Case 1:21-cv-00277-JFR-KK Document 1 Filed 03/26/21 Page 1 of 65
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW MEXICO
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`No.
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`COMPLAINT FOR VIOLATIONS
`of the ADMINISTRATIVE
`PROCEDURE ACT; the CLEAN
`WATER ACT; and FEDERAL
`TRUST RESPONSIBILITIES.
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`PUEBLO OF LAGUNA; PUEBLO OF
`JEMEZ,
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`Plaintiffs,
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`v.
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`MICHAEL REGAN, in his official capacity )
`as Administrator of the United States
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`Environmental Protection Agency;
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`UNITED STATES ENVIRONMENTAL
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`PROTECTION AGENCY; TAYLOR N.
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`FERRELL, in his official capacity as
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`Acting Assistant Secretary of the Army for )
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`Civil Works; UNITED STATES ARMY
`CORPS OF ENGINEERS,
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`Defendants.
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`I.
`INTRODUCTION
`The Pueblo of Laguna and the Pueblo of Jemez (together “the Pueblos”) are both
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`1.
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`federally recognized tribes that have resided on lands now within the state of New Mexico since
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`time immemorial.
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`2.
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` For both Pueblos, waters that flow through their lands are necessary for domestic
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`and agricultural uses. Such waters are also essential for cultural and ceremonial practices. The
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`Pueblo of Laguna depends on clean water for irrigation and domestic purposes, and its traditions
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`include ceremonial practices in which members of the Pueblo consume water. The Pueblo of
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`Jemez likewise utilizes clean water for agriculture and domestic purposes, and its water supports
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`uses including ceremonial and cultural practices, hunting and fishing, as well as domestic,
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`municipal, commercial, and industrial uses.
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`3.
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`The Pueblos are located in New Mexico, in the arid southwest United States,
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`where water is scarce and therefore of special value. Any water pollution in and around the
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`Pueblos has a disproportionate impact because of the scarcity and preciousness of the resource in
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`the region.
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`4.
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`Most of the geography surrounding the Pueblos is inscribed by arroyos—gullies
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`carved into the earth by flowing water that for more than a millennium have served as channels
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`for life-giving water in times of rain or snowmelt. Each arroyo, ditch, ephemeral stream,
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`waterway, and acequia with the hydrologic capability to facilitate water flow, regardless of the
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`continuity of that flow, is a vein of life for the Pueblo communities. These conveyances bring
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`water into the lands of the Pueblos and, with it, any pollutants introduced into waterways
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`upstream of or hydrologically connected to the Pueblos’ watersheds.
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`5.
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`Congress enacted the Clean Water Act (“CWA”) with the objective to “restore
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`and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33
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`U.S.C. § 1251(a). Among the CWA’s main requirements is the prohibition of unpermitted
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`discharge of pollutants into “navigable waters,” defined as “waters of the United States,
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`including the territorial seas.” 33 U.S.C. §§ 1311(a), 1362(7).
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`6.
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`The CWA charges the U.S. Environmental Protection Agency (“EPA”) and the
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`Army Corps of Engineers (“Corps”) (together, “the Agencies”) with implementation of the
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`CWA’s pollution protection programs. See 33 U.S.C. §§ 1342(a), 1344 (giving the EPA and the
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`Corps authority over the major permitting schemes); see also 33 U.S.C. § 1319 (generally giving
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`the Administrator of the EPA the right to enforce); 33 U.S.C. § 1319(g)(1)(B) (granting limited
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`enforcement power to the Secretary of the Army). Because the CWA does not define “waters of
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`the United States,” the Agencies have interpreted the term in order to establish which waters are
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`protected by the CWA. See Orchard Hill Bldg. Co. v. U.S. Army Corps of Eng’rs, 893 F.3d
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`1017, 1020 (7th Cir. 2018); see also 33 C.F.R. § 328.3 (the Corps’ definition of “waters of the
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`United States”) and 40 C.F.R. § 120.2 (the EPA’s definition of “waters of the United States”).
