FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NAVAJO NATION,

Plaintiff-Appellant,

v.

DEPARTMENT OF THE INTERIOR;

RYAN ZINKE

*

, Secretary of the

Interior; UNITED STATES BUREAU OF

RECLAMATION; BUREAU OF INDIAN

AFFAIRS,

Defendants-Appellees,

STATE OF ARIZONA; CENTRAL

ARIZONA WATER CONSERVATION

DISTRICT; ARIZONA POWER

AUTHORITY; SALT RIVER PROJECT

AGRICULTURAL IMPROVEMENT AND

POWER DISTRICT; SALT RIVER

VALLEY WATER USERS’

ASSOCIATION; IMPERIAL IRRIGATION

DISTRICT; METROPOLITAN WATER

DISTRICT OF SOUTHERN

CALIFORNIA; COACHELLA VALLEY

WATER DISTRICT; STATE OF

NEVADA; COLORADO RIVER

COMMISSION OF NEVADA;

No. 14-16864

D.C. No.

3:03-cv-00507-

GMS

OPINION

* We substitute Ryan Zinke for predecessor Sally Jewell as a

Defendant-Appellee pursuant to Fed. R. App. P. 43(c)(2).
2 NAVAJO NATION V. DEP’T OF INTERIOR

SOUTHERN NEVADA WATER

AUTHORITY; STATE OF COLORADO,

Intervenor-Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

G. Murray Snow, District Judge, Presiding

Argued and Submitted February 14, 2017

San Francisco, California

Filed December 4, 2017

Before: Ronald M. Gould and Marsha S. Berzon, Circuit

Judges, and Marvin J. Garbis,** District Judge.

Opinion by Judge Berzon

** The Honorable Marvin J. Garbis, United States District Judge for

the District of Maryland, sitting by designation.
NAVAJO NATION V. DEP’T OF INTERIOR 3

SUMMARY***

Standing / Sovereign Immunity / Water Rights

The panel affirmed in part, and reversed in part, the

district court’s dismissal of the Navajo Nation’s Second

Amended Complaint, and denial of the Nation’s Fed. R. Civ.

P. 60(b) motion for relief, in their challenge to the

Department of the Interior’s published Guidelines in 2001

and 2008 clarifying how it would make “surplus” and

“shortage” determinations for delivery to Western states of

the waters of the Colorado River.

The Nation is a federally recognized tribe, and the United

States is trustee of the Nation’s tribal lands. The Navajo

Reservation covers parts of Arizona, New Mexico, and Utah,

and lies almost entirely within the drainage basin of the

Colorado River.

The Department of the Interior, through the Bureau of

Reclamation, operates dams and reservoirs that control the

flow of the Colorado’s waters.

The panel affirmed the district court’s dismissal of the

Nation’s National Environmental Policy Act claims for lack

of Article III standing. The panel held that, although the

district court considered the Nation’s interests in adequate

water too narrowly, it agreed with the district court that the

Nation failed to show it “reasonably probable” that the new

*** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
4 NAVAJO NATION V. DEP’T OF INTERIOR

Guidelines threatened either the Nation’s unadjudicated water

rights or its practical water needs.

The panel held that the Nation’s breach of trust claim was

not barred by sovereign immunity, and remanded to the

district court to consider the claim on its merits. The panel

held that the broad waiver of sovereign immunity found in

§ 702 of the Administrative Procedure Act (“APA”) waived

sovereign immunity for all non-monetary claims, and § 704

of the APA’s final agency action requirement constrained

only actions brought under the APA. The panel concluded

that the Nation’s breach of trust claim sought relief other than

money damages, and the waiver of sovereign immunity in

§ 702 applied squarely to the claim.

Because the panel reversed the district court’s dismissal

of the Nation’s breach of trust claim, the panel held that the

Nation’s appeal from the district court’s denial of its Rule

60(b) motion was moot to the extent it sought to amend its

complaint to plead additional or alternative waivers of

sovereign immunity. The panel held that the Nation was not

entitled to relief under Rule 60(b) to amend its pleadings for

its National Environmental Policy Act allegations.

COUNSEL

Scott B. McElroy (argued) and Alice E. Walker, McElroy

Meyer Walker & Condon P.C., Boulder, Colorado; M.

Kathryn Hoover and Stanley M. Pollack, Navajo Nation

Department of Justice, Window Rock, Arizona; for PlaintiffAppellant.
NAVAJO NATION V. DEP’T OF INTERIOR 5

Elizabeth Ann Peterson (argued), Edward S. Geldermann,

Ellen J. Durkee, and William B. Lazarus, Attorneys; John C.

Cruden, Assistant Attorney General; United States

Department of Justice, Washington, D.C.; Scott Bergstrom

and Robert F. Snow, Office of the Solicitor, United States

Department of the Interior, Washington, D.C.; for

Defendants-Appellees.

L. William Staudenmaier III (argued), Phoenix, Arizona, for

Intervenor-Defendants-Appellees.

Michael J. Pearce, Maguire Pearce & Storey PLLC, Phoenix,

Arizona; Kelly Brown and Kenneth C. Slowinski, Chief

Counsel, Arizona Department of Water Resources, Phoenix,

Arizona; for Intervenor-Defendants-Appellees State of

Arizona and Arizona Power Authority.

John B. Weldon, Jr. and Lisa M. McKnight, Salmon Lewis &

Weldon PLC, Phoenix, Arizona; for Intervenor-DefendantsAppellees Salt River Project Agricultural Improvement and

Power District and Salt River Valley Water Users’

Association.

Stuart Somach and Robert Hoffman, Somach Simmons &

Dunn, Sacramento, California; for for Intervenor-DefendantAppellee Central Arizona Water Conservation District.

Lauren J. Caster, Special Deputy Counsel, and Gregory L.

Adams, Fennermore Craig P.C., Phoenix, Arizona; Jennifer

T. Crandell, Special Counsel Attorney General; Adam Paul

Laxalt, Attorney General; Office of the Nevada Attorney

General; for Intervenor-Defendant-Appellee State of Nevada;

Colorado River Commission of Nevada; Southern Nevada

Water Authority.
6 NAVAJO NATION V. DEP’T OF INTERIOR

Adam C. Kear, Chief Deputy General Counsel; Joseph A.

Venderhorst, Assistant General Counsel; Marcia Scully,

General Counsel; The Metropolitan Water District of

Southern California, Los Angeles, California; for for

Intervenor-Defendant-Appellee Metropolitan Water District

of Southern California.

Steven B. Abbott, Redwine and Sherrill, Riverside,

California, for Intervenor-Defendant-Appellee Coachella

Valley Water District.

Joanna M. Smith Hoff, Assistant Counsel, Imperial Irrigation

District, Imperial, California; Charles T. Dumars, Law &

Resource Planning Associates P.C., Albuquerque, New

Mexico; for Intervenor-Defendant-Appellee Imperial

Irrigation District.

Steven G. Martin and Steven M. Anderson, Best Best &

Krieger LLP, Riverside, California, for IntervenorDefendants-Appellees Coachella Valley Water District and

The Metropolitan Water District of Southern California.

Shanti Rosset, Assistant Attorney General; Karen M. Kwon,

First Assistant Attorney General; Cynthia Coffman, Attorney

General; Attorney General’s Office, Denver, Colorado; for

Intervenor-Defendant-Appellee State of Colorado.
NAVAJO NATION V. DEP’T OF INTERIOR 7

OPINION

BERZON, Circuit Judge:

The Department of the Interior (“Interior” or “the

Secretary”) oversees the control, storage, and delivery to the

Western states of the waters of the Colorado River. In most

years, each state in the Colorado River Basin receives a fixed

amount of water from the river; in “surplus” and “shortage”

years, that amount changes. In the face of unprecedented

drought and ever-increasing demand for water, Interior

published guidelines in 2001 and 2008 to clarify how it would

make these “surplus” and “shortage” determinations from

year to year. This case concerns challenges to those

guidelines by the Navajo Nation (“Nation”), a federally

recognized Indian tribe.

The Nation occupies vast reservation lands along the

Colorado River but has no judicially decreed right to its

waters. Aggrieved by its lack of enforceable rights to

Colorado River water, the Nation filed suit to challenge the

surplus and shortage guidelines, alleging principally that

Interior neglected to consider the guidelines’ impact on its

potential, but as-yet unadjudicated, water rights in the

Colorado River and so violated the National Environmental

Policy Act (“NEPA”). The Nation also charged Interior with

more broadly breaching the trust duties the government owes

the Nation by failing to account for or safeguard the tribe’s

interests in and rights to water in the river. The district court

rejected all of the Nation’s challenges, which are now raised

anew here.
8 NAVAJO NATION V. DEP’T OF INTERIOR

I. BACKGROUND

A. The Navajo Nation

The Nation is a federally recognized Indian tribe whose

reservation lands sprawl over 13 million acres in the

American Southwest.

1 The Navajo Reservation

(“Reservation”), the largest Indian reservation in the United

States, was established by treaty in 1868 and grew piecemeal

between 1868 and 1934, as lands were added to it by treaty,

executive order, and statute. The Reservation covers parts of

Arizona, New Mexico, and Utah, and lies almost entirely

within the drainage basin of the Colorado River,2 which

demarcates much of the Reservation’s western boundary. 

Aside from the federal government, the Nation is the largest

riparian landowner along the Colorado.

The United States is trustee of the Nation’s tribal lands

and resources. United States v. Mitchell, 463 U.S. 206, 225

(1983). The Nation’s claims in this action arise either

directly or derivatively from the alleged breach of fiduciary

responsibilities created by this trust relationship.

1 These facts are drawn from the complaint, which we accept as true

for purposes of reviewing a motion to dismiss for lack of subject-matter

jurisdiction. See Courthouse News Serv. v. Planet, 750 F.3d 776, 780 (9th

Cir. 2014).

2 A river “drains” the surface water that flows into it; a “drainage

basin” is the whole tract of land “drained by a river and its tributaries.” 

WEBSTER’S THIRD NEW INT’L DICTIONARY 182, 685 (1971).
NAVAJO NATION V. DEP’T OF INTERIOR 9

B. The Law of the River

The Colorado River begins in the mountains of Colorado

and flows nearly 1,300 miles to the Sea of Cortez, adjacent to

the Sonoran Desert in Mexico, draining an area amounting to

almost one-twelfth of the continental United States. Arizona

v. California, 373 U.S. 546, 552 (1963). “Much of this large

basin is so arid that it is, as it always has been, largely

dependent upon managed use of the waters of the Colorado

River System to make it productive and inhabitable.” Id.

