United States v. 2005-07-07 | 03-16940 | HOOPA VALLEY INDIAN VRYAN | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 HOOPA VALLEY INDIAN TRIBE, a
federally recognized Indian tribe,
Plaintiff-Appellant,
No. 03-16940v.
D.C. No.MICHAEL J. RYAN, Northern Area  CV-02-00041-SCManager, Bureau of Reclamation;
GALE A. NORTON, Secretary of the OPINION
Interior; UNITED STATES OF
AMERICA,
Defendants-Appellees. 
Appeal from the United States District Court
for the Northern District of California
Samuel Conti, District Judge, Presiding
Argued and Submitted
April 14, 2005—San Francisco, California
Filed July 8, 2005
Before: Procter Hug, Jr., David R. Thompson, and
Pamela Ann Rymer, Circuit Judges.
Opinion by Judge Hug
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COUNSEL
Kyme A. M. McGaw, Thomas P. Schlosser, Morisset,
Schlosser, Jozwiak, & McGaw, Seattle, Washington, for the
appellant.
John S. Koppel, Attorney, Civil Division, Department of Jus-
tice, Washington, D.C., for the appellees.
OPINION
HUG, Circuit Judge:
In an effort to address ongoing declines in salmon and
steelhead populations in the Trinity River basin, the Bureau
of Reclamation adopted a multifaceted restoration program.
The Hoopa Valley Indian Tribe sought funding to implement
many of the proposed restoration projects under the manda-
tory contracting provisions of the Indian Self-Determination
and Education Assistance Act. After the Bureau refused to
execute mandatory contracts for the Tribe’s proposals, the
Tribe brought suit. On cross-motions for summary judgment,
the district court held that the programs at issue are not “for
the benefit of Indians because of their status as Indians,” and
thus are not eligible for mandatory contracts. We have juris-
diction over the Tribe’s appeal under 28 U.S.C. § 1291, and
we affirm.
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I
The Trinity River, originating in the coastal mountains of
Northern California, flows through the Hoopa Valley Indian
Reservation before joining with the Klamath River and emp-
tying into the Pacific Ocean. The Klamath-Trinity river sys-
tem historically produced bountiful runs of salmon and
steelhead. These fisheries played a central role in the liveli-
hood and culture of the Hoopa Valley and Yurok Indian
Tribes, as well as in the region’s economy and way of life as
a whole. Beginning in the latter half of the last century, how-
ever, the river was dammed and nearly all of its water was
diverted to agricultural uses in California’s Central Valley.
The Trinity’s legendary fishery, and those dependent on it,
suffered dearly as a result.1
In 1955, Congress authorized the Trinity River Division, a
system of dams and diversions that ultimately diverted nearly
ninety percent of the upper river’s inflow to the Central Val-
ley. The Division eliminated more than 100 miles of upstream
spawning habitat, dramatically reduced downstream flows
necessary to flush fine sediment from the gravel beds in
which the fish spawned, contributed to channelization of the
river, and otherwise degraded what habitat remained below
the dams. By 1980, suitable habitat was all but eliminated
from the river, and salmon and steelhead populations had
plummeted by as much as eighty percent.
Congress has taken steps to mitigate the impact of the Trin-
ity River Division. In the legislation first authorizing the Divi-
sion, Congress directed the Secretary of the Interior to “adopt
appropriate measures to insure the preservation and propaga-
tion of fish and wildlife,” including a minimum summer flow
1We recently recounted the history of the river, including the dramatic
decline of its fisheries and the government’s restoration efforts, in West-
lands Water District v. United States Department of the Interior, 376 F.3d
853, 860-64 (9th Cir. 2004).
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below the diversion of 150 cubic feet per second. Pub. L. No.
84-386, § 2, 69 Stat. 719 (1955). In 1980, Congress appropri-
ated additional funds to remedy sediment problems originat-
ing in Grass Valley Creek, a tributary of the Trinity. Pub. L.
No. 96-335, 94 Stat. 1062 (1980).
As the situation on the river grew more dire, Congress
responded with the Trinity River Basin Fish and Wildlife
Management Act, Pub. L. No. 98-541, 98 Stat. 2721 (1984)
(hereafter “1984 Act”), which directed the Secretary to “for-
mulate and implement” a restoration program “designed to
restore the fish and wildlife populations in [the Trinity River]
basin to the levels approximating those which existed imme-
diately before” construction of the Division. Id. at § 2(a). This
legislation also required the Secretary to enter into a memo-
randum of agreement with the Hoopa Valley Tribe in order to
“facilitate the implementation of those activities . . . over
which the Secretary does not have jurisdiction.” Id. at
§ 2(b)(2). It also provided for appointment of a Hoopa Valley
Tribe representative to the newly created Trinity River Basin
Fish and Wildlife Task Force. Id. at § 3(a)(14).
