author: O’SCANNLAIN, Circuit Judge:

text:
    DESERT WATER AGENCY, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF THE INTERIOR; Kevin Haugrud, Acting U.S. Secretary of the Interior; United States of Bureau of Indian Affairs; Michael S. Black, Acting Assistant Secretary of Indian Affairs, Defendants-Appellees.
    No. 14-55461
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted August 3, 2016, Pasadena, California
    Filed March 7, 2017

      Roderick E. Walston (argued) and Steven G. Martin, Best Best & Krieger LLP, Walnut Creek, California, for Plaintiff-Appellant.
    Matthew Littleton (argued), John H. Turner, Jr., Elizabeth Ann Peterson, and William B. Lazarus, Attorneys; John C. Cruden, Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Bethany Sullivan and Jennifer L. Turner, Office of the Solicitor, United States Department of the Interior, ■ Washington, D.C.; for Defendants-Appel-lees.
    Before: DIARMUID F. O’SCANNLAIN, JOHNNIE B. RAWLINSON, and CONSUELO M. CALLAHAN, Circuit Judges.
   OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether a political subdivision of the State of California has standing to challenge a federal regulation it believes might preempt certain taxes and fees it assesses against non-Indians who have leased lands within an Indian Reservation.

I

A

The Desert Water Agency (“DWA”) is a political subdivision of the State of California. DWA provides water supplies and water services to businesses and residences in Riverside County. DWA charges those parties a variety of fees and taxes in order to recoup its costs and expenses. Parties subject to DWA’s charges include non-Indians who lease lands from the Agua Caliente Band of Cahuilla Indians (the “Tribe”) within the Agua Caliente Indian Reservation. The lessees have erected a variety of permanent establishments within the reservation, including homes and businesses such as hotels, restaurants, and stores. DWA imposes its charges on the lessees themselves, and not on the Tribe or its members.

The United States Department of the Interior (“Interior”) is an executive department charged, among other duties, with managing and administering the lands of Indian reservations. The Bureau of Indian Affairs (“BIA”) is an agency within Interior that oversees programs, activities, and operations relating to Indian lands and affairs. 25 U.S.C. § 2.

One of Interior’s responsibilities is to approve the leasing of Indian land to third parties. See, e.g., id. § 415(a). Interior has promulgated a host of regulations governing the administration of such leases, codified at 25 C.F.R. part 162. Beginning in 2011, Interior overhauled such regulations through notice and comment rulemaking; the new rules became effective January 4, 2013. See Residential, Business, and Wind and Solar Resource Leases on Indian Land, 77 Fed. Reg. 72,440 (Dec. 5, 2012) (codified at 25 C.F.R. pt. 162).

Among the new regulations is 25 C.F.R. § 162.017, entitled ‘What taxes apply to leases approved under this part?” The relevant subsection states that, “[s]ubject only to applicable Federal law, the leasehold or possessory interest is not subject to any fee, tax, assessment, levy, or other charge imposed by any State or political subdivision of a State. Leasehold or pos-sessory interests may be subject to taxation by the Indian tribe with jurisdiction.” 25 C.F.R. § 162.017(c). Subsection (a) applies the same language to “permanent improvements on the leased land,” while subsection (b) does likewise for “activities under a lease conducted on the leased premises.” 25 C.F.R. § 162.017(a)-(b).

Concerned by the possibility that Interi- or had just attempted to preempt its charges, DWA promptly brought suit in federal district court under the Administrative Procedure Act, 5 U.S.C. § 702, naming Interior and the BIA as defendants.

B

Before describing the substance of DWA’s complaint, it will be helpful to summarize the law that has long governed Indian preemption claims.

For many decades courts have struggled to determine whether and when States may regulate the conduct of non-Indians engaged in activities on tribal lands. In White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980), the Supreme Court held that courts must undertake a fact-specific balancing test in order to decide whether federal law preempts any particular state effort to regulate non-Indian conduct on tribal lands. Bracker explains that “[tjhis inquiry is not dependent on mechanical or absolute conceptions of state or tribal sovereignty, but has called for a particularized inquiry into the nature of the state, federal, and tribal interests at stake, an inquiry designed to determine whether, in the specific context, the exercise of state authority would violate federal law.” Id. at 144-45, 100 S.Ct. 2578.

C

DWA’s complaint advances two different theories, each premised on a different interpretation of § 162.017. DWA’s first claim is that § 162.017’s reference to “applicable federal law” incorporates the Bracker test and other existing federal statutes, such that § 162.017 does not effect any substantive change in federal Indian preemption law. If we agree with such interpretation, DWA asks for a declaratory judgment stating that § 162.017 “does not apply to and preclude the application of DWA’s charges upon lessees of lands within the Agua Caliente Indian Reservation, because DWA’s charges fall within the exception provided in the regulation for taxes and other charges authorized under ‘applicable federal law.’ ” In other words, DWA is asking us not only to say that Bracker is still the law of the land, but also to declare that, under Bracker, all of DWA’s charges are enforceable and definitively not preempted.

DWA’s alternative claim is that if § 162.017 does not incorporate Bracker and related statutory law — in other words, if § 162.017 purports to displace existing law and to preempt DWA’s charges immediately, of its own force — then § 162.017 must be declared invalid on the theory that Interior had no authority to issue legislative rules preempting DWA’s charges.

Despite its apprehensions about § 162.017, DWA’s complaint does not allege that it has changed its behavior in any way (for example, by ceasing to assess charges). Nor does its complaint allege that Interior or the BIA has threatened to take any enforcement action against DWA in response to its decision to continue assessing charges. And the complaint does not allege that any leaseholders have withheld payment or objected to paying DWA’s charges.

The district court dismissed DWA’s complaint for lack of standing. The district court emphasized that DWA’s complaint never alleged that any leaseholder had refused to pay charges; never alleged that Interior or the BIA had threatened or planned any enforcement proceeding against it; and never alleged that DWA had done anything to change its behavior in response to § 162.017. Hence, the district court concluded that there is no evidence that DWA had suffered (or immediately would suffer) injury of any sort due to the regulation.

The district court also held that DWA’s suit is not prudentially ripe. The district court reasoned that even if the regulation purports to change existing law by operating to preempt State taxes on applicable leases, it is not yet clear whether any of DWA’s charges would be affected, because the regulation also has a “grandfather clause” stating that it does not apply to certain leases approved before January 4, 2013. The district court also reasoned that DWA has not shown any hardship, again for the reason that DWA has not alleged that it has changed its behavior or that any lessees have refused to pay.

DWA timely appealed.

II

A

We review the district court’s standing and ripeness determinations de novo. La Asociación de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1087 (9th Cir. 2010). The parties on appeal have largely collapsed their discussion of the two concepts into a discussion of standing. We will do the same.

B

The “irreducible constitutional minimum of standing” consists of three elements: the plaintiff must have (1) suffered an injury in fact; (2) that was caused by the defendant’s challenged conduct; and (3) that would be redressed by the remedy the plaintiff seeks. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

In order to determine whether DWA has standing to challenge § 162.017, we must first decide what exactly § 162.017 purports to do — that is, in what way, if any, it purports to change the authority States like California currently enjoy to tax1 non-Indian lessees on tribal lands. The parties disagree sharply about how best to understand § 162.017. But only by first determining what that regulation means can we determine how (if at all) it injures DWA, and to what extent (if any) such injury would be redressed by the declaratory judgment DWA seeks.

On appeal, DWA argues that it has standing to bring this lawsuit because, it claims, § 162.017 purports to preempt its laws directly and immediately. That is, DWA believes that the agency meant § 162.017 to displace the Bracker balancing test and to command DWA to change its behavior immediately by ceasing to charge leaseholders on tribal lands. DWA’s briefing is devoted overwhelmingly — almost exclusively — to the proposition that a State has standing to challenge a federal statute or regulation that preempts its laws.

Interior’s view is the polar opposite. According to Interior, DWA fundamentally misunderstands § 162.017. Interior says that, so far as preemption is concerned, § 162.017 has no legal effect at all: it does not purport to preempt any specific state taxes — including DWA’s — or to alter the judge-made and judge-administered balancing test that has governed Indian preemption cases since at least 1980, when the Supreme Court decided Bracker. The only thing § 162.017 does, according to Interi- or, is to state publicly the agency’s interpretation of existing law (namely, Bracker), and to clarify its opinion that under Bracker, the federal and tribal interests at stake are strong enough to have a preemptive effect in the generality of cases. But on the ultimate question of whether any specific state tax or charge is preempted under Bracker, Interior is agnostic; courts must answer such questions in the same way they always have, by applying the Bracker test de novo. Interior’s views as set out in § 162.017 may well influence courts when they gauge the federal and tribal interests under Bracker, but Interior does not contend that § 162.017 has any independent legal effect. Interior has consistently advanced this interpretation of the regulation in its briefs in this case, in an amicus brief filed in an unrelated lawsuit brought by the Tribe against Riverside County, and at oral argument here.

C

We read § 162.017 as Interior does. The regulation does not purport to change existing law, and therefore it does not operate to preempt DWA’s charges. We adopt this reading for several reasons.