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`7.
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`Historically, the Agencies have interpreted “waters of the United States” broadly,
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`in keeping with the text, structure, and purpose of the CWA, although that interpretation has
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`been updated over time in response to scientific advances and judicial decisions. See United
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`States v. Hubenka, 438 F. 3d 1026, 1030–31 (10th Cir. 2006) (“As the Supreme Court has
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`recognized, ‘Congress chose to define the waters covered by the [CWA] broadly.’” (quoting
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`United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133 (1985)); Nat. Res. Def.
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`Council, Inc. v. Callaway, 392 F. Supp. 685, 686 (D.D.C. 1975) (finding that Congress intended
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`the definition of “waters of the United States” to be broader than the traditional definition of
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`“navigable waters”); Clean Water Rule: Definition of “Waters of the United States,” 80 Fed.
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`Reg. 37,053 (June 29, 2015) (issuing a new rule defining “waters of the United States” in
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`response to scientific data) [hereinafter the 2015 Clean Water Rule].
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`8.
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`The Supreme Court interpreted “waters of the United States” in Rapanos v.
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`United States, 547 U.S. 715 (2006). Justice Scalia’s plurality opinion found that CWA
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`jurisdiction did not extend to the wetlands in question, relying on a dictionary definition of
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`“waters” as modified by the word “the” to conclude that the term “the waters of the United
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`States” could “confer[] jurisdiction only over relatively permanent bodies of water.” Id. at 739.
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`9.
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`Justice Kennedy’s concurrence in judgment supported a “significant nexus” test,
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`finding CWA jurisdiction where the water or wetland “either alone or in combination with
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`similarly situated [wet]lands in the region, significantly affect the chemical, physical, and
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`biological integrity of other covered waters more readily understood as ‘navigable.’” Id. at 780.
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`As such, the Supreme Court’s ruling in Rapanos rendered both the “Scalia test” and Justice
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`Kennedy’s “significant nexus” test as valid for determining “waters of the United States.”
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`10.
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`Several federal Circuit Courts of Appeals have subsequently followed Justice
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`Kennedy’s test. See, e.g., United States v. Gerke Excavating, Inc., 464 F.3d 723, 724 (7th Cir.
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`2006) (per curiam); N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993, 995 (9th Cir.
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`2007); United States v. Robison, 505 F.3d 1208, 1221 (11th Cir. 2007).
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`11.
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` In 2015, the Agencies promulgated the Clean Water Rule, which relied on a
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`thorough survey of the best available science to determine which bodies of water were “waters of
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`the United States” under the significant nexus test. 80 Fed. Reg. at 37,060. In keeping with
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`historic practice and based on clear science, the 2015 Clean Water Rule determined that many of
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`the ephemeral and intermittent streams,1 such as those common on the lands of the Pueblos, were
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`“waters of the United States.”
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`12.
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`In 2017, President Donald J. Trump issued an Executive Order directing the
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`Agencies to repeal the Clean Water Rule and consider replacing it with a regulation employing
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` 1
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` Ephemeral streams flow only in response to precipitation whereas intermittent streams flow continuously only at
`certain times of the year, for example, only flowing in the spring after snowmelt. U.S. Envtl. Prot. Agency, The
`Ecological and Hydrological Significance of Ephemeral and Intermittent Streams in the Arid and Semi-arid
`American Southwest 6 (2008).
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`the narrower approach and reasoning of Justice Scalia’s plurality opinion in Rapanos. Exec.
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`Order No. 13,778, 82 Fed. Reg. 12,497 (Mar. 3, 2017).
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`13.
