[00:00:00] Speaker 04:
case for argument today is 21-1366.

[00:00:01] Speaker 04:
OK, tell me how to say the name of the Indian tribe.

[00:00:08] Speaker 01:
Mario Gonzalez.

[00:00:10] Speaker 01:
It's Shimuevi.

[00:00:11] Speaker 04:
Shimuevi Indian tribe versus the United States.

[00:00:14] Speaker 04:
Mr. Gonzalez, please proceed.

[00:00:17] Speaker 01:
May I please record?

[00:00:20] Speaker 04:
Yeah, come up here.

[00:00:37] Speaker 01:
The government argues on page 9 of its answering brief that the tribe received an accounting when it received the Arthur Anderson Report of 1996, and the tribe responded on pages 8 to 10 that the AA report it received was not a complete, full accounting

[00:00:58] Speaker 01:
as required by 25 EOC 42A2 and in fact the report itself stated that it did not consist of a complete accounting as required by 40, 44, 48.

[00:01:11] Speaker 05:
It may be helpful to talk about things in terms of various counts and maybe which counts you are associating with the accounting.

[00:01:18] Speaker 05:
I think that might be helpful as you do your argument.

[00:01:33] Speaker 02:
Go ahead, Judge.

[00:01:34] Speaker 02:
Am I correct in hearing you that you're not basing any of your allegations on the Arthur Anderson accounting then?

[00:01:44] Speaker 02:
That you're not saying the Arthur Anderson report suggests that you're entitled to money presently due in owing?

[00:01:52] Speaker 01:
We're arguing that the Arthur Anderson report doesn't constitute a complete accounting as required by the 94 Act.

[00:02:00] Speaker 02:
Well, let me try that once again because I think it makes a difference.

[00:02:03] Speaker 02:
Are you relying at all on the Arthur Anderson report to suggest that it shows you're entitled to money or are you saying that there has to be another accounting, a completely different accounting that would show you're entitled to money?

[00:02:17] Speaker 01:
A different accounting.

[00:02:18] Speaker 02:
Isn't that a problem for you because there is no different accounting and the court of federal claims doesn't have general equity authority to order an accounting absent a

[00:02:29] Speaker 02:
claim for money damages, which in general, on the accounting issue, I don't see.

[00:02:36] Speaker 02:
There are other specific allegations that might come closer.

[00:02:39] Speaker 01:
We're here.

[00:02:42] Speaker 01:
We bought our lawsuit for money damages, and we're asking for an accounting and aid of the court's jurisdiction.

[00:02:49] Speaker 01:
We're not asking for an accounting and aid.

[00:02:52] Speaker 02:
Some of these claims don't specifically state the money damages you're entitled to.

[00:02:56] Speaker 02:
They don't have enough allegations to get over 12b6 for money damages.

[00:03:01] Speaker 02:
You can't just say an accounting might show money damages.

[00:03:04] Speaker 02:
Therefore, we have heard a federal claims jurisdiction.

[00:03:07] Speaker 02:
You have to have specific allegations of we were damaged by the government's actions here.

[00:03:14] Speaker 02:
And therefore, if we prove those claims, we want damages, and we also want an accounting

[00:03:20] Speaker 01:
to clarify all that.

[00:03:36] Speaker 02:
person to forty-two okay i get that that's why i have those questions but we can set that aside if you're not relying on the arthur anderson report you still have to point to your complaint and the specific allegations where you make claims for money damages i have a more general question why are you in the court of federal claims why aren't you in a district court asking for an accounting based upon all of these

[00:04:01] Speaker 02:
you know, alleged improprieties or failures or the like.

[00:04:06] Speaker 02:
There have been dozens, if not more, of these district court cases where the district court judges take them and ultimately end up ordering the accounting because they have full equitable powers.

[00:04:17] Speaker 01:
That's true, but we're not here for an account.

[00:04:21] Speaker 01:
We're here for damages.

[00:04:22] Speaker 01:
And we're asking for this accounting and aid of the court's jurisdiction.