In 1996, Congress reauthorized and expanded the 1984 Act,
mandating that the success of restoration be measured in part
“by the ability of dependent tribal, commercial, and sport
fisheries to participate fully, through enhanced in-river and
ocean harvest opportunities, in the benefits of restoration.”
Trinity River Basin Fish and Wildlife Management Reauthor-
ization Act of 1995, Pub. L. No. 104-143, § 2(2), 110 Stat.
1338 (1996). Congress also added the long-term goal of “aid[-
ing] in the resumption of commercial, including ocean har-
vest, and recreational fishing activities,” and allowed
representatives of the Yurok and Karuk Tribes to serve on the
Task Force. Id. at §§ 2(3), 4(a)(3).
Although direct funding for activities under the 1984 and
1996 Acts expired on October 1, 1998, id. at § 5(a)(1), Con-
gress separately continued to support Trinity River restoration
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through the Central Valley Project Improvement Act, Pub. L.
No. 102-575, §§ 3401-3412, 106 Stat. 4600, 4706-31 (1992)
(hereafter “CVPIA”). Specifically, “in order to meet Federal
trust responsibilities to protect the fishery resources of the
Hoopa Valley Tribe, and to meet the fishery restoration goals”
of the 1984 Act, Congress directed the Secretary to provide
a minimum instream release of water into the Trinity River
and to consult with the Hoopa Valley Tribe in completing a
“Trinity River Flow Evaluation Study” that could lead to fur-
ther increases in the minimum flow. Id. at § 3406(b)(23), 106
Stat. 4720-21.
Following completion of this study, the Department of the
Interior finalized its Trinity River Mainstem Restoration Pro-
gram and issued a Record of Decision. The Record of Deci-
sion recommended variable increases in the amount of water
released into the river, depending on water availability during
any given year. The document also recommended other resto-
ration measures, including mechanical channel rehabilitation,
sediment management and watershed restoration programs,
adaptive management, and monitoring. The Department also
reaffirmed that congressional mandates, grounded in the fed-
eral government’s trust responsibilities to the Hoopa Valley
and Yurok Tribes, required restoration of Trinity River
salmon and steelhead populations to levels existing before the
dams were built.
The Hoopa Valley Tribe first proposed a mandatory “self-
determination contract,” under the Indian Self-Determination
and Education Assistance Act (hereafter “ISDEAA”), for
Trinity River restoration activities in August, 1999. The
Bureau of Reclamation denied the Tribe’s proposal, finding
that Trinity River restoration was a national program designed
to benefit the public as a whole rather than the Tribe in partic-
ular. The Tribe appealed to the Interior Board of Indian
Appeals, which affirmed the Bureau’s decision in part. The
Administrative Law Judge found that the particular programs,
functions, services, and activities related to the Trinity Flow
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Study and the Record of Decision were eligible for a self-
determination contract because these activities were directly
connected to tribal authority granted under the CVPIA. The
judge also concluded, however, that the other proposed resto-
ration projects could not be funded under self-determination
contracts because they were designed to benefit the public as
a whole rather than “Indians because of their status as Indi-
ans.”
The Tribe again sought mandatory contracts for fiscal year
2002 covering nineteen restoration activities, many of which
involved monitoring, channel rehabilitation, and fishery
enhancement activities affecting habitat throughout the Trin-
ity River system. The Bureau again denied the Tribe’s
request, citing the reasoning in the Administrative Law
Judge’s decision. The Tribe responded with another proposed
scope of work for mandatory contracts, this time encompass-
ing twenty-six restoration activities. The Bureau, once again
employing the Administrative Law Judge’s criteria, found that
only two of the proposed activities (those related to the Trin-
ity Flow Study process) fell within the mandatory contracting
provisions of ISDEAA. Disagreeing with the Bureau’s analy-
sis, the Tribe submitted a “last best offer” covering nineteen
activities. The Bureau again determined that most of the activ-
ities were not eligible for mandatory self-determination con-
tracts, but offered to negotiate discretionary funding for those
activities under a separate ISDEAA provision.