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`The Agencies repealed the 2015 Clean Water Rule and then reversed their
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`longstanding policy by promulgating a new, much narrower interpretation of the “waters of the
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`United States.” Definition of “Waters of the United States” — Recodification of Pre-Existing
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`Rules, 84 Fed. Reg. 56,626 (Oct. 22, 2019) [hereinafter the 2019 Repeal Rule]; The Navigable
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`Waters Protection Rule: Definition of “Waters of the United States,” 85 Fed. Reg. 22,250 (Apr.
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`21, 2020) [hereinafter the 2020 Navigable Waters Rule]. The 2020 Navigable Waters Rule
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`follows the directive of Executive Order 13,778, but without due regard for established law.
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`14.
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`The 2019 Repeal Rule and 2020 Navigable Waters Rule are inconsistent with
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`both the CWA’s objective of “maintain[ing] the chemical, physical, and biological integrity of
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`the Nation’s waters” and the Rapanos significant nexus test.
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`15.
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`The 2019 Repeal Rule and the 2020 Navigable Waters Rule harm the Pueblos by
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`removing federal CWA water pollution protections from many of the ephemeral streams and
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`other waterbodies that sustain the Pueblos. These rules remove CWA protections from 79% to
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`97% of stream miles in the Pueblo of Laguna. These rules remove CWA protections from 94%
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`of stream miles in the Jemez watershed and 87% of stream miles on Jemez Pueblo trust lands.
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`16. Where a waterbody is not determined to be a “water of the United States,” the
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`Pueblos alone are left to establish and administer water pollution control programs at their own
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`expense.
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`17.
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`However, the Pueblos rely on the Agencies to implement nearly all of the CWA’s
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`pollution programs on their behalf and do not have the financial or administrative resources or
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`capacity to administer these programs themselves.
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`18.
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`Further, both Pueblos rely on the federal jurisdiction of the CWA to protect
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`themselves from upstream pollution.
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`19.
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`For the Pueblos, high water quality is essential to day-to-day life, as well as
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`cultural and religious practices.
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`20.
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`The removal of federal jurisdiction creates the imminent risk of the degradation
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`and destruction of the Pueblos’ waters and would harm the Pueblos’ agriculture, as well as
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`cultural and religious practices.
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`21.
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`The Agencies promulgated both the 2019 Repeal Rule and the 2020 Navigable
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`Waters Rule without due respect to the sovereignty of either Pueblo.
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`22.
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`The Agencies’ actions violated the Administrative Procedure Act (“APA”), the
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`CWA, and the federal trust responsibility toward tribes, as described herein.
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`23.
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`The Pueblos respectfully request that the Court vacate and set aside the 2019
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`Repeal Rule and 2020 Navigable Waters Rule and return to the post-Rapanos case-by-case
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`application of the “significant nexus” test.
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`II.
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`JURISDICTION AND VENUE
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`24.
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`This Court has jurisdiction over the claims set forth in this complaint pursuant to
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`28 U.S.C. § 1331, 28 U.S.C. § 1362, and 5 U.S.C. § 702. See Nat’l Ass’n of Mfrs. v. U.S. Dep’t
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`of Def., 138 S. Ct. 617, 623 (2018) (holding that challenges to the Agencies’ regulations defining
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`“waters of the United States” must be brought in federal district courts).
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`25.
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`The relief sought is authorized by 28 U.S.C. § 2201(a), 28 U.S.C. § 2202, and 5
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`U.S.C. § 706.
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`26.
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`Venue is proper in this Court pursuant to 28 U.S.C. § 1391(c)(2) and (e)(1). This
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`action seeks relief against federal agencies and federal officers acting in their official capacities.
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`Additionally, venue is proper because a substantial part of the property, including water
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`resources, that is the subject of the action is situated within this judicial district. 28 U.S.C. § 1391
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`(e)(1)(B).
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`III. PARTIES
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`A. Pueblo Petitioners
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`27.
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`Petitioners, Pueblo of Jemez and Pueblo of Laguna, are both federally recognized
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`American Indian tribes with a government-to-government relationship with the United States.
