[00:00:00] Speaker 05:
We have four cases this morning.

[00:00:03] Speaker 05:
The first is 21-1880, Ute Tribe, Ute Indian Tribe versus United States.

[00:00:11] Speaker 05:
Mr. Holdich.

[00:00:13] Speaker 01:
Go ahead.

[00:00:15] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:17] Speaker 01:
My name is Michael Holdich.

[00:00:19] Speaker 01:
I am arguing this morning on behalf of the Ute Indian Tribe.

[00:00:24] Speaker 01:
There are three issues.

[00:00:26] Speaker 01:
From the lower court that are up on appeal, your honors, tracking the analysis of the lower court, I'm going to be dedicating much of my time this morning on what is arguably the most far-reaching issue as it pertains to the underlying action, which is the lower court's finding that the tribe had failed to show any source of federal law establishing fiduciary obligations as to the tribe's water rights or water infrastructure that were enforceable in the court of federal claims and monetary damages.

[00:00:56] Speaker 05:
That would seem to encompass two separate issues.

[00:00:59] Speaker 05:
One is whether there is some sort of trust obligation with respect to securing future water rights.

[00:01:08] Speaker 05:
And a second issue is whether there's a trust obligation in managing the water rights and infrastructure that is part of the alleged trust, right?

[00:01:19] Speaker 01:
That's correct, Your Honor.

[00:01:21] Speaker 01:
There are separate, but related trust duties that relate to...

[00:01:27] Speaker 01:
or pertain to the security and protection of the tribe's Indian reserved water rights, which are present perfected property rights that are beneficially owned by the tribe.

[00:01:37] Speaker 01:
And those are the water rights that were affirmed in the Winter's Doctrine, which is the 1908 Supreme Court opinion that affirmed that when an Indian reservation is created, by implication, the quantity of water rights, even if they're silent as to the issue of water rights,

[00:01:55] Speaker 01:
that that reservation also reserved a quantity of water necessary to sustain the purpose of the reservation, which is in the case of an Indian reservation, a permanent sustainable homeland.

[00:02:08] Speaker 01:
Now, there's also the separate but related issue of infrastructure.

[00:02:14] Speaker 01:
And this is a specifically strong case for the Indian Trust responsibility as a money mandating duty as it pertains to water for that very purpose.

[00:02:25] Speaker 04:
Why don't you take one example and give us this one example of something that is rights creating or imposes a duty on the government on behalf of the tribes?

[00:02:38] Speaker 01:
Would you be requesting an example specific to this case or an example that's?

[00:02:42] Speaker 04:
An example in this case, yeah.

[00:02:45] Speaker 01:
So an example would be the Act of 1899.

[00:02:47] Speaker 01:
And the reason why that act establishes money amending fiduciary duty is because it meets the standard.

[00:02:57] Speaker 01:
The standard for that was articulated in the 1983 US Supreme Court opinion in Mitchell II and its progeny.

[00:03:05] Speaker 05:
But you have a problem with the recent Supreme Court decision in Navajo.

[00:03:10] Speaker 05:
Now, as I understand, we're just talking here about the first sub-part of this.

[00:03:14] Speaker 05:
That is the supposed obligation to secure additional water for the tribe, which you say is under the Winders Doctrine.

[00:03:28] Speaker 05:
But doesn't the Navajo case preclude that argument?

[00:03:33] Speaker 01:
Thank you for that question, Your Honor, because I think that's very important to this case.

[00:03:37] Speaker 01:
And I'll say that the lower court did not, of course, have the benefit of that Navajo court analysis, which I believe came out in June of 2023.

[00:03:45] Speaker 01:
Now, had it had the benefit of that analysis, I do think that the outcome of this case may have been different, because although the Supreme Court ruled against the Navajo Nation in that case,

[00:03:58] Speaker 01:
Consistent with Mitchell 2 and also the 2003 Supreme Court case, White Mountain Apache, US versus White Mountain Apache, the Supreme Court found that the treaties that were cited by the Navajo Nation fell short.

[00:04:12] Speaker 01:
The reason they fell short was because they did not pertain to or speak to a trust asset of tribal water.

[00:04:17] Speaker 01:
They were essentially silent on the issue of

[00:04:20] Speaker 01:
tribal water being a trust asset or part of a trust corpus, if you look at it in terms of a conventional fiduciary relationship.

[00:04:27] Speaker 01:
In fact, if you looked at Justice Kavanaugh's majority opinion, he specifically says, unless Congress has created a conventional trust relationship with the tribe as to a particular trust asset, here referring to the tribal water rights, this court will not apply common law trust principles to infer duties in the text of a treaty statute or regulation.

[00:04:46] Speaker 01:
So this is something the Navajo Nation was not able to provide, but it's precisely what makes the Ute Indian Tribe's case distinguishable from the Navajo Nation's case because it has this 1899, as it pertains to the water rights themselves, an 1899 act of Congress that affirmatively confers upon the United States

[00:05:04] Speaker 01:
a duty to secure and protect water rights on behalf of the tribe, tribal water rights that are appurtenant to their reservation.

[00:05:12] Speaker 04:
The language to that says, and this shall be the duty of the Secretary of Interior to prescribe such rules and regulations as he may deem necessary.

[00:05:21] Speaker 04:
It seems like there's some discretion that was built into that.

[00:05:24] Speaker 04:
Does that affect the strength or the weight of the obligation that you're talking about?

[00:05:30] Speaker 01:
It would be the tribe's position that to the extent that discretionary component of the 1899 Act impacts the existence of a money-mandating fiduciary duty, it actually bolsters the strength because it is giving the secretary some discretion that is couched within a duty to act a certain way.

[00:05:52] Speaker 01:
So the Congress is conferring upon the secretary

[00:05:56] Speaker 01:
essentially an obligation to decide how this needs to be done.

[00:06:00] Speaker 01:
What needs to be done?

[00:06:01] Speaker 01:
The security and protection of the tribes' water rights, not only for their present needs, but also for their future.

[00:06:06] Speaker 01:
and perspective needs.