Because of the Colorado’s importance to the West, river

water is pervasively managed, regulated, and contested. 

Interior, through the Bureau of Reclamation, operates large

dams and reservoirs that control the flow of the Colorado’s

waters. Additionally, federal statutory law and regulations,

Supreme Court decrees, interstate compacts, state and federal

common law, and treaties foreign and domestic affect the

allocation and management of the River’s waters. This

byzantine legal regime is known as “The Law of the River,”

the relevant portions of which we summarize below.

i. The 1922 Compact3

In 1922, seven states entered into an interstate compact to

govern the gross allocation of water from the Colorado River. 

The states wanted to assure that the Colorado became a

3 The Court may take judicial notice of compacts, statutes, and

regulations not included in the plaintiff’s complaint. See, e.g., Cachil

Dehe Band of Wintun Indians of the Colusa Indian Cmty. v. California,

547 F.3d 962, 968 n.4 (9th Cir. 2008) (noticing tribal-state compacts);

United States v. Woods, 335 F.3d 993, 1001 (9th Cir. 2003) (holding it

was proper for the district court to notice published agency regulations).
10 NAVAJO NATION V. DEP’T OF INTERIOR

regular, dependable source of water; they recognized that

doing so would require a regional or national solution.4

The Colorado River Compact (“1922 Compact”) entered

into by the affected states divided the river in two at Lee

Ferry, Arizona. 1922 Compact art. II, reprinted in 70 Cong.

Rec. 324 (Dec. 10, 1928). The “Upper Basin” States5

(Colorado, New Mexico, Utah, and Wyoming) and the

“Lower Basin” States (Arizona, California, and Nevada)

would each be entitled to 7.5 million acre-feet per year

(“mafy”) of water.6

Id. arts. II–III. This suit concerns water

in the Lower Basin only. The Compact stated that it did not

establish, alter, or impair any present perfected rights within

the States, id. art VIII, nor “affect[] the obligations of the

United States of America to Indian tribes,” id. art VII. 

Commissioners from each state signed the compact, but it

became effective under its terms only if ratified by Congress

and the legislature of each signatory state. Id. art XI.

4

See Arizona v. California, 373 U.S. at 554. Fears of overappropriation by California played a role in the compact as well. Id. at

556.

5 The Compact refers to states of the “Upper Division” and “Lower

Division,” see id. art. II. We instead follow the custom of the Supreme

Court and refer to Arizona, California, and Nevada collectively as the

“Lower Basin” states. See, e.g., Arizona v. California, 373 U.S. at

558–59.

6 An acre-foot is the volume of water that would cover an acre of land

to the depth of one foot. WEBSTER’S THIRD NEW INT’L DICTIONARY 19.
NAVAJO NATION V. DEP’T OF INTERIOR 11

ii. The Boulder Canyon Project Act

In 1928, Congress addressed the management of the

Colorado River through the Boulder Canyon Project Act,

43 U.S.C. § 617 et seq. The Act conditionally approved the

1922 Compact and authorized the Secretary of the Interior to

construct a massive dam at Boulder Canyon (now the Hoover

Dam) and the attendant water delivery infrastructure (a

reservoir, now Lake Mead, and delivery canals) to effectuate

the allocations laid out in the 1922 Compact. 43 U.S.C.

§ 617. The Act also allowed the Secretary to enter into

contracts with users for the storage and delivery of water in

the Project’s reservoir. Id. § 617d.

Most relevant for our purposes, the Act authorized the

three Lower Basin States to negotiate a second compact

divvying up their 7.5 mafy share of the Colorado’s

water—4.4 to California, 2.8 to Arizona, and 0.3 (i.e.,

300,000 afy) to Nevada. If entered into, this agreement

would take effect once all three states had ratified the 1922

Compact. Id. § 617c(a).

The Boulder Canyon Project Act became effective in

1929, after six of the seven states ratified the Compact, see

id., and California “irrevocably and unconditionally”

covenanted to limit its consumption to 4.4 mafy.

7 Arizona

did not ratify the 1922 Compact, so the Lower Basin states

never agreed to the second compact that would have

7

See Act of March 4, 1929, in Statutes and Amendments to the

California Codes, ch. 16, 48th Session (1929), at 38–39. The Boulder

CanyonProject Act lowered the 1922Compact’sratification threshold: six

states would suffice for ratification as long as California was among them

and committed to a ceiling on its apportionment. See 43 U.S.C. § 617c(a).
12 NAVAJO NATION V. DEP’T OF INTERIOR

apportioned the 7.5 mafy among the three states. See Arizona

v. California, 373 U.S. at 561–62. The Secretary nonetheless

entered into water contracts with the Lower Basin states.8Id.

at 562.

iii. Arizona v. California

Conflict over Lower Basin water continued between

Arizona and California, coming to a boil in 1952 when

Arizona sued California in an original action in the Supreme

Court. The United States intervened to represent federal

interests, including the interests of 25 Indian tribes,9and other

Basin States intervened as well. Based on the report,

findings, and recommended decree of a Special Master, see

Arizona v. California, 373 U.S. at 551, the Court issued a

decree clarifying each state’s rights to Lower Basin water. 

See Arizona v. California, 376 U.S. 340 (1964) (“1964

Decree”).

The 1964 Decree affirmed the provisional apportionments

set out in the Boulder Canyon Project Act. In years when the

Secretary determined that 7.5 maf of water was available for

release to the Lower Basin states, Nevada was entitled to 0.3

mafy; Arizona to 2.8 mafy; and California to the lion’s share,

4.4 mafy. 1964 Decree art. II(B)(1), 376 U.S. at 342. The

Decree also parceled out the relative shares each Lower Basin

8 While the Secretary contracted with Arizona and Nevada for their

shares as laid out in the Boulder Canyon Project Act, 43 U.S.C. § 617c(a),

it contracted to deliver 5.36 mafy to California, significantlymore than the

4.4 mafy the Act contemplated. Arizona v. California, 373 U.S. at 562.

9

See Findings of Fact and Conclusions of Law Proposed by the

United States of America, at 51, Arizona v. California, 373 U.S. 546

(1963) (No. 9, Original).
NAVAJO NATION V. DEP’T OF INTERIOR 13

State would get in years in which, “as determined by the

Secretary of the Interior,” there was surplus water available.10

1964 Decree art. II(B)(2), 376 U.S. at 342. If, instead, the

Secretary determined in a given year that there was a

shortage of water—less than 7.5 maf available in the Lower

Basin—the Decree required the Bureau of Reclamation first

to “provid[e] for satisfaction of present perfected rights in the

order of their priority dates without regard to state lines.” Id.

art. II(B)(3), 376 U.S. at 342. Then, “after consultation with

the parties to major delivery contracts and such

representatives as the respective States may designate, [the

Secretary] may apportion the amount remaining available for

consumptive use in such manner as is consistent with the

Boulder Canyon Project Act,” the Decree, and other

applicable federal statutes. Id.

iv. Winters rights

In addition to partitioning the Colorado River waters

among the three Lower Basin States, the 1964 Decree

adjudicated the “Winters rights” of five Indian tribes. 

Winters v. United States held that “when the Federal

Government withdraws its land from the public domain and

reserves it for a federal purpose, the Government, by

implication, reserves appurtenant water then unappropriated

to the extent needed to accomplish the purpose of the

reservation.” Cappaert v. United States, 426 U.S. 128, 138

(1976); see also Winters v. United States, 207 U.S. 564, 577

(1908). The rights to this water—also called “reserved

rights”—vest on the original date of withdrawal of the land

10 California would receive 50% of the surplus, Arizona 46%, and

Nevada 4%. See 1964 Decree art. II(B)(2), 376 U.S. at 342.
14 NAVAJO NATION V. DEP’T OF INTERIOR

and trump the rights of later appropriators.11 Cappaert,

426 U.S. at 138. For Indian reservations, courts look to the

treaties, executive orders, and statutes that set aside

reservation land for the tribe in question.12 Winters rights,

unlike water rights gained through prior appropriation, are not

lost through non-use. Colville Confederated Tribes v.

Walton, 647 F.2d 42, 51 (9th Cir. 1981).

In Arizona v. California, the Supreme Court reaffirmed

the vitality of the Winters doctrine, noting that “most of the

[reservation] lands were of the desert kind—hot, scorching

sands—and . . . water from the [Colorado] would be essential

to the life of the Indian people and to the animals they hunted

and the crops they raised.” 373 U.S. at 599. The Decree

awarded five tribes a right to Lower Basin water

commensurate with the “practicably irrigable acreage” of

each tribe’s reservation. Id. at 600; 1964 Decree art. II(D),

376 U.S. at 343–45. Following the Special Master’s lead, the

Court declined to reach the claims of the other twenty tribes,

including the Navajo Nation’s. See 373 U.S. at 595. The

Decree made clear, however, that it did not affect “[t]he rights

or priorities, except as specific provision is made herein, of

any Indian Reservation.” Id. art. VIII(C), 376 U.S. at

352–53.

11 Most water rights are acquired through appropriation. “Under the

doctrine of prior appropriation, the first to divert and use water

beneficially establishes a right to its continued use as long as the water is

beneficially diverted.” Cappaert, 426 U.S. at 139 n.5.

12 See, e.g., Agua Caliente Band of Cahuilla Indians v. Coachella

Valley Water Dist., 849 F.3d 1262, 1265 (9th Cir. 2017) (dating the

reservation of water from the Executive Orders that withdrew land for the

tribe), petition for cert. filed (U.S. July 3, 2017) (No. 17-42).
NAVAJO NATION V. DEP’T OF INTERIOR 15

The Supreme Court retained jurisdiction over the suit,

1964 Decree art. IX, 376 U.S. at 353, and, over the next few

decades, announced several sequels to the original opinion. 

See, e.g., Arizona v. California, 460 U.S. 605 (1983) (holding

that res judicata barred re-opening the quantification of

tribes’ Winters rights); Arizona v. California, 530 U.S. 392

(2000) (holding that res judicata did not bar certain claims

stemming from reservation boundary disputes); Arizona v.

California, 547 U.S. 150 (2006) (consolidating prior decrees

and implementing the water rights settlement concerning one

Indian reservation).