1

First, it is consistent with the text of § 162.017. As Interior emphasizes, § 162.017 begins with a caveat: “[sJubject only to applicable Federal law, the leasehold or possessory interest is not subject to any fee, tax, assessment, levy, or other charge imposed by any State or political subdivision of a State.” 25 C.F.R. § 162.017(c) (emphasis added). Interior construes the italicized language as a sort of savings clause, asserting that “the Bracker test is subsumed within the phrase ‘applicable Federal law.’ ” Indeed, Interior claims that it “could have rephrased § 162.017 ‘to state simply that taxes may be assessed if permitted by applicable law on land, improvements, and activities,’ ” as one commenter had proposed doing with respect to a related regulation. See Rights-of-Way on Indian Land, 80 Fed. Reg. 72,492-01, 72,507 (Nov. 19, 2015) (codified at 25 C.F.R. pt. 169). Consistent with that understanding, the preamble to § 162.017’s Notice of Proposed Rulemaking says that the regulation simply u[c]larif[ies]” the agency’s view “that improvements on trust or restricted land are not taxable by States or localities.” Residential, Business, and Wind and Solar Resource Leases on Indian Land, 76 Fed. Reg. 73,784-01, 73,785 (Nov. 29, 2011) (to be codified at 25 C.F.R. pt. 162) (emphasis added). Clarifying the agency’s understanding of how existing law applies in general is very different from attempting to change existing law.

To be sure, there is other language— mostly in the preamble to the final rule— that arguably supports DWA’s interpretation. In particular, the preamble states that “[t]he Federal statutes and regulations governing leasing on Indian .lands ... occupy and preempt the field of Indian leasing. The Federal statutory scheme for Indian leasing is comprehensive, and accordingly precludes State taxation.” 77 Fed. Reg. at 72,447. But that statement comes immediately after the preamble which implies that the judge-administered Bracker regime remains controlling law. Id. (“Federal courts apply a balancing test to determine whether State taxation of non-Indians engaging in activity or owning property on the reservation is preempted. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980). The Bracker balancing test requires a particularized examination of the relevant State, Federal, and tribal interests. In the case of leasing on Indian lands, the Federal and tribal interests are very strong.”).

Even if a purely textual analysis might present a close call, we ultimately conclude that the language tips in favor of Interior’s view. As noted, the language of the regulation itself — as distinct from the preamble — is perfectly consistent with the agency’s view that § 162.017 leaves Bracker in place while merely setting forth the agency’s interpretation of how Bracker should apply over the generality of cases, without operating to preempt any specific state law. Indeed, recall that DWA’s own complaint asserted that § 162.017 does not change the current legal regime, precisely because Bracker “is an ‘applicable federal lav/ within the meaning of the federal regulation.” That, of course, is exactly Interior’s position. And while DWA is not bound by an argument it made in the alternative, the fact that DWA made it at all attests to its plausibility.

To the extent that the language in the regulation is ambiguous, we defer to Interior’s interpretation. Auer v. Robbins, 519 U.S. 452, 461-62, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). Here, as in Auer, we have “no reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question,” id. and the regulation more than “comfortably bears” Interior’s reading, id. at 461, 117 S.Ct. 905.

2

Furthermore, the reading of the regulation we adopt today is consistent with the interpretation made by the Eleventh Circuit, as well as with comments we have previously made about the regulation, albeit in dicta.

First, the Eleventh Circuit recently decided a lawsuit brought by the Seminole Tribe of Florida against Florida’s Department of Revenue. Seminole Tribe of Fla. v. Stranburg, 799 F.3d 1324 (11th Cir. 2015). The Tribe alleged that two Florida taxes were preempted by federal law, id. at 1326, and they relied on § 162.017 to support their case, id. at 1337-38. The Eleventh Circuit agreed with the Tribe in part, id. at 1326, but importantly for our purposes, the court effectively construed § 162.017 as Interior construes it here: the court conducted “a de novo Bracker analysis,” “declin[ing] to accord the regulations deference” on the question whether the specific Florida taxes were preempted, id. at 1335. Like Interior does here, the Eleventh Circuit read § 162.017 to do no more than “outline! ] the Bracker balancing test and ... appl[y] it generally,” rather than to express a view on its application to any specific tax or charge. Id. at 1337. Hence, while the court acknowledged that the regulation might “serve as evidence of the federal and tribal interests involved,” the court concluded that § 162.017 “did not examine Florida’s interests in imposing this particular Rental Tax,” and so it could do no more than “inform the Bracker balancing inquiry” which courts must undertake themselves. Id. at 1338-39. The court therefore conducted a Bracker inquiry just as it would have done had § 162.017 never been promulgated.

The Eleventh Circuit’s analysis aligns with Interior’s representation that it “took no position in this case regarding the validity of any particular charge imposed by DWA,” precisely “[bjecause the issue had not been presented to Interior during the administrative process.”

Similarly, we recently declared that § 162.017 “ ‘merely clarifies and confirms’ what [existing law] ‘already conveys.’” Confederated Tribes of Chehalis Reservation v. Thurston Cty. Bd. of Equalization, 724 F.3d 1153, 1157 n.6 (9th Cir. 2013) (quoting Watters v. Wachovia Bank, N.A., 500 U.S. 1, 20-21, 111 S.Ct. 1562, 114 L.Ed.2d 1 (2007)).

Thus, both the Eleventh Circuit (in a thorough analysis) and a panel of our court (in dicta) have construed § 162.017 in a way that is incompatible with DWA’s assertion that the regulation must be read to preempt its charges directly and immediately. Rather, those cases echo the position we reach today: that § 162.017 does not displace or modify Bracker — or otherwise change existing law — and therefore it does not of its own force operate to preempt any specific state tax.

Ill

Once we conclude that § 162.017 does not preempt DWA’s charges, or otherwise require or forbid DWA to change its behavior in any way, it follows that DWA lacks standing to challenge the regulation. As we noted above, DWA’s arguments are devoted almost entirely to the proposition that a State has standing to challenge a federal statute or regulation that preempts its laws. Obviously, such argument loses much of its force if § 162.017 does not preempt DWA’s charges at all.

As far as we can tell, DWA makes a single argument as to why it would have standing to challenge § 162.017 even if it has no preemptive effect. The argument seems to be that § 162.017 injures DWA because it encourages leaseholders to object to paying DWA’s charges. And, the theory appears to be, an order declaring the regulation invalid would redress such injury because then the leaseholders would pay DWA’s charges without objection. We think this theory is inadequate.

DWA’s theory cannot be squared with the injury-in-fact and redressability requirements in our standing jurisprudence. With respect to injury-in-fact, mere “encouragement” of an objection absent an imminent, concrete loss is insufficient to establish standing. With respect to re-dressability, DWA is asking us to invalidate § 162.017 in the hope that such relief will cause a group of third parties who are not before the court (i.e., non-Tribal leaseholders) to modify their behavior in a way that DWA thinks will redound to its benefit. But the problem is that the Supreme Court has consistently said that a plaintiff in DWA’s position lacks standing if, notwithstanding the relief sought, the third parties would retain discretion to continue their harmful behavior or, alternatively, if it is too speculative to conclude that they would modify their behavior in the way the plaintiff desires. Either reading of the re-dressability doctrine precludes DWA’s standing under the circumstances presented here.

For example, in Linda R.S. v. Richard D., 410 U.S. 614, 615-16, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973), a single mother brought a lawsuit asking the court to order the local district attorney to initiate child support enforcement proceedings against the father of her child. The Supreme Court held that she lacked standing because even if she “were granted the requested relief, it would result only in the jailing of the child’s father. The prospect that prosecution will, at least in the future, result in payment of support can, at best, be termed only speculative.” Id. at 618, 93 S.Ct. 1146. That is, even if the court were to order the local prosecutor to go after the father of the plaintiffs child, such order would not have created a legal obligation on the part of the father to pay child support (and whether he would in fact pay support was anybody’s guess). The same is true here. Invalidating § 162.017 would have no effect on leaseholders’ legal entitlement to bring a preemption suit against DWA; and as was true of the father in Linda R.S., it is impossible to conclude that the non-Indian leaseholders will change their behavior in the way DWA anticipates even if it were to prevail in this lawsuit.

Similarly, in Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 28-32, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976), a group of indigent plaintiffs challenged an IRS ruling that allowed nonprofit hospitals to reduce the availability of free services and still retain their charitable organization status. The plaintiffs alleged that the IRS ruling made such hospitals less likely to grant free services to indigents like themselves, id. at 33, 96 S.Ct. 1917, but the Court held that they lacked standing because their alleged injury “result[ed] from the independent action of some third party not before the court,” id. at 42, 96 S.Ct. 1917 — i.e., the hospitals who denied them service, rather than the IRS, who was the named defendant. The Court said it was too speculative to conclude that the denials of service were caused by the IRS ruling, or that the indigents would be granted free hospital access if the IRS invalidated its ruling. Id. at 42-44, 96 S.Ct. 1917. Likewise, because § 162.017 does not operate to preempt DWA’s charges, whatever injury DWA suffers results from the independent actions of third party lessees who are not before the court. And DWA’s complaint does no more than speculate that § 162.017 makes such lessees more likely to object to paying their charges.

In short, if § 162.017 does not itself preempt DWA’s charges, then § 162.017 cannot be said to have injured DWA in a way that is both non-speculative and re-dressable by the remedy DWA seeks. That means DWA lacks standing, as the District Court properly held.