[00:06:09] Speaker 01:
And I think that interpretation is supported by the language of the Act first and foremost, because it doesn't say what water right has been appropriate or will be appropriate for specific needs, but it refers to the present and future wants of the tribe.

[00:06:23] Speaker 01:
That's a subjective standard, and I don't think that the Congress intended for the Secretary to be in charge of deciding what the tribe wants or doesn't want.

[00:06:32] Speaker 05:
It says... What was the hypothesis, hypothetically, that we reject that argument?

[00:06:35] Speaker 05:
We say that your first claim with respect to securing future water for the tribe, the winter's obligation argument is foreclosed by Navajo.

[00:06:48] Speaker 05:
What about the second issue about the government's trust obligation with respect to the existing infrastructure and its obligation to manage that infrastructure in accordance with trust principles?

[00:07:07] Speaker 05:
That's part of your claim, right?

[00:07:08] Speaker 01:
Yes.

[00:07:08] Speaker 01:
Yes, Your Honor.

[00:07:10] Speaker 01:
I would point the court first and foremost to the 1906 act that authorized the construction of what's known as the Uinta Indian Irrigation Project.

[00:07:19] Speaker 01:
And the language of that act is very telling.

[00:07:23] Speaker 01:
It confers upon the secretary the authority to construct and operate this irrigation project, but further still, it specifically and expressly states that this irrigation project will be held in trust

[00:07:38] Speaker 01:
for the benefit of the Indian beneficiaries of that project.

[00:07:42] Speaker 01:
And not only that, but that the secretary may sue and be sued in relation to that trust responsibility.

[00:07:48] Speaker 04:
Why is that significant, that language?

[00:07:50] Speaker 04:
I noticed that in your brief that he may sue or be sued, it matters.

[00:07:54] Speaker 04:
Does that suggest, does that further cement that there was a trust relationship established?

[00:08:00] Speaker 01:
Yes, your honor.

[00:08:01] Speaker 01:
And the reason for that is because under a traditional Tucker Act analysis,

[00:08:04] Speaker 01:
And the Tucker Act is the statute under which there's a waiver of sovereign immunity on the part of the United States to be sued for money damages.

[00:08:13] Speaker 01:
But the jurisprudence has been quite clear that the Tucker Act does not independently establish a

[00:08:20] Speaker 01:
cause of action to be sued.

[00:08:21] Speaker 01:
So it's kind of a partial, it's one piece of a two-piece puzzle.

[00:08:25] Speaker 01:
And so traditionally, for a breach of trust action, you could point to the Tucker Act and say, there's your waiver of sovereign immunity for the United States, but then we have to look to these trust principles and whether there's a statute that prescribes a duty or right that bears the hallmarks of a conventional fiduciary relationship.

[00:08:44] Speaker 01:
In this case, I think that really this is resolved without going into in-depth analysis as to the Mitchell 2 standard for establishing a money-manding fiduciary duty because it identifies the trust status of the asset and specifically gives the beneficiaries an avenue to sue

[00:09:08] Speaker 01:
the secretary in relation to the trust status of that asset.

[00:09:11] Speaker 05:
So it's really self-continuing in the language.

[00:09:19] Speaker 05:
I'm sorry, your honor.

[00:09:20] Speaker 05:
What do you understand the government's argument to be as to how this is different from White Mountain Apache?

[00:09:26] Speaker 01:
What I understand the government's argument to be is that in White Mountain Apache, the 1960 act of Congress that was in question, it identified the trust asset.

[00:09:37] Speaker 01:
In that case, it was a former military post.

[00:09:39] Speaker 01:
to be a trust asset that was to be held in trust for the benefit of the tribe, and also gave the secretary authority to utilize that trust property for certain purposes at their discretion.

[00:09:53] Speaker 01:
And so what the governments argued is that that second component was really the germane and salient issue there.

[00:10:02] Speaker 01:
But my counter argument to that would be that the issue of control is not necessarily couched within

[00:10:12] Speaker 01:
the language of the statute itself.

[00:10:13] Speaker 01:
It can be pertinent, and this was spelled out very clearly in the White Mountain Apache case, that the degree to which the United States actually exercises its authority to control, occupy, or use the trust asset is also relevant to the inquiry of whether there's a sufficient level of control over the asset to give rise to money-mandating duties.

[00:10:38] Speaker 01:
What the government's arguing is that because the 1906 Act doesn't specifically say that the Secretary or the Department of Interior has a specific right to occupy this trust asset, then that's what makes it distinguishable from White Mountain Apache, when the truth is the United States has in fact exercised its authority as the title owner of this asset and has exercised pervasive, elaborate, and exclusive control over the UN to Indian Irrigation Project from the time of its inception to now.

[00:11:08] Speaker 01:
And so I think that it is in fact analogous to White Mountain Apache.

[00:11:12] Speaker 03:
I asked you just your claim regarding the mid view exchange agreement.

[00:11:16] Speaker 03:
I think it's a breach claim.

[00:11:18] Speaker 03:
Why is that not time barred?

[00:11:21] Speaker 01:
Oh, yes, your honor.

[00:11:22] Speaker 01:
That's not time barred because of application of a stabilization doctrine.

[00:11:27] Speaker 03:
And so basically the principle of the- Have we ever applied that in this type of context?

[00:11:31] Speaker 03:
I thought that was for the impact of flooding, maybe.

[00:11:34] Speaker 01:
Well, it's not been applied in an analogous factual context, but the principles underlying the stabilization doctrine certainly do apply.

[00:11:43] Speaker 01:
And that underlying principle is that an aggrieved party, a party aggrieved by a taking, need not resort to piecemeal litigation if the scope of the taking is in flux or is expanding over time.

[00:11:54] Speaker 01:
And that's precisely what's happening with the Midview Exchange because of the, it's a direct result of the United States mismanagement of the Uinta Indian Irrigation Project and Project Lands through these non-assessable designations.

[00:12:07] Speaker 03:
Do you have a non-taking's Midview Exchange claim?