C. The Nation’s Rights to Water in the Colorado

River

Under the Winters doctrine, when setting aside lands for

the Navajo Nation, the United States impliedly reserved for

the tribe “the waters without which their lands would [be]

useless.” Arizona v. California, 373 U.S. at 600. As noted

above, in the first iteration of Arizona v. California, the

Special Master—and the Supreme Court—declined to reach

the Winters claim put forward on behalf of the Nation.13Id.

at 595. The Nation has in the last half-century repeatedly

13 The Nation attempted to intervene in the suit on its own behalf, but

the United States successfully opposed the motion. See Response of the

United States to the Motion on Behalf of the Navajo Tribe of Indians for

Leave to Intervene, Arizona v. California, 373 U.S. 546 (1963) (No. 8,

Original). The claim filed on behalf of the Nation was for water in the

Little Colorado River, a tributary of the Lower Colorado River. See

Findings of Fact and Conclusions of Law Proposed by the United States

of America, supra note 9, at 58. The Special Master, and the Court,

declined to reach “particularly those [claims] relating to tributaries.” 

Arizona v. California, 373 U.S. at 595.
16 NAVAJO NATION V. DEP’T OF INTERIOR

asserted its right to water in the Lower Colorado,14but its

potential water rights in the Lower Colorado have never been

adjudicated or quantified.

D. Implementing the Law of the River

The Secretary “is vested with considerable control over

the apportionment of Colorado River waters,” Arizona v.

California, 373 U.S. at 593, and is generally responsible for

the management and delivery of water from the Colorado

pursuant to the Law of the River. Each state’s water portion

is dictated by the 1964 Decree, as is the allocation of surplus

water; Arizona v. California accords discretion to the

14 The Nation has been, and is, actively seeking additional water for

the Reservation in several forums. The Nation’s rights to water from the

Little Colorado River, which flows through eastern Arizona and western

New Mexico,

are being considered in an ongoing adjudication in Arizona state court. 

See In re General Adjudication of All Rights to Use Water in Little

Colorado River Sys. & Source, No. CV 6417 (Ariz. Super. Ct., Apache

Cty.). The Nation filed its claim in that adjudication in 1985. See

Statement of Claimant The Navajo Nation, In re General Adjudication,

No. CV 6417 (Nov. 27, 1985). The Nation may also receive an allocation

of water from the Central Arizona Project (“CAP”), a major diversion

canal in Arizona. In the Arizona Water Settlements Act of 2004, Pub. L.

No. 108-451, 118 Stat. 3478, 3487 (2004), Congress directed theSecretary

to set aside a specified amount of water from the CAP for distribution to

the Navajo Nation—6,411 afy—should the Nation obtain rights through

ongoing settlement negotiations. Congress conditioned the Nation’s

access to CAP water on approval of a water rights settlement by Congress

before 2030. No such settlement has been reached to date.

Finally, the Nation requested that the Secretary ofthe Interior contract

with the Nation for any of the water allocated to Arizona not committed

to other users. The Secretary has not agreed to such a contract.
NAVAJO NATION V. DEP’T OF INTERIOR 17

Secretary to apportion shortfalls in years of shortage, see id.

at 593–94. The 1964 Decree also commits the determination

of surplus and shortage years to the Secretary. See 1964

Decree, art. II(B)(2)–(3), 376 U.S. at 342.

The Colorado River Basin Project Act of 1968 required

the Secretary to adopt criteria for the coordinated

management of Lake Mead and Lake Powell, the reservoirs

under the Secretary’s management in the Lower Basin. See

43 U.S.C. 1552(a)–(b). These “Operating Criteria” for the

coordinated management of the storage reservoirs in the

Lower Basin help the Secretary determine whether to declare

a shortage or surplus in any given year. See Colorado River

Reservoirs: Coordinated Long-Range Operation, 35 Fed.

Reg. 8951 (June 10, 1970). Before adopting the challenged

guidelines, the Secretary made year-to-year determinations

about declaring a shortage or surplus, relying on a varying

combination of factors, including the year-end water levels in

Lake Mead and Lake Powell, potential run-off conditions,

and projected water demands. See Colorado River Interim

Surplus Guidelines, 66 Fed. Reg. 7772, 7774 (Jan. 25, 2001)

(describing the factors the Secretary historically considered

in making shortage and surplus declarations). This ad hoc

approach bred uncertainty about the possibility of surplus or

shortage in any particular year, which grew untenable as

demand for surplus water increased. Id.. To partially remedy

this problem, the Secretary first decided to adopt more

specific, objective criteria for making the annual

determinations regarding surplus water. Id.. Guidelines for

determining shortages came later.
18 NAVAJO NATION V. DEP’T OF INTERIOR

E. The Challenged Surplus and Shortage Guidelines

i. Surplus Guidelines

In 2001, the Secretaryadopted the Colorado River Interim

Surplus Guidelines (“Surplus Guidelines”). The Guidelines

would “determine the conditions under which the Secretary

would declare the availability of surplus water for use within”

the Lower Basin states every year. See Surplus Guidelines,

66 Fed. Reg. at 7773. This declaration and allocation of a

surplus, if there was one, were to be consistent with the 1964

Decree, the Colorado River Basin Project Act, and the

Operating Criteria adopted pursuant to that Act. The Surplus

Guidelines aimed to provide greater consistency and

predictability in the Secretary’s surplus declarations from

year to year, in light of growing (and competing) demands for

surplus water, and of California’s continued diversion of

more than its allotted 4.4 mafy share of Lower Basin water. 

See id. at 7773–74.

The Surplus Guidelines pegged the surplus declaration to

the year-end water level in Lake Mead. See id. at 7775. If

that water level equaled or exceeded the highest “tier,”15

surplus water would be made available for all types of water

uses. At or below the lowest “tier,” a “Normal” or

“Shortage” year would be declared and no surplus water

would be released. At the middle tier, water would be

released subject to use restrictions. See id. at 7780. These

“interim” guidelines were set to expire in 2016. See id. at

7773–74, 7780–81.

15 The three “tiers” correspond to three water surface elevations in

Lake Mead. Surplus Guidelines, 66 Fed. Reg. at 7775.
NAVAJO NATION V. DEP’T OF INTERIOR 19

Before adopting the Surplus Guidelines and issuing the

Record of Decision, the Secretary published a draft

environmental impact statement (“EIS”) assessing the

environmental impacts of four alternatives along with the

“No-Action Alternative.” See Colorado River Interim

Surplus Criteria, Notice of Availability of Draft EIS, 65 Fed.

Reg. 42,028, 42,029 (July 7, 2000). In December 2000, after

receiving comments on its draft, the Secretary issued his final

EIS (“FEIS”),16

and one month later its Record of Decision,

adopting the preferred alternative as the Surplus Guidelines. 

See Surplus Guidelines, 66 Fed. Reg. at 7772.

During the development of the EIS, the Secretary

consulted with various Indian tribes whose lands or water

resources lay in the Lower Basin. See Final Environmental

Impact Statement, Colorado River Interim Surplus Criteria

(“Surplus Guidelines FEIS”), Executive Summary, at 33, 44. 

Both the Navajo Nation and the Colorado River Basin Ten

Tribes Partnership, of which the Nation is a member,

submitted comments on the draft, calling it “fundamentally

flawed” and “deeply and fatally flawed.” Surplus Guidelines

FEIS at B-187, B-196. The Nation complained that the

proposed Surplus Guidelines did not account for its

unquantified rights in the Lower Basin and fostered reliance

by third parties on water to which it was, or would or could

be, entitled. Id. at B-187 to B-190. The Ten Tribes objected

to the lack of consideration of “Indian Trust Assets” and

claimed that the Guidelines would generally frustrate the

16 The full Surplus Guidelines FEIS is available at Final

Environmental Impact Statement: Colorado River Interim Surplus

Criteria, https://www.usbr.gov/lc/region/g4000/surplus/SURPLUS_FEI

S.html (last updated Jan. 16, 2007).
20 NAVAJO NATION V. DEP’T OF INTERIOR

development and protection of Indian water rights. Id. at B196 to B-215.

The Secretary responded that it was actively assisting

tribes in obtaining their water rights, and it disagreed that the

Guidelines would hamper or decrease incentives to develop

Indian water rights in the Lower Basin. Id. at B-189; B-203

to B-205. “The Department does not believe this proposed

action would preclude the Tribes or any entitlement holder

from using their Colorado River entitlement. The interim

surplus criteria will not alter the quantity or priority of Tribal

entitlements.” Id. at B-204.

ii. Shortage Guidelines

The adoption of criteria for declarations of surplus water

in the Colorado River coincided with the driest eight-year

period in the recorded history of the River. See Colorado

River Interim Guidelines for Lower Basin Shortages and

Coordinated Operations for Lake Powell and Lake Mead

(“Shortage Guidelines”), 73 Fed. Reg. 19,873 (Apr. 11,

2008). This historic drought, combined with increasing

demand for river water, led the Secretary to implement

guidelines for declaring shortages as well. These guidelines

would, like the Surplus Guidelines, offer greater

predictability to mainstream Colorado water users regarding

the supply of water in any given year. The Shortage

Guidelines also created mechanisms to encourage water

banking and conservation that would provide greater year-toyear flexibility for the Secretary and water users. See Final

Environmental Impact Statement, Shortage Guidelines
NAVAJO NATION V. DEP’T OF INTERIOR 21

(“Shortage Guidelines FEIS”), Executive Summary, at ES-1

to ES-2.17

In 2008, the Secretary adopted the Shortage Guidelines

and issued an accompanying Record of Decision. See

Shortage Guidelines, 73 Fed. Reg. at 19,873. Like the

Surplus Guidelines, the Shortage Guidelines linked the

Secretary’s declaration of a shortage to the level of water in

Lake Mead. See id. at 19,874; Shortage Guidelines FEIS,

Executive Summary, at ES-6. The Shortage Guidelines also

implemented procedures for the coordinated operation of the

Lake Mead and Lake Powell reservoirs in times of low water

and shortage. See Shortage Guidelines, 73 Fed. Reg. at

19,874.

Beyond delineating when and how the Secretary would

declare a shortage, the Shortage Guidelines also provided for

the creation of “IntentionallyCreated Surplus” (“ICS”) water. 

Water users could bank ICS water by either (i) conserving

water through a variety of measures18or (ii) importing water

from outside the Colorado (“non-system water”) into the

Lower Basin system. Id. at 19,877, 19,883, 19,887. The

Guidelines also modified the Surplus Guidelines and

extended them through 2026. Id. at 19,874.

17 The full Shortage Guidelines FEIS is available at Colorado River

Interim Guidelines for Lower Basin Shortages and Coordinated

Operations for Lakes Powell and Mead: Final Environmental Impact

Statement, https://www.usbr.gov/lc/region/programs/strategies/FEIS/#VolI

(last updated Nov. 2007).

