               In the United States Court of Federal Claims
                                          No. 14-296L

                                    (Filed: February 24, 2016)

 **********************************                   Indian breach-of-trust case; standing
                                              )       of heirs to challenge BIA’s actions
 SUSAN FREDERICKS, et al.,                    )       respecting estate assets; motion to
                                              )       dismiss for failure to state a claim;
                       Plaintiff,             )       RCFC 12(b)(6); time of vesting of
                                              )       heirs’ property interests; BIA’s
        v.                                    )       money-mandating fiduciary duties in
                                              )       entering and approving leases of Indian
 UNITED STATES,                               )       agricultural lands and mineral rights
                                              )
                       Defendant.             )
                                              )
 **********************************

       Terry L. Pechota, Rapid City, South Dakota, for plaintiff. With him at the hearing was
John Fredericks III, Fredericks Peebles & Morgan, Mandan, North Dakota.

        Adam M. Bean, Trial Attorney, Environment & Natural Resources Division, United
States Department of Justice, Washington, D.C., for defendant. With him on the briefs were
John C. Cruden, Assistant Attorney General, and Stephen R. Terrell, Trial Attorney, Land &
Natural Resources Division, United States Department of Justice, Washington, D.C., and Holly
H. Clement, Office of the Solicitor, United States Department of the Interior, Washington, D.C.

                                    OPINION AND ORDER

LETTOW, Judge.

        Five Indian heirs to their deceased father’s allotted lands have filed this breach of trust
case, contesting actions taken by the Department of the Interior’s Bureau of Indian Affairs
(“BIA”) regarding the estate’s lands and assets. After the death of plaintiffs’ father in 2006, BIA
began probate proceedings, which lasted until 2013. The plaintiffs allege that during probate,
and continuing to this day, the United States improperly granted and approved leases of their
father’s land in violation of trust duties imposed by the Fort Berthold Mineral Leasing Act, Pub.
L. No. 105-188, 112 Stat. 620 (1998), as amended by Pub. L. No. 106-67, 113 Stat. 979 (1999),
and the American Indian Agricultural Resource Management Act (“AIARMA”), Pub. L. No.
103-177, 107 Stat. 2011 (1993) (codified as amended at 25 U.S.C. §§ 3701-46). They also allege
a taking of property without just compensation in contravention of the Fifth Amendment.
Pending before the court is the United States’ (“government’s”) motion to dismiss under Rules
12(b)(1) and 12(b)(6) of the Rules of the Court of Federal Claims (“RCFC”). See Def.’s Mot. to
Dismiss (“Def.’s Mot.”), ECF No. 25. The government’s principal arguments are that the Indian
heirs lack standing because they had no property interests until the conclusion of probate, and
that pertinent statutes impose no money-mandating duties on the government in favor of the
heirs. A hearing was held on January 8, 2016, and the government thereafter filed a
supplemental brief on January 19, 2016.

                                        BACKGROUND

           A. The Plaintiffs’ Father Died Intestate, and the Government Probated His Estate

       John Fredericks, Jr., died on December 27, 2006 in Bismarck, North Dakota. Am.
Compl. ¶ 5. During his life, he married three times. His second wife was Candace Bridges, with
whom he had five children: Susan, John III, Casey, Mary, and Shawn Fredericks. Am.
Compl. ¶ 6. These five children are the plaintiffs.1 At some point, decedent’s marriage to
Candace Bridges ended, and he married Judy Fredericks, with whom he had three children, two
of whom are heirs: Kathy Johnson and Frederick Fredericks. Am. Compl. ¶ 7.2 His marriage to
Judy lasted until his death.

        Mr. Fredericks was an enrolled member of the Three Affiliated Tribes of the Fort
Berthold Indian Reservation in North Dakota, as were and are his children and his wife Judy.
Am. Compl. ¶ 8. When he died, he owned interests in 3,477 acres of allotted land in or around
the reservation. Am. Compl. ¶¶ 9, 37. Those allotments were held in trust for him by the United
States. Am. Compl. ¶ 9; Def.’s Mot. at 13 (acknowledging decedent’s “trust and restricted fee
status land”). By law and regulation, an Indian owner of allotted lands can execute a will
bequeathing his or her interests in allotted lands. See 25 C.F.R. § 15.3. Nonetheless,
Mr. Fredericks left no will. Am. Compl. ¶ 10.

        In the absence of a will, BIA began intestate probate proceedings to distribute
Mr. Fredericks’ allotted lands and assets to his heirs. Am. Compl. ¶ 11. On June 20, 2009,
Probate Judge James Yellow Tail ruled that Judy as surviving spouse had a life estate in all trust
real estate in which decedent’s interest equaled or exceeded 5%. Probate Decision ¶ 9(a)(i); Am.
Compl. ¶ 11. As for the remainder after the expiration of the life estate, the Probate Judge ruled
that the seven children who were heirs held an equal one-seventh undivided interest. Probate
Decision ¶ 9(a)(i); Am. Compl. ¶ 11. In addition, as the oldest child, Susan was awarded
decedent’s interest in all trust lands in which his interest was less than 5%. Probate Decision
¶ 9(a)(ii); Am. Compl. ¶ 11. Probate Judge Yellow Tail denied a petition for rehearing on May


       1
        To avoid confusion, the court refers to these individuals by their first names, and to
Mr. Fredericks, Jr., as simply Mr. Fredericks.
       2
        Mr. Fredericks had two further children, Joseph Wade Fredericks Banta, a son of
Mr. Fredericks and his first wife, Joann Christianson, and Gary Mark Fredericks, a son of
Mr. Fredericks and his third wife Judy. See In re Estate of John Fredericks, Jr., Case No.
P 0000 4752 1P (Interior Office of Hearings and Appeals June 20, 2009), reproduced at Pls.’
Resp. to Mot. to Dismiss (“Pls.’ Opp’n”) Ex. 2 (“Probate Decision”) ¶ 3, ECF No. 30-2.
Because Joseph and Gary were both legally adopted by other parents prior to the death of
Mr. Fredericks, they could not be and were not considered heirs of his estate. Id.



                                                 2
31, 2011. Am. Compl. ¶ 21. The plaintiffs then appealed the decision to the Interior Board of
Indian Affairs, which on July 11, 2013 affirmed Judge Yellow Tail’s rulings. Am. Compl. ¶¶ 22,
23.

  B. During and After Probate of Decedent’s Estate, BIA Permitted Various Activities on the
                                  Decedent’s Allotted Lands

       The plaintiffs’ claims arise out of events occurring during and after the probate
proceedings regarding Mr. Fredericks’ estate.

       1. BIA permitted Judy to enter an oil lease while the estate was in probate.

        On February 4, 2008, Judy signed an oil and gas lease (the “Oil Lease”) with an oil
company, permitting exploration and drilling on one of the decedent’s parcels located in the Fort
Berthold Reservation. Am. Compl. ¶ 12.3 BIA approved the Oil Lease almost three months
later, on April 23, 2008, even though the heirs of Mr. Fredericks had not yet been determined in
probate. Am. Compl. ¶ 13. The Oil Lease has led to three oil wells on the land, which to date
have generated royalties in excess of $1,000,000. Am. Compl. ¶ 15. BIA has not paid the heirs,
either Judy or the plaintiffs, any bonuses, royalties, or other proceeds from this lease. Am.
Compl. ¶ 45. On July 23, 2013, plaintiffs requested that BIA segregate income from the Oil
Lease and distribute it in accord with the Fort Berthold Mineral Leasing Act. Am. Compl. ¶ 30.

       2. BIA authorized Judy to enter a grazing lease with a third party, and that third party
          allegedly caused damage to the land.