[00:12:10] Speaker 03:
I know there's a lot of claims here, but is there one that's not a takings claim, maybe a breach of contract?

[00:12:15] Speaker 01:
Yes, yes, Your Honor, we do.

[00:12:16] Speaker 03:
And is the statute of limitations answer the same for that non-taking?

[00:12:21] Speaker 03:
Takings claim?

[00:12:22] Speaker 03:
Is it the stabilization doctrine that saves it?

[00:12:24] Speaker 01:
Well, it would be for a breach of trust, it would be a continuing obligation, so a continuing claim type of theory in which, because there's an ongoing, the ongoing nature of the trust duty, it's never been divested or relieved from the United States' plate of duties, so to speak, that every

[00:12:45] Speaker 01:
every day, every instance in which this ongoing duty is being breached and not being rectified, that gives rise to a new claim.

[00:12:53] Speaker 01:
So we can go back, in order to put it within the statute of limitations window, you can go back six years to when the case was filed or however the court chooses to engage in that analysis.

[00:13:02] Speaker 01:
But that would be the overarching theory as it pertains to a breach of contract or a breach of trust case.

[00:13:08] Speaker 05:
And what is the breach of trust or breach of contract with respect to the

[00:13:13] Speaker 01:
new exchange agreement is is that uh... not uh... putting this uh... structure in trust that that's correct that's one of them your honor is failure to uh... finalized its obligation and complete its obligation to take that new view property into trust and to provide what beyond that

[00:13:35] Speaker 05:
What beyond that?

[00:13:37] Speaker 01:
As far as a breach of trust, there was a breach of contract.

[00:13:41] Speaker 01:
Well, that would be the extent of the breach of contract, I believe.

[00:13:43] Speaker 01:
As far as breach of trust, there's in addition a claim that the United States ignored the limitations under the Indian Non-Intercourse Act to transfer Indian property rights and essentially engage in a self-dealing transaction

[00:14:04] Speaker 01:
in which what their tribe is returning for the transfer of its senior priority, Indian reserve water rights is increasingly diminutive based on the United States own negligence and failing to provide additional water to the tribe or adequately.

[00:14:19] Speaker 01:
operate and manage the UN to Indian Irrigation Project.

[00:14:22] Speaker 01:
So the disparity between what was given to the tribe in exchange for the transfer of its water rights to the BOR.

[00:14:30] Speaker 04:
Are all those acts that you just described, are you saying that they're all subject to the stabilization doctrine?

[00:14:39] Speaker 01:
Well, no, that would only apply to takings claims.

[00:14:42] Speaker 01:
So that would be the claim that the CUPCA, the Central Utah Project Completion Act, constitutes a taking to the extent that it's interpreted and construed to affect a waiver of the tribes

[00:14:57] Speaker 01:
rights to water under the 1965 deferral agreement.

[00:14:59] Speaker 01:
So that would be the other taking claim to which the stabilization doctrine would apply.

[00:15:03] Speaker 01:
And then the reason the stabilization doctrine applies in that case is because under that Central Utah Project Completion Act, the intent of that act, and if the act as a whole, not just the title in which the so-called waiver was initiated, was that

[00:15:18] Speaker 01:
there would be replacement projects that would essentially substitute for all of these long standing broken promises to provide storage infrastructure to the tribe and much needed storage infrastructure.

[00:15:30] Speaker 04:
Does the continuing claims doctrine apply here?

[00:15:34] Speaker 01:
It would not be the continuing claims doctrine so much because it's a takings claim so it doesn't pertain back, it doesn't

[00:15:43] Speaker 01:
fall back on a continuing trust duty.

[00:15:46] Speaker 01:
Rather, it's kind of two sides of the same coin.

[00:15:49] Speaker 01:
The stabilization doctrine is based on when the taking becomes final.

[00:15:54] Speaker 01:
So if there's a taking, and you were promised, per the Federal Circuit case and opinion in Applegate, for example,

[00:16:00] Speaker 01:
and you're given some kind of representation, you can justifiably rely on that representation that this taking is going to be mitigated.

[00:16:06] Speaker 01:
In this case, by replacement, you want to base in replacement projects, and as well as the ongoing negotiations of a tribal water compact, and that you can reasonably rely on that to take a position that the scope of the taking is not final.

[00:16:23] Speaker 05:
Could we turn for a moment to the deferral agreement?

[00:16:26] Speaker 05:
If we read that agreement,

[00:16:30] Speaker 05:
is imposing duties that were to be completed by 2005, and I know you don't view it as limited that way, but let's assume we do read the agreement as requiring all the acts the government's obligated to take to be done by 2005.

[00:16:51] Speaker 05:
Would you agree that under that construction of the agreement that claims, breach claims are time barred,

[00:16:58] Speaker 01:
To the extent, arguing that that's correct, that there was a final act that needed to be completed, an obligation that needed to be completed by 2005, then likely it would be time barred.

[00:17:13] Speaker 01:
But our position is that that was the initiation of an obligation, not the final date of the obligation.

[00:17:22] Speaker 04:
Is there a final act in this case?

[00:17:25] Speaker 04:
Is there a time when it can be said

[00:17:28] Speaker 04:
there the government has completed everything it said it was going to do?

[00:17:37] Speaker 01:
Our argument is that that wasn't set forth in the deferral agreement itself.

[00:17:41] Speaker 01:
It simply triggered an obligation starting in 2005 that the United States would undergo active efforts to, and I'm paraphrasing there, to satisfy all of the tribes' Indian reserve water rights at that time.

[00:17:56] Speaker 01:
This was written as sort of a caveat to the youth

[00:17:59] Speaker 01:
It seems to me that

[00:18:17] Speaker 04:
One of the rows that you need to hold in this case, and that is difficult, is that some of these claims appear to have already been settled, even with payment of monies.

[00:18:28] Speaker 04:
Can you address that?

[00:18:31] Speaker 01:
So you're referring, I believe, Your Honor, to the Title V of the Central Utah Project Completion Act and the 2012 settlement agreement.

[00:18:41] Speaker 01:
I'll address each of those quickly.

