If you’re fighting a motion to dismiss should you start by filing an opposition or amending your complaint? That’s one question raised by the Ninth Circuit’s recent decision in a decade-long water-rights dispute between the Navajo Nation and the Department of the Interior. The Tribe sued the federal government in 2003 to challenge water delivery guidelines issued by Interior for the Colorado River. The Tribe alleged that these guidelines violated the National Environmental Policy Act (NEPA for us lawyers) and the federal government’s tribal trust duties. After a decade of fruitless settlement talks, the district court dismissed the Tribe’s claims for lack of standing then denied the Tribe’s motion for leave to amend its complaint to fix the standing problems. The Ninth Circuit affirmed.

There is plenty in this opinion to talk about (starting with the Ninth Circuit’s analysis of standing for NEPA cases) but let’s focus on one part: the denial of the Tribe’s motion to amend its complaint. A motion to amend a complaint is made under Rule 15 and leave to amend is “freely give[n].” But after judgment has been entered then a Rule 15 motion can only be made after judgment has been reopened. And when the district court dismissed the Tribe’s complaint—without granting leave to amend—the district court also entered final judgment. So the Tribe moved for relief from judgment under Rule 60(b)(6), which allows a court to grant relief for “any other reason that justifies relief.”

It’s not easy to win a Rule 60(b)(6) motion—judges don’t like deciding cases more than once. And the Ninth Circuit reviewed the district court’s decision for abuse of discretion, the most deferential standard of review. (I wrote about how this standard changes the appellate calculus here.)

Now the Tribe had already amended its complaint twice—first to update the pleading after a decade of settlement talks* and then to voluntarily strike one of its claims. Those amendments had nothing to do with standing but the Ninth Circuit pointed to them as solid support for the district court’s decision: The Tribe “had ample opportunity at those junctures to address the deficiencies in its pleading—deficiencies which . . . the defendants had identified in their motions to dismiss.”

The double hurdle of a Rule 60(b) standard and abuse of discretion review was never going to be easy to overcome, but the Ninth Circuit’s decision still seems somewhat underbaked. When a plaintiff is hit with a Rule 12(b) motion to dismiss, their lawyer will consider amending the complaint instead of defending the complaint. Fair enough—this happens. But the Ninth Circuit’s decision tips the balance a bit towards amendment without explaining why that’s a better balance. On top of that, a plaintiff in the Ninth Circuit is going to hesitate before amending any part of their complaint without strengthening the rest of their claims. Litigation should end, but encouraging plaintiffs to tinker with their complaint during the lawsuit seems like an odd way to keep that ending in sight.

Here’s the Ninth Circuit’s decision.

* I’m taking “amended” at its face value here—Rule 15(d) allows a “supplemental” pleading to cover “any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.”