CROW CREEK SIOUX TRIBE v. UNITED STATES
2017-2340
United States Court of Appeals for the Federal Circuit
August 17, 2018
Before NEWMAN, DYK, and TARANTO, Circuit Judges.
Appeal from the United States Court of Federal Claims in No. 1:16-cv-00760-RHH, Senior Judge Robert H. Hodges, Jr.
AUSTIN TIGHE, Nix, Patterson & Roach, LLP, Austin, TX, argued for plaintiff-appellant.
AMBER BETH BLAHA, Environment and Natural Resources Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by JEFFREY H. WOOD, ERIC GRANT, MATTHEW LITTLETON.
The Crow Creek Sioux Tribe (“Tribe”) is a federally recognized Indian tribe. Its reservation is located in South Dakota along the Missouri River. The Tribe filed suit against the United States in the Court of Federal Claims (“Claims Court”) seeking damages and declaratory and injunctive relief for the alleged taking of its water rights in violation of the Fifth Amendment, аnd for the alleged mismanagement of its water rights in violation of
BACKGROUND
The Crow Creek Indian Reservation (“Reservation”) was established in central South Dakota in 1863. The Missouri River overlies the Reservation‘s western boundary. See Act of Mar. 2, 1889, ch. 405, § 6, 25 Stat. 888, 889–90 (1889) (delineating boundaries of the Reservation).
Under the Supreme Court‘s decision in Winters v. United States, 207 U.S. 564 (1908), the creation of an Indian Reservation carries an implied right to unappropriated water “tо the extent needed to accomplish the purpose of the reservation.” Cappaert v. United States, 426 U.S. 128, 138 (1976); see also United States v. New Mexico, 438 U.S. 696, 698–700 (1978). These reserved rights are known as Winters rights. They arise as an implied right from the treaty, federal statute, or executive order that set aside the reservation, and they vest on the date of the reservation‘s creation. See Winters, 207 U.S. at 576–77; Arizona v. California, 373 U.S. 546, 598 (1963) (rejecting the
In June 2016, the Tribe filed suit in the Claims Court seeking at least $200 million in damages. The complaint began by describing various “Background Facts,” including the establishment of the Reservation and the history of the Pick-Sloan Plan, a federal flood control рroject on the Missouri River, which involved the construction of the Fort Randall Dam and the Big Bend Dam in the mid-1900s.1 The complaint also mentioned a 1996 statute that established a new trust fund for the Tribe, funded with up to $27.5 million in hydroelectric-power revenue from the Pick-Sloan Plan, see Crow Creek Sioux Tribe Infrastructure and Development Trust Fund Act of 1996, Pub. L. No. 104-223, § 2(a)(7), 110 Stat. 3026, 3027 (1996); highlighted a 2012 settlement between the Tribe and the United States unrelated to water rights; and emphasized the generally poor economic prospects of the Reservation.
The complaint then alleged that сertain, unspecified acts and omissions by the United States—presumably including the continued operation of the dams—have taken the Tribe‘s “Winters reserved water rights” without just compensation in violation of the Fifth Amendment. J.A. 32. The complaint also alleged that the government breached its fiduciary duty to “[a]ppropriately manag[e] the natural resources located within the boundaries of Indian reservations,”
The United States filed a motion to dismiss pursuant to Rule 12(b)(1) of the Court of Federal Claims for lack of subject-matter jurisdiction. The Claims Court granted the motion, noting that Winters only entitles the Tribe to sufficient water to fulfill the Reservation‘s purposes and explaining that nothing in the complaint suggests that the Tribe is “experienc[ing] a shortage of water” or that its water supply from the Missouri River is or will be “insufficient for [the Tribe‘s] intended pursuits.” Crow Creek Sioux Tribe v. United States, 132 Fed. Cl. 408, 410–11 (Fed. Cl. 2017). The Claims Court rejected the Tribe‘s argument that its Winters reserved water rights can be injured by any “taking or diverting [of] waters from the Missouri River,” even if the diversion does not cause
The tribe timely appealed. We have jurisdiction under
DISCUSSION
The Tribe initially argues that the Claims Court erred in dismissing its action because the Tribe could not calculate damages. We agree with the Tribe that there is no neеd to allege details of the damages calculation in the complaint. But the Claims Court‘s decision, while it sometimes uses the word “damages,” turns on the Tribe‘s underlying failure to allege an injury in fact. Indeed, the Claims Court concludes its opinion by stating that “[t]he jurisdictional problem . . . arises from plaintiff‘s inability to identify an injury to the Tribe.” Crow Creek Sioux Tribe, 132 Fed. Cl. at 411. We think the Claims Court was correct in dismissing the case for lack of subject-matter jurisdiction because the Tribe failed to sufficiently allege injury.
In order to bring suit in an Article III court, a plaintiff must establish constitutional standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). “The Court of Federal Claims, though an Article I court . . . applies the same standing requirements enforced by other federal courts created under Article III.” Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1358–59 (Fed. Cir. 2009) (quoting Anderson v. United States, 344 F.3d 1343, 1350 n.1 (Fed. Cir. 2003)). To establish constitutional standing, a “plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likеly to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). Standing requires more than just a “keen interest in the issue.” Hollingsworth v. Perry, 570 U.S. 693, 700 (2013). It requires allegations that the plaintiff “personal[ly]” suffered a concrete and particularized injury in connection with the conduct about which he complains. Spokeo, 136 S. Ct. at 1548.