[00:18:43] Speaker 01:
I see I'm over my allotment of time here.

[00:18:45] Speaker 05:
Don't worry about that.

[00:18:46] Speaker 05:
Let me wind this up.

[00:18:48] Speaker 01:
OK.

[00:18:50] Speaker 01:
So as it pertains to the 2012 settlement agreement, that was a settlement of a 2006 breach of lawsuit that encompassed both monetary trust assets and non-monetary trust assets.

[00:19:04] Speaker 01:
And so a settlement was entered into in 2012 that contained a provision that waived all claims then known or unknown

[00:19:11] Speaker 01:
based on the mismanagement of non-monetary trust assets, among other things.

[00:19:16] Speaker 01:
But now there was a specific carve-out for claims based on water rights, and that was a very, very extensive carve-out accepting from that waiver

[00:19:26] Speaker 01:
is indicating specifically that not only claims but the tribes Indian reserve water rights would not be affected at all and any claims for damages arising from the United States mismanagement of Indian water rights or failure to protect and preserve Indian water rights were also, excuse me,

[00:19:44] Speaker 01:
not waived.

[00:19:45] Speaker 01:
And also, it's important, I think, to point out that this is a separate carve-out, accepted that waiver from an earlier carve-out to that waiver, accepting any claims that arise after the 2012 settlement was executed.

[00:19:59] Speaker 01:
So by reading those provisions together, it's important to, and I think correct to, interpret that exception to the waiver as applying to claims related to water rights

[00:20:10] Speaker 01:
that are not just accruing after that 2012 date, but had already accrued as of that 2012 date.

[00:20:22] Speaker 04:
that the language that you're citing, and it's at JA-272-288, full settlement.

[00:20:28] Speaker 04:
This is a settlement provision.

[00:20:31] Speaker 04:
And it says, in consideration of payment, plaintiff waives, releases, covenants not to sue in any administrative judicial form on any and all kinds of claims, causes of actions, obligations.

[00:20:45] Speaker 04:
That seems like a pretty broad

[00:20:47] Speaker 04:
pretty broad net that's been cast here and you're tangled up in that.

[00:20:54] Speaker 04:
How do you get out?

[00:20:55] Speaker 01:
That exception, the exception is specifically none of that scope of that waiver is broad, but none of it applies to claims for damages based on water rights.

[00:21:05] Speaker 01:
Now, the United States may argue that, well, you're not just talking about water rights, you're talking about non-monetary trust assets such as the Indian Irrigation Project.

[00:21:13] Speaker 01:
But because of the acts of the United States to go into court, federal court in the 19 teens and adjudicate the tribes Indian reserve water rights in the Lake Fork and the Uinta River,

[00:21:25] Speaker 01:
to the USA Indian Irrigation Service so that they could be delivered through the UIIP, the U.N.

[00:21:30] Speaker 01:
to Indian Irrigation Project.

[00:21:32] Speaker 01:
The United States has not only exercised control over tribal water rights through its control of the Indian Irrigation Project, but it has rendered the so-called non-monetary trust asset of the U.N.

[00:21:45] Speaker 01:
to Indian Irrigation Project inextricably tied to the Indian tribes' adjudicated water rights.

[00:21:50] Speaker 01:
And so I think that calls fully within the scope of that exception, even though it deals with a non-monetary so-called trust asset.

[00:21:59] Speaker ?:
Okay.

[00:21:59] Speaker 05:
Do my colleagues have any further questions?

[00:22:01] Speaker 05:
No.

[00:22:01] Speaker 05:
Thank you.

[00:22:02] Speaker 05:
Okay.

[00:22:02] Speaker 05:
Thank you.

[00:22:02] Speaker 05:
We'll give you two minutes for a bubble.

[00:22:04] Speaker 01:
Thank you, Your Honor.

[00:22:13] Speaker 02:
Good morning, may it please the court, Andrew Burney on behalf of the United States.

[00:22:16] Speaker 02:
The Court of Federal Claims correctly dismissed plaintiff's complaint.

[00:22:20] Speaker 02:
I want to get into a number of things Mr. Holtage said first, just a couple of preliminary points.

[00:22:25] Speaker 02:
I recognize that this is a complicated case with lots of different claims.

[00:22:29] Speaker 02:
as to which we've asserted several different grounds of dismissal.

[00:22:32] Speaker 02:
The court may find it helpful if it hasn't seen it already.

[00:22:35] Speaker 02:
At appendix 270, there's a visual aid that accompanied our motion to dismiss from the district court, which I think tracks in helpful fashion all of the various claims and the grounds as to which we've asserted dismissal in our brief as well.

[00:22:51] Speaker 02:
So that's the first preliminary point.

[00:22:53] Speaker 02:
The second point is that in addition to Judge Hodges' decision dismissing the complaint and Judge Bonilla's decision denying reconsideration, plaintiff's analogous claims have of course been the subject of two well-reasoned decisions, the first by Judge Nichols in DDC and the second by Judge Parrish more recently in the District of Utah, which we brought to the court's attention.

[00:23:13] Speaker 02:
We certainly find, I think those decisions are persuasive and the court should consider them for their persuasive authority as well.

[00:23:19] Speaker 02:
Turning first, I want to start with the trust claims where Mr. Holden started.

[00:23:24] Speaker 05:
None of the sources... That can be helpful with respect to the trust claims to divide it into two parts the way we did earlier.

[00:23:33] Speaker 05:
One has to do with securing future water for the tribe based, I guess, mostly on the 1899 Act.

[00:23:41] Speaker 05:
And then the second issue is the management of the

[00:23:44] Speaker 05:
water infrastructure, which I guess depends primarily on the 1906 Act.

[00:23:54] Speaker 02:
Yes, I think that's right.

[00:23:55] Speaker 02:
Most of the claims in the complaint concern that the United States has taken insufficient affirmative efforts to secure water for the tribe.

[00:24:06] Speaker 02:
Those are precisely the sorts of claims

[00:24:08] Speaker 02:
that were considered in the Navajo case where the Supreme Court said there was no affirmative duty, either under the Winter's Doctrine.