IV

Finally, we certainly lack jurisdiction to issue a declaratory judgment that DWA’s charges would survive a preemption challenge under Bracket. DWA is asking us to decide whether leaseholders would have a valid defense (preemption) in the event they refuse to pay and DWA brings an enforcement action to collect, or a valid claim for injunctive relief against DWA on the basis of federal preemption. The proper vehicle to resolve that question is a suit between DWA and one of the leaseholders, if one of them either sues DWA or refuses to pay DWA’s charges. But the leaseholders are not parties to this case, which is between DWA and Interior. “The declaratory judgment procedure ... may not be made the medium for securing an advisory opinion in a controversy which has not arisen.” Coffman v. Breeze Corp., 323 U.S. 316, 324, 65 S.Ct. 298, 89 L.Ed. 264 (1945). The question DWA wants us to answer — are the leaseholders obligated to continue paying its charges? — is simply not within the scope of the case or controversy between DWA and Interior, which asks only whéther Interior has changed the law in such a way as automatically to render DWA’s charges preempted. Because we decide that Interior has not done so, the dispute between DWA and Interior is over.

V

We agree with Interior that § 162.017 does not itself operate to preempt DWA’s charges, and does not command DWA to modify its behavior by doing or refraining from doing anything. Accordingly, we conclude thát DWA lacks standing because it has not suffered a cognizable injury at the hands of Interior. The judgment of the district court is therefore

AFFIRMED.

      . Because this case is before us on appeal from a motion to dismiss, we recite the facts as alleged in DWA’s complaint, and we assume them to be true. See, e.g., Harris v. Rand, 682 F.3d 846, 850-51 (9th Cir. 2012).

      . About nine months after DWA brought this action against Interior, the Tribe filed suit against Riverside County, invoking § 162.017 and seeking declaratory and injunctive relief barring the County from assessing a possesso-ry interest tax on lessees of Reservation lands. We GRANT DWA’s request that we take judicial notice of the Tribe’s complaint. The district court in that action held that § 162.017 did not replace Bracker or otherwise preempt the County’s tax on its own, and the Tribe subsequently dismissed its suit voluntarily. In addition, after DWA filed its complaint, the County received a handful of letters from lessees and members of the Tribe asserting that county taxes (including DWA’s charges) are prohibited under § 162.017. DWA also received one claim for a reimbursement, which it denied.

      .- Consistent with the above principles, the law of standing draws a crucial distinction between plaintiffs who are the "object” of challenged agency action, and those who are not. Defs. of Wildlife, 504 U.S. at 561-62, 112 S.Ct. 2130. But naturally, in order to say whether a plaintiff is the "object” of a given regulation — whether it purports to regulate the plaintiff’s primary conduct — a court must first determine how, if at all, such regulation alters his rights, obligations, privileges, powers, or liabilities. Given the parties' deep disagreement over the nature of § 162.017, it should come as no surprise that they also disagree about-whether DWA is an “object” of the regulation.

      . At oral argument, Interior expressly disclaimed the possibility that § 162.017’s language concerning preemption could constitute a "legislative rule.” We agree; indeed, it is not clear that Interior has the authority to preempt state laws, and it has never claimed such power. Moreover, its consistently held interpretation of § 162.017 demonstrates that it "never meant for the disputed [language] to have [preemptive] effect.” Am. Tort Reform Ass'n v. Occupational Safety & Health Admin., 738 F.3d 387, 390 (D.C. Cir. 2013). Because the preemption-related language in § 162.017 does not "create 'adverse effects of a strictly legal kind’ ” and does not " 'command anyone to do anything or to refrain from doing anything,’ ” Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 809, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (quoting Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 733, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998)), such language appears to be nothing more than an "interpretative rule, statement, guideline, or policy statement [that] merely informs the public of the agency's views on the subject,” Am. Tort Reform Ass’n, 738 F.3d at 393.

      . To be clear, neither we nor Interior takes the position that DWA’s specific charges are not preempted under Bracker. Such charges might well be preempted, but courts will have to make that call, just as they would have done if § 162.017 had never been passed.

      . Whatever evidence DWA now alludes to (for example, the lone reimbursement claim it received) postdates the filing of its complaint, and is therefore irrelevant for purposes of standing. Defs. of Wildlife, 504 U.S. at 569 n.4, 112 S.Ct. 2130 (noting "our longstanding rule that jurisdiction is to be assessed under the facts existing when the complaint- is filed,” and that "a plaintiff cannot retroactively create jurisdiction based on postcomplaint litigation conduct”).

      . We note that DWA likely could not sue a leaseholder in federal court, seeking a declaratory judgment that its charges are not preempted. See Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 21-22, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) ("[Fjederal courts should not entertain suits by the States to declare the validity of their regulations despite possibly conflicting federal law.... [A] State’s suit for a declaration of the validity of state law ... is not within the original jurisdiction of the United States district courts.”).


source: Caselaw Access Project

author: WATFORD, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Kimo Mike SIMS, Defendant-Appellant.
    No. 15-10450
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 20, 2016 Honolulu, Hawaii
    Filed March 7, 2017
    Shanlyn A.S. Park (argued), Assistant Federal Defender; Peter C. Wolff, Jr., Federal Public Defender; Office of the Public Defender, Honolulu, Hawaii; for Defendan1>-Appellant.
    Chris A. Thomas (argued), Assistant United States Attorney; Florence T. Naka-kuni, United States Attorney; United States Attorney’s Office, Honolulu, Hawaii; for Plaintiff-Appellee.
    Before: J. CLIFFORD WALLACE, JEROME FARRIS, and PAUL J. WATFORD, Circuit Judges.
   OPINION

WATFORD, Circuit Judge:

At issue in this appeal is a vagueness challenge to a special condition of supervised release imposed as part of defendant Kimo Sims’ sentence. The district court imposed the disputed condition to address Sims’ long-term use of marijuana, which played a role in the conduct (distributing methamphetamine) that led to his conviction in this case.

In light of Sims’ extensive history of marijuana use, the district court prohibited him from using marijuana while he is on supervised release. To prevent Sims from evading the prohibition by switching to increasingly prevalent synthetic forms of marijuana, the district court imposed the following special condition:

The defendant shall not knowingly possess, distribute, inhale, or ingest any synthetic cannabinoid, defined as a substance that mimics the effects of cannabis and applied to plant material, often referred to as “synthetic marijuana,” “K2,” or “Spice,” without the prior approval of the court.

Sims objected to the condition on the ground that it failed to give him adequate notice of exactly which substances he is prohibited from ingesting. The district court rejected this argument after receiving full briefing from the parties and conducting a thorough hearing on the issue. We agree that the synthetic marijuana condition is not unconstitutionally vague.

To prevail on his vagueness challenge, Sims must establish that the condition defines the forbidden conduct in terms so vague that it fails to provide people of ordinary intelligence with fair notice of what is prohibited. United States v. King, 608 F.3d 1122, 1128 (9th Cir. 2010). He did not meet that burden here. The condition tells him with specificity which substances he is prohibited from possessing, distributing, inhaling, or ingesting — namely, synthetic cannabinoids. True, that term is not used in everyday conversation, but that does not render the condition unconstitutionally vague. The first part — the modifier “synthetic” — has a readily discernible meaning. It refers to man-made (as opposed to naturally occurring) chemical compounds, a concept familiar enough from the distinction between, say, synthetic fibers like polyester and natural fibers like cotton. As for the less familiar part— “cannabinoid” — the district court did not leave Sims to guess at its meaning. The court defined the term in reasonably precise language: any chemical compound that mimics the effects of cannabis and is applied to plant material. The court then clarified the definition of “synthetic canna-binoid” by providing specific examples of what the term is intended to cover: “synthetic marijuana,” “K2,” and “Spice.” Those examples ensure that the condition will be read to encompass only substances similar in character to the examples given, rather than the fanciful examples Sims has offered, such as synthetic hemp rope.

In combination, these terms leave little ambiguity as to what conduct is prohibited. The district court sought to ensure that all forms of synthetic marijuana are covered by the condition, and it provided a definition of that term sufficiently precise to avoid constitutional vagueness concerns.

In response, Sims argues mainly that the condition at issue here is indistinguishable from the condition we struck down on vagueness grounds in United States v. Aquino, 794 F.3d 1033 (9th Cir. 2015). However, the two conditions are nothing alike.

The condition in Aquino prohibited the defendant from using or possessing “any substance, controlled or not controlled, that you believe is intended to mimic the effect[s] of any controlled substance.” Id. at 1035. The problem with the condition in Aquino was that it swept far more broadly than intended. It covered any substance— legal or illegal, man-made or naturally occurring — that the defendant believed mimicked the effects of any controlled substance. As we observed, taken literally, the condition would have prohibited the defendant from consuming innocuous everyday substances like coffee or chocolate, even though that could not possibly have been what the district court intended. Id. at 1037. But given the potential breadth of the condition’s coverage, the defendant was forced to guess as to which substances were actually forbidden and which were not.

We do not have anything resembling that problem here. The district court limited the condition to one specific set of substances — synthetic ' cannabinoids — and defined with reasonable precision what was meant by that term. No guessing on Sims’ part is required.

