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Hopi Tribe v. United States

United States Court of Appeals, Federal Circuit

April 2, 2015

THE HOPI TRIBE, a federally recognized Indian Tribe, Plaintiff-Appellant
v.
UNITED STATES, Defendant-Appellee

Page 663

[Copyrighted Material Omitted]

Page 664

Appeal from the United States Court of Federal. Claims in No. 1:12-CV-00045, Judge Lawrence J. Block.

MICHAEL DAVID GOODSTEIN, Hunsucker Goodstein PC, Washington, DC, argued for plaintiff-appellant.

ELLEN J. DURKEE, Environment and Natural Resources Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by ROBERT G. DREHER.

Before LOURIE, CHEN, and HUGHES, Circuit Judges.

OPINION

Page 665

HUGHES, Circuit Judge.

The Hopi Tribe filed suit against the United States in the Court of Federal Claims seeking damages to cover the cost of providing safe drinking water on the Hopi Reservation. In order to invoke the trial court's jurisdiction, the Hopi Tribe must identify a statute or regulation imposing a specific obligation on the United States to provide adequate drinking water that would give rise to a claim 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.

I

The Hopi Tribe is a federally recognized Indian tribe that occupies a reservation of land in northeastern Arizona. President Chester Arthur first established the reservation by executive order in 1882 (the Executive Order). The Executive Order declared the land would be " withdrawn from settlement and sale, and set apart for the use and occupancy of the [Hopi] and other such Indians as the Secretary of the Interior may see fit to settle thereon." See I Charles J. Kappler, Indian Affairs: Laws and Treaties 805 (1904). Congress ratified the Executive Order in the Act of July 22, 1958, Pub. L. No. 85--547, 72 Stat. 403 (1958). The Act provides that:

[L]ands described in the Executive order dated December 16, 1882, are hereby declared to be held by the United States in trust for the Hopi Indians and such other Indians, if any, as heretofore have been settled thereon by the Secretary of the Interior pursuant to such Executive order.

Id.

The present dispute relates to the quality of drinking water on the Hopi Reservation. The public water systems on the reservation rely on groundwater drawn from subsurface layers of water-bearing rock. The Hopi Tribe alleges that the public water systems serving five communities on the eastern portion of the reservation contain unsafe levels of arsenic that exceed the federally allowed maximum. See 40 C.F.R. ยง 141.62 (setting a maximum contaminant level of 10 micrograms per liter). Arsenic is a toxic chemical that occurs naturally in ...


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