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`Indian Entities Recognized by and Eligible to Receive Services from the United States Bureau of
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`Indian Affairs, 86 Fed. Reg. 7554, 7556 (Jan. 29, 2021).
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`28.
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`Unlike many other Indian tribes in the United States, the Pueblos were never
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`removed from the land they have held since time immemorial and have retained their property
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`rights to their lands. See e.g., Treaty of Guadalupe Hidalgo, Feb. 2, 1848, 9 Stat. 922; New
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`Mexico v. Aamodt, 537 F.2d 1102, 1105 (10th Cir. 1976) (Aamodt I) (outlining the history of
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`congressional confirmation of Pueblo land and resource rights within New Mexico).
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`1. Pueblo of Laguna
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`29.
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`The Pueblo of Laguna is located approximately 10 miles west of Albuquerque,
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`New Mexico, with the Pueblo’s westernmost boundary approximately 50 miles from
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`Albuquerque.
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`30.
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`The Pueblo of Laguna encompasses approximately 500,000 acres of combined
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`restricted fee and United States trust land in Cibola, Valencia, Bernalillo, and Sandoval counties.
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`It includes the six villages of Encinal, Laguna, Mesita, Paguate, Paraje, and Seama.
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`31.
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`As of 2020, there are approximately 4,800 members of the Laguna Pueblo within
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`the reservation boundaries, and there are about 8,900 total enrolled members.
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`32.
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`The Pueblo of Laguna is located within both the Rio Puerco and Rio San José
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`watersheds. The Rio Paguate also runs through the Pueblo. Each of these three rivers is
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`ephemeral or intermittent.
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`33.
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`The people of Laguna have been residing within the watersheds of the Rio Puerco
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`and the San José River and using water from both rivers for irrigation and domestic purposes
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`since before European contact.
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`34. Water is essential to Laguna beliefs, cultural practices, ceremonies, and daily
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`activities. Members of the Pueblo of Laguna consume water directly from the rivers as part of
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`domestic uses and for ceremonial practices.
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`35. Members of the Pueblo of Laguna are directly affected by upstream water
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`activities that occur beyond the exterior boundaries of the Pueblo and on federal lands.
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`36.
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`Ephemeral and intermittent streams are a significant source of surface water for
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`the Pueblo of Laguna.
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`37.
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`The Pueblo of Laguna contains approximately 1,795 miles of linear streams.
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`Under the 2015 Clean Water Rule, all 1,795 stream miles within the Pueblo were considered
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`jurisdictional waters and were protected under the CWA. The 2020 Navigable Waters Rule will
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`remove 79% to 97% of stream miles within the Pueblo from protections under CWA jurisdiction.
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`38.
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`The Pueblo of Laguna was granted “Treatment in a similar manner as States”
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`(“TAS”) status by the EPA for three CWA programs under Section 518(e) of the Act. The
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`Pueblo of Laguna has received TAS status to participate in the Section 106 pollution control
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`grant program, the Section 303(c) water quality standards program, and the Section 401 water
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`quality certification program.
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`39.
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`The Pueblo of Laguna has obtained TAS, federally recognized water quality
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`standards, and section 401 certification authority, but must rely on the Agencies and their
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`expertise for permitting and enforcing CWA requirements. These requirements include permit
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`conditions under the National Pollutant Discharge Elimination System (“NPDES”) and section
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`404 dredge-and-fill programs to help protect the Pueblo’s water.
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`40.
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`The department responsible for water quality at the Pueblo of Laguna consists of
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`one full-time Surface Water Quality Specialist and one part-time employee who assists the
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`Surface Water Quality Specialist with the water quality monitoring program.
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`41.
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`The Pueblo of Laguna has relied on the protections of the 2015 Clean Water Rule
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`to protect its water quality standards from degradation by upstream dischargers such as the City
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`of Grants, and the Roca Honda, L-Bar, Homestake, Rio Grande Resources Mount Taylor, and
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`Bluewater uranium mines. The Lee Ranch Coal Company is also located upstream of the Pueblo
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`of Laguna.