        While the probate proceedings were pending, in 2009 and 2010, BIA granted Judy a
revocable grazing permit to use decedent’s allotted trust land. Am. Compl. ¶ 16. Judy in turn
entered an agreement with Garvin Gullickson, a non-Indian, allowing him to pasture his cattle on
the allotted lands. Am. Compl. ¶ 17. Mr. Gullickson then allegedly grazed livestock on the land,
removed grass and other forage, dug up a spring, destroyed a stock tank, and despoiled two water
sources on the land, “causing a diminution in [the] flow of creeks on the land.” Am.
Compl. ¶ 18. Plaintiffs did not know about the permit granted to Judy or her agreement with
Mr. Gullickson prior to their issuance. Am. Compl. ¶ 16.4 The record before the court does not
disclose the term of Judy’s lease to Mr. Gullickson.




       3
       The parcel is located within the Bakken shale formation and is identified as Allotment
1029A-A, Township 147 North, Range 39 West, 5th Principal Meridian, Dunn County, North
Dakota. The ownership of the mineral interest in the parcel has recently been disputed by the
government. See infra, at 4, 7.
       4
        Prior to the issuance of a permit to Judy, the plaintiffs had put the BIA on notice that
they desired that the land be leased to Casey for his ranching business. Am. Compl. ¶ 16.


                                                 3
       3. BIA denied plaintiffs’ request to permit Casey to lease and use the land.

        On July 6, 2012, plaintiffs requested BIA’s approval of an agricultural lease to Casey.
Am. Compl. ¶ 27. The BIA did not take action on the request. Am. Compl. ¶ 28. The plaintiffs
submitted the request again on November 18, 2013. Am. Compl. ¶ 28. On March 28, 2014, the
BIA superintendent for the Fort Berthold Agency denied the proposed lease to Casey, and on
March 10, 2015, the regional director affirmed the denial. Am. Compl. ¶ 29. Plaintiffs appealed
that denial to the Interior Board of Indian Appeals on March 30, 2015, and that appeal is
pending. Am. Compl. ¶ 29.

       4.   With BIA approval, Judy leased 2,646 acres of the lands to a third party.

      On or about June 2015, Judy leased 2,646 acres of land to a non-Indian third party. Am.
Compl. ¶ 31. The lease caused the plaintiffs to be excluded from the land. Am. Compl. ¶ 31.
The BIA approved the lease over the objection of the plaintiffs. Am. Compl. ¶ 31.

       5. BIA inventoried the decedent’s estate during probate, and plaintiffs disagree with
          the inventory.

        During probate proceedings, BIA made an inventory of the assets in the plaintiffs’
father’s estate. See Am. Compl. ¶ 32. On June 15, 2015, the plaintiffs objected to the BIA’s
conclusions respecting the inventory and “[n]o decision has [yet] been made on plaintiffs’
objections.” Am. Compl. ¶ 34. BIA has also questioned the inventory. See infra, at 7.

                                      C. Procedural Posture

         Plaintiffs have filed three administrative appeals with the Department of the Interior since
2013, all of which remain pending. At the Interior Board of Indian Appeals (the “Board” or
“IBIA”), the plaintiffs seek income from the Oil Lease and reconsideration of BIA’s inventory of
their father’s estate. Am. Compl. ¶¶ 30, 34. In connection with this appeal, BIA has asserted
that the decedent did not own the mineral rights to the land on which the Oil Lease is located and
thus that those mineral rights are not part of the decedent’s estate. Hr’g Tr. 65:2 to 69:24 (Jan. 8,
2016), ECF No. 42.5 The Board is also reviewing the BIA’s decision in 2015 to deny an
agricultural lease to Casey. Am. Compl. ¶ 29.

       Plaintiffs filed this action on April 14, 2014, and subsequently they requested a stay of
proceedings pending resolution of appeals before the IBIA. Pls.’ Mot. to Stay, ECF No. 8. The
United States opposed the stay, arguing that plaintiffs’ claims of breach of fiduciary duty and
uncompensated takings did not overlap with the appeals and any stay would be indefinite in
duration and thus inappropriate, given the lack of predictability of the time when administrative
decisions on the appeals might be rendered. Def.’s Opp’n to Pls.’ Mot. for Stay, at 3-4, ECF No.
9. On June 10, 2015, plaintiffs indicated they would file an amended complaint, and the court
then denied the motion to stay without prejudice to renewal. Order of June 10, 2015, ECF No.


       5
        The date will be omitted from subsequent citations to the transcript of the hearing on the
pending motion.


                                                 4
21. On July 10, 2015, plaintiffs filed an amended complaint asserting five counts, but they did
not renew their request for a stay. Count One alleges a violation of the Fort Berthold Mineral
Leasing Act and an illegal exaction. Am. Compl. ¶¶ 45, 46. Count Two alleges a breach of
fiduciary duty by BIA as trustee of plaintiffs’ interest in lands. Am. Compl. ¶ 59. Count Three
alleges a violation of the AIARMA. Am. Compl. ¶ 71. Count Four encompasses a variety of
takings theories under the Fifth Amendment. Am. Compl. ¶¶ 73-82. Finally, Count Five alleges
the government breached the American Indian Trust Fund Management Reform Act of 1994,
Pub. L. No. 103-412, 108 Stat. 4239 (codified in scattered sections of title 25, including 25
U.S.C. §§ 4001, 4043), as well as trust duties attendant to this statute, by improperly
inventorying their father’s estate. Am. Compl. ¶¶ 83-85. On August 14, 2015, the United States
filed its motion to dismiss plaintiffs’ amended complaint. That motion was fully briefed and
addressed at the hearing held on January 8, 2016, and in the government’s supplemental brief
filed January 19, 2016.

                                 STANDARDS FOR DECISION

                                  A. Subject Matter Jurisdiction

        A defendant may challenge this court’s subject matter jurisdiction by filing a motion
pursuant to RCFC 12(b)(1). Plaintiffs bear the burden of establishing subject matter jurisdiction.
Fidelity & Guar. Ins. Underwriters, Inc. v. United States, 805 F.3d 1082, 1087 (Fed. Cir. 2015);
Brandt v. United States, 710 F.3d 1369, 1373 (Fed. Cir. 2013); Reynolds v. Army & Air Force
Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). While a party may put subject matter
jurisdiction at issue by motion, the court may also raise the issue sua sponte, pointing out
potential jurisdictional defects that the parties may have failed to discern. If the court at any time
determines it lacks jurisdiction, the case must be dismissed, RCFC 12(h)(3), or transferred to a
federal court that would have jurisdiction, 28 U.S.C. § 1631.

         A court deciding a motion under RCFC 12(b)(1) must determine whether jurisdiction is
proper without reaching the merits. See Caraway v. United States, 123 Fed. Cl. 527, 529 (2015)
(citing Greenlee Cnty. v. United States, 487 F.3d 871, 876 (Fed. Cir. 2007)). “Only after this
initial inquiry is completed and the Court of Federal Claims takes jurisdiction over the case does
it consider the facts specific to the plaintiff's case to determine ‘whether on the facts [the
plaintiff’s] claim f[alls] within the terms of the statutes.’” Greenlee, 487 F.3d at 876 (quoting
Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005)).

                                    B. Failure to State a Claim

        The defendant may seek dismissal of a complaint for failure to state a claim upon which
relief could be granted. RCFC 12(b)(6). In that regard, the court accepts as true the complaint’s
“well-pleaded factual allegations” and then determines whether the complaint alleges facts
“‘plausibly suggesting (not merely consistent with)’ a showing of entitlement to relief.” Dimare
Fresh, Inc. v. United States, 808 F.3d 1301, 1306 (Fed. Cir. 2015) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 557 (2007), and citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)),
petition for cert. filed (No. 15-944).