18 These measures include fallowing fields, lining canals, desalinating

non-river water, or implementing other “extraordinary conservation

measures.” Id. at 19,886.
22 NAVAJO NATION V. DEP’T OF INTERIOR

In its comments on the draft EIS for the Shortage

Guidelines, the Nation largely reiterated its objections to the

Surplus Guidelines. See Shortage Guidelines FEIS, vol. IV,

at IT-103 to IT-108. The FEIS included a discussion of

Indian Trust Assets, including water rights.19See id. at 3–87. 

The Shortage Guidelines FEIS recognized that the Nation’s

unquantified Wintersrights in the Lower Basin constituted an

Indian Trust Asset, and noted that the Nation maintains that

some portion of its Winters rights will need to be satisfied

from the Colorado River. Id. at 3–96. Ultimately, however,

the FEIS concluded that “[t]he proposed federal action would

not result in any substantive effects on [Indian Trust Assets].”

See id. at 5–12. To the Nation’s concerns about possible

injury to its unquantified water rights, the Secretary

responded:

No vested water right of any kind, quantified

or unquantified, including federally reserved

Indian rights to Colorado River water . . . will

be altered as a result of any of the alternatives

under consideration.

To the extent that additional Tribal water

rights are developed, established or quantified

during the interim period of the proposed

federal action, the United States will manage

Colorado River facilities to deliver water

19 The FEIS also considered potential impacts on tribal historic

properties, tribal sacred sites, cultural resources, and biological resources. 

See Shortage Guidelines FEIS at 4-244 to 4-250.
NAVAJO NATION V. DEP’T OF INTERIOR 23

consistent with such additional water rights, if

any, pursuant to federal law.

See id. at 4-249.

II. PROCEDURAL HISTORY

The Nation filed its initial complaint against the

Department of the Interior, the Secretary, the Bureau of

Reclamation, and the Bureau of Indian Affairs (collectively

“Federal Defendants”) in March 2003. The Nation

challenged under the Administrative Procedure Act (“APA”),

5 U.S.C. §§ 701–706, the 2001 Surplus Guidelines,20

alleging

that the Secretary’s failure adequately to consider and protect

the Nation’s rights to, and interest in, water violated the

National Environmental Policy Act (“NEPA”), 42 U.S.C.

§ 4321 et seq. The Nation further alleged that the United

States had breached its trust obligations to the Nation by

failing to consider or protect the Nation’s water rights while

managing the Colorado River.

Various states and local government entities from

California, Arizona, Nevada, and Colorado intervened as

defendants.21In October 2004, on the joint motion of the

20 The Nation also challenged several other agency actions in its

complaint. Only the Nation’s First, Second, and Seventh Claimsfor relief

are at issue on appeal.

21 From Arizona, the intervenors are the State of Arizona, Salt River

Project Agricultural Improvement and Power District, Salt River Water

Users’ Association, and Central Arizona Water Conservation District;

from California, the Coachella Valley Water District, Imperial Irrigation

District, and the Metropolitan Water District of Southern California; and

from Nevada, the State of Nevada, Colorado River Commission of
24 NAVAJO NATION V. DEP’T OF INTERIOR

parties, the district court stayed proceedings to allow for

settlement negotiations.

In 2013, after almost a decade of unsuccessful settlement

negotiations, the district court lifted the stay and the litigation

started anew. The Nation twice amended its complaint,

adding a challenge to the 2008 Shortage Guidelines, and the

district court then granted motions to dismiss the Nation’s

Second Amended Complaint without prejudice, holding that

the Nation lacked Article III standing to bring its NEPA

claims and that its breach of trust claim was barred by

sovereign immunity. At the hearing on the motions to

dismiss, the district court inquired whether, if necessary, the

Nation preferred a dismissal with leave to amend the

complaint or a dismissal with prejudice. Notwithstanding the

Nation’s expressed preference for dismissal with leave to

amend, the district court ultimately dismissed without leave

to amend and without prejudice.

The Nation filed a Rule 60(b)(6) motion for relief from

the final judgment, contending that because the relevant

statute of limitations had run, the dismissal was effectively

with prejudice. In the Nation’s view, the district court should

have re-opened the proceedings and granted it leave to further

amend its complaint. The district court denied that motion. 

The Nation appeals both orders.

Nevada, and Southern Nevada Water Authority. The State of Colorado

also intervened. The Arizona, California, and Nevada IntervenorDefendants each filed separate answering briefs in this appeal, and

Colorado joined the arguments set out in the Arizona and Nevada briefs.
NAVAJO NATION V. DEP’T OF INTERIOR 25

III. STANDING

The district court dismissed the Nation’s NEPA claims,

holding that the alleged harm to the Nation’s unquantified

Winters rights was too speculative to confer standing. 

Although the district court considered the Nation’s interests

in adequate water too narrowly, we agree that the Nation

failed to show it “reasonably probable” that the new

Guidelines threatened its interests in obtaining adequate

water. See Citizens for Better Forestry v. U.S. Dep’t of

Agric., 341 F.3d 961, 969–70 (9th Cir. 2003). Accordingly,

we affirm the district court’s dismissal of the NEPA claims.

A. Legal Standards

“[S]tanding is an essential and unchanging part of the

case-or-controversy requirement of Article III.” Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560 (1992). To establish

standing, a plaintiff must demonstrate “(1) a concrete and

particularized injury that is ‘actual or imminent, not

conjectural or hypothetical’; (2) a causal connection between

the injury and the defendant’s challenged conduct; and (3) a

likelihood that a favorable decision will redress that injury.” 

Pyramid Lake Paiute Tribe of Indians v. Nev. Dep’t of

Wildlife, 724 F.3d 1181, 1187 (9th Cir. 2013) (quoting Lujan,

504 U.S. at 560–61). Our review of standing is de novo. City

of Sausalito v. O’Neill, 386 F.3d 1186, 1196–97 (9th Cir.

2004).

Where plaintiffs allege a “procedural injury”—that is, that

the government’s violation of a procedural requirement could

impair some separate interest of the plaintiffs’—the “normal

standards for . . . [the] immediacy” of injury are relaxed.

Lujan, 504 U.S. at 572 n.7. A plaintiff alleging procedural
26 NAVAJO NATION V. DEP’T OF INTERIOR

harm can demonstrate injury in fact by showing (i) the agency

violated certain procedural rules, (ii) those rules protect a

concrete interest of the plaintiff, and (iii) it is “reasonably

probable” that the challenged action threatens that concrete

interest. Citizens for Better Forestry, 341 F.3d at 969–70.

The universe of interests procedurallyprotected byNEPA

is broad: birdwatchers’ and outdoorsmen’s interests in their

ability to “picnic, birdwatch, walk, and swim” in a particular

area, Cantrell v. City of Long Beach, 241 F.3d 674, 681 (9th

Cir. 2001); municipalities’ interests “as varied as [their]

responsibilities, powers, and assets,” City of Sausalito,

386 F.3d at 1197, including harm to water resources, see

Churchill Cty. v. Babbitt, 150 F.3d 1072, 1079 (9th Cir. 1998)

(identifying harms such as “unknown changes to the

underground water supply system, and reduced quality of

local drinking water”); and, as here, Indian tribes’ interest in

assuring water is available on their reservation lands, see

Pyramid Lake Paiute, 724 F.3d at 1188 (“[T]he Tribe’s

interest in maximizing flows to Pyramid Lake . . . is well

established.”). In any instance, though, the plaintiff must

assert that the procedural violation could harm an interest

specific to it, not an abstract interest in assuring that NEPA’s

procedural requirements for considering environmental

impacts are followed. “A free-floating assertion of a

procedural violation, without a concrete link to the interest

protected by the procedural rules, does not constitute an

injury in fact.” Ashley Creek Phosphate Co. v. Norton,

420 F.3d 934, 938 (9th Cir. 2005).

Although standing inquiries are inherently fact-specific,

we have laid down some guideposts for determining whether

it is “reasonably probable” that agency action threatens a

plaintiff’s interests. For one thing, the imminence inquiry is
NAVAJO NATION V. DEP’T OF INTERIOR 27

“less demanding” for procedural harms. Hall v. Norton,

266 F.3d 969, 976 (9th Cir. 2001). The challenged action

need not immediately or directly cause the harm as a firstorder effect. “[T]hat the potential injury would be the result

of a chain of events need not doom the standing claim.” 

Idaho Conservation League, 956 F.2d at 1515. “The relevant

inquiry . . . is whether there is a ‘reasonable probability’ that

the challenged procedural violation will harm the plaintiffs’

concrete interests, not how many steps must occur before

such harm occurs.” Citizens for Better Forestry, 341 F.3d at

975 (internal citations omitted).

Notwithstanding this relaxed standard, injury in fact

requires a likelihood that the challenged action, if ultimately

taken, would threaten a plaintiff’s interests. Where a plaintiff

cannot “explain in any way how their [interests] may be

affected” by agency action, it has not suffered an injury in

fact. Nuclear Info. & Res. Serv. v. Nuclear Regulatory

Comm’n (“NIRS”), 457 F.3d 941, 953 (9th Cir. 2006)

(emphasis in original). So, although a contingent “chain of

events” can create a “reasonably probable” threat to a

plaintiff’s interests, a purely speculative sequence of

occurrences will not meet this standard. See Bell v.

Bonneville Power Admin., 340 F.3d 945, 951 (9th Cir. 2003).

B. Discussion

The Navajo Nation proposes for standing purposes that it

has suffered two sorts of injuries. The Guidelines, the Nation

maintains, (1) “do[] not account for the unquantified rights of

the Navajo Nation to the waters of the Lower Basin of the

Colorado River” and (2) disregard “the unmet needs of the

Navajo Nation and tribal members for water from the Lower

Basin.” The two interests are distinct: the former arises out
28 NAVAJO NATION V. DEP’T OF INTERIOR

of the Nation’s potential reserved water rights under Winters

v. United States, while the latter is a freestanding interest in

an adequate water supply for the Nation that exists

notwithstanding the lack of a decreed right to water. The

district court’s analysis focused only on the threat to the

former interest. We consider each in turn.

i. Injury to the Nation’s unquantified Winters rights

The Nation’s first alleged injury is to its as-yetunquantified water rights under Winters v. United States,

discussed in Part I.B.iv supra. The parties agree that the

Nation may have unquantified Wintersrights in some body of

water.22 Unquantified Winters rights in the Lower Basin are

sufficiently concrete interests, the impairment of

which—coupled with a procedural violation—gives rise to

standing under NEPA. See Citizens for Better Forestry,

341 F.3d at 969–70. Indeed, interests in water less concrete

than unquantified Winters rights have formed the basis for

standing in the past. In Laub v. U.S. Department of Interior,

342 F.3d 1080, 1086 (9th Cir. 2003), for example, the “loss

of affordable irrigation water” for farmers was a concrete

22 When the United States intervened in Arizona v. California as

trustee on behalf of the Nation (among other tribes), it presented evidence

that the Nation had 8,490 acres of irrigable land on which to base a

Winters claim. See supra notes 9 & 13 and accompanying text. This

claim, however, was not adjudicated.

