Hopi’s Tainted Water Not Gov’t’s Problem, Fed. Circ. Affirms
By Lance Duroni, originally posted on April 2, 2015
Law360, Chicago (April 2, 2015, 4:31 PM EDT) — The Federal Circuit on Thursday shot down the Hopi Tribe’s bid to force the U.S. government to pay for clean drinking water on its Arizona reservation, ruling that the government doesn’t have a fiduciary duty to safeguard water quality there.
Upholding a Court of Federal Claims decision dismissing the case, the three-judge panel said the lower court lacked jurisdiction over the suit because the Hopi couldn’t point to a law or regulation demanding that the U.S. provide adequate drinking water and which could be used as a basis for money damages.
“Because the Court of Federal Claims properly concluded that the Hopi Tribe failed to identify any source for a money-mandating obligation, we affirm,” U.S. Circuit Judge Todd M. Hughes wrote for the court.
The Hopi sued the U.S. in 2012, alleging five villages on the reservation draw their water from wells that are plagued by arsenic levels far above maximum federal limits. The suit sought damages to cover the cost of supplying alternative drinking water to the five communities, noting that the government had funded and helped build many of the tainted wells at issue.
A federal judge tossed the suit a year later, ruling that the Hopi had failed to establish jurisdiction under the Indian Tucker Act.
On appeal, the tribe pointed to the 1882 executive order establishing its reservation and a 1958 law ratifying the order as proof of the government’s duty to ensure safe drinking water.
But in Thursday’s decision, the panel noted that neither of the two mentions drinking water on the reservation, “much less instructs the United States to manage drinking water quality.”