                                                  5
                                         JURISDICTION

                                   A. Subject Matter Jurisdiction

        This court has jurisdiction pursuant to the Tucker Act, 28 U.S.C. § 1491(a)(1), and Indian
Tucker Act, 28 U.S.C. § 1505, over claims for breach of fiduciary duty where those claims are
grounded in sources of law that impose specific fiduciary duties on the government and that can
fairly be interpreted as mandating compensation for damages sustained as a result of such
breach. United States v. Mitchell, 445 U.S. 535, 542-44 (1980). Given the government’s
statutory and regulatory responsibility for granting and approving leases and monitoring
adherence to and performance of leases, see infra, at 14-17; see also Wilkinson v. United States,
440 F.3d 970, 975-79 (8th Cir. 2006) (addressing alleged deprivation of rental income derived
from leases of Indian trust land in the Fort Berthold Reservation), the court has determined that
the statutes and regulations at issue in this case impose fiduciary duties upon the government that
are money-mandating in redressing a breach. See, e.g., United States v. Jicarilla Apache Nation,
564 U.S. __, 131 S. Ct. 2313, 2325 (2011) (“The [g]overnment assumes Indian trust
responsibilities only to the extent it expressly accepts those responsibilities by statute.”); see also
United States v. Navajo Nation, 556 U.S. 287 (2009); United States v. White Mountain Apache
Tribe, 537 U.S. 465 (2003). Accordingly, the court has jurisdiction.

                            B. Exhaustion of Administrative Remedies

        Because plaintiffs are pursuing administrative appeals, the court sua sponte raises the
issue of exhaustion. That doctrine is one which, along with abstention, finality, and ripeness, can
“govern the timing of federal-court decisionmaking.” McCarthy v. Madigan, 503 U.S. 140, 144
(1992), superseded by statute on other grounds, Prison Litigation Reform Act of 1995, Pub. L.
No. 104-134, 110 Stat. 1321-71 (1996) (codified as amended at 42 U.S.C. § 1997e, et seq.), as
recognized in Woodford v. Ngo, 548 U.S. 81, 84-85 (2006). As a general matter, “no one is
entitled to judicial relief for a supposed or threatened injury until the prescribed administrative
remedy has been exhausted.” Rollock Co. v. United States, 115 Fed. Cl. 317, 329 (2014)
(quoting Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 (1938)) (quotation marks
omitted). The doctrine of exhaustion encompasses two sub-doctrines: (1) statutory exhaustion
and (2) prudential exhaustion. See McCarthy, 503 U.S. at 144; see also Lins v. United States,
688 F.2d 784, 786-87 (Ct. Cl. 1982) (Friedman, C.J.) (describing this distinction in terms of
“mandatory” versus “permissive administrative remedies”). Statutory exhaustion is
jurisdictional, but prudential exhaustion is not. Omni Moving & Storage of Virginia, Inc. v.
United States, 21 Cl. Ct. 224, 230 (1990); see also Mitchell v. United States, 229 Ct. Cl. 1, 18
(1981) (finding government waived prudential exhaustion by failing to raise the issue), aff’d,
United States v. Mitchell, 463 U.S. 206 (1983).

        Statutory exhaustion is required “where Congress specifically mandates” it, McCarthy,
503 U.S. at 144, with “sweeping and direct statutory language indicating that there is no federal
jurisdiction prior to exhaustion, or the exhaustion requirement is treated as an element of the
underlying claim.” Elk v. United States, 70 Fed. Cl. 405, 407 (2006) (quoting Avocados Plus
Inc. v. Veneman, 370 F.3d 1243, 1248 (D.C. Cir. 2004)). Each of the administrative appeals in
this case concern subjects as to which there is no statutory command that an appeal must be


                                                  6
pursued to resolution before the administrative action becomes susceptible to judicial
consideration. Consequently, the court will focus on prudential exhaustion.

        Prudential exhaustion is a matter of judicial discretion, in which the court considers the
“twin purposes of protecting administrative agency authority and promoting judicial efficiency.”
White & Case LLP v. United States, 67 Fed. Cl. 164, 170 (2005) (quoting McCarthy, 503 U.S. at
145). This requires the court “to balance the interests of the individual, which favor prompt
access to a judicial forum . . . against countervailing institutional interests.” Rollock, 115 Fed.
Cl. at 332 (citing McCarthy, 503 U.S. at 146; Elk, 70 Fed. Cl. at 408). In addressing that
balance, the court considers “three broad sets of circumstances” that can weigh against requiring
prudential exhaustion. McCarthy, 503 U.S. at 146. “First, requiring resort to the administrative
remedy may occasion undue prejudice to subsequent assertion of a court action. Such prejudice
may result, for example, from an unreasonable or indefinite timeframe for administrative action.”
Id. at 146-47. “Second, an administrative remedy may be inadequate ‘because of some doubt as
to whether the agency was empowered to grant effective relief.’” Id. at 147 (quoting Gibson v,
Berryhill, 411 U.S. 564, 575 n.14 (1973)). “Third, an administrative remedy may be inadequate”
where the agency is “biased” or has “predetermined the issue before it.” Id. at 148.

        Applying prudential exhaustion standards, the court concludes that it would be imprudent
now for the court to proceed with Count One or those aspects of Count Two premised upon the
Fort Berthold Mineral Leasing Act. During the hearing on the pending motion, the court learned
for the first time that BIA was seeking an administrative determination that plaintiffs’ father did
not own the mineral rights attendant to the land on which the Oil Lease is situated. Hr’g Tr. 65:2
to 69:24. If decedent did not own the mineral rights, then neither do his heirs, meaning this
aspect of the case could be moot. Moreover, plaintiffs have not alleged any agency bias, nor,
having already filed their claims in this court, is there any danger that a statute of limitations
would run and bar their claims.

       The court also finds it would be imprudent to proceed with Count Three, to the extent it
seeks damages for BIA’s denial of a lease to Casey on March 28, 2014, and with Count Five. As
with the Fort Berthold Mineral Leasing Act claims, plaintiffs allege no agency bias nor prejudice
that would result from the court’s temporarily staying its hand while awaiting the results of the
pending administrative appeals.

        In cases such as this, where plaintiffs present both exhausted and unexhausted claims, the
court may proceed with the exhausted claims alone. See Cooper v. Marsh, 807 F.2d 988, 992
(Fed. Cir. 1986) (remanding case to district court to proceed with exhausted claims only).
Because “Tucker Act claims are subject to a six-year limitations period,” a “per se rule of ‘total
exhaustion’ . . . requiring dismissals of complaints containing some claims not previously
reviewed by [the agency] could work an undue hardship on plaintiffs for whom the limitations
period had run.” Id. at 991-92 (quoting Rose v. Lundy, 455 U.S. 509, 513 (1982)). For this
reason, the court also should not dismiss claims that have not been prudentially (permissively)
exhausted. Instead, the court may enter a stay. See Brighton Village Assocs. v. United States, 52
F.3d 1056, 1060 (Fed. Cir. 1995) (concluding that the Court of Federal Claims may stay
proceedings pending prudential administrative appeal, permitting plaintiff to file suit within
statute of limitations period). Accordingly, the court will not now proceed to consider Count



                                                 7
One, Count Two to the extent it concerns the Fort Berthold Mineral Leasing Act, Count Three to
the extent it seeks damages for BIA’s denial of a lease to Casey, and Count Five. Those aspects
of plaintiffs’ case will be deferred pending resolution of the pertinent administrative appeals.
The court expresses no opinion as to the merits of these counts. See id. at 1060-61.

C. Whether the Plaintiffs Have Standing to Assert Breach of Trust Claims Arising Prior to BIA’s
                                  2013 Final Probate Order

        The government argues that plaintiffs lack standing to assert breach of trust claims
arising prior to BIA’s 2013 final probate order. In the government’s view, that probate order
vested the plaintiffs with property rights, but until that time the plaintiffs did not have a “legally
protected interest” in their deceased father’s assets within the meaning of Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992). Def.’s Mot. at 8 (citing Lujan).

