCarran Amendment provides: 

Consent is given to join the United States as a defendant in 

any suit (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. The United States, when 

a party to any such suit, shall (1) be deemed to have waived 

any right to plead that the State laws are inapplicable or 

that the United States is not amenable thereto by reason of 

its sovereignty, and (2) shall be subject to the judgments, 

orders, and decrees of the court having jurisdiction, and 

may obtain review thereof, in the same manner and to the 

same extent as a private individual under like 

circumstances: Provided, That no judgment for costs shall 

be entered against the United States in any such suit. 

43 U.S.C. § 666(a). 
21 

controversies to state courts for “adjudication” or 

“administration,” the Supreme Court concluded that state 

procedural rules apply because the McCarran Amendment 

“bespeaks a policy that recognizes the availability of 

comprehensive state systems for adjudication of water rights,” 

which advance the goal of avoiding piecemeal proceedings and 

inconsistent dispositions. Colorado River, 424 U.S. at 819; see 

United States v. Idaho ex rel. Idaho Dep’t of Water Res., 508 

U.S. 1, 6–8 (1993). 

The ranchers maintain that requiring the concurrence of 

the legal title holder (i.e., the trustee) is a state procedural rule 

to which the McCarran Amendment subjects the Tribes’ 

reserved water rights. The federal government suggests that 

even if there were such a rule, it would be a substantive one 

that flows from the nature of the trust relationship, not state 

procedure. Appellees’ Br. 32–33. We need not resolve that 

question because none of the four sources of an Oregon-law 

concurrence requirement offered by the ranchers show that 

Oregon law requires the federal government to concur in the 

Tribes’ calls for their reserved water rights held in trust. 

(1) Fort Vannoy Irrigation District v. Water Resources 

Commission, 188 P.3d 277 (Or. 2008). The ranchers 

characterize Fort Vannoy as establishing a general rule that “a 

call for the implementation of water rights that are held in trust 

must be approved by the holder of legal title.” Appellants’ Br. 

16. No such broad proposition is found in Fort Vannoy. There, 

Ken-Wal Farms had filed an application to change the points 

of diversion for water under two water rights certificates, which 

had been issued to the Fort Vannoy Irrigation District. Fort 

Vannoy, 188 P.3d at 280–81. By Oregon statute, the “holder 

of any water use subject to transfer” is given the authority to 

seek a change of the point of diversion. Id. at 281 (quoting Or. 

Rev. Stat. § 540.510(1)). An irrigation district to facilitate the 
22 

construction of irrigation works is formed upon proposal of 

landowners, governed by an elected board of directors, and has 

the power to acquire lands for reservoirs or other purposes. Id. 

at 286. The “legal title to all such property ‘vests in the 

irrigation district and is held by it in trust.’” Id. (alterations 

omitted) (quoting Or. Rev. Stat. § 545.253). The narrow 

question in Fort Vannoy was whether such a district is the 

“holder of any water use subject to transfer,” when it receives 

the certificate to a particular water right. Id. at 286, 288. 

In identifying the “holder,” the court in Fort Vannoy

examined the trust relationship between the irrigation district 

and its members. Id. at 295. The trust relationship was not 

governed by federal Indian law; instead, a state statute 

established that property acquired by the district would be held 

in trust and the board was empowered “to hold, use, acquire, 

manage, occupy, possess and dispose of the property as 

provided in the Irrigation District Law.” Id. (quoting Or. Rev. 

Stat. § 545.253). Relying in part on the Oregon law of private 

trusts, the court in Fort Vannoy concluded that “the phrase 

‘holder of any water use subject to transfer’ cannot be 

construed as referring to Ken–Wal, because such a construction 

would run afoul of the trust relationship by permitting a 

beneficiary to manage the trust property.” Id. at 295–96. 

As is evident, Fort Vannoy did not establish a general 

procedural rule governing calls to enforce water rights held in 

trust and its construction of the state statutes governing 

irrigation districts has nothing to say about a trust relationship 

created by federal Indian law. 