The Supreme Court has held that each element of standing “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof.” Lujan, 504 U.S. at 561. With this in mind, we join the majority of our sister circuits in holding that the Supreme Court‘s “plausibility” requirement for facial challenges to claims under Rule 12(b)(6), as set out in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), also applies to facial challenges to subject-matter jurisdiction under Rule 12(b)(1).2 Thus, “[t]o survive a motion to dismiss [for lack
of standing], a complaint must contain sufficient factual matter” that would plausibly establish standing if accepted as true. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570). “Threadbare recitals of the elements of [standing], supported by mere conclusory statements, do not suffice.” Id.
The question here is whether the Tribe has sufficiently alleged injury in fact, which the Supreme Court has characterized as “a hard floor of Article III jurisdiction.” Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009). To establish injury in fact, “a plaintiff must show that he or she sufferеd ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.‘” Spokeo, 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560). The Tribe acknowledges that the Winters doctrine is the sole source of the legally protected interest asserted in this case—both for the takings claim and the statutory claim. Oral Arg. 00:30–00:50; J.A. 14. The question is whether the Tribe has sufficiently alleged injury to those rights.
The Tribe argues that various government actions and inactions with respect to the Missouri River, including the operation of the Pick-Sloan dams, constitute a taking of the Tribe‘s Winters water rights under the Fifth Amendment and a breach of the government‘s fiduciary duty under
While it is clear that the tribe possesses Winters rights, it is not clear whether those rights are protected by
The problem is that the complaint fails to allege that the government action has caused injury to the Tribe‘s Winters rights. As discussed above, the Supreme Court held in Winters that the establishment of an Indian reservation impliedly reserves the amount of water necessary to fulfill the purposes of the reservation. 207 U.S. at 576–77. Winters arose out of a dispute between Indians residing on the Fort Belknap Reservation and upstream, non-Indian water users who had constructed dams diverting the water that otherwise would have flowed through the resеrvation. Id. at 565–67. The United States, in its capacity as trustee, sought to enjoin the diversions, but the upstream users claimed paramount water rights based on state water law that followed the prior-appropriation doctrine. Id. at 568–69. The Winters Court held that the Indians actually possessed the superior water right because the 1888 treaty establishing the Fort Belknap Reservation had also impliedly reserved water sufficient to fulfill the purposes of the reservation. Id. at 576–77. This implied water right was justified, in the Court‘s view, because Congress would have had no good reason to reserve land for Indians without also reserving their right to sufficient water for the reservation‘s purpose—which was, in that case, to encourage Indians to adopt an agricultural (and thus irrigation-dependent) way of life. Id. at 576.
The scope of Winters reserved water rights, like their existence, turns on the reservation‘s need for water. The amount of water reserved is “that amount of water necessary to fulfill the purpose of the reservation, no more.” Cappaert, 426 U.S. at 141; see also New Mexico, 438 U.S. at 700 n.4; Arizona, 373 U.S. at 600–01. In Winters itself, the purpose of the reservation was agricultural in nature, 207 U.S. at 576, but other cases have noted fishing and hunting as a purposе of the reservation as well, see United States v. Adair, 723 F.2d 1394, 1410 (9th Cir. 1983) (identifying Winters rights as to “a quantity of the water flowing through the reservation not only for the purpose of supporting Klamath agriculture, but also for the purpose of maintaining the [Klamath] Tribe‘s treaty right to hunt and fish on reservation lands”).
Thus, water is only reserved for the Tribe under Winters “to the extent needed to accomplish the purpose of the reservation.” Gila River Pima-Maricopa Indian Cmty. v. United States, 695 F.2d 559, 561 (Fed. Cir. 1982); see also Cappaert, 426 U.S. at 141. The facts alleged in the complaint, taken as true, suggest that government action, including operation of the Pick-Sloan dams, generally affects water flows on the Missouri River. But the complaint does not allegе that the amount of water flowing by the Reservation and available for the Tribe‘s use is insufficient to fulfill the purposes of the Reservation or will be insufficient in the future. The Tribe therefore has failed to allege injury in fact, as necessary to demonstrate standing.
In so arguing, the Tribe appears to misunderstand what its water rights entail. As noted above, Winters, the sole source of the water rights asserted in this case, only entitles tribes to “that amount of water necessary to fulfill the purpose of the reservation, nо more.” Cappaert, 426 U.S. at 141. And because water rights are usufructuary in nature—meaning that the property right “consists not so much of the fluid itself as the advantage of its use”—the Tribe has no right to any particular molecules of water, either on the Reservation or up- or downstream, that may have been used or diverted by the government. Casitas Mun. Water Dist. v. United States, 708 F.3d 1340, 1353 (Fed. Cir. 2013). The Tribe‘s Winters rights, which give the Tribe the right to use sufficient water to fulfill the purposes of the Reservation, simply cannot be injured by government action that does not affect the Tribe‘s ability to use sufficient water to fulfill the purposes of the Reservation. The сomplaint in this case does not allege that the challenged government action has such an effect.
CONCLUSION
Because the Tribe failed to allege an injury in fact, we affirm the Claims Court‘s dismissal for lack of subject-matter jurisdiction.
AFFIRMED
COSTS
No costs.