        A plaintiff must have standing for a court to exercise jurisdiction over his or her claims.
Bannum, Inc. v. United States, 115 Fed. Cl. 257, 269 (2014) (“Standing is a question of subject
matter jurisdiction.”) (quoting Archura LLC v. United States, 112 Fed. Cl. 487, 497 (2013) (in
turn citing S. Cal. Fed. Sav. & Loan Ass’n v. United States, 422 F.3d 1319, 1328, n.3 (Fed. Cir.
2005))). To establish standing, a plaintiff must show (1) an injury-in-fact, meaning “an invasion
of a legally protected interest that is . . . concrete and particularized” and “‘actual or imminent,
not conjectural or hypothetical;’” (2) that there is “a causal connection between the injury and
the conduct complained of;” and (3) that it is “‘likely,’ as opposed to merely ‘speculative,’ that
the injury will be ‘redressed by a favorable decision.’” Lujan, 504 U.S. at 560-61 (quoting
Whitmore v. Arkansas, 495 U.S. 149, 155 (1990); Simon v. Eastern Ky. Welfare Rights Org., 426
U.S. 26, 38, 42 (1976)); see also Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1358-59
(Fed. Cir. 2009) (“The Court of Federal Claims, though an Article I court, . . . applies the same
standing requirements enforced by other federal courts created under Article III.”) (quoting
Anderson v. United States, 344 F.3d 1343, 1350 n.1 (Fed. Cir. 2003)).

         The inquiry into standing is separate from the merits inquiry, and it requires the court to
assume the merits of the plaintiff’s case. See Warth v. Seldin, 422 U.S. 490, 500-01 (1975)
(finding that “standing in no way depends on the merits of the plaintiff’s contention that
particular conduct is illegal” and holding that when deciding standing, “courts must accept as
true all material allegations of the complaint”); see also Amador Cnty. v. Salazar, 640 F.3d 373,
378 (D.C. Cir. 2011) (same).

         In Indian heirship cases “[t]he first element [of Lujan] is satisfied if the plaintiffs in this
action were the persons deprived of an interest in real property or if they are entitled to represent
persons deprived of an interest in real property.” Wilkinson, 440 F.3d at 977 (holding Indian
heirs had standing to bring claims that BIA improperly permitted leasing of Indian trust land in
the Fort Berthold Reservation during probate and prior to the final probate order); see also Hodel
v. Irving, 481 U.S. 704, 711 (1987) (“[The statute] has deprived appellees of the fractional
interests they otherwise would have inherited. This is sufficient injury-in-fact to satisfy Article
III of the Constitution.”). “To determine whether the plaintiffs were deprived of an interest in
real property, we need only trace ownership of the leased allotments to confirm that the plaintiffs




                                                   8
received, or should have received” their interests. Wilkinson, 440 F.3d at 977.

        Applying this rule, the court in Wilkinson considered the case of Indian heirs who
contested BIA’s action in leasing land during probate proceedings. Like the Fredericks heirs, the
Wilkinson heirs alleged that BIA improperly permitted leases on the land during probate, before
the final probate order. 440 F.3d at 972-74. Considering claims under the Federal Tort Claims
Act and the Constitution, the Wilkinson court found that the plaintiffs satisfied the first Lujan
element because “the identified allotments . . . that were subject to the BIA’s seizure and leasing
should have passed to the plaintiffs in this case.” Id. at 977. Contrary to the government’s view
of the law, the Wilkinson court observed that the Eighth Circuit had previously held that
“prospective Indian heirs had Article III ‘injury in fact’ standing even though they suffered only
injury to prospective possessory interests.” Id. at 978 (citing Irving v. Clark, 758 F.2d 1260,
1267 n.12 (8th Cir. 1985).6

        The plaintiffs here received vested remainders in their father’s land, and they allege that
these interests would have been greater but for the government’s violations of law during
probate. Put another way, they have alleged that the government’s conduct “deprived” them of
an interest “they otherwise would have inherited.” Irving, 481 U.S. at 711. That is “sufficient”
for standing. Id. The fact that BIA probate proceedings delayed the confirmation or
announcement of their interests makes no difference.

        The plaintiffs bring these claims in their own right, not necessarily on behalf of their late
father, and so it is not necessary to consider third-party prudential standing. But in the


       6
         The Eighth Circuit in Wilkinson considered that the heirs’ prospective possessory
interests in their decedent’s allotted lands sufficed to establish standing. Wilkinson, 440 F.3d at
977-78. The question of when property rights vest in Indian heirs was not actually before the
court, and the court’s holding shows that vesting vel non is not relevant to its holding on
standing. In a supplemental brief filed after the hearing, the government argues that Wilkinson
applies only when the plaintiff is an heir to a “present possessory interest,” Def.’s Supp. Br. at 5,
ECF No. 39-1, noting that the plaintiffs in Wilkinson were heirs to present possessory interests,
not remainder interests. That circumstance, however, did not provide the basis for the holding in
Wilkinson. Instead, the court of appeals ruled that the first Lujan element “is satisfied if the
plaintiffs” are “persons deprived of an interest in real property.” Id. at 977 (emphasis added).
The holding was not limited to heirs with a present possessory interest, and the government’s
strained effort to distinguish Wilkinson is unavailing. Moreover, the Eighth Circuit commented
that
                 [d]elays in probate proceedings prevented the[] property rights from
                 vesting in the heirs of Ernest and Virginia. The BIA continued to
                 lease the lands well after probate should have been concluded and
                 interests should have vested in the heirs. We refuse to allow the
                 government to delay the disposition of estates and then rely on the
                 consequences of those delays to claim that prospective heirs lack
                 protectable interests.

Id. at 977. The facts in this case are comparable to those in Wilkinson.


                                                  9
alternative, and to the extent plaintiffs are viewed as representatives of their father’s estate
during the probate period, the court finds that plaintiffs also have prudential standing to bring
claims as third-party representatives of their deceased father. As the Eighth Circuit observed in
Wilkinson,

               [f]or obvious reasons, it has long been recognized that the surviving
               claims of a decedent must be pursued by a third party. At common
               law, a decedent’s surviving claims were prosecuted by the executor
               or administrator of the estate. For Indians with trust property, statutes
               require the Secretary of the Interior to assume that general role. The
               Secretary’s responsibilities in that capacity, however, include the
               administration of the statute that the appellees claim is unconstitutional,
               so that he can hardly be expected to assert appellees’ decedents’ rights
               to the extent that they turn on that point.

Wilkinson, 440 F.3d at 977 (quoting Irving, 481 U.S. at 711-12 (citations omitted)). Likewise,
the Indian heirs in this case are the only ones positioned to enforce claims for violations of law
and breach of trust duties occurring during the probate period.

       Both parties have briefed arguments about when the United States’ trust responsibilities
began, the extent of trust property, and the scope of the government’s duty as a trustee. Def.’s
Mot. at 11-12 (citing Inter Tribal Council of Arizona, Inc. v. Babbitt, 51 F.3d 199, 203 (9th Cir.
1995), and Quapaw Tribe of Oklahoma v. United States, 111 Fed. Cl. 725, 731-32 (2013)).
These arguments address the merits, not standing, and the court will not now consider them.

        For the reasons stated, the plaintiffs have met the first element of Lujan. The second and
third elements of Lujan are not seriously contested. The alleged injuries are traceable to the
United States, and they could be redressed by money damages. Accordingly, plaintiffs have
standing to assert claims arising prior to BIA’s final probate order entered July 11, 2013.