(2) State statutes related to water rights certificates. The 

ranchers urge that the necessity of a concurrence by the legal 

title holder is reflected in Oregon’s procedures for stream 

adjudication. Appellants’ Br. 17. At the conclusion of a stream 
23 

adjudication, they state, OWRD issues a certification listing the 

owner of the right, which original certificate is sent to the 

owner and used by the watermasters to determine whether 

action should be taken. See Or. Rev. Stat. § 539.140. The 

owner of an equitable interest, they continue, does not receive 

a certificate. Appellants’ Br. 17–18. The ranchers maintain 

that the reasonable inference from this administrative process 

is that implementation of water rights is “keyed” to the 

certification, and implementation of the Tribes’ equitable water 

right depends at least in part on the federal government’s say. 

Id. at 18. Even were the court to assume for purposes of 

argument that the ranchers have accurately described the 

process, they do not demonstrate that OWRD regulations 

authorizing enforcement of the Administrative Determination 

require such a certificate. The OWRD watermasters are to 

allocate water in accordance with the claims determined in the 

Determination. See Or. Admin. R. 690-025-0020(1)–

(2), -0025(1). Those claims list rights in the name of both the 

Tribes and the federal government. See, e.g., Administrative 

Determination at 5076 (listing the Tribes as the “claimants” 

and the federal government as “trustee” for the Tribes). 

Nothing in the ranchers’ cited authority on certificates imposes 

a concurrence requirement here. 

(3) Denial of the Tribes’ independent claim in OWRD’s 

Administrative Determination. As noted, OWRD reasoned 

that the Tribes’ composite claim (No. 612) was “duplicative of 

the [federal government’s] claims, not additive. The [federal 

government] holds the rights recognized herein in trust for the 

Klamath Tribes. Colorado River Water Conservation Dist. v. 

United States, 424 [U.S.] 800, 810 (1976).” Administrative 

Determination at 4898, 5074. The citation to Colorado River

reveals this ruling was grounded in OWRD’s understanding of 

federal law. Right or wrong, OWRD’s decision to deny the 
24 

Tribes’ claim cannot reasonably be understood to impose a 

state law concurrence requirement. 

The ranchers’ view is that recognizing the Tribes’ 

authority to exercise their own water rights is inconsistent with 

OWRD’s determination that the federal government “holds” 

the water rights “in trust” for the Tribes. See Appellants’ Br. 

21–23. The ranchers also point to the recent decision of the 

Oregon Circuit Court indicating that the Tribes’ water rights 

are held by the United States “in trust,” and declining to disturb 

the Administrative Determination on this point. Or. Cir. Ct. 

Op., Feb. 24, 2021, at 8–9; Appellants’ FED. R. APP. P. 28(j) 

Ltr. of Mar. 3, 2021. This misunderstands the nature of the 

limited trust involved. Although Congress may abrogate or 

diminish treaty rights by clearly expressed intent, Minnesota v. 

Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 202 

(1999), the Termination Act abrogated the Tribes’ land rights 

but it did not abrogate any reserved water rights of the Tribes. 

The Restoration Act restored the federal trust relationship with 

the Tribes while expressly stating in section 5 that it would not 

“affect in any manner any . . . water right of the [Tribes].” 100 

Stat. at 850. Unlike in Mitchell II, where federal statutes and 

regulations “establish[ed] ‘comprehensive’ responsibilities” in 

the federal government for managing the harvesting of Indian 

timber, 463 U.S. at 222 (quoting White Mountain Apache Tribe 

v. Bracker, 448 U.S. 136, 145 (1980)), the relevant federal 

statutes have preserved the Tribes’ instream water rights 

impliedly reserved in the 1864 Treaty for tribal fisheries and 

fishing rights. Absent a treaty or statutory provisions clearly 

abrogating or diminishing the Tribes’ exclusive instream 

rights, their beneficial ownership of reservation lands includes 

“all rights normally associated with ‘fee simple absolute title.’” 

