  United States Court of Appeals
      for the Federal Circuit
               ______________________

           CROW CREEK SIOUX TRIBE,
               Plaintiff-Appellant

                          v.

                 UNITED STATES,
                 Defendant-Appellee
               ______________________

                     2017-2340
               ______________________

    Appeal from the United States Court of Federal
Claims in No. 1:16-cv-00760-RHH, Senior Judge Robert
H. Hodges, Jr.
                ______________________

              Decided: August 17, 2018
               ______________________

    AUSTIN TIGHE, Nix, Patterson & Roach, LLP, Austin,
TX, argued for plaintiff-appellant.

    AMBER BETH BLAHA, Environment and Natural Re-
sources Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also
represented by JEFFREY H. WOOD, ERIC GRANT, MATTHEW
LITTLETON.
                 ______________________

    Before NEWMAN, DYK, and TARANTO, Circuit Judges.
2                  CROW CREEK SIOUX TRIBE   v. UNITED STATES



DYK, Circuit Judge.
     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, and for the alleged
mismanagement of its water rights in violation of 25
U.S.C. § 162a(d)(8). The Claims Court dismissed the case
for lack of subject-matter jurisdiction. We affirm, conclud-
ing that the Tribe has failed to establish, or even allege,
that it has suffered the requisite injury in fact.
                       BACKGROUND
    The Crow Creek Indian Reservation (“Reservation”)
was established in central South Dakota in 1863. The
Missouri River overlies the Reservation’s western bound-
ary. See Act of Mar. 2, 1889, ch. 405, § 6, 25 Stat. 888,
889–90 (1889) (delineating boundaries of the Reserva-
tion).
    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 unappro-
priated water “to 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 argument that water rights were not re-
served because the reservation was created by executive
order, rather than treaty). The parties agree for purposes
CROW CREEK SIOUX TRIBE   v. UNITED STATES                  3



of the motion to dismiss that, pursuant to the Winters
doctrine, the Tribe possesses a perfected right to sufficient
water to fulfil the Reservation’s purposes.
    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,” includ-
ing the establishment of the Reservation and the history
of the Pick-Sloan Plan, a federal flood control project 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 Infrastruc-
ture and Development Trust Fund Act of 1996, Pub. L.
No. 104-223, § 2(a)(7), 110 Stat. 3026, 3027 (1996); high-
lighted a 2012 settlement between the Tribe and the
United States unrelated to water rights; and emphasized
the generally poor economic prospects of the Reservation.




    1   Construction of the dams resulted in the flooding
of approximately 15,000 acres of the Reservation. To
compensate the Tribe for this loss of land, Congress
enacted two statutes by which the United States acquired
the flooded land and paid the Tribe and its members more
than $5 million total “in settlement of all claims, rights,
and demands of” the Tribe “arising out of” dam construc-
tion. Act of Oct. 3, 1962, Pub. L. No. 87-735, § 1(a)(2), 76
Stat. 704, 704 (1962) (authorizing the acquisition of
roughly 6,000 acres of Reservation land for the Big Bend
project); Act of Sept. 2, 1958, Pub. L. No. 85-916, § 1, 72
Stat. 1766, 1766 (1958) (authorizing the acquisition of
roughly 9,000 acres of Reservation land for the Fort
Randall project).
4                  CROW CREEK SIOUX TRIBE   v. UNITED STATES



     The complaint then alleged that certain, 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,” 25 U.S.C. § 162a(d)(8), “by the acts
and omissions described hereinabove, including failing to
protect, quantify, assert or record Plaintiff’s water rights,
and instead continuously diverting, retaining, and appro-
priating that water to others and to Defendant’s own use,”
J.A. 31. The complaint did not allege that the govern-
ment’s actions deprived the Tribe of sufficient water to
fulfill the reservation’s purposes or that those actions
would cause the Tribe to lack sufficient water in the
future.
     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 “insuf-
ficient 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 to experience any water shortage. Id. at 410. The
court also noted that, while 25 U.S.C. § 162a(d)(8) “does
direct the government to manage the natural resources of
Indian tribes,” the statute “does not direct any specific
CROW CREEK SIOUX TRIBE   v. UNITED STATES                    5



actions to be taken by the government in that manage-
ment.” Id. at 411. The Claims Court therefore dismissed
the suit for lack of subject-matter jurisdiction because it
could not “identify an injury to the Tribe that has yet
occurred.” Id. In various places in the opinion, the Claims
Court discussed the failure of the complaint to allege
damages with particularity. Id. at 409–11.
     The tribe timely appealed. We have jurisdiction under
28 U.S.C. § 1295(a)(3). In assessing a motion to dismiss
for lack of subject-matter jurisdiction, we “must accept as
true all material allegations of the complaint, and must
construe the complaint in favor of the complaining party.”
Warth v. Seldin, 422 U.S. 490, 501 (1975); see also Ste-
phens v. United States, 884 F.3d 1151, 1155 (Fed. Cir.
2018).
                         DISCUSSION
    The Tribe initially argues that the Claims Court erred
in dismissing its action because the Tribe could not calcu-
late damages. We agree with the Tribe that there is no
need 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
6                  CROW CREEK SIOUX TRIBE   v. UNITED STATES