 D. Whether Plaintiffs Have Standing to Assert a Fifth Amendment Challenge to the American
                               Indian Probate Reform Act of 2004

        Count Four of the complaint alleges that the American Indian Probate Reform Act
(“AIPRA”) of 2004, Pub. L. No. 108-374, 118 Stat. 1773 (codified in scattered sections of Title
25 of the United States Code, including 25 U.S.C. § 2206), which amended the Indian Land
Consolidation Act (“ILCA”), Pub. L. No. 97-459, tit. II, 96 Stat. 2517 (codified as amended, at
25 U.S.C. §§ 2201-2221), led to a Fifth Amendment taking by permitting life tenants to waste
the land, attendant minerals, and associated assets. In particular, an amendment made by AIPRA
to ILCA changed the law to provide that

               if the decedent is survived by 1 or more eligible heirs described in
               subparagraph (B)(i), (ii), (iii), or (iv), the surviving spouse shall
               receive 1/3 of the trust personalty of the decedent and a life estate
               without regard to waste in the interests in trust or restricted
               lands of the decedent.



                                                 10
25 U.S.C. § 2206(a)(2)(A)(i) (emphasis added). Mr. Fredericks’ children, including the
plaintiffs, are individual heirs within the meaning of Subparagraph (B), Clause (i) of Paragraph
2206(a)(2), so the provision regarding descent to a surviving spouse quoted above applies to this
case. The plaintiffs challenge the viability of the Clause calling for receipt by the surviving
spouse of a “life estate without regard to waste” on the ground that the statutory change could,
and in this instance allegedly would, substantially diminish their remaindermen’s interest in Mr.
Fredericks’ property. Pls.’ Opp’n at 17-20. And specifically, “without regard to waste” is
statutorily defined to mean “with respect to a life estate interest in land, that the holder of such
estate is entitled to the receipt of all income, including bonuses and royalties, from such land to
the exclusion of the remaindermen.” 25 U.S.C. § 2201(10). Prior to the amendment, a life
tenant would be paid interest on the proceeds from a mineral lease, with the principal, i.e., the
proceeds themselves, going to the remaindermen. See 25 C.F.R. § 179.4 (2006). Thus, in this
case, application of the amended statute would mean that Judy as the surviving spouse would
receive all of the bonuses and royalties from the Oil Lease, to the exclusion of plaintiffs, during
Judy’s lifetime.

         Following the enactment of ILCA in January 1983, Indian heirs have filed a variety of
takings challenges to the Act and its various amendments, including two cases decided on the
merits by the Supreme Court. See Irving, 481 U.S. at 711-14 (addressing a challenge to a
provision that required small fractional allotment interests to escheat to tribe, barring descent to
heirs); see also Babbitt v. Youpee, 519 U.S. 234, 243 (1997) (considering a challenge to similar
amendments); Klauser v. Babbitt, 918 F. Supp. 274, 279 (W.D. Wisc. 1996) (same). In all of
these cases, the courts found the plaintiffs had standing to represent their deceased family
member, and for the same reasons expressed in those cases, this court finds the plaintiffs have
standing to challenge the “life estate without regard to waste” provision of ILCA as amended by
the AIPRA.

                                            ANALYSIS

        The government has moved to dismiss all counts of plaintiffs’ amended complaint
pursuant to RCFC 12(b)(6). Def.’s Mot. at 16. Although the captions in and appendix to the
government’s brief suggest that defendant has requested dismissal under Rule 12(b)(6) only of
Count 4 and the post-July 11, 2013 claims, see Def.’s Mot. at i, the government alternatively has
treated its standing arguments as grounds for a motion to dismiss for failure to state a claim.
Def.’s Mot. at 16. Plaintiffs have responded to all of defendant’s arguments. Pls.’ Resp. at 11,
18. For these reasons, the court now considers whether each count of the complaint states a
claim upon which relief could be granted under RCFC 12(b)(6).

        The government acknowledges that it served as a statutory trustee of the property at
issue. See Def.’s Reply at 1-2 (arguing the government’s trust duties were owed to the
decedent’s estate, not the Indian heirs); Def.’s Mot. at 13 (acknowledging the decedent’s “trust”
lands); Hr’g Tr. 31:12-22 (conceding the existence of a trust, but disputing the existence of




                                                 11
money-mandating duties).7 The government’s argument is that it held the property in trust for
the benefit of decedent’s estate, and not the plaintiffs, until the BIA’s final probate order on July
11, 2013. See Def.’s Mot. at 16 (“As set forth [in the government’s standing arguments],
plaintiffs have failed to allege facts that, if true, establish they had a beneficial property interest
in their father’s estate before July 11, 2013.”). As a secondary argument, the government
contends that its conduct was authorized by law, and that the plaintiffs “lacked authority to
approve or disapprove leases” made by the government during and after probate. Def.’s Mot. at
11, 18. The plaintiffs disagree, arguing that their property interest as heirs vested upon the death
of the decedent parent, Pl.’s Opp’n at 7-8, and that the statutes create fiduciary duties owed to
Indian heirs, id. at 12 (discussing mineral rights).

           A. Whether the Heirs’ Interests Were Cognizable Prior to the Final Probate
                                       Order of July 11, 2013

        Plaintiffs assert that a decedent’s property interests necessarily vest in his or her heirs
upon death, and that probate only “confirms [that] title already passed to the heirs.” Pls.’ Opp’n
at 8. Plaintiffs rely primarily on the common law to advance this point. Id. at 8-9 (citing state
common law cases). In reply, the government argues that this court cannot apply common law
standards and must decide the question by examining federal statutes. Def.’s Reply at 10 (“The
answer to that question is governed by federal law and AIPRA, not by the common law or state
law.”).

        Although AIPRA contains provisions relating to tribal probate codes, 25 U.S.C. § 2205,
and to descent and distribution, 25 U.S.C. § 2206, the court has found no federal statute or
regulation that speaks to when a decedent’s interest vests in his or her heirs. The government has
conceded this point. See Hr’g Tr. 8:11-15 (The Court: . . . Does any provision of the American
Indian Probate Reform Act say when interests vest in an heir? Mr. Bean: . . . [B]y statute, I don’t
believe that is defined.”). The only authorities available – decisions by the Interior Board of
Indian Appeals – all hold that when a person dies intestate, title “vests in his or her heirs on the
date of death, not the date of the probate order.” Smartlowit v. Northwest Reg’l Dir., 50 I.B.I.A.
98, 106 (2009) (collecting cases). These Board decisions are directly contrary to the
government’s current contention.

         Moreover, the Smartlowit decision is consistent with the traditional common law rule that
“[if] the interest of the beneficiary is real property, it passes on his death intestate to his heirs.”
Restatement (Second) of Trusts § 142 cmt. a (1959). Although the government asserts that the
common law cannot apply, this assertion is directly contradicted by the Supreme Court’s holding
that “when Congress has not spoken ‘in an area comprising issues substantially related to an
established program of government operation,’” then the court must “fill the interstices of federal
legislation ‘according to [federal common law].’” United States v. Kimbell Foods, Inc., 440 U.S.
715, 727 (1979) (quoting United States v. Little Lake Misere Land Co., 412 U.S. 580, 593
(1973); Clearfield Trust Co. v. United States, 318 U.S. 363, 367 (1943)); see also Montana v.


       7
          Pursuant to 25 U.S.C. § 2206(a)(5), “a trust or restricted interest in land or trust
personalty that descends under the provisions of this subsection shall vest in the heir in the same
trust or restricted status as such interest was held immediately prior to the decedent’s death.”