[00:04:26] Speaker 01:
And here's the problem.

[00:04:28] Speaker 01:
Here's the problem.

[00:04:29] Speaker 02:
Can we get to which, because you've got a lot of counts here, and you don't have enough time to argue, which ones do you want us to focus on that you think state acclaim for money damages presently owe and doing sufficient to survive 12b6?

[00:04:45] Speaker 01:
Okay, here's the problem, is that the court ruled as a matter of law that Arthur Anderson monitored an accounting and it dismissed pursuant to rule call B6.

[00:04:58] Speaker 01:
I want to point this out.

[00:05:00] Speaker 01:
No, no, no, no, no.

[00:05:01] Speaker 01:
That is improper.

[00:05:02] Speaker 02:
Sorry, stop.

[00:05:04] Speaker 02:
Can we stop talking about the Arthur Anderson report?

[00:05:06] Speaker 02:
Assume I agree with you that the Arthur Anderson report is not a complete accounting, and that wasn't a reason to reject your claims.

[00:05:14] Speaker 02:
You win on that.

[00:05:15] Speaker 02:
That's hypothetically, but that's where we're going to go from now on through the questions.

[00:05:19] Speaker 02:
Which of these counts do you think you most state a claim for money damages, and what's the theory?

[00:05:27] Speaker 01:
OK.

[00:05:28] Speaker 01:
All these claims we've filed are for money damages, or we wouldn't have filed them.

[00:05:34] Speaker 05:
You're saying counts one through five?

[00:05:35] Speaker 05:
Is that what you're saying in response to Justice?

[00:05:37] Speaker 01:
Yes.

[00:05:38] Speaker 01:
The Parker Dam shoreline was a taking.

[00:05:45] Speaker 01:
And so that would be a Fifth Amendment taking.

[00:05:47] Speaker 01:
But the other claims are all for money damages.

[00:05:52] Speaker 01:
And we're asking for accounting and aid of jurisdiction.

[00:05:56] Speaker 01:
Wait, the Parker Dam.

[00:05:57] Speaker 02:
The Parker Dam.

[00:05:59] Speaker 02:
taking, which is really, really old.

[00:06:02] Speaker 02:
I mean, the facts seem to show that the tribe was compensated for all of this, and it was put in a trust fund.

[00:06:08] Speaker 00:
Well, that's not true.

[00:06:10] Speaker 00:
That is not true.

[00:06:12] Speaker 02:
Well, what's not true about it, and what's specific allegations in your complaint suggest that you haven't gotten compensated for a taking related to the program.

[00:06:21] Speaker 01:
That's right.

[00:06:22] Speaker 01:
That's right.

[00:06:22] Speaker 01:
It is only for taking, temporary taking,

[00:06:25] Speaker 01:
of the part that was restored to the tribe.

[00:06:27] Speaker 01:
It wasn't transferred back to the tribe.

[00:06:29] Speaker 01:
The description was adjusted and the part that the government had been using went to the tribe all along.

[00:06:39] Speaker 01:
It wasn't transferred back to the tribe.

[00:06:41] Speaker 05:
Do you have access to the appendix, sir?

[00:06:45] Speaker 01:
The appendix?

[00:06:46] Speaker 05:
Yes.

[00:06:47] Speaker 05:
Do you have access to it?

[00:06:48] Speaker 01:
Yeah.

[00:06:49] Speaker 05:
Maybe it'd be helpful for you to pull out the second amended complaint while you're addressing and answering the questions.

[00:07:08] Speaker 01:
I would like to get to this, finish my argument here on the call B1 motion also.

[00:07:15] Speaker 01:
Go ahead.

[00:07:17] Speaker 01:
What's the finish number?

[00:07:20] Speaker 02:
It's your job.

[00:07:21] Speaker 02:
You need to tell us what in your complaint you're relying on to show that you've made a sufficient claim for money damages.

[00:07:28] Speaker 02:
I don't see anything except with the exception of the water rights.