In the run-up to the present litigation, the tribe sent to the Bureau of

Reclamation, during the consultation process on the Guidelines, a “water

budget” of 76,732 afy that would need to be satisfied out of the Colorado

River. The defendants contend that whatever water rights the Nation has

under Winters might be satisfied from sources other than the Lower Basin

of the Colorado.
NAVAJO NATION V. DEP’T OF INTERIOR 29

interest sufficient for NEPA standing. The precise scope and

status of the Nation’s possible Winters rights do not concern

us; it is enough to establish standing to demonstrate that

however those rights are delineated, they are threatened by

the Guidelines. But the Nation, we conclude, cannot so

establish.

The Guidelines do not act directly upon the Nation’s

unquantified water rights, nor could they.

23 So how could the

Guidelines injure these rights?

The Nation alleges that the Secretary’s actions will create

a complex and difficult-to-reverse combination of third-party

reliance and political inertia that will frustrate future attempts

by the Nation to secure and enjoy its Winters rights. In

support of its allegation, the Nation posits the following chain

of events: the Guidelines will “establish[] a system of reliance

upon the Colorado River that ensures that entities other than

the Navajo Nation will continue to rely on water supplies

claimed by, reserved for, needed by, and potentially

belonging to” it. This reliance will make it “increasingly

difficult” to satisfy the Nation’s water rights from the Lower

Basin, and will “limit the Navajo Nation’s future options” for

securing water, notwithstanding the seniority of its rights. 

Even with senior rights, “the complex process of bringing

water to the Reservation in a contentious political climate”

will cast a pall of uncertainty over the Nation’s entitlement.

23

“These Guidelines are not intended to, and do not . . . [a]ffect the

rights of any holder of present perfected rights or reserved rights, which

rights shall be satisfied within the apportionment ofthe State within which

the use is made, and in the Lower Basin, in accordance with the

Consolidated Decree.” See Shortage Guidelines, 73 Fed. Reg. at 19,884.
30 NAVAJO NATION V. DEP’T OF INTERIOR

Further developing its hypothetical scenario, the Nation

argues that the United States will not be “inclined” to re-open

the issue of water allocation in the Colorado, having forged

a multi-state consensus for the Guidelines that “appeased the

Lower Basin states.” The Secretary’s assurance that he will

manage the Colorado consistent with any Winters rights

quantified or obtained in the future “ignores political and

practical realities,” namely the “disincentive” for the United

States to protect the Nation’s water rights created by this

system of reliance. 

Critically, the Nation does not contend that the Guidelines

legally impair any unquantified rights it has in Lower Basin

water. It is common ground among all affected that if the

Nation obtained decreed rights in the Lower Colorado Basin,

that entitlement would trump all claims with a later priority

date, “regardless of whether that water has been developed or

relied upon by third parties with junior priority dates.” 

Rather, the Nation’s fear is that the Guidelines threaten to

solidify a web of reliance interests and incentives that, as a

practical matter, may prevent the Nation (or disincline the

United States, as its trustee) from enjoying or pursuing those

decreed rights.

Whether or not the Nation’s realpolitik predictions have

some truth to them, the posited injury to the Nation’s

unquantified Winters rights due to the Guidelines is too

speculative to confer standing. The string of contingencies

connecting the Guidelines to the frustration of the Nation’s

rights is not only long—not disqualifying in itself—but

spindly, too. The Nation’s allegations about the future

development of reliance interests, and the government’s

intransigence in upsetting these interests in pursuit of the
NAVAJO NATION V. DEP’T OF INTERIOR 31

Nation’s unadjudicated water rights, are supported by “no

facts, figures, or data.” See Bell, 340 F.3d at 951.

For example, the Nation offers no support for its

allegation that the United States will shirk its trust duties for

fear of upsetting the water rights apple-cart. From the

Secretary’s stated attempt to avoid “destabilizing litigation,”

and to gain consensus among the Basin States for the

challenged Guidelines, the Nation predicts that the United

States would no longer be inclined to pursue water rights for

the Nation if such actions necessitated a reallocation of rights

or potentially upset the multi-state consensus underlying the

Guidelines. But the tribe offers no actual support for this

conjecture—no statements by any government officials, for

example, and no pattern of such behavior in the past.24

Instead, the Nation attempts to shore up its allegations by

invoking the “presum[ption] that general allegations embrace

those specific facts that are necessary to support the claim” at

the pleading stage. Lujan, 504 U.S. at 561 (citations

omitted). “Conclusory allegations and unreasonable

inferences, however, are insufficient to defeat a motion to

dismiss.” Sanders v. Brown, 504 F.3d 903, 910 (9th Cir.

2007). “We do not . . . assume the truth of legal conclusions

merely because they are cast in the form of factual

allegations,” and, most especially, where our jurisdiction is at

stake, “[w]e cannot construe the complaint so liberally as to

24 The complaint does not spell out this theory—that the United States

will be disinclined to revisit water rights adjudications after the Guidelines

are implemented—with any clarity. Nevertheless, we construe the

complaint, favorably to the Nation, to embrace these allegations of injury. 

We note that at other junctures as well we have relied on the briefs on

appeal to clarify the complaint, in compliance with our obligation to

construe the complaint favorably to the plaintiff.
32 NAVAJO NATION V. DEP’T OF INTERIOR

extend our jurisdiction beyond its constitutional limits.” W.

Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

The Nation need not provide smoking-gun allegations of

harm. But mere “speculation or ‘subjective apprehension’

about future harm [does not] support standing.” Mayfield v.

United States, 599 F.3d 964, 970 (9th Cir. 2010) (citing

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),

Inc., 528 U.S. 167, 184 (2000)). Instead, the Nation must

plausibly allege that adoption of the Guidelines will in some

fashion impede the ascertainment and declaration of the

Nation’s Winters rights. That it has not done.25

Absent more concrete allegations, the Nation cannot show

that “harm to [its] concrete interests”—here, its possible

Wintersrights—“is reasonably probable,” Citizens for Better

Forestry, 341 F.3d at 975, and therefore that it has suffered

the injury needed for standing.

25 We also question whether the Guidelines create reliance interests

over and above the pre-existing third-party reliance on the fully

appropriated (or overappropriated) water of the Colorado River. The

gross allocations of water in the 1964 Decree would seem primarily

responsible for reliance on Lower Basin water. Unless the Nation can

show that the Guidelines are creating new or additional reliance interests,

it cannot demonstrate it to be reasonably probable that the Guidelines

themselves pose any threat to the Nation’s interests. See Bell, 340 F.3d at

951 (emphasizing that the amendments to the power delivery contracts,

and not the contracts themselves, were the agency actions in question, and

the amendments alone did not threaten the plaintiff’s interests). See also

Shortage Guidelines, 73 Fed. Reg. at 19,873 (describing the reliance ofthe

West on the Colorado River for drinking water and agriculture).
NAVAJO NATION V. DEP’T OF INTERIOR 33

ii. Injury to the Nation’s generalized interest in

Lower Basin water

In addition to its unadjudicated Winters rights, the Nation

articulated a different interest—a generalized interest in

availability for its use of water in the Lower Basin—that, it

alleged, the Guidelines could adversely affect. We reaffirm

that the interests upon which a NEPA plaintiff bases its

standing need not be legal entitlements or substantive rights,

and that an impairment as a practical matter of access to

adequate water for use on one’s land can qualify. We hold,

however, that the Nation again failed to trace a reasonably

probable link between this second interest in water

availability and the Guidelines, and so lacks standing under

this theory of injury as well.

The complaint does adequately allege an interest in water

availability aside from the tribe’s right to water under

Winters. It states, for example, that the Guidelines will

“adversely affect[] the water supply available to satisfy the

Navajo Nation’s rights or to otherwise meet its needs,”

(emphasis added) and that the Secretary’s actions “fail to

protect the Navajo Nation’s rights to and its interests in water

from the Lower Basin of the Colorado River” (emphasis

added). Peppered throughout the complaint as well are

mentions of the Nation’s “needs and rights” (emphasis

added). The Nation’s repeated invocation of this distinct

concrete interest—its generalized need for water from the

Lower Basin, independent of any rights to it—offers an

alternative basis upon which the Nation could have standing.

This interest, unlike unquantified Winters rights—which

depend on the special status of the Nation’s home as federally

reserved land—is similar to that of any large landowner, or
34 NAVAJO NATION V. DEP’T OF INTERIOR

municipality, or other potential Lower Basin water user. 

Indeed, the Nation is the largest riparian landowner along the

Colorado River apart from the United States.

If such an interest in adequate water were, to a reasonable

probability, potentially injured by a proposed federal action,

the Nation would have standing to challenge NEPA

compliance. To support NEPA standing, the interest affected

need not be “a substantive right sounding in property or

contract,” although it must be “distinct from the interest held

by the public at large,” Cantrell, 241 F.3d at 681 (citing

Lujan, 504 U.S. at 562–63). Cantrell, for example, held that

birdwatchers had legally protected aesthetic interests in a bird

habitat located on a closed naval station, even though they

lacked a legal right of access to the base and viewed the birds

from “areas in and around the station.” Id. at 680. Closer to

this case, we regularly recognize concrete interests in access

to water although the plaintiff has no decreed or contractual

right to water. See Laub, 342 F.3d at 1086 (the “loss of

affordable irrigation water” for agricultural uses resulting

from increased competition for irrigation water was sufficient

injury to a cognizable interest for standing under NEPA);

Pyramid Lake Paiute, 724 F.3d at 1187–88.

So the Nation’s lack of decreed rights to Lower Basin

water does not matter for standing. Its interest in, and need

for, the water is a cognizable interest—much like the farmers’

interests in Laub—which, when threatened, may support

standing under NEPA.

Our question, then, is whether the Nation has alleged a

“reasonably probable” threat from the Guidelines to its

interest in accessing Lower Basin water. Citizens for Better
NAVAJO NATION V. DEP’T OF INTERIOR 35

Forestry, 341 F.3d at 969. If that interest is not imperiled by

the Guidelines, the Nation has suffered no injury.