                                                  12
United States, 124 F.3d 1269, 1274 (Fed. Cir. 1997) (explaining the Kimbell doctrine).8 The fact
that the case involves Indian property rights does not alter this analysis. Wilson v. Omaha Indian
Tribe, 442 U.S. 653, 671-74 (1979) (applying Kimbell and adopting the law of Nebraska as
federal common law to determine the boundaries of a river along an Indian reservation).9

         In this case, federal statutes provide for Indian probate proceedings, but they do not speak
to when the rights of heirs vest. Filling this gap, the common law, IBIA decisions, the law
applied by states, and the traditional common law all provide that an heir’s real property rights
vest on the death of their ancestor. See Brooks v. Bogart, 231 N.W. 2d 746, 752 (N.D. 1975) (“It
is settled law that the real property in an intestate’s estate devolves to the heirs according to the
intestate succession statutes immediately upon the intestate’s death.”); In re Estate of Todman,
2006 WL 3940589, at *4 (Super. Ct. V.I. Dec. 17, 2006) (surveying the common law “as
generally understood and applied in the United States” and determining that “upon the death of a
person, his or her property vests, eo instanti, in his or her heirs or distributees”); Restatement
(Second) of Trusts § 142 cmt. a (reciting the traditional common law rule that “[if] the interest of
the beneficiary is real property, it passes on his death intestate to his heirs, subject to the claims
of creditors, in accordance with the rules governing the devolution of legal interests which are
real property”).10 On the basis of these common law rules, the Supreme Court itself has held
that, as a matter of federal common law, heirs’ interests vest on death. Binney v. Long, 299 U.S.


       8
         Under Kimbell, the court should choose either state law or traditional common law as the
federal common law rule of decision. Kimbell, 440 U.S. at 728. But in cases where both state
law and traditional common law reach the same result, the court need not make a choice of law.
See New York v. National Serv. Indus., Inc., 460 F.3d 201, 206 (2d Cir. 2006) (“[W]e need not
decide this question because the outcome would be the same whether we apply state law or a
national rule derived from traditional common-law principles.”) (Sotomayor, J.).
       9
        The Supreme Court has “borrowed state law in Indian cases before,” even in cases
involving Indian property rights. Omaha Indian Tribe, 442 U.S. at 674 (citing Board of
Comm’rs v. United States, 308 U.S. 343 (1939)).
       10
           This court’s reliance on Kimbell and common law on this question does not contravene
the Supreme Court’s 2011 holding that a “trust is defined and governed by statutes rather than
the common law.” Jicarilla Apache Nation, 131 S. Ct. at 2323. This court is not relying on
common law to determine the existence of trust responsibilities enforceable by money damages
in breach. Instead, this court is determining when interests that are admittedly held by the
plaintiffs vested. Jicarilla was primarily concerned with courts using the common law to impose
particular trust duties, for example a common law fiduciary duty to manage resources to
maximize return, when the statutes themselves did not impose such a duty. Id. (citing United
States v. Navajo Nation, 537 U.S. 488, 507-08 (2003), for the proposition that the “Indian
Mineral Leasing Act” did not permit a breach of trust suit since the Act imposed no “detailed
fiduciary responsibilities” nor “responsibility to secure the needs and best interests of the Indian
owner.”). Moreover, the issue of when a property interest in a trust vested is viewed separately
from the issue of whether the government breached its fiduciary duties. See Lebeau v. United
States, 474 F.3d 1334, 1342-43 (Fed. Cir. 2007) (after the government conceded a breach of
trust, the court analyzed whether plaintiffs had a vested property interest, finding they did not).


                                                 13
280, 287 (1936) (discussing “the common law and the law as declared by this court” and
concluding that an interest vested upon an intestate’s death) (citing Wright v. Blakeslee, 101 U.S.
174, 176-77 (1879), for the proposition that an interest vested upon death, as an application of
federal common law in determining tax consequences under the then-existing Internal Revenue
Code)).

        In light of this analysis, this court accepts the conclusion of the IBIA that Indian heirs’
property interests vest upon the death of their ancestor. See, e.g., Smartlowit, 50 I.B.I.A. at 106;
see also Globe Indem. Co. v. Bruce, 81 F.2d 143, 150 (10th Cir. 1935) (interpreting federal
Indian probate law for the Osage Nation and finding “a present equitable interest in the lands,
moneys and mineral interests vested in the members of the tribe and on the death of a member
descends to his heirs”). A probate court’s “decree of distribution vests or grants no title, but
merely releases the property from probate and confirms the title already passed to the heirs or
beneficiaries.” Kellar v. Kasper, 138 F. Supp. 738, 741 (D.S.D. 1956) (interpreting South
Dakota probate law in a case not involving BIA). Accordingly, plaintiffs’ property interests
vested upon the death of their father.

 B. Whether Any Statutes Imposed Fiduciary Duties Upon the Government in Favor of Indian
                                           Heirs

        The government next argues that it did not violate any statutorily imposed trust duties,
namely because the plaintiffs lack leasing authority. Def.’s Mot. at 10-12; Def.’s Reply at 5.
“To establish that the United States has accepted a particular fiduciary duty, an Indian tribe must
identify statutes or regulations that both impose a specific obligation on the United States and
bear the hallmarks of a conventional fiduciary relationship.” Hopi Tribe v. United States, 782
F.3d 662, 667 (Fed. Cir. 2015) (quotation marks and citation omitted). Courts have found
statutory trusts when statutes or regulations that imposed “comprehensive responsibilities” on the
government required the government to consider the needs and best interests of Indians, and
required the delivery or disposition of assets to the Indians. Id. (citing United States v. Mitchell,
463 U.S. 206, 220 (1983)). Courts have also found statutory trusts when the statutes declared the
existence of a trust and authorized the government “to use the land exclusively.” Id. at 668
(citing White Mountain Apache Tribe, 537 U.S. at 475, which held that under such circumstances
the government was under a duty to preserve improvements to Indian land).

        Because plaintiffs’ claims under the Fort Berthold Mineral Leasing Act have not been
prudentially exhausted, the court considers only plaintiffs’ claims under AIARMA. These
allegations include conduct both before and after the BIA’s 2013 final probate order.

       1. Permits and leases during probate.

       As a threshold rule, Indian lands cannot be leased to or otherwise encumbered in favor of
non-Indians without federal approval. See 25 U.S.C. § 177; see also City of Sherrill v. Oneida
Indian Nation of New York, 544 U.S. 197, 204 (2005) (tracing this statute to 1790, when it was
enacted as “a policy protective of” Indians by “undertaking to secure the Tribes’ rights to
reserved lands”). From time to time, Congress has passed specific leasing acts authorizing
Indians to lease their lands. See, e.g., Act of February 28, 1891, § 3, 26 Stat. 795 (codified at 25



                                                 14
U.S.C. § 397) (permitting a tribal council to lease lands “not needed for farming or agricultural
purposes,” subject to Secretarial approval). Another such act is the Indian Long-Term Leasing
Act of 1955, codified today at 25 U.S.C. §§ 415, 415a-415d. See Felix Cohen, Cohen’s
Handbook of Federal Indian Law § 17.02[4] (2012) (“Cohen’s Handbook”). Section 415
authorizes Indian owners and tribes to lease their restricted lands for up to 25 years, subject to
the approval of the Secretary of the Interior. If an Indian owner dies, Section 415a authorizes
leasing of “restricted lands . . . under sections 415 to 415d of this title, for the benefit of their
heirs or devisees, in the circumstances and by the persons prescribed in section 380 of this title.”
25 U.S.C. § 415a. Section 380 provides that “restricted allotments of deceased Indians may be
leased, except for oil and gas mining purposes, by the superintendents of the reservation within
which the lands are located . . . when the heirs or devisees of such decedents have not been
determined.” Accordingly, the Indian Long-Term Leasing Act creates a scheme for leasing by
Indians and by the government on behalf of Indian heirs.

