                United States Court of Federal Claims
                                        No. 16-760 C
                                        June 1, 2017

_________________________________
CROW CREEK SIOUX TRIBE,
                                                        Native American; Crow Creek Sioux
              Plaintiff,                                Tribe; Motion To Dismiss; Lack of
                                                        Subject Matter Jurisdiction; Winters
                                                        v. United States; Breach of Fiduciary
v.                                                      Duty; Fifth Amendment Taking

THE UNITED STATES,

          Defendant.
_______________________________

       Austin Tighe, Esquire, Nix Patterson & Roach, LLP, Austin, TX, for plaintiff.

      John P. Tustin, Esquire, United States Department of Justice, Environment and
Natural Resources Division, Washington, DC, for defendant.

                                 OPINION AND ORDER

Hodges, Senior Judge.

       Plaintiff Crow Creek has sued the United States through the Department of the
Interior alleging a Fifth Amendment taking of its reserved water rights. See Winters v.
United States, 207 U.S. 564, 576-78 (1908). Defendant filed a motion to dismiss pursuant
to Rule 12(b)(1) for lack of subject matter jurisdiction. Its motion has several bases,
including standing, ripeness, and issues related to the statute of limitations. Defendant also
contends that the Government’s bare trust relationship with Crow Creek does not provide
the “money-mandating” statute or regulation necessary for jurisdiction in this court. See
United States v. Testan, 424 U.S. 392, 400 (1976).

        Plaintiff's pleadings do not show how damages from an alleged taking could have
accrued currently, and oral arguments did not clarify this threshold issue. Nevertheless,
plaintiff urged the court to permit sufficient discovery for it to address defendant’s
jurisdictional arguments. Given the opportunity to inquire into the extent of defendant’s
diversion of its rights in the waters of the Missouri River, the Tribe argued it would be able
to definitively establish damages. Plaintiff believes that granting defendant’s dispositive
motion at this stage would be premature.

        Crow Creek would pursue expensive and time-consuming litigation to find some
evidence that defendant has taken an amount of water that the Tribe could have used for
another, unnamed purpose. For example, counsel stated during oral arguments that plaintiff
could hire experts to submit reports on various methods of obtaining appraised values for
those waters. Plaintiff believes that those values would supply evidence of the damages
that its case now lacks.

       The relationship between Native American tribes and the United States is a special
one in this court; plaintiff is entitled to every latitude in its efforts to establish a cause of
action. In this case, however, opening discovery in response to defendant’s motion to
dismiss would result in a waste of resources for both parties. We must grant defendant’s
motion for the reasons described below.

                                      BACKGROUND

        The Crow Creek Sioux Tribe is a federally-recognized Native American tribe that
has been situated on a reservation in present-day South Dakota since 1863. The
reservation’s western boundary runs along the Missouri River. The Tribe is a constituent
band of the Great Sioux Nation and a signatory to the Fort Laramie Treaties of 1851 and
1868. These treaties discussed several key elements of the relationship between Indian
tribes and the United States, including delineating the bounds of their reservations, the
nature of certain rights held, and expected uses of the land occupied by the tribes. The
treaties were generally silent on the issue of tribal water rights, however.

        Congress authorized a flood control scheme for the Missouri River in 1944, known
as the Pick-Sloan Plan; the plan directed the construction of several dams along the
Missouri River. Two of the dams led to the inundation of approximately 15,000 acres of
plaintiff’s reservation. The Fort Randall Dam and the Big Bend Dam have been in
operation since 1953 and 1964, respectively. Congress authorized $4.4 million in 1962 to
compensate the Tribe for the loss of its land caused by that inundation. Both dams have
been in continuous operation since soon after completion of their original construction.

        Plaintiff filed suit in this court alleging that the United States had abdicated its
fiduciary trust responsibilities to the tribe as articulated in Winters, namely the preservation
of its reserved water use rights. The Tribe complained that defendant is using water that
the Tribe is entitled to use for its own purposes, and that defendant is failing to manage and
protect those rights for the Tribe’s benefit. Crow Creek also alleged that defendant’s
mismanagement of that water and its construction of dams that flooded the reservation
violated the Fifth Amendment’s prohibition on takings without just compensation.




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       Plaintiff seeks $200 million in damages for these alleged injuries, along with
declaratory and injunctive relief intended to define the scope of its right of access to the
waters of the Missouri River. The United States contends that plaintiff’s case must be
dismissed for lack of subject matter jurisdiction. Its contentions in support of its Rule
12(b)(1) motion are that: the six-year statute of limitations has expired on plaintiff’s claim;
the Complaint includes demands for equitable and declaratory relief that must be related to
a decision on money damages; plaintiff lacks standing because its claim is not ripe; and no
money-mandating statute or regulation applies to the general trust relationship between the
Tribe and the United States. In this Opinion, we focus on the threshold issue of standing or
ripeness.

                                       DISCUSSION

        The sources of plaintiff’s claim for relief are its water rights granted pursuant to the
Winters doctrine and its trust relationship with the United States. The Winters doctrine
guarantees most Indian tribes in this country the right to sufficient water for the purposes
of their reservations. Winters, 207 U.S. at 576-78. The statutory source for defendant’s
trust obligations regarding Indian tribal resources is found at 25 U.S.C. § 162a(d).

       Defendant’s primary argument is that plaintiff cannot show that it has been damaged
by diversion of water from the Missouri River for which the Government is responsible.
That is, the Tribe has not experienced a reduction of its water supply as a result of the
alleged taking of plaintiff's water rights. If it had, plaintiff has not shown or even alleged
that such a reduction has resulted in its not having sufficient water for the reservation’s
own purposes.