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`42.
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`According to public census data, the Pueblo of Laguna has an average annual per
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`capita income of $14,743, less than half of the average annual income in the United States, with
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`a poverty rate of 32%, more than double the rate of the United States at 13.4%.
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`43.
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`The repeal of the 2015 Clean Water Rule and the promulgation of the 2020
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`Navigable Waters Rule harm the Pueblo of Laguna by removing the ability to enforce federal
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`water quality standards within nearly all its waterways. The repeal of the 2015 Clean Water Rule
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`and the promulgation of the 2020 Navigable Waters Rule also harm the Pueblo of Laguna by
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`leaving the Pueblo without the capacity or resources to administer its own water quality
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`standards and without the legal authority under the CWA to enforce water quality standards
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`against upstream discharges.
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`2. Pueblo of Jemez
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`44.
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`The modern-day Pueblo of Jemez is located approximately 40 miles northwest of
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`Albuquerque, New Mexico.
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`45.
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`The Pueblo of Jemez’s reservation encompasses more than 89,000 acres. The
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`Pueblo’s land includes lands held in fee with federal restrictions, thereby constituting federal
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`trust lands, federal reservations held by the United States in trust for the Pueblo, and fee lands.
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`These figures do not include Indian aboriginal title lands.
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`46.
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`47.
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`The Pueblo of Jemez is home to more than 3,400 enrolled tribal members.
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`The Pueblo of Jemez is historically linked to the Pueblo of Pecos, as they were
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`legally merged into one Pueblo by an Act of Congress. Act of June 19, 1936, Pub. L. No. 74-
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`693, 49 Stat. 1528 (1936) (consolidating the Pueblos of Jemez and Pecos). The Pecos culture and
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`traditions have been preserved and incorporated with the Jemez culture, as the Pueblo of Jemez
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`recognizes the Governor of Pecos as their second Lieutenant Governor.
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`48.
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`The Pueblo of Jemez is located within the Jemez River watershed, and the Jemez
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`River flows through the Pueblo’s lands and jurisdiction. There are 57.5 stream miles located
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`within the Pueblo of Jemez’s reservation, of which 80% are ephemeral streams and 7%
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`intermittent streams. Additionally, there are 888.9 stream miles located outside the Pueblo’s
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`reservation lands that are part of the hydrologic systems that have supported Pueblo life for more
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`than a millennium. These waters have a direct effect on the Pueblo and the waters within it.
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`49.
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`The Pueblo of Jemez lacks the authority to regulate and protect those
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`hydrologically connected waters outside its jurisdiction, which consist of 80% ephemeral streams
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`and 14% intermittent streams.
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`50.
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`The Pueblo of Jemez relies on federal authority under the CWA to protect the
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`waters of the Pecos watershed that lie outside of the Pueblo’s jurisdiction.
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`51.
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` The Pecos watershed consists of 189,789 acres and is culturally significant to the
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`Pueblo as ancestral homelands. The Pecos watershed consists of 309 stream miles, all of which
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`have a direct effect on the Pueblo way of life and safety.
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`52.
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`The Jemez Natural Resources Department manages water and air quality
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`monitoring, in addition to managing the Pueblo of Jemez’s forestry, range, wildlife,
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`environmental and cultural compliance, farm services, and overseeing the irrigation system. A
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`department of 22 full-time employees plus a tribal Youth Conservation Corps manages this
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`program.
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`53.
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`According to Jemez core beliefs, water is considered the key to life. Throughout
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`time, water has been the greatest predictor of villages, farms, commerce, and other markers of
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`human success.
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`54.