        In 1990, Congress enacted the AIARMA, codified, as amended, at 25 U.S.C. §§ 3701-
3746. AIARMA generally empowers the Secretary to help tribes manage agricultural lands. See
25 U.S.C. § 3702 (“The purposes of this chapter are to . . . carry out the trust responsibility of the
United States . . . by providing for the management of Indian agricultural lands,” and to
“authorize the Secretary to take part in the management of Indian agricultural lands, with the
participation of the beneficial owners of the land, in a manner consistent with the trust
responsibility of the Secretary.”). For example, AIARMA authorizes the Secretary to work with
Indian tribes to develop and implement 10-year agricultural resource management plans. 25
U.S.C. § 3711(b)(1).

         But AIARMA also amended the scheme established by the Indian Long-Term Leasing
Act, creating new rules for leases and permits of agricultural land. AIARMA empowers the
Secretary to approve agricultural leases or permits “of up to 10 years,” as contrasted to the 25-
year term specified in Section 415, although the Secretary may still authorize a 25-year lease if it
is in the best interests of the Indian landowners and when such lease requires a substantial
investment by the lessee. 25 U.S.C. § 3715(a)(1). This leasing authority may be exercised by
“individual owners” of allotments, or by tribes. 25 U.S.C. § 3715(c). For “owners of a majority
interest,” meaning greater than 50 percent of legal or beneficial title, the act authorizes them to
“enter into an agricultural lease of the surface interest of a trust or restricted allotment” that is
binding upon the minority of owners, if the lease provides those minority interest holders with at
least “fair market value” for the land. 25 U.S.C. § 3715(c)(2)(A).

        In 2001, the Interior Department promulgated regulations implementing AIARMA,
codifying those rules at 25 C.F.R. §§ 162 (leases) and 166 (permits), amending earlier
regulations adopted under 25 U.S.C. § 415. The “overall leasing program” is thus “administered
under the authority of AIARMA in combination with the Indian Long-Term Leasing Act, 25
U.S.C. § 415.” 66 Fed. Reg. 7068, 7079 (2001); see also Cohen’s Handbook § 17.02[5][c]
(“Most modern agricultural and grazing leases are made under authority granted by a
combination of provisions of AIARMA and the Indian Long-Term Leasing Act.”). As part of
this rulemaking, the Interior Department promulgated 25 C.F.R. § 162.209(a)(3), which provides
that BIA “may grant an agricultural lease on behalf of . . . undetermined heirs and devisees of
deceased Indian owners,” and 25 C.F.R. § 166.205(a)(4), which provides that BIA may grant



                                                 15
permits under the same circumstances. See also Spang v. Acting Rocky Mountain Reg’l Dir., 52
I.B.I.A. 143, 150-51 (citing 25 U.S.C. § 380 for the proposition that the Secretary may grant
agricultural leases under certain circumstances).

       Here, the government argues the Secretary had authority to grant permits during probate,
and that the granting of permits alone thus cannot be a breach of fiduciary duty. Sections 380
and 415a provide the government with authority to promulgate 25 C.F.R. § 162.209(a)(3) and 25
C.F.R. § 166.205(a)(4).11 For this reason, the government is correct that it had authority to grant
permits and leases during probate.

         But this does not mean the plaintiffs have failed to state a breach of duty claim under
AIARMA and its regulations. The Federal Circuit has held that Section 415 and the pre-2001
regulations set out in 25 C.F.R. Part 162 imposed money-mandating fiduciary duties on the
United States. Brown v. United States, 86 F.3d 1554, 1561-62 (Fed. Cir. 1996). In that case, the
court held that the plaintiffs could state a claim for breach of fiduciary duty when the Secretary
failed to investigate alleged breaches in a lease and failed to cancel the lease after the alleged
breaches. Id. at 1563. More recently, this court has held that 25 C.F.R. Part 162 imposes
fiduciary duties upon the government that are money-mandating in breach, including a duty to
monitor and ensure a lessee’s compliance with an Indian lease and a duty to take remedial action
if it discovers noncompliance. Oenga v. United States, 91 Fed. Cl. 629, 637-40 (2010) (finding
the leasing regulations imposed a fiduciary duty on the United States to monitor leasing activity
for compliance with the law, and entering summary judgment against the United States for
breach of duty). Post-2001, Part 166 imposes for permits “substantively the same” duties on the
government as Part 162 does for leases. 66 Fed. Reg. at 7080; Cohen’s Handbook § 17.02[5][c]
n.84. Thus, Part 166 contains language that is nearly identical to the provisions of Part 162


       11
            Section 380 of title 25 provides that —

                 Restricted allotments of deceased Indians may be leased, except for
                 oil and gas mining purposes, by the superintendents of the reservation
                 within which the lands are located (1) when the heirs or devisees of
                 such decedents have not been determined and (2) when the heirs or
                 devisees of the decedents have been determined, and such lands are
                 not in use by any of the heirs and the heirs have not been able during
                 a three-months’ period to agree upon a lease by reason of the number
                 of the heirs, their absence from the reservation, or for other cause,
                 under such rules and regulations as the Secretary of the Interior may
                 prescribe. The proceeds derived from such leases shall be credited to
                 the estates or other accounts of the individuals entitled thereto in
                 accordance with their respective interests.

25 U.S.C. § 380.

         Section 415a of title 25 provides that “[r]estricted lands of deceased Indians may be
leased under sections 415 to 415d of this title, for the benefit of their heirs or devisees.” 25
U.S.C. § 415a.


                                                  16
considered in Oenga. See 25 C.F.R. § 166.701 (requiring the government to monitor and “ensure
that the permittee is in compliance” with permit “requirements,” “to protect the interests of the
Indian landowners”); 25 C.F.R. § 166.705 (setting forth the government’s remedial powers).

         Surveying this regulatory landscape, the court finds that 25 U.S.C. §§ 380, 415, 415a, and
3715, in addition to the above-cited provisions of 25 C.F.R. Parts 162 and 166, impose specific
and extensive duties on the government in favor of Indians and Indian heirs, money-mandating
in breach. These statutes and regulations give the government responsibility over trust and
restricted assets and empower the government to enter leases on behalf of Indians. This power
must be exercised “for the benefit of [a deceased Indian’s] heirs.” 25 U.S.C. § 415a. These are
“specific obligation[s]” that bear “the hallmarks of a conventional fiduciary relationship.” Hopi
Tribe, 782 F.3d at 667 (quoting Navajo Nation, 556 U.S. at 301). As a trustee, the government’s
decision to authorize a lease benefiting only one heir, and not the remaining heirs, could violate
the statutory requirement that leases be for the benefit of heirs. 24 U.S.C. § 415a; see also
Restatement (Second) of Trusts, § 183 (“When there are two or more beneficiaries of a trust, the
trustee is under a duty to deal impartially with them.”).12

        Turning to the plaintiffs’ factual allegations, the amended complaint alleges that the
government authorized leasing or permitting in favor of Judy alone, and without regard to the
remaindermen. Am. Compl. ¶¶ 16-19. Plaintiffs thus state a plausible claim for breach of
fiduciary duty.

       2. Oversight of leasing and permitting.

        Plaintiffs additionally allege that the government improperly granted Judy a grazing
permit during probate, and that Judy sub-leased or sub-permitted the land during that time and
that her lessee or permittee damaged the land. Am. Compl. ¶¶ 16-19. As discussed supra, 25
C.F.R. §§ 162 and 166 impose fiduciary duties upon the government, including a duty to monitor
and ensure third-party compliance with an Indian lease and a duty to take remedial action when
and where breaches of significance occur. See Oenga, 91 Fed. Cl. at 637-40; see also Brown, 86
F.3d at 1561-62. Relevant here, Parts 162 and 166 impose upon the government a duty to
administer and approve subleases, 25 C.F.R. §§ 162.241-.246, 166.229, and to consider “the best
interest of the Indian owners” before permitting an assignment or sublease, 25 C.F.R. § 162.243;
see also 25 C.F.R. § 166.224. Agricultural leases and permits must also include indemnity
clauses that hold “the Indian landowners harmless from any loss, liability, or damages resulting
from the tenant’s use or occupation of the leased premises.” 25 C.F.R. § 162.238; see also 25
C.F.R. § 166.207. Accordingly, plaintiffs’ allegations – that Judy subleased the land to Mr.
Gullickson, who in turn damaged it – state a plausible claim for relief.