The only similarity between the condition in Aquino and the condition, in this case is that both use the phrase “mimics the effects of.” But use of that phrase alone is not what rendered the condition in Aquino impermissibly vague. The vagueness problem arose there from a combination of two factors: (1) the completely unbounded universe of substances potentially covered by the condition (“any substance, controlled or not controlled”); and (2) the exceptionally broad “mimics the effects of’ clause, which covered any substance that mimicked the effects of any controlled substance. Together those aspects of the condition rendered it impossible to know with any certainty which substances the condition was really intended to cover. No such problem exists with respect to the condition imposed here: The mimicking effects language is tied only to the effects of marijuana, and the substance doing the mimicking must itself be a synthetic can-nabinoid, a term that, as we have said, is defined with sufficient precision to avoid vagueness problems.

Although unrelated to any concern with vagueness, Sims also argues that the synthetic marijuana condition is redundant, and therefore in his view unnecessary, because the district court also imposed a standard condition prohibiting him from committing any federal, state, or local offense. Since many forms of synthetic marijuana are illegal under federal or state law (or both), Sims contends that the district court should simply have relied on the standard condition to regulate his marijuana use. While the district court certainly could have done that, the court acted well within its discretion by imposing a special condition specifically targeting the use of synthetic marijuana. As the district court pointed out, in certain circumstances it is desirable to impose special conditions tailored to the particular obstacles the court anticipates the defendant may encounter upon release from prison, even if that conduct might also be covered by a more general standard condition. Imposing a special condition tailored to the defendant’s individual circumstances allows the court and the Probation Office to focus the defendant’s attention on conduct that will not be tolerated — to have, as the court put it, “a clear discussion with them regarding what is expected of them in a way they can understand it.” So long as the condition imposed falls within the constraints imposed by Congress and is not impermissi-bly vague, we owe substantial deference to the district court’s judgment about which conditions are needed to ensure successful supervision of the defendant. United States v. LaCoste, 821 F.3d 1187, 1190-91 (9th Cir. 2016).

The effort the district court invested in crafting a condition of supervised release focused on prohibiting Sims’ marijuana use — whether in natural or synthetic form — was commendable, given Sims’ past history with the drug and the role it played in his commission of the underlying offense. The language of the condition is sufficiently precise to avoid the vagueness concerns we identified in Aquino, and the district court did not abuse its discretion by imposing the condition simply because it prohibits conduct also covered by one of the standard conditions of supervised release.

AFFIRMED.


author: TALLMAN, Circuit Judge:

text:
    AGUA CALIENTE BAND OF CAHUILLA INDIANS, Plaintiff-Appellee, United States of America, Intervenor-Plaintiff-Appellee, v. COACHELLA VALLEY WATER DISTRICT; Ed Pack, in Official Capacity as Member of the Board of Directors of the Coachella Valley Water District; John Powell, Jr., in Official Capacity as Member of the Board of Directors of the Coachella Valley Water District; Peter Nelson, in Official Capacity as Member of the Board of Directors of the Coachella Valley Water District; G. Patrick O’Dowd, in Official Capacity as a Member of the Board of Directors of the Coachella Valley Water District; Castulo R. Estrada, in Official Capacity as a Member of the Board of Directors of the Coachella Valley Water District; Desert Water Agency; Patricia G. Oygar, in Official Capacity as Member of the Board of Directors of the Desert Water Agency; Thomas Kieley, III, in Official Capacity as Member of the Board of Directors of the Desert Water Agency; James Cioffi, in Official Capacity as Member of the Board of Directors of the Desert Water Agency; Craig A. Ewing, in Official Capacity as Member of the Board of Directors of the Desert Water Agency; Joseph K. Stuart, in Official Capacity as Member of the Board of Directors of the Desert Water Agency, Defendants-Appellants.
    No. 15-55896
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 18, 2016, Pasadena, California
    Filed March 7, 2017

      Steven Bane Abbott (argued), Gerald D. Shoaf, and Julianna K. Tillquist, Redwine and Sherrill, Riverside, California, for Defendants-Appellants Coachella Valley Water District, G. Patrick O’Dowd, Ed Pack, John Powell Jr., Peter Nelson, and Castulo R. Estrada.
    Roderick E. Walston (argued), Arthur L. Littleworth, Michael T. Riddell, and Steven G. Martin, Best Best & Krieger LLP, Walnut Creek, California, for Defendants-Appellants Desert Water Agency, Patricia G. Oygar, Thomas Kieley III, James Cioffi, Craig A. Ewing, and Joseph K. Stuart.
    Catherine F. Munson (argued), Kilpa-trick Townsend & Stockton LLP, Washington, D.C.; Steven C. Moore and Heather Whiteman Runs Him, Native American Rights Fund, Boulder, Colorado; Mark H. Reeves, Kilpatrick Townsend & Stockton LLP, Augusta, Georgia; Adam H. Chames, Kilpatrick Townsend & Stockton LLP, Dallas, Texas; for Plaintiff-Appellee.
    Elizabeth A. Peterson (argued), Yosef M. Negóse, Daron T. Carreiro, Patrick Barry, John L. Smeltzer, and William B. Lazarus, Attorneys; John C. Cruden, Assistant Attorney General; United States Department of Justice, Washington, D.C.; Christopher Watson and Scott Bergstrom, Office of the Solicitor, United States Department of the Interior, Washington, D.C.; for Intervenor-Plaintiff-Appellee.
    Before: RICHARD C. TALLMAN and MORGAN B. CHRISTEN, Circuit Judges, and MATTHEW F. KENNELLY, District Judge.

       The Honorable Matthew F. Kennelly, United States District Judge for the Northern District of Illinois, sitting by designation.

   OPINION

TALLMAN, Circuit Judge:

‘When the well’s dry, we know the worth of water.” Benjamin Franklin (1706-1790), Poor Richard’s Almanac.

The Coachella Valley Water District (“CVWD”) and the Desert Water Agency (“DWA”) (collectively, the “water agencies”) bring an interlocutory appeal of the district court’s grant of partial summary judgment in favor of the Agua Caliente Band of Cahuilla Indians (the “Tribe”) and the United States. The judgment declares that the United States impliedly reserved appurtenant water sources, including groundwater, when it created the Tribe’s reservation in California’s arid Coachella Valley. We agree. In affirming, we recognize that there is no controlling federal appellate authority addressing whether the reserved rights doctrine applies to groundwater. However, because we conclude that it does, we hold that the Tribe has a reserved right to groundwater underlying its reservation as a result of the purpose for which the reservation was established.

I

A

The Agua Caliente Band of Cahuilla Indians has lived in the Coachella Valley since before California entered statehood in 1850. The bulk of the Agua Caliente Reservation was formally established by .two Presidential Executive Orders issued in 1876 and 1877, and the United States, pursuant to statute, now holds the remaining lands of the reservation in trust for the Tribe. The reservation consists of approximately 31,396 acres interspersed in a checkerboard pattern amidst several cities within Riverside County, including Palm Springs, Cathedral City, and Rancho Mirage. See Agua Caliente Band of Mission Indians v. Riverside County, 442 F.2d 1184, 1185 (9th Cir. 1971).

The Executive Orders establishing the reservation are short in length, but broad in purpose. In 1876, President Ulysses S. Grant ordered certain lands “withdrawn from sale and set apart as reservations for the permanent use and occupancy of the Mission Indians in southern California.” Exec. Order of May 15, 1876. Similarly, President Rutherford B. Hayes’s 1877 Order set aside additional lands for “Indian purposes.” Exec. Order of Sept. 29, 1877. These orders followed on the heels of detailed government reports from Indian agents, which identified the urgent need to reserve land for Indian use in an attempt to encourage tribal members to “build comfortable houses, improve their acres, and surround themselves with home comforts.” Comm’r of Indian Affi, Ann. Rep. 224 (1875). In short, the United States sought to protect the Tribe and “secure the Mission Indians permanent homes, with land and water enough.” Comm’r of Indian Aff., Ann. Rep. 37 (1877).

Establishing a sustainable home in the Coachella Valley is no easy feat, however, as water in this arid southwestern desert is scarce. Rainfall totals average three to six inches per year, and the Whitewater River System — the valley’s only real source of surface water — produces an average annual supply of water that fluctuates between 4,000 and 9,000 acre-feet, most of which occurs in the winter months. See CVWD, Engineer’s Report on Water Supply and Replenishment Assessment at III-12 (2016-2017); CVWD, Urban Water Management Plan at 3-2, 3-20 (2005). In other words, surface water is virtually nonexistent in the valley for the majority of the year. Therefore, almost all of the water consumed in the region comes from the aquifer underlying the valley— the Coachella Valley Groundwater Basin.

The Coachella Valley Groundwater Basin supports 9 cities, 400,000 people, and 66,000 acres of farmland. See CVWD-DWA, The State of the Coachella Valley Aquifer at 2. Given the demands on the basin’s supply, it is not surprising that water levels in the aquifer have been declining at a steady rate. Since the 1980s, the aquifer has been in a state of overdraft, which exists despite major efforts to recharge the basin with water delivered from the California Water Project and the Colorado River. In total, groundwater pumping has resulted in an average annual recharge deficit of 239,000 acre-feet, with cumulative overdraft estimated at 5.5 million acre-feet as of 2010.