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`For the Pueblo, there is a significant connection between the Jemez River and the
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`sustainability of the Pueblo’s agriculture and way of life. Given this connection, members of the
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`Jemez community directly consume and use water from the Jemez River and other streams on
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`and off the reservation as part of daily life and ceremonial practices.
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`55.
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`These streams continue to have historic, spiritual, and cultural significance to the
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`Pueblo, and Pueblo members continue to visit and use these waters for ceremonial purposes,
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`including spiritual purposes, which require that a high level of water quality be maintained.
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`56.
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`The Pueblo of Jemez currently receives two grants annually from the EPA. One
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`grant is the General Assistance Program that the Pueblo receives because of its TAS status. It
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`also receive a water quality grant to fund the water quality work that includes sampling, written
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`sampling programs, and documentation of best practices.
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`57.
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`According to public census data, the Pueblo of Jemez has an average annual per
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`capita income of $15,538, about half the per capita income in Albuquerque, New Mexico. Jemez
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`Pueblo has a poverty rate of 24.8%, about 1.5 times the rate of Albuquerque at 16.2%.
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`58.
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`The repeal of the 2015 Clean Water Rule and the promulgation of the 2020
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`Navigable Waters Rule harm the Pueblo of Jemez by removing its authority to enforce federal
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`water quality standards within waterbodies on and off Pueblo lands that are critical to Pueblo
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`agriculture, culture, and religion. The repeal of the 2015 Clean Water Rule and the promulgation
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`of the 2020 Navigable Waters Rule also harm the Pueblo of Jemez by leaving the Pueblo without
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`the capacity or resources to administer its own water quality standards and without the legal
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`authority under the CWA to enforce water quality standards against upstream discharges.
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`B. Government Defendants
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`59.
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`Defendant Michael S. Regan is the Administrator of the EPA, and as such is
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`charged with the primary duties and responsibilities of the United States and the EPA, including
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`as trustee and fiduciary regarding protection of clean air, land, and water under EPA control or
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`responsibility to which federally recognized Indian tribes have rights, including Plaintiff
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`Pueblos.
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`60.
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`Defendant United States Environmental Protection Agency is the federal agency
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`charged with primary implementation and enforcement of the CWA. Together with the Corps,
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`EPA promulgated the 2019 Repeal Rule and 2020 Navigable Waters Rule. EPA’s
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`responsibilities include duties as trustee and fiduciary regarding protection of clean air, land, and
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`water under EPA control or responsibility to which federally recognized Indian tribes have
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`rights, including Plaintiff Pueblos.
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`61.
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`Defendant Taylor N. Ferrell is the Acting Assistant Secretary of the Army for
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`Civil Works, supervising the Corps’ Civil Works program, and is trustee and fiduciary regarding
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`implementation of the CWA and management of lands under the Corps’ control or responsibility
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`to which federally recognized Indian tribes have rights, including Plaintiff Pueblos.
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`62.
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`Defendant United States Army Corps of Engineers is the federal agency
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`responsible for delivering public and military engineering services, and whose Civil Works
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`mission includes regulatory programs and permitting power. The Corps is housed within the
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`United States Army, as part of the United States Department of Defense. Together with the EPA,
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`the Corps promulgated the 2019 Repeal Rule and 2020 Navigable Waters Rule. The Corps’
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`responsibilities include those as trustee and fiduciary regarding protection of clean air, land, and
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`water under the Corps’ control or responsibility to which federally recognized Indian tribes have
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`rights, including Plaintiff Pueblos.
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`IV.
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`STATUTORY AND REGULATORY BACKGROUND
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`A. Federal Government Trust Obligations
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`63.
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`The United States trust responsibility is one of the oldest and most foundational
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`doctrines of federal Indian law. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 13 (1831)
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`(describing Indigenous tribes as “domestic dependent nations”); see Worcester v. Georgia, 31
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`U.S. (6 Pet.) 515 (1832) (rejecting the State of Georgia’s claim of jurisdiction over the Cherokee
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`Nation and re-affirming the federal government’s responsibility to protect the tribes); United
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`States v. Sandoval, 231 U.S. 28, 47 (1913) (“[T]he legislative and executive branches of the
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`government have regarded and treated the Pueblos of New Mexico as dependent communities
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`entitled to its aid and protection, like other Indian tribes . . . .”).