The Tribe then filed suit in the district court challenging the
Bureau’s interpretation of ISDEAA. In paragraph 41 of its
complaint, the Tribe specified five activities for which it
sought mandatory contracts: (A) basic sediment transport
monitoring; (B) channel rehabilitation site physical monitor-
ing; (C) rehabilitation site biological monitoring; (D) main-
stem outmigrant monitoring; and (E) participation in the
Channel Restoration Subcommittee. The Tribe also sought a
declaratory judgment that all other programs, services, func-
tions, and activities necessary to implement the Record of
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Decision were eligible for mandatory self-determination con-
tracts. On cross-motions for summary judgment, the district
court held that restoration activities designed to benefit the
Trinity River and its users as a whole, rather than the Tribe
in particular, did not fall within ISDEAA’s mandatory con-
tracting provisions. The Tribe timely appealed.
II
We review the district court’s decision on cross-motions for
summary judgment de novo. See United States v. City of
Tacoma, 332 F.3d 574, 578 (9th Cir. 2003).
III
We first examine whether the district court correctly con-
cluded that Trinity River restoration programs do not fall
within the mandatory contracting provisions of the ISDEAA.
We then address the Tribe’s argument that the government’s
trust obligations, as acknowledged in the various statutes gov-
erning Trinity River restoration, require the Bureau to execute
mandatory contracts.
A
Contracts between the federal government and Indian tribes
under the ISDEAA take two basic forms. Under Title I of the
ISDEAA, tribes are entitled to enter into “self-determination”
contracts, defined as contracts “for the planning, conduct and
administration of programs or services which are otherwise
provided to Indian tribes and their members pursuant to Fed-
eral law.” 25 U.S.C. § 450b(j). The government must enter
into self-determination contracts allowing tribal organizations
to plan, conduct, and administer certain federal programs,
including programs “for the benefit of Indians because of
their status as Indians.” 25 U.S.C. § 450f(a)(1)(E). In other
words, self-determination contracts are mandatory rather than
discretionary.
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Tribes also may obtain mandatory contracts under Title IV
of the ISDEAA, which allows Tribes participating in “self-
governance” to negotiate comprehensive “annual funding
agreements” containing contracts for a wide range of pro-
grams. See generally 25 U.S.C. § 458aa-458hh. The Depart-
ment of Interior is required to negotiate contracts for
administration of Department “programs, services, functions,
and activities” that are “otherwise available” to Indian tribes
or Indians. 25 U.S.C. § 458cc(b)(2). The Department has
interpreted “otherwise available” as describing programs eli-
gible for self-determination contracts under Title I. See Final
Rule, 65 Fed. Reg. 78,688, 78,695 (Dec. 15, 2000). In other
words, tribes participating in self-governance under Title IV
may incorporate mandatory self-determination contracts—
including contracts for programs “for the benefit of Indians
because of their status as Indians”—in their annual funding
agreements with federal agencies. See 25 C.F.R. §§ 1000.123,
1000.124.2
Title IV also gives federal agencies discretion to fund pro-
grams and activities that are not eligible for self-determination
contracts. Annual funding agreements “may . . . also include
other programs, services, functions, and activities, or portions
thereof, administered by the Secretary of the Interior which
are of special geographic, historical, or cultural significance
to the participating Indian tribe requesting a compact.” 25
U.S.C. § 458cc(c). The Department has interpreted this sub-
section as granting the government discretion to fund pro-
grams “that may coincidentally benefit Indians but that are
national in scope and [are] not by definition ‘programs for the
benefit of Indians because of their status as Indians.’ ” 65 Fed.
Reg. at 78,695. The Department’s final regulations reflect this
view. See generally 25 C.F.R. §§ 1000.122-1000.136.
2The Department’s Federal Register notice and final regulations refer to
Title I of the ISDEAA by its Public Law number, 93-638.
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[1] Therefore, the Secretary of the Interior must enter into
contracts with tribes for the planning, conduct, and adminis-
tration of federal programs “for the benefit of Indians because
of their status as Indians,” whether the Secretary does so
under Title I or Title IV of the ISDEAA. The Secretary also
has discretion to negotiate (in annual funding agreements
under Title IV) contracts for other programs which, although
“of special geographic, historical, or cultural significance” to
Indians, are national rather than narrowly tribal in scope.
The Tribe argues that Trinity River restoration programs
are activities “for the benefit of Indians because of their status
as Indians,” and therefore are eligible for mandatory inclusion
within the Tribe’s annual funding agreements under Title IV
of the ISDEAA. The Bureau contends, and the district court
agreed, that the restoration program is designed to benefit the
public in general rather than the Tribe in particular, and that
the mandatory self-determination contracting provisions of
the ISDEAA are therefore inapplicable.