At the outset, we reject the Nation’s reiterated argument

that the Guidelines impair the Nation’s interests in, and need

for, Lower Basin water by establishing a system of third-party

reliance that will make it harder to satisfy this need. For the

same reasons laid out in Part III.B.i with regard to the

Nation’s Winters rights, these allegations are too speculative

to demonstrate injury to any of the Nation’s interests.

But the Nation also alleges—albeit sparsely—another,

different sort of injury to its generalized interest in Lower

Basin water: there will simply be less of it available. The

Surplus Guidelines, the Nation maintains, will “adversely

affect[] the water supply available to . . . meet [the Nation’s]

needs” by “allocat[ing] all of the surplus waters of the

Colorado River” each year. As for the Shortage Guidelines:

The Nation’s use of mainstream water in the

Lower Basin will be charged against

Arizona’s Lower Basin apportionment, and

Arizona is particularly vulnerable to water

shortages, so the Nation reasonably fears that

excessive ICS development26or an increased

likelihood of a [declared] shortage will

adversely affect its lands by reducing the

availability of local water supplies needed to

make them productive and livable.

(emphasis added) (internal citations omitted).

26 For an explanation of ICS, see supra note 18 and accompanying

text.
36 NAVAJO NATION V. DEP’T OF INTERIOR

The constraints imposed by the Law of the River affect

the plausibility of these averments concerning the Guidelines’

possible impact on the water available to the Nation. As

noted above, the Nation’s use of mainstream water “shall be

charged to [Arizona’s] apportionment.” 1964 Decree art.

II(B)(4), 376 U.S. at 343. Arizona’s apportionment, as set

out in the 1922 Compact and reaffirmed in the 1964 Decree,

is 2.8 mafy. Id. art. II(B)(1), 376 U.S. at 342. In times of

shortage, the Colorado River Basin Project Act subordinates

the water rights of Arizona’s largest mainstream diverter, the

Central Arizona Project (“CAP”), to those of California

users.

27

See 43 U.S.C. § 1521(b). In flush years, the 1964

Decree grants Arizona 46% of the Lower Basin surplus water. 

1964 Decree art. II(B)(2), 376 U.S. at 342. So the broad

contours of water allocation, and indeed many of the specific

ones, are settled by existing law; the Guidelines merely shade

in the details.

With those parameters in mind, we conclude that the

Nation has not plausibly alleged that the Guidelines

themselves—independently of the pre-existing water

allotments—will impair the tribe’s interest in the availability

of Lower Basin water. Construed as liberally as possible in

the Nation’s favor, the complaint does not explain why or

how the Secretary’s decisions on surplus and shortage

declarations, or the Shortage Guidelines’ rules on the banking

of ICS water, threaten to reduce the amount of water

available to the Nation.

Arizona’s relative allotment of surplus water is fixed by

the 1964 Decree. See id. The Guidelines do not make any

27 The Central Arizona Project diverts more than 1.2 mafy of

Arizona’s 2.8 mafy allocation. Shortage Guidelines FEIS, at 3–35.
NAVAJO NATION V. DEP’T OF INTERIOR 37

allotments during times of surplus or shortage; they only

ascertain the parameters for declaring whether there is a

surplus or shortage. And it is another statutory provision, not

the Guidelines, that triggers a statutory prioritization scheme

that disadvantages Arizona. See 43 U.S.C. § 1521(b).

Given the disadvantage to Arizona in times of shortage,

how the Secretary determines a shortage could, in theory,

reduce the availability of local water supplies. For instance,

if the Guidelines declared a shortage more often than would

some other method of determining a shortage, part of

Arizona’s allotment (the CAP water) would be subordinated

to California’s needs, pursuant to the Colorado River Basin

Project Act, more often than under the alternative approach,

and less water would be available on the tribe’s land. But the

Nation’s complaint does not anywhere allege that the

Guidelines do, in fact, result in “an increased likelihood of a

shortage” as compared to alternatives; it says only that “the

likelihood of a shortage determination would be different

under each of the alternatives in the guidelines proposed in

the EIS.” Fair enough. But it does not follow, as the Nation

asserts, that the existence of an array of alternatives itself

makes it “reasonably probable that unexplored effects

threaten the Navajo Nation’s interests.”

The Nation’s allegations regarding the ICS provisions of

the Shortage Guidelines are equally unavailing. The Nation

does not sketch out why ICS development—the banking of

extra water saved or procured by water users—will be

excessive, or how that development would reduce available

water supplies for the Nation and thus threaten its interests in

said water. We note that, under the Shortage Guidelines,

states and users can only “bank” water by offsetting their

water consumption in some other way. See 73 Fed. Reg. at
38 NAVAJO NATION V. DEP’T OF INTERIOR

19,886. Because the only water that can be banked this way

is water saved by users for the purpose of banking it, the

Nation’s argument that the water would otherwise be

available to meet the Nation’s needs is difficult to understand.

Ultimately, the Nation has not shown why the Guidelines

threaten injury to its interests in having water available to

meet its needs, as compared to any available alternative. 

General references to the “risk of overlooking harmful

effects”—without describing these effects—or to a “certain

[e]ffect [on] the outcome of th[e] efforts” by the Nation to

secure water—without any description of that effect—do not

suffice.

The cases cited by the Nation in its discussion of the

reasonably probable threat to its interests do not support its

position to the contrary. Rather, those cases reiterate the

requirement that plaintiffs must identify how the challenged

action threatens, to a reasonable probability, some separate

interest belonging to them, and determined that the plaintiffs

had done so.

Douglas County v. Babbitt, 48 F.3d 1495, 1501 (9th Cir.

1995), for example, concerned a county’s allegation that its

lands “could be threatened by how the adjoining federal lands

[were] managed” with respect to pest, disease, and fire

control. We held the allegation sufficient to demonstrate

standing because “a concrete interest . . . could [have been]

harmed” by the challenged action. Churchill County,

150 F.3d at 1079, similarly held that an increased risk of “fire

hazards, airborne particles, [and] erosion,” among other

things, made it “reasonably probable” that a transfer of water

rights threatened county land. And in Pyramid Lake Paiute

Tribe, 724 F.3d at 1188, it was common ground that the
NAVAJO NATION V. DEP’T OF INTERIOR 39

transfer of water rights would “reduce[] flows to Pyramid

Lake” and thereby injure the Tribe’s interests in maximizing

flows to the lake. The plaintiffs in those cases thus

affirmatively demonstrated that agency action would, to a

reasonable probability, harm their interests.

We do not doubt the Nation’s needs for water, or its

skepticism that its needs and rights will be front and center as

the Secretaryand other stakeholders vie for water rights in the

years to come. “The United States historically has not been

vigorous in litigating to establish or preserve Indian water

rights.” William C. Canby, Jr., AMERICAN INDIAN LAW 504

(6th ed. 2015).28 More than half a century has passed since

the Nation’s Winters rights were first put forward for

adjudication in Arizona v. California, and they go

unquantified still.

In short, the challenged Guidelines do not, as far as the

Nation has alleged, present a reasonable probability of threat

to either the Nation’s unadjudicated water rights or its

practical water needs. We therefore affirm the dismissal of

the Nation’s NEPA claims for lack of standing.

IV. SOVEREIGN IMMUNITY

The district court dismissed the Nation’s breach of trust

claim because the United States had not waived sovereign

immunity for that claim. The Nation alleged, as a breach of

trust, Interior’s failure “to determine the extent and quantity

of water rights . . . or otherwise determine the amount of

water which the [Nation] requires from the Lower Basin to

28

“The tribes themselves can bring suit, but the cost ofsuch litigation

is frequently prohibitive.” Id. at 504–05.
40 NAVAJO NATION V. DEP’T OF INTERIOR

meet the needs of the [Nation].” The Nation’s breach of trust

claim is thus predicated not on an affirmative action but

rather a failure to act.

The broad waiver of immunity found in § 702 of the APA

did not apply, the district court held, because this Court’s

decisions construing the scope of § 702 limited its waiver to

(i) challenges to “final agency action” and (ii) constitutional

claims. Because the Nation “fail[ed] to challenge any

particular final agency action or bring a constitutional claim,”

the district court held, it could not avail itself of § 702’s

waiver.

We now review, and clarify, the scope of that waiver.

A. Legal Background

“The United States, as sovereign, is immune from suit

save as it consents to be sued.” United States v. Sherwood,

312 U.S. 584, 586 (1941) (citations omitted). As the contours

of any such waiver define a court’s authority to entertain a

suit against the government, id., each claim against the

government must rest upon an applicable waiver of

immunity. We review whether sovereign immunity is waived

de novo. Orff v. United States, 358 F.3d 1137, 1142 (9th Cir.

2004).
NAVAJO NATION V. DEP’T OF INTERIOR 41

Congress has enacted several broad waivers of the United

States’ sovereign immunity.

29 The waiver here at issue

appears in § 702 of the APA, which provides:

[1] A person suffering legal wrong because of

agency action, or adversely affected or

aggrieved by agency action within the

meaning of a relevant statute, is entitled to

judicial review thereof. [2] An action in a

court of the United States seeking relief other

than money damages and stating a claim that

an agency or an officer or employee thereof

acted or failed to act in an official capacity . . .

shall not be dismissed nor relief therein be

denied on the ground that it is against the

United States.

5 U.S.C. § 702.

Section 702, notably, does double duty, nestling a broad

waiver of sovereign immunity (its second sentence) within an

“omnibus judicial-review provision, which permits suit for

violations of numerous statutes . . . that do not themselves

include causes of action for judicial review.” Lexmark Int’l,

Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1389

(2014). We are mainly concerned here with the waiver, but,

as will appear, the relationship between the § 702 cause of

29 See, e.g., Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1) (waiving

immunity as to certain torts committed by government employees acting

in the scope of their employment); Tucker Act, 28 U.S.C. § 1491(a)(1)

(waiving immunity as to contract claims and claims for damages not

sounding in tort).
42 NAVAJO NATION V. DEP’T OF INTERIOR

action and the § 702 waiver is key to making sense of our

cases in this area.

The first sentence of § 702—the “omnibus” mechanism

for review of agency action by courts—was the sum and

substance of the judicial review provision of the APA as

originally enacted in 1946. See Administrative Procedure

Act, Pub. L. No. 79-404 § 10(a), 60 Stat. 237, 243 (1946)

(codified as amended at 5 U.S.C. § 702). The second

sentence—which waives sovereign immunity in cases

“seeking relief other than money damages” for wrongs

committed by agencies, their officers, and their employees,

5 U.S.C. § 702—was added in 1976 to clear up a morass of

federal sovereign immunity jurisprudence, which at the time

was “illogical,” a “thankless” undertaking for federal courts,

and “a mass of confusion . . . [and] confusion compounded.” 