[00:24:16] Speaker 02:
Mr. Holdridge relies on the Winter's Doctrine.

[00:24:18] Speaker 02:
The Winter's Doctrine is part of the bundle of rights that attaches to the reservation.

[00:24:23] Speaker 02:
It's a property right that when a reservation is established, it includes an implied right to water.

[00:24:29] Speaker 02:
But it does not impose an obligation on the United States to affirmatively supply water.

[00:24:35] Speaker 02:
let alone the specific obligations asserted in this case.

[00:24:38] Speaker 02:
That's what Navajo said.

[00:24:40] Speaker 02:
Plaintiff also relies on principles of control.

[00:24:44] Speaker 02:
Navajo makes clear that that isn't enough.

[00:24:46] Speaker 02:
I would direct the court to the 2009 decision in the Navajo case, where the Supreme Court specifically makes clear

[00:24:55] Speaker 02:
that first, a plaintiff must identify a specific trust duty, and only after they've done so, principles of control are relevant to whether that duty is money-mandating.

[00:25:06] Speaker 02:
Mr. Holdage also said that based on the 1906 Act, those ordinary principles in Mitchell II, like they have to identify a specific trust duty, might not apply.

[00:25:18] Speaker 02:
I actually think the Supreme Court in the Navajo case in footnote one

[00:25:22] Speaker 02:
very specifically forecloses that claim.

[00:25:24] Speaker 02:
What the court said in footnote one of the more recent Navajo case is that was an APA case.

[00:25:31] Speaker 02:
It said that the Mitchell standard is not just specific to the Tucker Act.

[00:25:35] Speaker 02:
It applies in any case where a plaintiff seeks to impose trust obligations on the United States.

[00:25:40] Speaker 05:
So the Navajo case may foreclose the future water claims.

[00:25:47] Speaker 05:
But what about the management of the existing infrastructure and why doesn't that fall under White Mountain Apache?

[00:25:56] Speaker 02:
Well, so there are two things that Navajo does not consider the 1899 and 1906 Act.

[00:26:04] Speaker 02:
And I'll turn to that in a second, but just what we think it does cover, we think it forecloses their claim just based on the existence of winter rights control as well as the treaties.

[00:26:14] Speaker 05:
confusing me.

[00:26:17] Speaker 05:
I'm trying to separate the Winter's claim and I understand your theory that the Navajo case forecloses that but I was now asking about the

[00:26:27] Speaker 05:
existing infrastructure, the water infrastructure, whether that was placed in trust with the United States, why don't they have a claim for breach of trust since the 1906 Act seems to create a trust obligation just the way the statute did in the White Mountain.

[00:26:46] Speaker 02:
So I'll turn to those statutes now, and you're right that those two statutes were not part of the case in Navajo Nation.

[00:26:52] Speaker 02:
We acknowledge that.

[00:26:53] Speaker 02:
So I'll start with the 1906 Act.

[00:26:55] Speaker 02:
The 1906 Act, as Judge Nichols pointed out in his opinion, does a couple of things.

[00:27:00] Speaker 02:
It authorizes construction of the Uinta Irrigation Project.

[00:27:05] Speaker 02:
and it contains bear in trust language and a waiver of sovereign immunity but it does not prescribe any specific duties at all and the supreme court has made clear but neither did the statute in white the difference between the white mountain apache the the the the difference between the white mountain apache case uh... and this one which makes the white mountain hatchet case an outlier in the in the decision is in that case there was not only the military base in trust but the government had

[00:27:32] Speaker 02:
the exclusive authority to use and occupy that property.

[00:27:36] Speaker 02:
That isn't true in this case.

[00:27:38] Speaker 02:
The United States does not have exclusive authority to use the project, which anyone can use in compliance with Utah law.

[00:27:49] Speaker 02:
The irrigation regulations, it does not control plaintiff's right to irrigate their property or use its own water.

[00:27:58] Speaker 02:
Aside from White Mountain Apache, so where that leaves us is simply bare in trust language as to a particular asset, which does not distinguish this case, first of all, from Mitchell 1, where there was the General Allotment Act provided that lands were to be held in trust for the Indians, or the Hickorya case, where there was in-trust language with respect to particular tribal funds.

[00:28:20] Speaker 02:
What separated White Mountain Apache and what makes it different from this case is the exclusive right to use and occupy the property, which a bare majority of the Supreme Court said supported an inference of trust duties.

[00:28:34] Speaker 02:
We don't have that here.

[00:28:36] Speaker 02:
And besides, aside from that, there are trusts.

[00:28:39] Speaker 04:
I don't quite understand.

[00:28:40] Speaker 04:
You keep saying we don't have that here.

[00:28:43] Speaker 04:
In the 1906 Act, it says, provided that such irrigation systems shall be constructed and completed and held and operated and watered, therefore appropriated under the law of the state of Utah, and it goes on to say, provided by the law, shall be in, all of that, shall be in the Secretary of Interior in trust for the Indians.

[00:29:05] Speaker 04:
I mean, that's pretty clear.

[00:29:07] Speaker 02:
Right.

[00:29:08] Speaker 02:
That is in trust language, which the Supreme Court has made very clear on multiple occasions.

[00:29:16] Speaker 04:
That does create a right.

[00:29:17] Speaker 04:
Would you say that's a rights-creating or duty-imposing language?

[00:29:21] Speaker 02:
No, because I don't, Your Honor, because I think that begs the question of rights, what rights or duties.

[00:29:26] Speaker 02:
It doesn't spell out any specific duties.

[00:29:29] Speaker 02:
All it says is that it should be constructed.

[00:29:31] Speaker 05:
There was two in White Mountain Apache, too.

[00:29:33] Speaker 02:
It didn't spell out specifically.

[00:29:36] Speaker 02:
And again, the difference between White Mountain Apache, in this case, is the exclusive right to use and occupy the structure.

[00:29:43] Speaker 02:
That's not the case here.