The Tribe does not currently pump groundwater on its reservation. Rather, it purchases groundwater from Appellant water agencies. The Tribe also receives surface water from the Whitewater River System, particularly the Andreas and Tah-quitz Creeks that sometimes flow nearby. The surface water received from this system is consistent with a 1938 California Superior Court adjudication — the Whitewater River Decree- — which attempted to address state-law water rights for users of the river system. Because the United States held the lands in trust, it participated in the adjudication via a “Suggestion” on behalf of the Tribe and the resulting state court order included a water allotment for the Tribe’s benefit. The amount of water reserved for the Tribe from this adjudication, however, is minimal, providing enough water to irrigate approximately 360 acres. Further, most of this allotment is filled outside of the growing season because the river system’s flow peaks between December and March. Thus, groundwater supplied by the water agencies remains the main source of water for all types of consumption on the reservation throughout the year.

B

Given an ever-growing concern oyer diminishing groundwater resources, the Agua Caliente Tribe filed this action for declaratory and injunctive relief against the water agencies in May 2013. The Tribe’s complaint requested a declaration that it has a federally reserved right and an aboriginal right to the groundwater underlying the reservation. In June 2014, the district court granted the United States’ motion to intervene as a plaintiff. The United States also alleges that the Tribe has a reserved right to groundwater.

The parties stipulated to divide the litigation into three phases. Phase I, at issue here, seeks to address whether the Tribe has a reserved right and an aboriginal right to groundwater. According to the parties’ stipulation, Phase II will address whether the Tribe beneficially owns the “pore space” of the groundwater basin underlying the Agua Caliente Reservation and whether a tribal right to groundwater includes the right to receive water of a certain quality. Finally, Phase III will attempt to quantify any identified groundwater rights.

In March 2015, the district court granted in part and denied in part Plaintiffs’ and Defendants’ cross motions for partial summary judgment with respect to Phase I of the litigation. In its order, the district court held that the reserved rights doctrine applies to groundwater and that the United States reserved appurtenant groundwater when it established the Tribe’s reservation. The district court then certified its order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b), and we granted the water agencies’ petition for permission to prosecute this appeal.

II

The district court’s grant of summary judgment is reviewed de novo. Tohono O’odham Nation v. City of Glendale, 804 F.3d 1292, 1297 (9th Cir. 2015); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc). Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A court shall grant summary judgment when, “under the governing law, there can be but one reasonable conclusion as to the verdict.” Anderson, 477 U.S. at 250, 106 S.Ct. 2505.

III

Due to the unusual trifurcation of this litigation, we are concerned on appeal only with Phase I — whether the Tribe has a federal reserved right to the groundwater underlying its reservation. This question, however, is best analyzed in three steps: whether the United States intended to reserve water when it created the Tribe’s reservation; whether the reserved rights doctrine encompasses- groundwater; and, finally, whether the Tribe’s correlative rights under state law or the historic lack of drilling for groundwater on the reservation, or the water the Tribe receives pursuant to the Whitewater River Decree, impacts our answers to these questions. We address each in turn.

A

For over one hundred years, the Supreme Court has made clear that when the United States “withdraws its land from the public domain and reserves it for a federal purpose, the Government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation.” Cappaert v. United States, 426 U.S. 128, 138, 96 S.Ct. 2062, 48 L.Ed.2d 523 (1976) (citing U.S. Const. art. I, § 8; U.S. Const. art. IV, § 3); see also Winters v. United States, 207 U.S. 564, 575-78, 28 S.Ct. 207, 52 L.Ed. 340 (1908); Colville Confederated Tribes v. Walton, 647 F.2d 42, 46 (9th Cir. 1981).

In what has become known as the Winters doctrine, federal reserved water rights are directly applicable “to Indian reservations and other federal enclaves, encompassing water rights in navigable and nonnavigable streams.” See Cappaert, 426 U.S. at 138, 96 S.Ct. 2062. The creation of these rights stems from the belief that the United States, when establishing reservations, “intended to deal fairly with the Indians by reserving for them the waters without which their lands would have been useless.” Arizona v. California, 373 U.S. 546, 600, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963); see also id. at 598-99, 83 S.Ct. 1468 (“It is impossible to believe that when Congress created the great Colorado River Indian Reservation and when the Executive Department of this Nation created the other reservations they were unaware that most of the lands were of the desert kind — hot, scorching sands — and that water from the river would be essential to the life of the Indian people and to the animals they hunted and the crops they raised”).

Despite the longstanding recognition that Indian reservations, as well as other reserved lands, require access to water, the Winters doctrine only applies in certain situations: it only reserves water to the extent it is necessary to accomplish the purpose of the reservation, and it only reserves water if it is appurtenant to the withdrawn land. Winters, 207 U.S. at 575-78, 28 S.Ct. 207; Cappaert, 426 U.S. at 138, 96 S.Ct. 2062. Once established, however, Winters rights “vest[ ] on the date of the reservation and [are] superior to the rights of future appropriators.” Cappaert, 426 U.S. at 138, 96 S.Ct. 2062.

B

1

Given the limitations in the Winters doctrine, we must first decide whether the United States, in establishing the Agua Caliente Reservation, impliedly reserved water. See United States v. New Mexico, 438 U.S. 696, 701, 98 S.Ct. 3012, 57 L.Ed.2d 1052 (1978). We conclude that it did. And although the parties and the district court focused on the application of the Winters doctrine to groundwater specifically, their argument over the creation of a federal reserved right — and, in particular, the relevance of New Mexico to that question — depends on whether the Agua Cal-iente Reservation carried with it a reserved right to water generally. Whether the Tribe’s reserved right extends to the groundwater underlying its reservation is a separate question from whether the establishment of the reservation contained an implicit right to use water.

In New Mexico, the Supreme Court emphasized that, under the reserved rights doctrine, the government reserves only “that amount of water necessary to fulfill the purpose of the reservation, no more.” Id. (quoting Cappaert, 426 U.S. at 141, 96 S.Ct. 2062). ‘Where water is only valuable for a secondary use of the reservation, ... the United States [must] acquire water in the same manner as any other public or private appropriator.” Id. at 702, 98 S.Ct. 3012. In other words, New Mexico established a “primary-secondary use” distinction. Water is impliedly reserved for primary purposes. It is not, however, reserved for secondary purposes.

The water agencies argue that New Mexico requires us — when deciding if a reserved right exists at all — to determine whether water is necessary to fulfill the primary purpose of the Agua Caliente Reservation. If it is not, they argue, then we are to conclude that Congress did not intend any water to be impliedly reserved under a federal water right. Put differently, the water agencies argue that New Mexico stands for the proposition that water is impliedly reserved only if other sources of water then available cannot meet the reservation’s water demands. According to the water agencies, if other sources of water exist — and the lack of a federal right would not entirely defeat the purpose of the reservation — then Congress intended to defer to state water law and require the United States to obtain water rights like any other private user.

New Mexico, however, is not so narrow. Congress does not defer to state water law with respect to reserved rights. Id. at 702, 715, 98 S.Ct. 3012. Instead, Congress retains “its authority to reserve unappropriated water ... for use on appurtenant lands withdrawn from the public domain for specific federal purposes.” Id. at 698, 98 S.Ct. 3012.

The federal purpose for which land was reserved is the driving force behind the reserved rights doctrine. “Each time [the] Court has applied the ‘implied-reservation-of-water-doctrine,’ it has carefully examined both the asserted water right and the specific purposes for which the land was reserved, and concluded that without the water the purposes of the reservation would be entirely defeated.” Id. at 700, 98 S.Ct. 3012. But the question is not whether water stemming from a federal right is necessary at some selected point in time to maintain the reservation; the question is whether the purpose underlying the reservation envisions water use.

Winters itself established that the purpose of the reservation is controlling. In Winters, the Supreme Court addressed whether the federal government reserved water for tribal usage at the Fort Belknap Indian Reservation, which had been reserved by the United States “as and for a permanent home” for several tribes. 207 U.S. at 565, 28 S.Ct. 207. The Winters Court observed that the arid tribal reservation would be “practically valueless,” and that a civilized community “could not be established thereon,” without irrigation. Id. at 576, 28 S.Ct. 207. Thus, the Court held that, in creating the reservation, the United States simultaneously reserved water “for a use which would be necessarily continued through years.” Id. at 577, 28 S.Ct. 207. The reserved right turned on the purpose underlying the formation of the Fort Belknap Reservation.

Though it was decided seventy years after Winters, New Mexico remains faithful to this construction. In analyzing the reserved rights doctrine, the Court first sought to determine Congress’ intent in creating the Gila National Forest. New Mexico, 438 U.S. at 698, 98 S.Ct. 3012. After reviewing the congressional act that established the forest, the Court determined that Congress intended only two purposes — “to conserve the water flows, and to furnish a continuous supply of timber for the people.” Id. at 707, 98 S.Ct. 3012 (citation omitted). It did not, however, reserve the forest lands for aesthetic, environmental, recreational, or wildlife-preservation purposes. Id. at 708, 98 S.Ct. 3012. Thus, the Court deemed the latter uses “secondary,” for which the reserved right did not attach, and held that only “to fulfill the very purposes for which a federal reservation was created ... [did] the United States intend[] to reserve the necessary water.” Id. at 702, 98 S.Ct. 3012.

As such, New Mexico’s primary-secondary use distinction did not alter the test envisioned by Winters. Rather, it added an important inquiry related to the question of how much water is reserved. It also answered that question by holding that water is reserved only for primary purposes, those directly associated with the reservation of land. It did not, however, eliminate the threshold issue — that a reserved right exists if the purposes underlying a reservation envision access to water.

