Appeal from the United States District Court for the District of Columbia (93cv00581)
Before: Wald, Randolph, and Rogers, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Opinion for the court filed by Circuit Judge Randolph.
Concurring opinion filed by Circuit Judge Rogers, in which Circuit Judge Wald joins.
The district court dismissed an action brought by the Shoshone-Bannock Tribes of the Fort Hall Indian Reservation for lack of jurisdiction. The Tribes sought to compel the Attorney General to file claims on their behalf in the Snake River basin water rights adjudication in Idaho state court. We conclude that the Attorney General's refusal to represent the Tribes in the Idaho proceeding is committed to her discretion. Judicial review of the Tribes' claim is consequently unavailable.
On November 19, 1987, an Idaho state court sitting in Twin Falls, Idaho, issued an order commencing a general stream adjudication of water rights for the Snake River basin. The United States was joined pursuant to the McCarran Amendment, 43 U.S.C. Section(s) 666, which waives sovereign immunity in state or federal actions for "the adjudication of rights to the use of water of a river system," including water rights held by the United States on behalf of Indian tribes. See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 810-13 (1976). In 1990, the Shoshone-Bannock Tribes of the Fort Hall Indian Reservation, the United States, the State of Idaho, and other Idaho water users executed the Fort Hall Indian Water Rights Agreement, quantifying the claimed federal "reserved water rights" (of which more hereafter) not only within the boundaries of the Fort Hall Reservation, but also appurtenant to certain reserved lands outside the Reservation, held in trust for or owned by the Tribes and its members. *fn1 The Tribes took the lead in negotiating this agreement, although the federal government funded the studies connected with establishing these reserved water rights. Congress ratified the agreement in the Fort Hall Indian Water Rights Act of 1990, Pub. L. No. 101-602, 104 Stat. 3059. Currently, the United States is defending the claims embodied in the agreement against third-party objections and is seeking their approval in the Idaho state court.
The Fort Hall Indian Water Rights Agreement did not settle the Tribes' claim, central to the case before us, to other water rights in the Snake River basin beyond the Fort Hall Reservation's boundaries. The claim stems, according to the Tribes, from the Treaty of Fort Bridger of July 3, 1868, 15 Stat. 673, 674-75. Article IV of the Treaty gave the Tribes the right, outside the Reservation, "to hunt on the unoccupied lands of the United States so long as game may be found thereon, and so long as peace subsists among the whites and Indians on the borders of the hunting districts." In 1988, without taking a position on the merits of the Tribes' claim, the Bureau of Indian Affairs hired experts to conduct instream flow studies in the lower Snake, the Salmon, and the Clearwater River basins. The studies began in 1989, with the goal of quantifying the instream flows necessary to preserve fish and other natural resources potentially protected by treaties with various Idaho Indian tribes, including the Shoshone-Bannock Tribes. Quarterly meetings to review progress on the studies were held. Participants included a technical advisory committee comprising Bureau staff and members of the Shoshone-Bannock Tribes, the Nez Perce Tribe, and the Northwestern Band of the Shoshoni Nation; the experts hired by the Bureau of Indian Affairs; and legal representatives of the Department of the Interior, the Department of Justice and each of the Indian tribes.
In early 1992, the Interior Department asked the Shoshone-Bannock Tribes to submit legal arguments, with relevant documentation, to support their claims to off-reservation water rights in the Snake River basin. The Tribes supplied information showing that Idaho courts had interpreted the Tribes' treaty-granted hunting rights to include fishing rights. They also offered to arrange a meeting with their anthropologist, an offer the Department of the Interior declined. On May 19, 1992, the Idaho district court ordered that all remaining federal claims, including claims made by or on behalf of Indians, be filed by March 25, 1993. Prompted by the order, the Interior Department intensified its efforts to assess the merits of the Tribes' claims to off-reservation water rights in the Snake River basin.
On November 16, 1992, the Interior Department's Regional Solicitor and other representatives of the United States met with the Fort Hall Business Council, the Tribes' governing body. The Regional Solicitor told the tribal council and its attorneys that, based on a preliminary analysis, he would recommend against the Justice Department's filing a claim for off-reservation instream flows on behalf of the Tribes. Nevertheless, he again invited the Tribes to support their claims with historical information and legal arguments. The Regional Solicitor also told the Tribes that the United States had hired a historical expert to investigate the basis of the Tribes' claim to water rights in the Snake River basin. Two more meetings and an exchange of information between the United States' and the Tribes' historical experts followed. On March 4, 1993, the Regional Solicitor recommended to the Interior Department's Acting Solicitor that the United States not file instream flow claims on behalf of the Tribes. The Acting Solicitor orally informed the Tribes, on March 22, 1993, that he ...