[00:29:45] Speaker 05:
Why isn't the language that Judge Raina just read to you,

[00:29:48] Speaker 05:
equivalent of saying that the United States has control and obligations with respect to this problem.

[00:29:57] Speaker 02:
Because the limited control in this case simply pertained to the initial construction of the irrigation project.

[00:30:05] Speaker 02:
The United States does not have exclusive right to use the project.

[00:30:09] Speaker 02:
This is nothing like not just White Mountain Apache Tribe, but also Mitchell, too, where the United States controlled every aspect of forest management.

[00:30:18] Speaker 02:
Here, the United States has never recognized a trust duty under its irrigation regulations.

[00:30:25] Speaker 02:
They don't have the right to exclusively use the project.

[00:30:29] Speaker 02:
It was simply an authorization to construct the project with bare interest language that is consistently held to be insufficient.

[00:30:36] Speaker 04:
But it holds it in trust.

[00:30:38] Speaker 04:
I mean, I don't think anybody hears, I don't hear a dispute that the government has to

[00:30:45] Speaker 04:
get out and do the irrigating themselves.

[00:30:47] Speaker 04:
They're holding the water in the lands and the irrigation systems that the government was promised to construct.

[00:30:57] Speaker 04:
Those are held in trust for the Indians.

[00:31:02] Speaker 02:
Right.

[00:31:02] Speaker 04:
As I've said, but... If it's right, then doesn't that create a duty?

[00:31:09] Speaker 02:
No, because for there to be a duty, there has to be specific language setting forth a particular duty.

[00:31:16] Speaker 05:
And with respect, your honor, there isn't such language in White Mountain Apache.

[00:31:22] Speaker 02:
Again, White Mountain Apache, which is an outlier, had to do with the United States exclusive right to occupy and control the property.

[00:31:29] Speaker 02:
And that's just very different than this case.

[00:31:31] Speaker 03:
Is your contention that there has to be that specific language coming from the recent Navajo decision in 2023?

[00:31:38] Speaker 02:
Not just the Navajo case, the Navajo case most recently, but the Supreme Court has been very clear even before that that control, that neither a bare trust creating language or control is sufficient.

[00:31:52] Speaker 02:
I mean, I think that's driven home most notably in the Navajo case.

[00:31:55] Speaker 03:
Has the Supreme Court squared what it said in White Mountain Apache with this requirement for specific trust language, specific duties?

[00:32:03] Speaker 02:
I think in White Mountain Apache itself, Justice Souter's opinion is very clear that what set it apart from Mitchell 1 is the exclusive right to occupy and control the property and issue.

[00:32:17] Speaker 02:
In Navajo, by contrast, as Justice Kavanaugh's opinion points out,

[00:32:22] Speaker 02:
the United States does not have specific duties as to the land, in terms of farming the land or things like that.

[00:32:29] Speaker 02:
So it would be anomalous to say that they also have duties with respect to the water rights that run with the land.

[00:32:36] Speaker 02:
I'd like to turn to the 1899 statute, if I could.

[00:32:41] Speaker 02:
We don't think that creates trust duties, or particularly the trust duties at issue

[00:32:46] Speaker 02:
in this case in particular for a couple reasons.

[00:32:48] Speaker 02:
Your honor, one of the reasons is the one you cited that as he deems necessary.

[00:32:53] Speaker 02:
but I think it doesn't confer trust duties for a more fundamental reason than that, which is that if you look at what this statute is doing and what it was intended to accomplish, it's the statute grants rights of way for non-Indians to divert water that would otherwise flow into the tribe's reservation.

[00:33:11] Speaker 02:
And what follows after that, which is this paramount language and the duty to prescribe rules and regulations, is a qualification of the right to grant rights of way

[00:33:23] Speaker 02:
that the statute confers.

[00:33:25] Speaker 02:
I think it would be very odd to read an 1899 statute authorizing rights of way and imposing conditions as imposing affirmative obligations on the United States to supply

[00:33:35] Speaker 02:
water infrastructure, particularly since this statute was enacted seven years before the Uinta irrigation project was even authorized.

[00:33:44] Speaker 05:
It sounds more like perhaps a promise to secure the water rights rather than a creation of a trust corpus and obligations with respect to the management of the trust corpus, right?

[00:33:57] Speaker 02:
If I understand the question, Your Honor, I think recognizing water rights in terms of asserting winter's claims in litigation is fundamentally different than the claims of issue in this case, which encompasses the building of infrastructure and storage to actually bring water to the reservation.

[00:34:15] Speaker 05:
Well, that sounds like, perhaps, sounds like a promise of the government to do something rather than imposing a trust obligation on the management of particular assets.

[00:34:24] Speaker 02:
Well, I think the promise, though, in the 1899 Act was that in granting rights of way, subject to, that it would not interfere with the tribe's water rights.

[00:34:36] Speaker 02:
It's not a freestanding promise to build water infrastructure and water storage.

[00:34:41] Speaker 05:
I understand.

[00:34:41] Speaker 05:
But even if it were a promise, that doesn't create a trust.

[00:34:46] Speaker 02:
I would certainly agree with that as well, Your Honor.

[00:34:53] Speaker 04:
Maybe not a promise, but certainly a duty is set out in the 1899 Act.

[00:35:00] Speaker 04:
It says, and this shall be the duty of the Secretary of Interior to prescribe such rules and regulations deem necessary to secure to the Indians the quantity of water needed for their present and prospective wants and to otherwise protect the rights and interests of Indians and the Indian service.

[00:35:19] Speaker 04:
That dovetails with a paramount language that's a little bit further up in that provision.

[00:35:25] Speaker 04:
And it also dovetails to, let's say, the 1906 side.

[00:35:30] Speaker 02:
So, Your Honor, for two reasons, I don't think that language supports the duties and issues.

[00:35:35] Speaker 04:
It says it's creating a duty.

[00:35:39] Speaker 04:
Then it says what the duty is.

[00:35:41] Speaker 04:
It goes from one, two, three, describing what the duty is.

[00:35:46] Speaker 02:
Right.