2

Because New Mexico holds that water is reserved if the primary purpose of the reservation envisions water use, we now determine the primary purpose of the Tribe’s reservation and whether that purpose contemplates water use. To do so, we consider “the document and circumstances surrounding [the reservation’s] creation, and the history of the Indians for whom it was created.” Walton, 647 F.2d at 47.

. The Executive Orders establishing the Tribe’s reservation declared that the land was to be set aside for “the permanent use and occupancy of the Mission Indians” or, more generally, for “Indian purposes.” See supra Part I. While imprecise, such a purpose is not indecipherable. Our precedent recognizes that “[t]he specific purposes of an Indian reservation ... [are] often unarticulated. The general purpose, to provide a home for the Indians, is a broad one and must be liberally construed.” Walton, 647 F.2d at 47 (emphasis added). Moreover, “[m]ost of the land in these reservations is and always has been arid,” and it is impossible to believe that the United States was unaware “that water ... would be essential to the life of the Indian people.” Arizona, 373 U.S. at 598-99, 83 S.Ct. 1468.

The situation facing the Agua Caliente Tribe is no different. Water is inherently tied to the Tribe’s ability to live permanently on the reservation. Without water, the underlying purpose — to establish a home and support an agrarian society— would be entirely defeated. Put differently, the primary purpose underlying the establishment of the reservation was to create a home for the Tribe, and water was necessarily implicated in that purpose. Thus, we hold that the United States implicitly reserved a right to water when it created the Agua Caliente Reservation.

C

While we conclude that the federal government envisioned water use when it established the Tribe’s reservation, that does not end our inquiry. We must now determine whether the Winters doctrine, and the Tribe’s reserved water right, extends to the groundwater underlying the reservation. And while we are unable to find controlling federal appellate authority explicitly holding that the Winters doctrine applies to groundwater, we now expressly hold that it does.

Apart from the requirement that the primary purpose of the reservation must intend water use, the other main limitation of the reserved rights doctrine is that the unappropriated water must be “appurtenant” to the reservation. See Cappaert, 426 U.S. at 138, 96 S.Ct. 2062. Appurtenance, however, simply limits the reserved right to those waters which are attached to the reservation. It does not limit the right to surface water only. Capp-aert itself hinted that impliedly reserved waters may include appurtenant groundwater when it held that “the United States can protect its' water from subsequent diversion, whether the diversion is of surface or groundwater.” Id. at 143, 96 S.Ct. 2062. If the United States can protect against groundwater diversions, it follows that the government can protect the groundwater itself.

Further, many locations throughout the western United States rely on groundwater as their only viable water source. See, e.g., In re Gen. Adjudication of All Rights to Use Water in Gila River Sys. & Source, 195 Ariz. 411, 989 P.2d 739, 746 (1999) (en banc) (“The reservations considered in [Winters and Arizona] depended for their water on perennial streams. But some reservations lack perennial streams and depend for present and future survival substantially or entirely upon pumping of underground water. We find it no more thinkable in the latter circumstance than in the former that the United States reserved land for habitation without reserving the water necessary to sustain life”). More importantly, such reliance exists here, as surface water in the Coachella Valley is minimal or entirely lacking for most of the year. Thus, survival is conditioned on access to water — and a reservation without an adequate source of surface water must be able to access groundwater.

The Winters doctrine was developed in part to provide sustainable land for Indian tribes whose reservations were established in the arid parts of the country. And in many cases, those reservations lacked access to, or were unable to effectively capture, a regular supply of surface water. Given these realities, we can discern no reason to cabin the Winters doctrine to appurtenant surface water. As such, we hold that the Winters doctrine encompasses both surface water and groundwater appurtenant to reserved land. The creation- of the Agua Caliente Reservation therefore carried with it an implied right to use water from the Coachella Valley aquifer.

D

The final issue we must address is the contours of the Tribe’s reserved right, including its relation to state water law and the Tribe’s existing water rights.

A “reserved right in unappropriated water ... vests on the date of the reservation and is superior to the rights of future appropriators.” Cappaert, 426 U.S. at 138, 96 S.Ct. 2062. Further, reserved rights are not analyzed “in terms of a balancing test.” Id. Rather, they are federal water rights that preempt conflicting state law. See Walton, 647 F.2d at 51-53; see also New Mexico, 438 U.S. at 715, 98 S.Ct. 3012 (“[T]he ‘reserved rights doctrine’ ... is an exception to Congress’ explicit deference to state water law in other areas.”). Finally, the rights are not lost through non-use. See Walton, 647 F.2d at 51. Instead, they are flexible and can change over time. See id. at 47-48; United States v. Ahtanum Irrigation Dist., 236 F.2d 321, 326 (9th Cir. 1956).

Despite the federal primacy of reserved water rights, the water agencies argue that because (1) the Tribe has a correlative right to groundwater under California law and (2) the Tribe has not drilled for groundwater on its reservation, and (3) because the Tribe is entitled to surface water from the Whitewater River Decree, the Tribe does not need a federal reserved right to prevent the purpose of the reservation from being entirely defeated. Put differently, the water agencies argue that, because the Tribe is already receiving water pursuant to California’s correlative rights doctrine and the Whitewater River Decree, a federal reserved right is unnecessary.

However, the water agencies’ arguments fail for three reasons. First, state water rights are preempted by federal reserved rights. See Walton, 647 F.2d at 51; see also Ahtanum Irrigation Dist., 236 F.2d at 329 (“Rights reserved by treaties such as this are not subject to appropriation under state law, nor has the state power to dispose of them.”). Second, the fact that the Tribe did not historically access groundwater does not destroy its right to groundwater now. See Walton, 647 F.2d at 51. And third, the New Mexico inquiry does not ask if water is currently needed to sustain the reservation; it asks whether water was envisioned as necessary for the reservation’s purpose at the time the reservation was created. See supra Part III.B. Thus, state water entitlements do not affect our analysis with respect to the creation of the Tribe’s federally reserved water right.

IV

In sum, the Winters doctrine does not distinguish between surface water and groundwater. Rather, its limits derive only from the government’s intent in withdrawing land for a public purpose and the location of the water in relation to the reservation created. As such, because the United States intended to reserve water when it established a home for the Agua Caliente Band of Cahuilla Indians, we hold that the district court did not err in determining that the government reserved appurtenant water sources — including groundwater — when it created the Tribe’s reservation in the Coachella Valley.

Finally, we recognize that the district court’s failure to conduct a thorough New Mexico analysis with respect to whether the Tribe needs access to groundwater was largely a function of the parties’ decision to trifurcate this case. We also understand that a full analysis specifying the scope of the water reserved under New Mexico will be considered in the subsequent phases of this litigation.

Presumably, however, the water agencies will continue to argue in these later phases that the Winters doctrine is dependent upon the Tribe’s demonstrated need — that is, need above and beyond what the Tribe is already receiving under state-law entitlements or could receive through a paramount surface water right. And while we express no opinion on how much water falls within the scope of the Tribe’s federal groundwater right, there can be no question that water in some amount was necessarily reserved to support the reservation created. Thus, to guide the district court in its later analysis, we hold that the creation of the Agua Caliente Reservation carried with it an implied right to use water from the Coa-chella Valley aquifer.

Each party shall bear its own costs.

AFFIRMED.

      .An acre-foot is the volume of water sufficient to cover one acre in area at a depth of one foot. CVWD, 2010-2011 Annual Review at 2. It is equivalent to 325,851 gallons. Id. It takes about four acre-feet of water to irrigate one acre of land for a year in the; Coachella Valley. See U.S. Dep’t of Agrie., A Review of Agricultural Water Use in the Coachella Valley at 6 (2006). Therefore, at 9,000 acre-feet per year, the river system provides enough water to irrigate around 2,250 acres. At 4,000 acre-feet per year, the system can only irrigate about 1,000 acres. Considering that the Tribe is not the only user of the Whitewater River System, and that its reservation alone accounts for 31,396 acres, even in a peak year the river system provides very little water for irrigation or for human consumption.

      . The CVWD estimates that surface water accounts for less than five percent of its water supply each year. See CVWD, Urban Water Management Plan at 3-20 (2005).

      . Overdraft occurs when the amount of water extracted from the underground basin exceeds its recharge rate. CVWD, 2010-2011 Annual Review at 2.

      . In providing this "Suggestion,” the government maintained that it was not "submitting the rights of the United States ... to the jurisdiction of the Department of Public Works of the State of California” and that the court lacked "jurisdiction [to adjudicate] the water rights of the United States.” The federal government continues to maintain this position before us.

      . The district court also held that the Tribe does not have an aboriginal right to the groundwater. An aboriginal right is a type of property right that derives from territorial occupancy of land. See United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 641-42 (9th Cir. 1986). However, the Tribe did not appeal this issue, and we do not review it here.

      . We have previously noted that New Mexico is "not directly applicable to Winters doctrine rights on Indian reservations.” United States v. Adair, 723 F.2d 1394, 1408 (9th Cir. 1983). However, it clearly "establish[es] several useful guidelines.” Id. Thus, we consider its application here.