H.R. Rep. No. 94-1656, at 6–8 (1976) (internal citations

omitted). In addition to ending “the injustice and

inconsistency” begat by the doctrinal confusion, id. at 10, the

amendment aimed to “broaden the avenuesfor judicial review

of agency action by eliminating the defense of sovereign

immunity in cases covered by the amendment.” Bowen v.

Massachusetts, 487 U.S. 879, 891–92 (1988). Just how broad

those avenues are is our issue.

B. Ninth Circuit Law on § 702

A perceived conflict between two of our opinions

construing § 702 lies at the root of this appeal. Compare The

Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518,

524 (9th Cir. 1989) (holding that “[n]othing in the language

of [§ 702] suggests that the waiver of sovereign immunity is

limited to cases challenging . . . ‘agency action’”), with Gallo

Cattle Co. v. U.S. Dep’t of Agric., 159 F.3d 1194, 1198 (9th
NAVAJO NATION V. DEP’T OF INTERIOR 43

Cir. 1998) (noting § 702’s “waiver of sovereign immunity

contains several limitations,” including § 704’s requirement

that the challenged conduct be “final agency action” or

agency action otherwise reviewable by statute). A panel of

this Court pronounced these two cases “directly contrary” to

one another, and could find “no way to distinguish them,”

but, resolving the case before it on other grounds, declined to

call the case en banc to harmonize the perceived intra-circuit

conflict. See Gros Ventre Tribe v. United States, 469 F.3d

801, 809 (9th Cir. 2006); see also EEOC v. Peabody W. Coal

Co., 610 F.3d 1070, 1086 (9th Cir. 2010) (noting the same

“tension” between the same two decisions but again finding

no need to resolve it). As we face the issue squarely, we

delve into Presbyterian Church and Gallo Cattle in some

detail.

Presbyterian Church held that § 702 waived sovereign

immunity for the plaintiff churches’ First and Fourth

Amendment claims against the (now-defunct) Immigration

and Naturalization Service (INS). 870 F.2d at 526 (9th Cir.

1989). The claims in Presbyterian Church arose from the

dispatch of INS agents to attend, and furtively record,

worship services at four Arizona churches as the agents were

investigating the sanctuary movement, which was aiding

refugees fleeing civil war in Central America. Id. at 520. 

The INS prevailed in district court on its argument that § 702

waived sovereign immunity only for claims challenging

“agency action” as defined in 5 U.S.C. § 551(13). Under that

definition, “‘agency action’ includes the whole or a part of an

agency rule, order, license, sanction, relief, or the equivalent

or denial thereof, or failure to act.” Id. at 524–25. The INS’s

argument was premised on the first sentence of § 702, which

grants judicial review to “person[s] suffering legal wrong
44 NAVAJO NATION V. DEP’T OF INTERIOR

because of agency action, or adversely affected or aggrieved

by agency action.” 5 U.S.C. § 702.

We reversed, interpreting the second sentence of § 702 as,

on its face, “an unqualified waiver of sovereign immunity in

actions seeking nonmonetary relief.” Presbyterian Church,

870 F.2d at 525. Presbyterian Church noted that the second

sentence of § 702 does not use the term “agency action.” Id.

And the legislative history of the waiver provision, which

Presbyterian Church surveyed at length, evinced Congress’

intent to “eliminate the sovereign immunity defense in all

equitable actions for specific relief” against the federal

government. Id. at 525 (quoting H.R. Rep. No. 94-1656, at

9 (1976)) (emphasis omitted). Whatever restrictions were

imposed by the first sentence’s limitation of judicial review

to “agency action” were absent in the broad waiver legislated

three decades later, we concluded. Id. at 525. Presbyterian

Church pronounced that reading in an “agency action”

limitation to that second, independently enacted provision

both “offend[ed] the plain meaning of the amendment” and

flew in the face of the drafting history. Id.

Gallo Cattle Co. v. U.S. Department of Agriculture,

159 F.3d 1194 (9th Cir. 1998), pointed in a different

direction, stating that “the APA’s waiver of sovereign

immunity contains several limitations,” including a proviso

in § 704 that only “final agency action” and agency action

otherwise reviewable by statute are subject to judicial

review.30Id. at 1198. Gallo Cattle concerned a dairy

30 Section 704 provides: “Agency action made reviewable by statute

and final agency action for which there is no other adequate remedy in a

court are subject to judicial review. A preliminary, procedural, or
NAVAJO NATION V. DEP’T OF INTERIOR 45

producer who sought review in federal district court of a

denial by an administrative board of its petition for interim

relief. Id. at 1195–96. Gallo Cattle proposed paying the

monetary assessments it was challenging on First

Amendment grounds into escrow, rather than to the dairy

board, pending the outcome of its constitutional challenge. 

Id. The district court held that it lacked jurisdiction over the

claim because the statute governing the dairy assessments

allowed review only after the Secretary of Agriculture had

decided the merits of Gallo’s petition, id. at 1197–98, and this

Court affirmed.

Relevant to our analysis, we rejected Gallo Cattle’s

alternative argument that the APA provided a source of

jurisdiction, holding that there was no “final agency action”

under § 704. Id. at 1198–99. The Court identified the final

agency action requirement of § 704 as a “limitation[]” on

§ 702’s waiver of sovereign immunity, id. at 1198, and thus

a “jurisdictional” requirement of suit. See id. at 1199

(holding that the lack of final agency action meant § 704

“could not vest the district court with jurisdiction to review

the order”); id. at 1200 (same).

How could there be this limitation, when recently we had

said there was “no such limitation”? Presbyterian Church,

870 F.2d at 525. Notably—and inexplicably—Gallo Cattle

did not cite or discuss Presbyterian Church. Still,

notwithstanding the dictum in Gros Ventre Tribe, 469 F.3d at

809, that there is “no way to distinguish” these “directly

contrary” holdings, a panel of this Court recently did just that.

intermediate agency action or ruling not directly reviewable is subject to

review on the review of the final agency action.” 5 U.S.C. § 704.
46 NAVAJO NATION V. DEP’T OF INTERIOR

Veterans for Common Sense v. Shinseki (“VCS I”),

644 F.3d 845 (9th Cir. 2011), opinion vacated on reh’g en

banc, 678 F.3d 1013 (9th Cir. 2012), untangled the Gallo

Cattle-Presbyterian Church knot. Gallo’s claim for interim

relief,31it noted, was brought directly under the

APA—specifically, the first sentence of § 702, which grants

judicial review to those people “‘suffering legal wrong

because of agency action, or adversely affected or aggrieved

by agency action.’” VCS I, 644 F.3d at 865–66 (quoting

5 U.S.C. § 702). APA claims, as outlined in the first sentence

of § 702, are subject to “§ 704’s limitation on what agency

action is reviewable—meaning subject to ‘judicial review’

under the first sentence of § 702.” Id. at 866. Claims not

grounded in the APA, like the constitutional claims in

Presbyterian Church and VCS I, “do[] not depend on the

cause of action found in the first sentence of § 702” and thus

§ 704’s limitation does not apply to them. Id. at 867. 

According to VCS I, then, the limitation on the APA’s waiver

of sovereign immunity discussed in Gallo Cattle is simply

that a court is foreclosed by § 704 from entertaining claims

brought under the APA seeking review of non-final agency

action (and not otherwise permitted by law).32“[N]o such

limitation,” Presbyterian Church, 870 F.2d at 525, applies to

other types of claims (like the constitutional claims in

Presbyterian Church).

31 Gallo appealed to the district court only from the Secretary’s denial

of interim relief—the escrowing of the disputed assessments. The

Secretary had not yet passed on, and so Gallo did not appeal, the merits of

its First Amendment challenge. Gallo Cattle, 159 F.3d at 1198.

32 In addition to making reviewable final agency action, the APA

permits suit to “compel agency action unlawfully withheld or

unreasonably delayed.” 5 U.S.C. § 706.
NAVAJO NATION V. DEP’T OF INTERIOR 47

VCS I was vacated upon rehearing en banc, so its analysis

does not stand as the law of the circuit.33 But we believe the

panel opinion persuasively reconciled Gallo Cattle and

Presbyterian Church and so follow its lead.

First, the text of the second sentence of § 702 contains no

limitation to “final agency action,” to APA cases, or to APA

and constitutional cases. We read statutes as written, subject

to very limited exceptions, none of which apply here.34 As

there is no basis for reading into the amendment to § 702

language that is not there, we should not do so. And, as VCS

I concluded, nothing in Gallo Cattle requires us to adopt an

atextual reading of § 702, as Gallo Cattle concerned a cause

of action under the APA. We therefore hold, as did VCS I,

that § 702 waives sovereign immunity for all non-monetary

claims; § 704’s final agency action requirement constrains

only actions brought under the APA.

The district court concluded otherwise, viewing

Presbyterian Church as an exception to § 704 for

constitutional claims only. By so holding, the district court

took the wrong path.

What Presbyterian Church actually determined was that

when Congress amended § 702 by adding its second sentence,

it enacted an “unqualified” waiver of sovereign immunity in

33 Veterans for Common Sense v. Shinseki, 678 F.3d 1013 (9th Cir.

2012) (en banc).

34

“It is well established that when the statute’s language is plain, the

sole function of the courts—at least where the disposition required by the

text is not absurd—is to enforce it according to its terms.” Lamie v. U.S.

Tr., 540 U.S. 526, 534 (2004).
48 NAVAJO NATION V. DEP’T OF INTERIOR

“all actions seeking relief from official misconduct except for

money damages.” Presbyterian Church, 870 F.2d at 525. 

This Court has long so understood the opinion—that is, as

holding that § 702 waives “whatever sovereign immunity the

United States enjoyed from prospective relief” with respect

to “any action for injunctive relief.” Cabrera v. Martin,

973 F.2d 735, 741 (9th Cir. 1992) (citing Presbyterian

Church, 870 F.2d at 524–25) (emphasis omitted); see also

Hill v. United States, 571 F.2d 1098, 1102 (9th Cir. 1978)

(“[Section 702] is cast as a blanket waiver of sovereign

immunity as to a broad category of actions against the

government”); Clinton v. Babbitt, 180 F.3d 1081, 1087 (9th

Cir. 1999) (holding that § 702 flatly “expressly waived”

immunity for non-statutory claims for “nonmonetary relief

against the United States”).