[2] We recently examined the scope of federal programs
“for the benefit of Indians because of their status as Indians”
in concluding that the Navajo Nation was not entitled to a
mandatory contract for administration of the Temporary
Assistance to Needy Families (TANF) program. Navajo
Nation v. Dep’t of Health & Human Servs., 325 F.3d 1133
(9th Cir. 2003) (en banc). We held that TANF, a “pass-
through program that funnels federal money to states for
state-run welfare programs,” was not “a federal program
designed specifically to benefit Indians.” Id. at 1135, 1138. In
so holding, we contrasted TANF with other programs statu-
torily eligible for mandatory self-determination contracting
under Title I of the ISDEAA. See id. at 1137-38 (discussing
25 U.S.C. § 450f(a)(1)(A)-(C)). All of those programs—
covering contracts under the Johnson O’Malley Act for Indian
education, under the Snyder Act for general support of Indian
welfare, and under the Transfer Act of 1954 for maintenance
and operation of Indian health care facilities—are “specifi-
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cally targeted to Indians and not merely programs that collat-
erally benefit Indians as a part of the broader population, as
is the case with TANF.” Id. at 1138. Accordingly, we held
that TANF is not a program eligible for mandatory contract-
ing under 25 U.S.C. § 450f(a)(1)(E).
[3] Like TANF, the Trinity River restoration program is not
“specifically targeted” to Indians, but rather is intended to
benefit a far wider range of interests in the Trinity River and
its fisheries. The 1984 Act, which first established the goal of
restoring fish populations to pre-dam levels, contemplated
that state, local, and tribal participation would be necessary to
achieve this goal, and included representatives of these inter-
ests on the Trinity River Basin Fish and Wildlife Task Force.
Pub. L. No. 98-541, § 3(a), 98 Stat. 2721, 2722-23 (1984).
The 1996 amendments to the 1984 Act clarified that restora-
tion would be measured in part “by the ability of dependent
tribal, commercial, and sport fisheries to participate fully,
through enhanced in-river and ocean harvest opportunities, in
the benefits of restoration.” Pub. L. No. 104-143, § 2(2), 110
Stat. 1338 (1996). Congress also stated that the Trinity Basin
fish and wildlife management program, if successful, would
“aid in the resumption of commercial, including ocean har-
vest, and recreational fishing activities.” Id., § 2(3). These
amendments show a clear intent to benefit the entire range of
interests dependent upon a restored Trinity River fishery.
[4] We also must be careful to identify the precise benefits
Congress intended to confer by authorizing restoration:
increased populations of salmon and steelhead, more abun-
dant in-river and ocean harvests, and recovery of tribal as well
as non-tribal commercial and recreational fisheries. These
benefits will accrue to the Tribe and others no matter who
does the actual restoration work. It is undisputed that the
Tribe is eligible to apply for funds to do this work.3 There is
3Indeed, the Bureau ultimately funded fourteen of the nineteen projects
proposed by the Tribe in its “last best offer” and paid the Tribe $1,606,472
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nothing in the relevant statutes or elsewhere in the record,
however, showing that Congress “specifically targeted” the
Tribe in its capacity as a restoration contractor rather than as
one ultimate beneficiary of a restored fishery.
[5] Accordingly, in comparison to other programs eligible
for self-determination contracts, see 25 U.S.C.
§ 450f(a)(1)(A)-(C), the Trinity River restoration program is
not “specifically targeted” to the Hoopa Valley Tribe, but
rather “collaterally benefit[s] Indians as a part of the broader
population.” Cf. Navajo Nation, 325 F.3d at 1138. Although
Congress clearly intended that the Tribe should benefit from
a restored fishery, nothing in the authorizing statutes or the
Record of Decision suggests that Congress “specifically tar-
geted” the tribe as a beneficiary of funding for the particular
restoration projects listed in Paragraph 41 of the Tribe’s com-
plaint. Therefore, the Bureau’s restoration projects were not
proposed “for the benefit of Indians because of their status as
Indians,” 25 U.S.C. § 450f(a)(1)(E), and thus are not eligible
for mandatory self-determination contracting under either
Title I or Title IV of the ISDEAA.4
for that work. The Bureau offered to include the five remaining projects
under a discretionary contract, but the Tribe declined so that it could bring
suit challenging the Bureau’s refusal to execute mandatory contracts.
Those five remaining projects are the ones listed in Paragraph 41 of the
Tribe’s complaint.
4We generally agree with the Tribe that a statutory scheme as a whole
need not be exclusively targeted to Indians in order to create eligibility for
mandatory self-determination contracts. The CVPIA provides an excellent
example of a statute that both specifically targets some benefits to Indians
and more generally directs other benefits to a wider population. See
CVPIA § 3406(b)(23)(A), (B) (specifically providing for the Tribe’s par-
ticipation in the Trinity Flow Evaluation Study and allowing for future
flow increases with the Tribe’s concurrence). The Bureau agreed that the
Tribe’s participation in these activities could be funded under a mandatory
self-determination contract. Other restoration activities proposed by the
Tribe, however, were intended by Congress to benefit a wider population.