      . Additionally, government reports preceding the Executive Orders recognized the need to secure the Tribe "permanent homes, with land and water enough.” See Comm’r of Indian Aff., Ann. Rep. 37 (1877).

      . We previously held that the Winters doctrine applies “not only [to] surface water, but also to underground water.” United States v. Cappaert, 508 F.2d 313, 317 (9th Cir. 1974), aff'd on other grounds, Cappaert, 426 U.S. at 142, 96 S.Ct. 2062. But on appeal, the Supreme Court did not reach this question. See Cappaert, 426 U.S. at 142, 96 S.Ct. 2062. In that case, the peculiarities of the hydrological forms led the Court to conclude as a question of fact that the reserved water in a cavern pool was surface water, not groundwater. Id.

      . Although the district court found that the groundwater contained in the Coachella Valley aquifer "does not 'add to, contribute to or support’ any surface stream from which the Tribe diverts water,” that does not mean that the hydrological cycle in the Coachella Valley has been severed. See U.S. Geological Surv., Ground Water and Surface Water: A Single Resource, U.S.G.S. Circular 1139 at 9-10 (1998) (recognizing a connection between surface and groundwater even where the water table falls below the stream bed). Further, we note that surface water is used here to replenish groundwater sources. As such, the district court may wish to hear expert opinion on the interconnectedness of the waters in the valley in the later phases of this litigation. Proper factual findings on this issue will allow the district court to fashion appropriate relief during the quantification phase.

      . The parties do not dispute appurtenance, nor could they. The Coachella Valley Groundwater Basin clearly underlies the Tribe's reservation. See generally CVWD, Engineer’s Report on Water Supply and Replenishment Assessment (2016-2017).


author: BACHARACH, Circuit Judge.

text:
    Summer COLBY; James R. Colby, Plaintiffs-Appellants, v. Michael HERRICK; Chris Whitney, as Commissioner of the Brand Inspection Division; Brand Inspection Division, Defendants-Appellees, and County and District Court of Fremont County; the Honorable Norman Cooling, Defendants.
    No. 16-1120
    United States Court of Appeals, Tenth Circuit.
    FILED March 1, 2017

      Summer R. Colby and James Colby, Grand Junction, Colorado, Pro-se Plaintiffs-Appellants.
    Cynthia H. Coffman, Attorney General, and Andrew M. Katarikawe, Senior Assistant Attorney General, Denver, Colorado, for Defendants-Appellees.
    Before HOLMES, BALDOCK, and BACHARACH, Circuit Judges.
   BACHARACH, Circuit Judge.

This appeal grew out of a battle over Winter, a horse that belonged to Ms. Summer Colby. Ms. Colby and her mother grew estranged and wrangled over who owned Winter. The mother allegedly complained to the Colorado Department of Agriculture, which responded by sending someone from the Brand Inspection Division to investigate. After investigating, the inspector seized the horse, prompting Ms. Colby and her mother to rumble in court over ownership. After almost three years, Ms. Colby prevailed and got her horse back.

When the horse was returned to Ms. Colby, she and her husband sued the Division and two of its officers, but the district court dismissed the action. The Colbys appeal, generating issues involving the Eleventh Amendment and the statute of limitations.

The Eleventh Amendment precludes anyone from suing an arm of the state or asserting a damage claim against state officers in their official • capacities. The Division is an arm of the state entitled to Eleventh Amendment immunity. And two of the defendants (Mr. Michael Herrick and Mr. Chris Whitney) are

• employees of an arm of the state
• being sued in their official capacities for damages.

These claims are precluded by the Eleventh Amendment.

After dismissal of these claims, the Col-bys would be left with federal claims for damages against Mr. Herrick and Mr. Whitney in their personal capacities. For these claims, the Colbys had to sue within two years of when the cause of action accrued. The federal claims for damages accrued when the inspector seized the horse, which took place more than two years before the Colbys sued. Thus, the limitations period expired on the federal claims for damages against Mr. Herrick and Mr. Whitney in their personal capacities.

In light of Eleventh Amendment immunity and expiration of the limitations period, we conclude that the district court properly dismissed all of the claims.

1.Eleventh Amendment Immunity

The defendants include the Brand Inspection Division and two of its officers. The Division enjoys Eleventh Amendment immunity as an arm of the state. With this status, the Division cannot be sued in federal court. Nor can the Colbys bring claims for damages against the two officers in their official capacities.

A. Standard of Review

On the issue of Eleventh Amendment immunity, we engage in de novo review. Arbogast v. Kan. Dep’t of Labor, 789 F.3d 1174, 1181 (10th Cir. 2015).- In conducting this review, we restrict ourselves to the factual allegations in the complaint because the defendants have not pointed to any other evidence. See Muscogee (Creek) Nation v. Okla. Tax Comm’n, 611 F.3d 1222, 1227 n.1 (10th Cir. 2010).

B. Claims Against the Brand Inspection Division

Applying de novo review, we conclude that the district court properly held that the Division enjoyed Eleventh Amendment immunity.

Eleventh Amendment immunity extends to governmental entities that are considered arms of the state. Watson v. Univ. of Utah Med. Ctr., 75 F.3d 569, 574 (10th Cir. 1996). Our precedents suggest five potential factors:

1. How is the Division characterized under Colorado law?
2. How much guidance and control does the State of Colorado exercise over the Division?
3. How much funding does the Division receive from the State?
4. Does the Division enjoy the ability to issue bonds and levy taxes?
5. Does the State of Colorado bear legal liability to pay a judgment against the Division?

Sturdevant v. Paulsen, 218 F.3d 1160, 1166 (10th Cir. 2000). These factors lead us to conclude that the Division is considered an arm of the state.

On the first factor, Colorado law treats the Division as part of the state government. See People v. Lange, 48 Colo. 428, 110 P. 68, 70 (1910) (“The State Board of Stock Inspection Commissioners is but an auxiliary of the state government.”). The Division participates in state government as a state agency. See Alfred v. Esser, 91 Colo. 466, 15 P.2d 714, 715-16 (1932) (characterizing an action against the Colorado Board of Stock Inspection as an action against a state agency). The agency’s inspectors are Colorado law enforcement officers, with the power to make arrests for violations of state law. See Colo. Rev. Stat. § 35-53-128; Delta Sales Yard v. Patten, 892 P.2d 297, 301 (Colo. 1995); see also R. at 339, 353 (the Colbys’ allegation that the Division’s inspectors have limited arrest powers in the exercise of their statutory duties).

Second, the State of Colorado exercises considerable guidance and control over the Division. The Division is considered a part of the state Department of Agriculture. Colo. Rev.' Stat. § 24 — 1—123(4)(g)(I). As a result, the Division is subject to control by state officials. For example, the Division’s stock inspection commissioners are appointed and removed by the governor. Id. § 35-41-101(1); see also R. at 336 (the Colbys’ allegation that the governor appoints five board members and can remove these board members for cause). These powers support treating the Division as an arm of the state. See Watson v. Univ. of Utah Med. Ctr., 75 F.3d 569, 575-77 (10th Cir. 1996) (holding that an agency constituted an arm of the state when fifteen of the sixteen board members had been appointed by the governor).

The third and fourth factors, involving the amount of funding received from the State and the authority to issue bonds, cut both ways. The Colbys allege in the third amended complaint that the Division is entirely self-funded. R. at 337. And the State Board of Stock Commissioners is entitled to issue bonds worth up to $10 million to pay the Division’s expenses. Colo. Rev. Stat. § 35-41-101(5)(a); see also R. at 338 (the Colbys’ allegation that the State Board of Stock Commissioners can issue revenue bonds up to $10 million). The self-funding and power to issue bonds cut against Eleventh Amendment immunity.

But the Division is entitled to participate in the Colorado risk management fund, which obtains money from state appropriations. Colo. Rev. Stat. §§ 24-30-1502(5)(a), 24-30-1510(3)(a). This use of state money supports consideration of the Division as an arm of the state. See Watson v. Univ. of Utah Med. Ctr., 75 F.3d 569, 576-77 (10th Cir. 1996) (holding that a state medical center is an arm of the state, although 95-96.5% of the budget is self-funded, because the bulk of any judgment would come from the state’s risk management fund).

The final consideration is whether the State bears legal liability to pay a judgment against the Division. The Division does not address this factor. At least some of the Division’s fees are placed with the state treasurer. Colo. Rev. Stat. § 35-55-115. But we lack enough information to conclusively decide whether the State of Colorado’s Treasury would be legally obligated to satisfy a judgment against the Division.

For the sake of argument, we may assume that a judgment against the Division would not legally obligate the State to pay. out of the state treasury. Even with this assumption, however, the remaining factors would require us to treat the Division as an arm of the state. See Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1233 (10th Cir. 1999) (holding that an entity constituted an arm of the state when it was unclear how the entity satisfies money judgments, reasoning that the entity’s board, members served as members of the state’s board of education).

* * *

The first and second factors support characterization as an arm of the state, and the third and fourth factors cut both ways. Even if the fifth factor favors the Colbys, the balance of factors would lead us to regard the Division as an arm of the state. See Colorado v. United States, 219 F.2d 474, 477 (10th Cir. 1954) (stating that Colorado conducts its inspections through the State Board of Stock Inspection Commissioners in Colorado’s “sovereign capacity as a state”). This status triggers the Eleventh Amendment, insulating the Division from suit in federal court. Because the Eleventh Amendment applies, the district court was right to dismiss the claims against the Division.