       Plaintiff’s argument in response is: (1) The Winters doctrine and related cases grant
unto the Tribe a “presently perfected” possessory interest in the waters of the Missouri
River. In taking or diverting waters from the Missouri River for whatever purpose, the
United States converts to its own use an asset that belongs to the Crow Creek Tribe; and
(2) discovery will enable the Tribe to calculate damages by showing the amount of water
that has been diverted. Expert testimony will then permit plaintiff to calculate the value of
that water.

        The Supreme Court ruled in Winters v. United States that Indian tribes are entitled
to an amount of water necessary to fulfill the purposes of their reservations, “without which
[the reservations] would be useless.” Winters, 207 U.S. at 576. Defendant does not dispute
the fact that plaintiff is entitled to draw all the water it needs to supply the reservation, in
this case from the Missouri River.

       The Government’s pertinent obligations as trustee for Native American tribes are
codified at 25 U.S.C. § 162a. This statute includes language directing the Secretary of the
Interior to “appropriately manag[e] the natural resources located within the boundaries of



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Indian reservations and trust lands.” 25 U.S.C. § 162a(d)(8). Most cases addressing these
responsibilities have been concerned with the Government’s trust obligation to manage the
Tribes’ trust assets; none has held that the statute defines specific obligations regarding a
tribe’s natural resources. Thus, the United States must account for a tribe’s trust assets and
maximize their value. Neither the statute nor related case law specifies what the
Government must do to protect or account for a tribe’s natural resources.

                                         RULING

       Plaintiff has not suggested what damages the Tribe might have incurred from the
Government’s diversion of water from the Missouri River or how the court could determine
the amount of such damages. During oral argument, plaintiff’s counsel did not point to an
actual or imminent injury to the Tribe that had yet occurred, conceding that at present, the
Tribe has no means of calculating damages resulting from defendant’s alleged breach of
its common law and statutory trust obligations.

       The basis for plaintiff's lawsuit seems to be that the Winters doctrine grants unto the
Tribe a “presently perfected possessory interest” in the waters of the Missouri River. When
the United States permits construction of dams on the river for purposes other than to
supply the reservation, it is converting a trust asset belonging to the Crow Creek Tribe. The
court should order an accounting of how much water defendant has diverted and award
damages accordingly.

       The Winters doctrine guarantees plaintiff and other Native American tribes in this
country the right to sufficient water for the needs of their reservations. Damages for
violation of Winters doctrine rights typically result from circumstances in which the
Government’s diversion causes the tribes to experience a shortage of water needed for their
reservations.

       Defendant has withdrawn or diverted water from the Missouri River for flood
control, and its diversion has provided benefit to others in the area, but plaintiff has not
alleged that such uses have reduced the amount of water available to the Crow Creek Sioux.
Neither plaintiff’s Complaint nor counsel’s arguments in court suggest how the Tribe could
have incurred damages in such circumstances, much less how the court could calculate
such damages.

       If plaintiff had applied for and been granted the authority to sell its water, for
example, or had proposed other uses, it might be entitled to sufficient water for those
purposes in addition to its own. The Tribe has not shown that it has a need for the water
other than for its own consumption, or that the water it obtains pursuant to the Winters
doctrine is insufficient for its intended pursuits.




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        In cases dealing with water use rights, a common threshold concern is whether the
use of water by one party infringes on the rights of another party to a sufficient degree to
cause an actual or imminent injury. In Casitas Mun. Water Dist. v. United States, the
plaintiff’s Fifth Amendment taking claim was dismissed as unripe because it could not
show that a federal requirement that water be diverted down a fish ladder had harmed its
property interest in a right to the beneficial use of that same water. Casitas Mun. Water
Dist. v. United States, 708 F.3d 1340 (Fed. Cir. 2013). Without demonstrating some impact
on its protected right of beneficial use, the court in Casitas had no jurisdiction to hear that
plaintiff’s unripe claim. Additionally, in Navajo Nation v. US Dep’t of the Interior, the
Navajo Nation’s claim that the government had breached fiduciary obligations to quantify
the tribe’s water rights under the Winters doctrine was dismissed because the tribe could
not indicate a regulation or statute which defined specific duties the government had failed
to fulfill. Navajo Nation v. US Dep’t of the Interior, 34 F. Supp. 3d 1019 (D. Ariz. 2015).

       The trust relationship between the United States and Indian tribes, while robust,
imposes only general obligations except where more specific obligations have been
assumed by the government via regulation or statute. 25 U.S.C. § 162a(d)(8) does direct
the government to manage the natural resources of Indian tribes, but does not direct any
specific actions to be taken by the government in that management. This stands in contrast
to much of the rest of 25 U.S.C. § 162a and § 162a(d), which are principally concerned
with trust funds and assets and which provide clear instructions for their management.
Absent statutory authority to direct the government to more affirmatively manage Indian
natural resources, and absent an actual compensable injury, this court lacks jurisdiction to
hear Crow Creek’s claim.

                                      CONCLUSION

         The jurisdictional problem of standing or ripeness arises from plaintiff’s inability to
identify an injury to the Tribe that has yet occurred. If we were to permit discovery for the
purposes that plaintiff proposes, assuming that we had jurisdiction to order the accounting
that it seeks, that effort could only establish the value of water that has been diverted from
the Missouri River over a period of time. Such a value would not equate to damages
suffered by the Tribe in the circumstances of this case.

       For these reasons, we GRANT defendant's motion to dismiss pursuant to Court of
Federal Claims Rule 12(b)(1). The Clerk of Court will DISMISS plaintiff's Complaint. No
costs.

       IT IS SO ORDERED.
                                            s/Robert H. Hodges, Jr.
                                            Robert H. Hodges, Jr.
                                            Senior Judge



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