       12
         Having found statutorily imposed trust duties, the common law may play a role in the
court’s analysis. See Hopi Tribe, 782 F.3d at 668 (citing White Mountain Apache Tribe, 537
U.S. at 475 (in turn citing Restatement (Second) of Trusts for the proposition that the United
States had a duty to preserve trust assets, after having determined that a trust relationship existed
under money-mandating statutes)).


                                                 17
        3. Surface leasing after probate.

        Since the final decision in probate was entered in 2013, plaintiffs contend that the
government has deprived them of leasing rights under 25 U.S.C. § 3715(c) by allowing Judy to
execute surface leases without plaintiffs’ consent. Am. Compl. ¶ 31; Pls.’ Resp. at 25.
Subsection 3715(c) empowers a majority of owners to lease their lands, subject to the approval
of the government. Given the government’s duty to approve and supervise leasing activity, the
government’s outright denial of plaintiffs’ right to lease their lands arguably constitutes a breach
of fiduciary duty. Cf. Oenga, 91 Fed. Cl. at 637-40; see also Brown, 86 F.3d at 1561-62.
Accordingly, the court finds plaintiffs have stated a claim for breach of fiduciary duty.

        In reaching this conclusion, the court is not persuaded by the government’s argument that
25 C.F.R. § 162.004(b)(1) authorizes Judy to enter leases without the consent of remaindermen.
See Def.’s Reply at 16-18. The cited regulation provides that “[w]hen all of the trust or restricted
interests in a tract are subject to a single life estate, the life tenant may lease the land without the
consent of the owners of the remainder interests . . . for the duration of the life estate.” 25
C.F.R. § 162.004(b)(1). But that regulation also imposes duties on the government in favor of
remaindermen. See 25 C.F.R. § 162.004(b)(1)(i) (“The lease will terminate upon the death of the
life tenant.”); 25 C.F.R. § 162.004(b)(1)(iv) (“We may monitor the use of the land on behalf of
the owners of the remainder interests.”); 25 C.F.R. § 162.004(b)(1)(vi) (“We will be responsible
for enforcing the terms of the lease on behalf of the owners of the remainder interests.”).
Moreover, 25 C.F.R. § 162.004(b)(2) provides that the remaindermens’ consent is required when
“less than all” of the trust land is subject to a single life estate. Given the fact-intensive nature of
these regulations, this issue can only be addressed after the parties have been able to develop the
factual record, including facts regarding the precise nature and extent of the leases, the life estate,
and the remainder interests. Plaintiffs state a plausible claim under AIARMA, and thus they
have met their pleading burden under RCFC 12(b)(6).13

                                          C. Takings Claim

        Plaintiffs bring a Fifth Amendment claim, challenging AIPRA and its amendments as
implemented by the BIA. Am. Compl. ¶¶ 73-82. In particular, plaintiffs challenge AIPRA’s
provisions granting a surviving spouse a life estate without regard to waste. Am. Compl. ¶ 75
(citing 25 U.S.C. § 2201(10)); Pl.’s Opp’n at 23 (citing 25 U.S.C. § 2206(a)(2)(D)). To
determine whether a plaintiff has stated a plausible taking claim, the court first “determines
whether the claimant has identified a cognizable Fifth Amendment property interest that is
asserted to be the subject of the taking. Second, if the court concludes that a cognizable property
interest exists, it determines whether that property interest was ‘taken.’” Aviation & General Ins.
Co. v. United States, 121 Fed. Cl. 357, 362 (2015) (quoting Acceptance Ins. Cos. v. United
States, 583 F.3d 849, 854 (Fed. Cir. 2009)).



        13
         Plaintiffs have argued that 25 C.F.R. § 162.004(b)(1) may be invalid to the extent it is
inconsistent with 25 U.S.C. § 3715(c). Am. Compl. ¶ 70. Given the court’s resolution of the
motion to dismiss, the court need not now address whether the regulation is proper under
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).


                                                  18
        Pursuant to the rationale of Irving and Youpee, the complaint plausibly states that the
plaintiffs’ and their father’s interests in real property were taken by the government’s action
altering the scheme for intestate succession.

        The plaintiffs have identified a cognizable property interest. Turning to the second step,
plaintiffs allege these interests were diminished by the government’s action, including BIA’s
probate order. Am. Compl. ¶ 81. These allegations are sufficient to state a plausible claim. Cf.
Irving, 481 U.S. at 717 (finding on the merits that the abolition of devise and descent of certain
types of Indian trust property constituted a taking). Although the parties make arguments under
the multi-factor test of Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978), “[i]t
would be premature to decide at this stage of the case [, i.e., with a pending motion to dismiss
under RCFC 12(b)(6),] whether [p]laintiffs’ allegations should be resolved under . . . the Penn
Central test for regulatory takings.” Alimanestianu v. United States, 124 Fed. Cl. 126, 133
(2015) (concluding that plaintiffs had stated a takings claim without analyzing the claim under
Penn Central). “While th[e Penn Central] factors may ultimately be relevant in deciding
whether a taking has occurred, they do not assist the court in deciding whether [p]laintiffs have
stated a plausible taking claim.” Aviation & General Ins., 121 Fed. Cl. at 366. Accordingly, the
court finds plaintiffs have stated a claim under the Fifth Amendment.14




       14
          In a footnote in the government’s reply brief, the government suggests that plaintiffs’
takings claim is barred by the six-year statute of limitations provided by 28 U.S.C. § 2501
because AIPRA went into effect in 2006 and the plaintiffs’ lawsuit was filed in 2014. Def.’s
Reply at 12 n.6. The government indicates that plaintiffs’ claim may have accrued in 2006.
Def.’s Reply at 12 n.6. In general, “a takings ‘claim first accrues when all the events have
occurred which fix the alleged liability of the government and entitle the plaintiff to institute an
action.’” Navajo Nation v. United States, 631 F.3d 1268, 1273 (Fed. Cir. 2011) (quoting
Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed. Cir. 1988)).
“Therefore,” a takings claim “accrues when the taking action occurs.” Id. (quoting Goodrich v.
United States, 434 F.3d 1329, 1333 (Fed. Cir. 2006)). If the only governmental action alleged is
the legislature’s enactment of a statute, then the plaintiff asserts a legislative taking, which
accrues on the date of enactment. Under this rule, plaintiffs’ Fifth Amendment claims would be
barred to the extent the relevant portions of AIPRA became effective more than six years prior to
the time plaintiffs filed suit. Even so, “a claim that the application of government regulations
effects a taking of a property interest is not ripe until the government entity charged with
implementing the regulations has reached a final decision regarding the application of the
regulations to the property at issue.” Williamson Cnty. Regional Planning Comm’n v. Hamilton
Bank of Johnson City, 473 U.S. 172, 186 (1985). In this instance, implementing regulations
were required before the statutory provisions became operative, and those regulations appear to
have become effective on June 20, 2006, see 70 Fed. Reg. 37,107 (June 28, 2005), but the
probate was not completed until 2013. Given that the government’s mode of raising this issue
was via a footnote in a reply brief, to which plaintiffs have not had an opportunity to respond, the
court declines to rule on the matter at this time.


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                                       CONCLUSION

       The government’s motion to dismiss is DENIED in part and otherwise DEFERRED for
prudential reasons, awaiting resolution of pending administrative proceedings.

      On or before March 11, 2016, defendant shall file an answer to plaintiffs’ amended
complaint.

       It is so ORDERED.

                                           s/ Charles F. Lettow
                                           Charles F. Lettow
                                           Judge




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