[00:35:46] Speaker 02:
So two reasons that can't encompass the sorts of claims they're asserting here, and I think they're textually, and I think they're related.

[00:35:55] Speaker 04:
Well, first of all, are you saying that it does not create a duty?

[00:35:59] Speaker 04:
The duty... Do you concede that it creates a duty?

[00:36:04] Speaker 02:
I just want to be very precise about what duty... The duties that are enumerated in the language here.

[00:36:13] Speaker 02:
Right, but the duty it confers is to not grant rights of way that interfere with the water rights.

[00:36:22] Speaker 02:
The duty to prescribe rules and regulations is not an affirmative promise to construct

[00:36:29] Speaker 02:
water infrastructure or water storage, particularly when you look at the context of this act, which again wasn't intended as a conferral of rights at all.

[00:36:37] Speaker 02:
It was intended to authorize the construction of rights of way.

[00:36:40] Speaker 02:
I think you have to read that language in light of what the statute is doing.

[00:36:44] Speaker 02:
But the second point again is that a duty to prescribe rules and regulations is very different than a duty to construct particular irrigation and storage projects, which

[00:36:55] Speaker 04:
Again, it would be very odd if the 1899 Act... You're avoiding that.

[00:36:58] Speaker 04:
It not only creates an obligation to elaborate regulations and rules, but it tells what those rules are to address.

[00:37:10] Speaker 04:
It says to secure to the Indians the quantity of water needed for their present and prospective wants, and to otherwise protect the rights and interests of the Indians in Indian service.

[00:37:21] Speaker 02:
right and and and and and i'm sorry if i'm tonight and i hope i'm not just repeating myself your honor but i hate you need to be reading something back to me that i don't see what i was all of us read a lot of this address the language first of all seem to have an understanding of what this means it's much different than what

[00:37:37] Speaker 02:
the actual word say i don't think we'll be focused on the words i mean rules and regulation prescribing rules and regulations is different than that's something about to secure to the indians equality of water rights of that clause of the statute says that granting the rights of way shall be subject to the paramount rights of these paramount rights of the indians and that is what the statute is doing is as judge nichols and judge parish found is a limitation on the authority to confirm it's not

[00:38:06] Speaker 02:
in affirmative duty to construct a water infrastructure in storage.

[00:38:11] Speaker 02:
Again, it would be very odd if Congress had done that in 1899, which is before the Uinta irrigation project was even authorized.

[00:38:21] Speaker 05:
I'd like to turn, I'm sorry your honor, I think you wanted to turn to another... To the mid view exchange agreement claim and the exception for water and water related rights.

[00:38:33] Speaker 05:
Right.

[00:38:34] Speaker 05:
Which they say bars your argument that there was a settlement that was close to that claim.

[00:38:41] Speaker 02:
So I want to be clear, there's two claims based on the mid view exchange.

[00:38:45] Speaker 02:
There's a takings claim and a breach of contract claim.

[00:38:47] Speaker 02:
uh... the takings that that that that that that they can claim claim ten plainly accrued in nineteen sixty-seven with with the with the uh... with the execution the agreement with respect to the stable as they do the the corporate claims went on some

[00:39:04] Speaker 02:
The big court claims one of the settlement for claim 11, which is the breach of contract action.

[00:39:10] Speaker 02:
So I just recessed the takings document first just to complete the thought on that.

[00:39:14] Speaker 05:
So just to be clear, you're not arguing that the 2012 agreement settled the takings claim?

[00:39:24] Speaker 02:
No, I don't.

[00:39:27] Speaker 02:
I would have to check, but I think the takings claim is just that it's time hard, which it is.

[00:39:37] Speaker 02:
And Mr. Holden invoked the stabilization doctrine.

[00:39:40] Speaker 02:
That doesn't apply here for two reasons.

[00:39:43] Speaker 02:
First of all, as I think Judge Stark pointed out, this court has been very clear

[00:39:47] Speaker 02:
that the stabilization doctrine is essentially limited to the types of flooding and erosion cases from which Dickinson originated.

[00:39:54] Speaker 02:
But even if the stabilization doctrine did apply here, it only applies for the period in which it was uncertain whether the taking

[00:40:02] Speaker 02:
whether the alleged taking was permanent, not for damages to be ascertained.

[00:40:09] Speaker 02:
The permanence of any claim based on the Midview Exchange was apparent in 1967.

[00:40:14] Speaker 02:
Plaintiffs invoked these subsequent acts of deeming certain land non-assessable, which they said widens the gap between what they received and what they gave back in exchange.

[00:40:26] Speaker 02:
But that is

[00:40:28] Speaker 02:
But that is at most a claim for damages.

[00:40:30] Speaker 02:
Even if it's a stabilization doctrine applies in the first place.

[00:40:33] Speaker 02:
So that's the takings claim.

[00:40:35] Speaker 02:
As to claim 11, I just want to be clear about this.

[00:40:40] Speaker 02:
Plaintiffs alleged that they learned that the mid-view property had not been transferred into trust in 2016.

[00:40:47] Speaker 02:
So based on that representation in the complaint, we have not contended that it's time-barred.

[00:40:52] Speaker 02:
I think if that claim went back, we'd certainly have an argument that they at least should have realized that sooner.

[00:40:57] Speaker 02:
But that's not part of our claim in this case.

[00:41:01] Speaker 02:
Rather, our argument as to that claim

[00:41:04] Speaker 02:
is twofold.

[00:41:06] Speaker 02:
First of all, we don't think anything in the Midview Exchange Agreement required formal transfer of that property into trust.

[00:41:15] Speaker 05:
An issue not addressed by the Court of Federal Claims.

[00:41:18] Speaker 02:
That is not an issue addressed by the Court of Federal Claims, but it's a legal question that we've briefed.

[00:41:23] Speaker 02:
We think if the court disagrees with our contention at the settlement, we think the court certainly has discretion to reach that issue here and should reach it.

[00:41:30] Speaker 02:
But as to the settlement agreement,

[00:41:31] Speaker 02:
The settlement agreement broadly settles all claims stemming from the Department of Interior's alleged mismanagement and accounting of plaintiffs' non-monetary trust that relate to a mismanagement of non-monetary trust assets.