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`64.
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`The United States trust responsibility entails recognizing and protecting tribal
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`lands, assets, and resources, including the water that flows over and through tribal lands, and the
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`natural resources that depend on that water. See United States v. Mitchell, 463 U.S. 206, 225
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`(1983) (relying on “the undisputed existence of a general trust relationship between the United
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`States and the Indian people.”). The Supreme Court reasoned in Mitchell, a case involving the
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`Bureau of Indian Affairs’ control over a tribe’s timber resources, that “a fiduciary relationship
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`necessarily arises when the Government assumes such elaborate control over forests and
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`property belonging to Indians.” Id. at 2252; cf. Criteria and Procedures for the Participation of the
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`Federal Government in Negotiations for the Settlement of Indian Water Rights Claims, 55 Fed.
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` 2
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` Further, the Court stated “‘where the Federal Government takes on or has control or supervision over tribal monies
`or properties, the fiduciary relationship normally exists with respect to such monies or properties (unless Congress
`has provided otherwise) even though nothing is said expressly in the authorizing or underlying statute (or other
`fundamental document) about a trust fund, or a trust or fiduciary connection.’” 463 U.S. at 225 (quoting Navajo
`Tribe of Indians v. United States, 624 F.2d 981, 987 (Ct. Cl. 1980).
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`Case 1:21-cv-00277-JFR-KK Document 1 Filed 03/26/21 Page 15 of 65
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`Reg. 9223 (Mar. 12, 1990) (the Department of the Interior’s express recognition that “Indian
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`water rights are vested property rights for which the United States has a trust responsibility, with
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`the United States holding legal title to such water in trust for the benefit of the Indians.”).
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`65.
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`In 1913, the United States Supreme Court held that Pueblos are tribes for
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`purposes of federal jurisdiction, and Congress holds the power to “enact laws for the benefit and
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`protection of [Pueblo] Indians as a dependent people.” Sandoval, 231 U.S. at 48.
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`66.
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`As dependent Indian communities, Pueblos are considered Indian Country for
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`which the United States has a “duty of exercising a fostering care and protection.” Id. at 46; see
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`also 18 U.S.C. § 1151.
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`67.
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`The Tenth Circuit has acknowledged the United States trust responsibility to the
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`Pueblos. Aamodt I, 537 F.2d at 1111 (“Under Sandoval . . ., the United States has treated the
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`Pueblos like other Indians. It is their guardian and trustee.”).
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`68.
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`The United States has recognized its trust responsibility to protect Pueblo water
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`resources in the recent settlement involving the Pueblos of Nambé, Pojoaque, San Ildefonso, and
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`Tesuque. See Claims Resolution Act of 2010, Aamodt Litigation Settlement Act, Pub. L. No.
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`111-291, § 613(c), 124 Stat. 3064, 3141–42 (2010).
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`69.
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`In addition, Congress recognized and preserved the priority of Pueblos’ water
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`rights in Section 9 of the Pueblo Lands Act of 1933, 48 Stat. 108.
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`70.
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`It is the duty of the EPA to “restore and maintain the . . . integrity of the Nation’s
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`waters.” 33 U.S.C. § 1251(a), (d). The Pueblos’ water resources necessarily entail the right to
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`clean water for domestic and ceremonial uses. Cf., United States v. Washington, 853 F.3d 946,
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`965 (9th Cir. 2017) (holding that the State of Washington’s construction of culverts blocking
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`streams necessary for salmon habitat violated tribes’ treaty rights because “the Tribes’ right of
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`access to their usual and accustomed fishing places would be worthless without harvestable
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`fish.”).