Gallo Cattle is fully consistent with this understanding of

Presbyterian Church, and of § 702, as Gallo Cattle addressed

a claim brought directly under the APA. Even if sovereign

immunity is waived for claims not involving “final agency

action,” § 704’s requirement that to proceed under the APA,

agency action must be final or otherwise reviewable by

statute is an independent element without which courts may

not determine APA claims. Section 702, notably, expressly

preserves the § 704 limitations, among many others, by

providing that nothing in § 702 “affects other limitations on

judicial review or the power or duty of the court to dismiss

any action or deny relief on any other appropriate legal or

equitable ground.” 5 U.S.C. § 702; see also Darby v.

Cisneros, 509 U.S. 137, 153 (1993) (noting that the finality

requirement for actions brought under the APA, 5 U.S.C.

§ 704, is undiminished by § 702’s waiver of sovereign

immunity).
NAVAJO NATION V. DEP’T OF INTERIOR 49

Read this way, Gallo Cattle has much to say about the

elements of the APA cause of action, and little to say about

sovereign immunity.

35 As noted, missing from Gallo Cattle

is any discussion of Presbyterian Church. This significant

omission is further evidence that Gallo Cattle governs only

in cases where, unlike Presbyterian Church, the APA

supplies the cause of action. For non-APA claims, “it is

Presbyterian Church and not Gallo Cattle that controls.” 

VCS I, 644 F.3d at 866.

Our conclusion—that the second sentence of § 702

waives sovereign immunity broadly for all causes of action

that meet its terms, while § 704’s “final agency action”

limitation applies only to APA claims—is consistent with

case law in almost all our sibling circuits. In Trudeau v. FTC,

for example, the D.C. Circuit rejected a government agency’s

argument that § 702’s waiver is “restricted to conduct that

falls within th[e] compass” of final agency action. 456 F.3d

178, 186 (D.C. Cir. 2006). The court noted, as have we, that

the language of the APA “provides no support” for a cramped

reading of the waiver incorporating § 704’s final agency

action requirement, and that the legislative history likewise

offers no basis for that position. Id. at 187. Rather, both the

statutory language and its history counsel a broad waiver of

“any” and “all” immunity for non-monetary claims. Id.

35 We draw confidence from this court’s varying characterizations of

the issue in Gallo Cattle: whether the APA “vested [the court] with

jurisdiction,” 159 F.3d at 1196; the court “had jurisdiction to review” the

denial of relief “pursuant to the judicial review provisions of the [APA],”

id. at 1198; the order was “reviewable,” id.; or the APA “vest[ed] the

district court with jurisdiction to review the order,” id. at 1199. Only once

does Gallo Cattle characterize the issue as one ofsovereign immunity. Id.

at 1198.
50 NAVAJO NATION V. DEP’T OF INTERIOR

(internal citations omitted). Other circuits are in nearunanimity.

36

In sum, pigeonholing Presbyterian Church as a case

about constitutional claims alone, as the district court did, is

not supported by the statute, the language of the case, or any

of our case law interpreting the statute, before or after

Presbyterian Church. Instead, we read Gallo Cattle in light

of its facts to be a case primarily about the justiciability of

APA claims challenging non-final action. This reading does

not trench at all upon Presbyterian Church or our other cases

recognizing that § 702 enacted a broad, unqualified waiver

for all non-monetary claims for relief against federal

36 See Red Lake Band of Chippewa Indians v. Barlow, 846 F.2d 474,

475–76 (8th Cir. 1988) (rejecting the argument that § 702’s waiver “exists

only to allow review of a final agency decision” in Indian trust claims and

holding that it depends only “on the suit against the government being one

for non-monetary relief”); Treasurer of N.J. v. U.S. Dep’t of Treasury,

684 F.3d 382, 400 (3d Cir. 2012) (“Section 704 concerns whether a

plaintiff has a cause of action under the APA that can survive a motion to

dismiss under Rule 12(b)(6) but does not provide a basis for dismissal on

grounds of sovereign immunity”); Michigan v. U.S. Army Corps of

Eng’rs, 667 F.3d 765, 775 (7th Cir. 2011) (“[T]he conditions of § 704

affect the right of action contained in the first sentence of § 702, but they

do not limit the waiver of immunity in § 702’s second sentence.”) (citing

VCS I, 644 F.3d at 866–68); Muniz-Muniz v. U.S. Border Patrol, 741 F.3d

668, 672 (6th Cir. 2013) (same); Delano Farms Co. v. Cal. Table Grape

Comm’n, 655 F.3d 1337, 1344 (Fed. Cir. 2011) (same); see also United

States v. Mitchell, 463 U.S. 206, 227 & n.32 (1983) (noting that Congress

“enacted a general consent” in § 702 to claims for declaratory and

injunctive reliefin a case alleging breach offiduciary duty regarding tribal

timber resources). The Fifth Circuit appears to be alone in holding to the

contrary. See Alabama-Coushatta Tribe of Texas v. United States,

757 F.3d 484, 489 (5th Cir. 2014) (“the plaintiff must identify some

‘agency action’ affecting” it as defined under 5 U.S.C. § 551(13) to avail

itself of § 702’s waiver).
NAVAJO NATION V. DEP’T OF INTERIOR 51

agencies. And, our reading best squares the holdings of

Presbyterian Church and Gallo Cattle in light of the text of

§ 702, the legislative history of the provision, and the strong

weight of authority in the federal courts.

C. The Nation’s Breach of Trust Claims

Here, the Nation in its breach of trust claim against

Interior seeks “relief other than money damages” for claims

“that an agency or an officer or employee thereof acted or

failed to act in an official capacity.” 5 U.S.C. § 702. The

waiver of sovereign immunity in § 702 applies squarely to the

Nation’s breach of trust claim.

The district court expressed some tentative views on the

merits of this claim but ultimately rested its dismissal

squarely on the bar of sovereign immunity. We therefore

remand to the district court to consider fully the Nation’s

breach of trust claim in the first instance, after entertaining

any request to amend the claim more fully to flesh it out.

V. RULE 60(B) RELIEF FROM JUDGMENT

After the district court entered judgment against the

Nation, the Nation moved for relief under Federal Rule of

Civil Procedure 60(b)(6), seeking to re-open the proceedings

so that it could amend its pleadings. Where none of Rule

60(b)’s five enumerated circumstances applies, its catch-all

provision permits a court to grant relief for “any other reason

that justifies relief.” Fed. R. Civ. P. 60(b)(6). The district

court denied the motion because the Nation had failed to cure

its pleading deficiencies in previous amendments, did not

explain why its claims would be time-barred after dismissal

without prejudice, and did not spell out with sufficient
52 NAVAJO NATION V. DEP’T OF INTERIOR

specificity how it intended to amend its complaint. “We

review the district court’s denial of a Rule 60(b) motion for

an abuse of discretion.” Delay v. Gordon, 475 F.3d 1039,

1043 (9th Cir. 2007).

Because we reverse the district court’s dismissal of the

Nation’s breach of trust claim, its appeal from the district

court’s denial of its 60(b) motion is moot to the extent the

Nation sought to amend its complaint to plead additional or

alternative waivers of sovereign immunity. See Thompson v.

Calderon, 151 F.3d 918, 920 (9th Cir. 1998) (en banc). Our

affirmance of the district court’s dismissal of the Nation’s

NEPA claims, however, requires us to address this appeal

insofar as the Nation sought to replead those claims.

A court should “freely give leave [to amend] when justice

so requires,” Fed. R. Civ. P. 15(a)(2), a policy “to be applied

with extreme liberality.” Morongo Band of Mission Indians

v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). But “after final

judgment has been entered, a Rule 15(a) motion may be

considered only if the judgment is first reopened under Rule

59 or 60.” Lindauer v. Rogers, 91 F.3d 1355, 1356 (9th Cir.

1996).

In contrast to the “freely give[n]” dispensation to amend

in Rule 15, Rule 60(b) relief should be granted “sparingly” to

avoid “manifest injustice” and “only where extraordinary

circumstances prevented a party from taking timely action to

prevent or correct an erroneous judgment.” United States v.

Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir.

1993) (emphasis added). “Rule 60(b)(6) relief normally will

not be granted unless the moving party is able to show both

injury and that circumstances beyond its control prevented

timely action to protect its interests.” Id. After judgment,
NAVAJO NATION V. DEP’T OF INTERIOR 53

then, “our policy of promoting the finality of judgments”

somewhat displaces Rule 15’s openhandedness. Lindauer, 91

F.3d at 1357.

Contrary to the district court, we do think the Nation

sufficiently explained why the district court’s dismissal of

claims was effectively with prejudice—because the relevant

statutes of limitations had run on those claims. See 28 U.S.C.

§ 2401(a) (six-year statute of limitations against the United

States). Nonetheless, the district court did not abuse its

discretion in denying the Nation relief from final judgment to

allow leave to amend.

The Nation amended its complaint twice before the court

dismissed its claims. Although the Nation argues that it

amended its complaint each time for other reasons,37it had

ample opportunity at those junctures to address the

deficiencies in its pleading—deficiencies which, at least at

the time the Second Amended Complaint was filed, the

defendants had identified in their motions to dismiss. See

Premo v. Martin, 119 F.3d 764, 772 (9th Cir. 1997); Weeks

v. Bayer, 246 F.3d 1231, 1236 (9th Cir. 2001). The Nation

also had time after filing its Second Amended Complaint, but

before the court dismissed its claims, to seek further leave to

amend. See Premo, 119 F.3d at 772 (noting the plaintiff’s

“ample opportunity to file an amended complaint with new

allegations before the court issued its final judgment”). 

Based on the Nation’s past failures to amend its complaints

and its present failure specifically to identify how it would

amend its pleading to overcome its standing problems, the

37 The Nation first amended its complaint to bring it up to date after

a nearly decade-long stay pending unsuccessful settlement talks. It later

amended the complaint to voluntarily strike one of its claims.
54 NAVAJO NATION V. DEP’T OF INTERIOR

district court reasonably concluded that the Nation had not

negated futility.

Given the Nation’s opportunities (and failures) to amend,

the district court acted within its discretion in refusing postjudgment leave to amend.

VI. CONCLUSION

The Nation lacks Article IIIstanding for its NEPA claims

and is not entitled to relief from judgment under Rule 60(b)

to amend its pleadings as to those allegations. The Nation’s

breach of trust claim, however, is not barred by sovereign

immunity. As the dismissal of that claim on sovereign

immunity grounds was unwarranted, we remand to the district

court to consider the claim on its merits, after entertaining

any request to amend it.

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.