[00:41:48] Speaker 02:
that the mid-view exchange was an asset that should have been transferred into trust is plainly a claim that at least relates to the management of non-monetary trust assets, particularly when you look... What about the water exception?

[00:42:04] Speaker 02:
Right.

[00:42:04] Speaker 02:
The water exception, acquire and enforce water rights.

[00:42:08] Speaker 02:
would be things like diverting plaintiffs' water to other non-senior users, not asserting plaintiffs' winter rights in state water rights adjudications.

[00:42:26] Speaker 02:
It does not encompass claims concerning the failure to transfer the mid-view property into trust, which is a non-monetary trust asset.

[00:42:38] Speaker 02:
So that says to that claim, but we also just think more fundamentally that in addition to being foreclosed by the settlement agreement, which is what Judge Hodge has found, it also fails at the outset because there was no breach of contract obligation in the first place.

[00:42:53] Speaker 02:
I say I'm well over my time.

[00:42:56] Speaker 02:
I was going to address briefly the claims based on CUPCA and the deferral.

[00:43:03] Speaker 02:
Any claim based on the deferral agreement fail

[00:43:09] Speaker 02:
is plainly time barred.

[00:43:11] Speaker 02:
First of all, the complaint makes clear at pages 148 to 50 of the appendix that plaintiffs knew well in advance of 1992 that these units would not be built.

[00:43:20] Speaker 02:
But also, CUPCA extinguished plaintiffs' rights under the deferral agreement.

[00:43:25] Speaker 02:
That's the fundamental point.

[00:43:29] Speaker 02:
The arguments plaintiffs make in response that that settlement was contingent, that that extinguishment was contingent on their ratifying

[00:43:38] Speaker 02:
compact is plainly incorrect as a matter of text as Judge Parrish found in the District of Utah decision.

[00:43:47] Speaker 02:
Nothing in Section 507 supports that.

[00:43:50] Speaker 02:
As to the replacement projects, as we point out in our brief, the replacement projects were authorized, not required, in an entirely different portion of CUPCA.

[00:44:00] Speaker 02:
They weren't tied to the compensation scheme in CUPCA.

[00:44:05] Speaker 02:
in any way.

[00:44:05] Speaker 02:
So the notion that plaintiffs could just wait to see if the replacement systems were built to their satisfaction, I think, has no logical support.

[00:44:14] Speaker 02:
And it's also clear that they knew well before 2012 that those systems would not be built to their satisfaction in any event.

[00:44:23] Speaker 02:
I think we're about out of time, most of my colleagues.

[00:44:27] Speaker 02:
Thank you very much.

[00:44:28] Speaker 02:
We ask the CFC the dismissal be affirmed.

[00:44:30] Speaker 05:
Mr. Holdridge, you have a couple of minutes.

[00:44:41] Speaker 01:
Thank you, Your Honors.

[00:44:43] Speaker 01:
I want to use my rebuttal time just to address a couple of the arguments that were made by the appellee.

[00:44:48] Speaker 01:
First pertaining to the 1899 Act and what was argued just now is that the 1899 Act was limited to a granting of rights of way on Indian lands, so what became the Uintin or a reservation.

[00:45:03] Speaker 01:
And that's only one provision of that act.

[00:45:08] Speaker 01:
And what that was, it wasn't a granting of rights of ways, it was a conditional authority on the secretary to grant rights of ways subject to the paramount rights of the tribe to the water of that reservation.

[00:45:19] Speaker 01:
And then the separate provision provided specifically that it shall be the duty to secure and protect the water right, the quantity of water necessary to meet the present and future needs of the tribe.

[00:45:32] Speaker 03:
What about the supposed oddity of that being taken on seven years before the 1906 project?

[00:45:38] Speaker 01:
I don't see an oddity there because the Uinta Indian Irrigation Project did not create Indian reserved water rights.

[00:45:44] Speaker 01:
In fact, the winter's decision didn't create Indian reserved water rights, and not even the establishment of the reservation created Indian water rights.

[00:45:54] Speaker 01:
They're called reserved water rights because they're reserved from a cession of lands and water rights that had been used by the tribe since time immemorial.

[00:46:04] Speaker 05:
The winter's dark.

[00:46:05] Speaker 01:
The winter's dark is what affirmed that concept, that principle, that even though reservations were established often by treaty or executive order without reference to water, of course it follows common sense and the need to sustain a permanent homeland on the reservation to reserve water rights of pertinent to those reservation lands.

[00:46:28] Speaker 01:
I also want to quickly address the statement made by a Pelley that the 1906 Act doesn't establish a specific duty or the level of specificity required.

[00:46:38] Speaker 01:
What the Pelley is asking for is a level of specificity that isn't required under the Mitchell 2 standard for the sheer purpose of determining whether

[00:46:47] Speaker 01:
There exists an enforceable money mandating fiduciary duty for the purpose of going into the next step of the analysis.

[00:46:54] Speaker 01:
And that's illustrated in the White Mountain Apache case, of course, in which, as Your Honor's correctly pointed out, there is no specific duty spelled out in the statute.

[00:47:05] Speaker 01:
the 1960 Act.

[00:47:06] Speaker 01:
And the difference that the appellee has directed the court toward is language that doesn't exist in the 1960 Act, supposedly giving exclusive authority of the United States over the use and occupation of that trust property.

[00:47:22] Speaker 01:
Nothing in that 1960 act I'm aware of that gives exclusive authority to the United States.

[00:47:27] Speaker 01:
What it does do is it gives discretionary authority on the United States to utilize that trust property for certain specific purposes.

[00:47:35] Speaker 01:
And that's precisely what happened analogously in the 1906 act by assuming control and administration, operation and maintenance of the Uinta Indian Irrigation Project.

[00:47:47] Speaker 05:
I think we're about out of time for other questions here.

[00:47:51] Speaker 05:
Thank you.

[00:47:51] Speaker 05:
Thank you.