Blackfeet Tribe, 924 F.2d at 902 (quoting Shoshone Tribe of 

Wind River, 304 U.S. at 117). In denying the Tribes’ 

independent claim, OWRD relied on the principle of federal 
25 

law that water rights reserved for Indians are held in trust by 

the federal government, whose limited trust designation does 

not imply federal authority or obligations to control or manage 

the trust resource. Given the specific text of the Termination 

Act and the Restoration Act, the Tribes retain full authority to 

control the use of their water right. See Oregon Dep’t., 473 

U.S. at 765–67; Adair, 723 F.2d at 1418; Blackfeet Tribe, 924 

F.2d at 902. Nothing in the recent opinion of the Oregon 

Circuit Court could alter the federal law that defines and 

determines the scope of the Tribes’ reserved water rights. The 

ranchers do not contest the well-established legal federal 

precedent that the substance of the Tribes’ reserved water 

rights remains governed by federal law even in state water 

adjudicatory proceedings. See Appellants’ Br. 13. 

(4) Emails from OWRD employees suggesting the federal 

government’s concurrence was necessary. The ranchers’ 

reliance on informal communications between OWRD 

employees is unavailing. In 2017, upon receiving a call from 

the Tribes, an OWRD employee emailed another employee, 

“[W]e need to await concurrence from [the Bureau of Indian 

Affairs] on this.” In 2018, an OWRD employee inquired about 

whether the federal government would again provide an 

“official concurrence.” Even assuming the emails indicate 

these employees thought the federal government’s concurrence 

was needed for an effective Tribal call, in the absence of a legal 

basis for a concurrence requirement these emails are 

insufficient to show that OWRD would predictably decline to 

enforce the Tribes’ instream rights without a concurrence by 

the federal government. Insofar as the emails reflect a 

misunderstanding of the federal trust relationship, that would 

presumably be corrected by today’s decision, which explains 

that there is no federal law concurrence requirement for the 

Tribes’ water rights. State agency adjudicators, like the state 

courts reviewing their decisions, can be expected to discharge 
26 

their “solemn obligation to follow federal law.” San Carlos 

Apache Tribe, 463 U.S. at 571. 

Moreover, to the extent the ranchers point to the clause in 

the 2019 Protocol that the parties would not “withhold any 

required concurrence” in a call made by the other party after 

following the consultation procedures, they overlook a key 

word. The Protocol states that “either Party may independently 

make a call and the other party will not withhold any required 

concurrence or object to the call,” except that the United States 

reserves the right not to concur in a call that is inconsistent with 

the Administrative Determination or other legal obligations. 

Protocol at 4. Inclusion of the word “any” belies the ranchers’ 

suggestion that the federal government had concluded such 

concurrence was “required.” 

In sum: There is no concurrence requirement imposed by 

federal law on the Tribes’ reserved instream water rights, 

whether by the 1864 Klamath Treaty or the federal 

government’s trust relationship. The McCarran Amendment 

subjects the Tribes’ reserved water rights to state procedural 

rules in its quantification proceedings, but the substance and 

scope of the Tribes’ rights remain governed by federal law. 

Oregon law does not require federal government concurrence 

to enforce the Tribes’ water rights, and we leave for another 

day the question of what, if any, legal effect such a state 

requirement could have. Therefore, invalidating the Protocol, 

and requiring the federal government to independently assess 

whether it would concur in the Tribes’ calls, would not remedy 

the ranchers’ injuries. The Tribes would continue to make calls 

in the exercise of their Treaty rights, and OWRD would enforce 

the calls. Because the ranchers fail to show their alleged 

injuries are fairly traceable to federal government action or 

inaction, or would be redressed by striking the Protocol, they 
27 

lack Article III standing. Accordingly, the dismissal of the 

ranchers’ complaint for lack of standing is affirmed.