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 “plain-
tiff must have (1) suffered an injury in fact, (2) that is
fairly traceable to the challenged conduct of the defend-
ant, and (3) that is likely 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


    2   See, e.g. Garling v. EPA, 849 F.3d 1289, 1293 n.3
(10th Cir. 2017); Hochendoner v. Genzyme Corp., 823 F.3d
724, 730 (1st Cir. 2016); Silha v. ACT, Inc., 807 F.3d 169,
173–74 (7th Cir. 2015); In re Schering Plough Corp.
Intron/Temodar Consumer Class Action, 678 F.3d 235,
243–44 (3d Cir. 2012); Amidax Trading Grp. v. S.W.I.F.T.
SCRL, 671 F.3d 140, 145 (2d Cir. 2011) (per curiam);
White v. United States, 601 F.3d 545, 551–52 (6th Cir.
2010); Stalley v. Catholic Health Initiatives, 509 F.3d 517,
521 (8th Cir. 2007). We note that RCFC 12(b)(1) and
CROW CREEK SIOUX TRIBE   v. UNITED STATES                  7



of standing], a complaint must contain sufficient factual
matter” that would plausibly establish standing if accept-
ed 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 sufficient-
ly 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 suffered ‘an invasion of a legally protected interest’
that is ‘concrete and particularized’ and ‘actual or immi-
nent, 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, includ-
ing 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 25 U.S.C. § 162a(d)(8) to “appropriately man-
age[]” the Tribe’s vested, Winters water rights, and there-
by amount to an injury-in-fact. The Fifth Amendment’s
Takings Clause requires just compensation for the taking
of property. Section 162a generally concerns the Secretary
of the Interior’s responsibility for management of Indian
trust funds and expenditure of money collected from


FRCP 12(b)(1) are substantially the same for these pur-
poses.
8                  CROW CREEK SIOUX TRIBE   v. UNITED STATES



irrigation projects, but it also states that “[t]he Secre-
tary’s proper discharge of the trust responsibilities of the
United States shall include . . . [a]ppropriately managing
the natural resources located within the boundaries of
Indian reservations.” 25 U.S.C. § 162a(d)(8). The Tribe’s
breach of trust claim is based on the view that its Winters
water rights count as “natural resources” under
§ 162a(d)(8), and the government has a statutory duty to
“appropriately manage” those Winters water rights.
    While it is clear that the tribe possesses Winters
rights, it is not clear whether those rights are protected
by § 162a(d)(8). Because § 162a(d)(8) does not define
“appropriate management” of natural resources and does
not assign the Secretary any standards or specific obliga-
tions as to natural resources, the government argues that
§ 162a(d)(8) is not the kind of “specific rights-creating or
duty-imposing statutory or regulatory prescription[]”
required to support jurisdiction under the Indian Tucker
Act. United States v. Navajo Nation, 537 U.S. 488, 506–
07, 514 (2003) (holding that the Indian Mineral Leasing
Act does not give the Secretary sufficient specific respon-
sibilities to support Indian Tucker Act jurisdiction). But
we need not decide that question. If § 162a(d)(8) does not
cover Winters rights, the Tribe has suffered no injury
under the statute. And even if Winters rights are “natural
resources” for purposes of the statute, the Tribe still has
not established standing.
    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 neces-
sary 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 divert-
CROW CREEK SIOUX TRIBE   v. UNITED STATES                  9



ing the water that otherwise would have flowed through
the reservation. 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 pur-
pose—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 neces-
sary 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 purpose 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 pur-
pose of maintaining the [Klamath] Tribe’s treaty right to
hunt and fish on reservation lands”).
    Thus, water is only reserved for the Tribe under Win-
ters “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
10                 CROW CREEK SIOUX TRIBE    v. UNITED STATES



Cappaert, 426 U.S. at 141. The facts alleged in the com-
plaint, taken as true, suggest that government action,
including operation of the Pick-Sloan dams, generally
affects water flows on the Missouri River. But the com-
plaint does not allege that the amount of water flowing by
the Reservation and available for the Tribe’s use is insuf-
ficient 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 stand-
ing.
    The Tribe argues that, because its Winters rights
vested at the founding of the Reservation, any subsequent
action affecting the waters of the Missouri River consti-
tutes an injury of those rights, even if the action does not
affect the Tribe’s ability to draw sufficient water to fulfill
the purposes of the Reservation. In the Tribe’s view,
“[w]hen the Government took and used the Tribe’s water
and water rights—whether the Tribe was using that
water at the time or not, and despite the natural flow
continuing along the river’s banks—it breached its duty
under 162a(d)(8) to appropriately manage the water, and
alternatively, violated the Takings Clause by taking a
fully vested property interest from the Tribe.” Appellant
Br. 34.
    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, no 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
CROW CREEK SIOUX TRIBE   v. UNITED STATES                 11



(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 Reser-
vation. The complaint 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.