We merely follow Navajo Nation in holding that those activities are ineli-
gible for mandatory contracts.
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B
The Tribe argues that the government’s obligation as a
trustee must take precedence over its other statutory obliga-
tions. In the Tribe’s view, congressional acknowledgment of
this trust obligation in the CVPIA means that the Tribe’s
interest trumps all others recognized in the statutes authoriz-
ing Trinity River restoration. We disagree.
[6] The Supreme Court has long recognized “the distinctive
obligation of trust” that binds the government in its dealings
with Indian people. Seminole Nation v. United States, 316
U.S. 286, 296 (1942). In carrying out its treaty obligations,
the government
is something more than a mere contracting party.
Under a humane and self imposed policy which has
found expression in many acts of Congress and
numerous decisions of this Court, it has charged
itself with moral obligations of the highest responsi-
bility and trust. Its conduct, as disclosed in the acts
of those who represent it in dealings with the Indi-
ans, should therefore be judged by the most exacting
fiduciary standards.
Id. at 296-97. As the Tribe points out, we have “read the
[trust] obligation to extend to any federal government action.”
Pyramid Lake Paiute Tribe of Indians v. United States Dep’t
of Navy, 898 F.2d 1410, 1420 (9th Cir. 1990). Accordingly,
the Bureau’s actions here must be viewed in light of the obli-
gations imposed by the trust doctrine.
[7] The government’s trust obligations, however, can coex-
ist with its other responsibilities. See, e.g., Nevada v. United
States, 463 U.S. 110, 128, 142-43 (1983) (recognizing the
government’s dual statutory obligations to Indian tribe and
water users, but declining to evaluate government’s represen-
tation of both interests according to private-law fiduciary
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standards); Arizona v. California, 460 U.S. 605, 626-27
(1983) (finding no conflict of interest in the government’s
simultaneous representation of Indians’ water rights and its
own interests in securing water for other federal property, not-
withstanding its fiduciary obligation to Indians); see also CON-
FERENCE OF W. ATTORNEYS GENERAL, AMERICAN INDIAN LAW
DESKBOOK 14-16 & n. 83 (3d ed. 2004). Clearly, the govern-
ment may satisfy a range of statutory responsibilities while
still honoring its trust obligations to Indians.
Pyramid Lake Paiute Tribe is especially instructive here. In
that case, the Department of the Navy was diverting water
from the Truckee River to support irrigated “buffer zones”
along runways at an airbase near Fallon, Nevada. 898 F.2d at
1412. The Pyramid Lake Paiute Tribe sued, arguing that the
diversions reduced the water level in Pyramid Lake and
imperiled a critical tribal fishery. Id. at 1413. We held that
because the Navy had complied with the Endangered Species
Act in implementing the diversions, it had taken steps neces-
sary to conserve the tribal fishery, and therefore had not vio-
lated its trust obligations. See id. at 1420-21.
[8] Here, the Bureau is implementing a restoration program
specifically designed to improve the Trinity River fishery and
thereby to benefit the Tribe along with other dependent inter-
ests. This program honors the trust obligation recognized in
the CVPIA: “to protect the fishery resources of the Hoopa
Valley Tribe.” CVPIA § 3406(b)(23). The government need
not provide the Tribe with an exclusive or primary right to
restoration contracts, however, in order to fulfill this obliga-
tion. Indeed, the 1996 amendments to the 1984 Act specifi-
cally provided that “[n]othing in this Act shall be construed
as establishing or affecting any past, present, or future rights
of any Indian or Indian tribe or any other individual or entity.”
Pub. L. No. 104-143, § 6, 110 Stat. 1338, 1341 (1996). Had
Congress wished to establish any entitlement to or preference
for restoration contracts throughout the Trinity River basin, it
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easily could have done so. Cf. Navajo Nation, 325 F.3d at
1139 n.7.
[9] It is indisputable that the United States and the Bureau
have a fiduciary obligation of the highest order in their deal-
ings with the Tribe. Congress has properly recognized in this
obligation the duty to conserve and restore the Trinity River
and its fisheries. The Bureau has not violated its trust obliga-
tion to the Tribe, however, by determining that contracts for
the restoration work itself should be negotiated under the dis-
cretionary, rather than the mandatory, provisions of the
ISDEAA.
IV
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
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