But on the federal due-process claim, the district court made the dismissal with prejudice. Because Eleventh Amendment immunity is jurisdictional, this dismissal should have been without prejudice. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (stating that Eleventh Amendment immunity is jurisdictional); Barnes v. United States, 776 F.3d 1134, 1151 (10th Cir. 2015) (stating that jurisdictional dismissals should ordinarily be without prejudice).

C. Official-Capacity Claims for Damages Against Mr. Herrick and Mr. Whitney

In district court, Mr. Herrick and Mr. Whitney also invoked Eleventh Amendment immunity on the official-capacity claims for damages. But the district court never ruled on the applicability of the Eleventh Amendment to these defendants.

We address Eleventh Amendment immunity sua sponte with respect to Mr. Herrick and Mr. Whitney. See United States ex rel. Burlbaw v. Orenduff, 548 F.3d 931, 942 (10th Cir. 2008) (allowing the court to raise Eleventh Amendment immunity sua sponte).

Damage claims against state officers in their official capacities trigger Eleventh Amendment immunity. Edelman v. Jordan, 415 U.S. 651, 676-77, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). This immunity exists here because the Colbys sought damages from two officers (Mr. Herrick and Mr. Whitney) in their official capacities on behalf of an arm of the state. As a result, Mr. Herrick and Mr. Whitney were entitled to dismissal on the official-capacity claims for damages.

The district court did dismiss these claims, but did so based on the statute of limitations rather than the Eleventh Amendment. The difference is material because the district court’s rationale led to a dismissal with prejudice. But as noted above, Eleventh Amendment immunity is jurisdictional. See p. 1278, above. As a result, these dismissals should have been without prejudice.

2. Statute of Limitations

These dismissals leave the federal personal-capacity claims against Mr. Herrick and Mr. Whitney for damages. The district court dismissed these claims based on timeliness, and this determination was correct.

A. Standard of Review

This determination was based on Federal Rule of Civil Procedure 12(b)(6). In reviewing this determination, we engage in de novo review, crediting the well-pleaded allegations as true and viewing them in the light most favorable to the Colbys. See Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 967 (10th Cir. 1994) (stating that we engage in de novo review of a dismissal for failure to state a valid claim); Big Cats of Serenity Springs, Inc. v. Rhodes, 843 F.3d 853, 858 (10th Cir. 2016) (stating that we view the well-pleaded allegations as true and consider them in the light most favorable to the non-moving party). Though we credit these allegations, we independently determine the applicability of the statute of limitations. Wright v. Sw. Bell Tel. Co., 925 F.2d 1288, 1290 (10th Cir. 1991). Once we decide the applicability of the limitations period, we consider whether “the dates given in the complaint make clear that the right sued upon has been extinguished.” Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980).

B. Timeliness of Suit

In applying this standard, we start with when the cause of action accrued. Accrual takes place when the wrongdoer commits an act and the plaintiff suffers damage. Wallace v. Kato, 549 U.S. 384, 391, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007).

Here the wrongful act consisted of seizure of the horse on July 22, 2011, and the Colbys’ alleged damage was immediate. Thus, the cause of action accrued on July 22, 2011, triggering the two-year period of limitations on the federal claims against Mr. Herrick and Mr. Whitney. See Blake v. Dickason, 997 F.2d 749, 750-51 (10th Cir. 1993) (two-year period of limitations). But the Colbys did not sue until almost three years later. Thus, we would ordinarily consider these claims time-barred.

The Colbys seek to avoid a time-bar with two arguments: (1) The federal claims did not accrue until a post-deprivation remedy was denied, and (2) the tort was continuing. These arguments were waived and are invalid on the merits.

The Colbys did not make these arguments when responding to the motion to dismiss. Instead, the Colbys waited to make these arguments for the first time when objecting to the magistrate judge’s report and recommendation. That was too late. See ClearOne Commc’ns, Inc. v. Biamp Sys., 653 F.3d 1163, 1184-85 (10th Cir. 2011) (holding that issues are waived when raised for the first time in objecting to a magistrate judge’s recommendation).

Even if these arguments had not been waived, they would fail as a matter of law. The federal claims accrued when the Colbys knew or should have known that they would not receive a timely post-deprivation hearing. See Smith v. City of Enid, 149 F.3d 1151, 1154 (10th Cir. 1998) (stating that a § 1983 cause of action accrues when the claimant knows or should have known of a constitutional violation).

The Colbys allege in the third amended complaint that the inspector seized the horse and told the mother and daughter that they needed to settle their ownership dispute in their own private suit. Thus, the allegations in the third amended complaint indicate that the Colbys knew, upon seizure of the horse, that the State would not provide a post-deprivation hearing.

According to the Colbys, however, the tort was not complete until the Division denied a post-deprivation hearing. We disagree: Due process would have been violated as soon as it became clear that the Division would not afford a prompt post-deprivation hearing. Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984).

When did this become clear? The Colbys tell us in the third amended complaint, alleging that the inspector had said from the outset that no hearing would be provided and that the mother and daughter would need to resolve ownership through their own court action. R. at 342, 364. Thus, it was clear by July 22, 2011 (the date of the seizure) that the State would not provide a post-deprivation hearing.

For the sake of argument, we might generously assume that the Colbys might have continued to anticipate a post-deprivation hearing. But at some point, a post-deprivation hearing would be too late to satisfy due process. When did the delay cross that line? The Colbys again tell us, arguing in district court that a post-deprivation hearing would be timely only if it had been made available within six weeks of the seizure. See R. at 517 (the Colbys’ objection to the magistrate judge’s report) (“Defendants had a clear duty to provide for a pre-deprivation hearing, and even in exigent circumstances, they are required to provide for an incredibly expedient, timely, post-deprivation hearing inside far less than six weeks.”). That six-week period would have ended on September 2, 2011, which was still more than two years before the Colbys sued. Thus, the federal claims against Mr. Herrick and Mr. Whitney would remain time-barred even if the alleged constitutional violation had not materialized until the State failed to provide a timely post-deprivation hearing.

The Colbys also argue that the tort was continuing as long as the State continued to deny a post-deprivation hearing. We disagree. For the sake of argument, we can assume that the continuing violation doctrine applies in § 1983 cases. This doctrine is triggered by continuing unlawful acts but not by continued damages from the initial violation. Mata v. Anderson, 635 F.3d 1250, 1253 (10th Cir. 2011).

The continuing violation doctrine would not apply here. The wrongdoing took place on a' discrete date (July 22, 2011) when the horse was seized. The complaint does not base the claim on any acts taking place after July 22, 2011. Instead, the Colbys simply allege that they continued to suffer damages from their continued inability to enjoy their horse for a period of almost three years. Though damages continued, the wrongful acts did not. See Pike v. City of Mission, 731 F.2d 655, 660 (10th Cir. 1984) (“[A] plaintiff may not use the continuing violation theory to challenge discrete actions that occurred outside the limitations period even though the impact of the acts continues to be felt.”), overruled on other grounds by Baker v. Bd. of Regents, 991 F.2d 628, 633 (10th Cir. 1993). As a result, the Colbys cannot take advantage of the continued violation doctrine.

3. Conclusion

The Eleventh Amendment applies, foreclosing suit against the Division. Thus, the district court was right to dismiss the claims against the Division. But on the federal due-process claim against the Division, the dismissal should have been without prejudice.

In addition, the district court should have held that the official-capacity claims for damages against Mr. Herrick and Mr. Whitney were precluded under the Eleventh Amendment. These dismissals should also have been without prejudice.

The remaining federal claims against Mr. Herrick and Mr. Whitney were properly dismissed based on expiration of the statute of limitations. The claims accrued when the inspector seized the horse, and the commission of a single, discrete tort did not trigger the continuing violation doctrine. Thus, the federal personal-capacity claims against Mr. Herrick and Mr. Whitney were properly dismissed.

Based on these conclusions, we remand for the limited purpose of directing the district court to make the dismissals without prejudice on (1) the federal due-process claim against the Division and (2) the official-capacity claims for damages against Mr. Herrick and Mr. Whitney.

      . The Colbys also asserted state-law claims, but they are not involved in this appeal.

      . Colorado law provides that the Division is considered an "enterprise” for purposes of the Colorado Constitution, article X, section 20. Colo. Rev. Stat. § 35 — 41—101 (5)(1); see also R. at 337, 357 (the Colbys’ allegation that the Division is a state-created enterprise). Under the Colorado Constitution, an “enterprise” is a government-owned business that receives less than 10% of its annual revenue from state and local governments. Colo. Const, art. X, § 20(2)(d).

      . In § 1983 proceedings, accrual involves a matter of federal law. McCarty v. Gilchrist, 646 F.3d 1281, 1289 (10th Cir. 2011).

      . The district judge observed that the Colbys had failed to include the "continuing tort” argument in objecting to the motion to dismiss. R. at 572 n.4. But the district judge declined to decide the issue of waiver because the Colbys’ argument failed on the merits. Id.

      . We do not imply that a post-deprivation hearing would have been necessary. In addressing a similar claim against a Wyoming brand inspector, we held that due process was provided when state officials provided the owner of cattle with an opportunity to supply adequate proof of ownership. Stanko v. Maher, 419 F.3d 1107, 1116 (10th Cir. 2005).