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`71.
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`Under executive branch policies relating to the trust duty, executive agencies have
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`a duty to meaningfully consult with tribes, consider how agency actions affect tribal rights and
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`resources, and respect tribal self-governance and sovereignty when taking actions that have tribal
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`implications. Exec. Order No. 13,175, 65 Fed. Reg. 67,249, 67,250 (Nov. 9, 2000);
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`Memorandum on Tribal Consultation, 74 Fed. Reg. 57,881 (Nov. 5, 2009) (“executive
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`departments and agencies (agencies) [sic] are charged with engaging in regular and meaningful
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`consultation and collaboration with tribal officials in the development of Federal policies that
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`have tribal implications”); Memorandum on Tribal Consultation and Strengthening Nation-to-
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`Nation Relationships, 86 Fed. Reg. 7491 (Jan. 26, 2021) (President Biden recognizing the policy
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`announced in Executive Order 13,175 and continuing commitment to “honoring Tribal
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`sovereignty and including Tribal voices in policy deliberation that affects Tribal communities.”).
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`72.
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`Executive Order 13,175 requires agencies to “have an accountable process to
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`ensure meaningful and timely input by tribal officials in the development of regulatory policies
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`that have tribal implications.” 65 Fed. Reg. at 67,250.
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`73.
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`These high standards of conduct apply to all executive departments, not just
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`agencies with a “special statutory responsibilit[y],” such as the Bureau of Indian Affairs. HRI,
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`Inc. v. EPA, 198 F.3d 1224, 1245 (10th Cir. 2000) (quoting Felix S. Cohen, Handbook of Federal
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`Indian Law 225 (1982 ed.)).
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`74.
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`The federal government’s trust duty and the policies of the Agencies relating to
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`the trust duty require that the Agencies consider how their rulemakings impact tribal rights and
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`resources. See Nw. Sea Farms v. U.S. Army Corps of Eng'rs, 931 F. Supp. 1515, 1519–20 (W.D.
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`Wash. 1996) (stating that the federal trust obligation imposes a fiduciary duty on “any
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`government action” relating to Indian tribes) (citing Nance v. EPA, 645 F.2d 701, 711 (9th Cir.
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`1981)); HRI, Inc., 198 F.3d at 1245.
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`75.
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`The EPA has assumed a trust responsibility to Indian tribes as articulated in the
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`agency’s own official policies and procedures. In a 2019 policy statement, the EPA “reiterate[d]
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`its recognition of the unique legal relationship with tribal governments” and “acknowledge[d] the
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`federal government’s trust responsibility to tribes.” Andrew R. Wheeler, Envtl. Prot. Agency,
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`Reaffirmation of the U.S. Environmental Protection Agency’s Indian Policy 1 (2019). The policy
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`states that the “EPA works with tribes on a government-to-government basis to protect their
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`land, air, and water.” Id.
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`76.
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`The EPA has also developed specific consultation policies which require the EPA
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`“to consult on a government-to-government basis with federally recognized tribal governments
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`when EPA actions and decisions may affect tribal interests.” U.S. Envtl. Prot. Agency, EPA
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`Policy on Consultation and Coordination with Indian Tribes 1 (2011). The EPA describes
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`consultation as “a process of meaningful communication and coordination between the EPA and
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`tribal officials prior to the EPA taking actions or implementing decisions that may affect tribes.”
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`Id.
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`77.
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`The EPA policy requires four phases in the consultation process: “Identification,
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`Notification, Input, and Follow-up.” Id. at 4–5.
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`78.
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`The Identification Phase requires the EPA to identify “activities that may be
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`appropriate for consultation” and the policy lists a number of avenues to ensure such activities
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`are properly identified, including regular meetings with tribal partnership groups, analysis by
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`tribal consultation advisors located in regional and national offices, and initiating an Action
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`Development Process (“ADP”) as early as possible to ensure the result