[00:07:33] Speaker 02:
But beyond that, you're saying all these claims that really just say we want an accounting

[00:07:38] Speaker 02:
and then say we get money damages actually have specifics.

[00:07:44] Speaker 01:
continue here, what I'm saying is that the court cut us off from discovery.

[00:07:50] Speaker 01:
And if we were allowed to have fact discovery, not jurisdictional discovery, we would have been able to show the facts necessary to prove our claims.

[00:07:59] Speaker 02:
You don't get fact discovery if you haven't met the 12b6 burden to allege sufficient facts to say to claim for money damages.

[00:08:07] Speaker 01:
Well, we were not allowed to.

[00:08:08] Speaker 01:
sufficient facts, but we were cut off from discovery.

[00:08:11] Speaker 01:
And I just want to point out that there is a case here.

[00:08:17] Speaker 02:
Are you ever going to go to the complaint and tell us which are the specific facts that support a claim for money damages?

[00:08:23] Speaker 02:
This is your time.

[00:08:24] Speaker 02:
We can stop asking questions and listen to you argue something that we're not interested in.

[00:08:28] Speaker 02:
But we're trying to give you an opportunity to show specific facts in your complaint.

[00:08:35] Speaker 01:
The capital payments.

[00:08:38] Speaker 01:
There is, the government admits that there is a unpaid per capita payment account.

[00:08:43] Speaker 01:
But we're not allowed jurisdictional or fact discovery to determine what's in that account because the court cut us off from discovery.

[00:08:51] Speaker 01:
It's a matter of law.

[00:08:53] Speaker 05:
Sarah, if it's helpful, I believe it's around appendix page 226 where some of the counts are.

[00:08:58] Speaker 05:
So if you want to answer some of the questions posed by Judge Sheese, it may be helpful to turn to appendix 226.

[00:09:07] Speaker 01:
So I want to point out here that there's a case here.

[00:09:11] Speaker 01:
It's a dual case.

[00:09:13] Speaker 01:
And it describes how you deal with 12b motions.

[00:09:17] Speaker 01:
And it says that the courts, when you're dealing with Indian Trust property assets or funds, you cannot dismiss a case on a 12b-6 motion.

[00:09:28] Speaker 01:
It states it right in that case.

[00:09:30] Speaker 01:
And what it states is the parties have not had an opportunity to develop a record to discovery when the plaintiffs claim to prove

[00:09:37] Speaker 01:
And the factual issues related to accrual preclude decided to issue a statute of limitations at the motion to dismiss stage.

[00:09:44] Speaker 05:
So do you also speak to the 12B1 grounds?

[00:09:47] Speaker 05:
Do you want to talk to that at all?

[00:09:48] Speaker 01:
Yeah.

[00:09:49] Speaker 01:
The court erred by dismissing it on 12B1 and 6, these claims.

[00:09:57] Speaker 01:
And then this was followed by the Cherokee Nation case of January 15, 2020, where it said this rule applies

[00:10:06] Speaker 01:
to both 12b1 and 12b6 motions.

[00:10:08] Speaker 01:
So the court erred in cutting us off from fact discovery.

[00:10:14] Speaker 01:
It cannot do it.

[00:10:14] Speaker 01:
It cannot do so when there's trust funds involved.

[00:10:21] Speaker 01:
So there's error there.

[00:10:23] Speaker 01:
We should have been allowed to engage in fact discovery.

[00:10:27] Speaker 01:
and we were cut off because the court ruled as a matter of law, assuming facts to pull out of the air, I guess, that we didn't have enough facts to support.

[00:10:34] Speaker 04:
Well, why don't we start with count one, which is the Parker Dam construction compensation claim that you made.

[00:10:43] Speaker 04:
be that the alleged wrongdoing occurred many, many, many, many years ago.

[00:10:49] Speaker 04:
And it also seems like you should have known all the operative facts about that Parker dam concern, at least by 1970, which is the last known date the monies were held in trust.

[00:11:03] Speaker 04:
Or if not 1970, by 2000, which is the last date you could have received the Arthur Anderson report.

[00:11:08] Speaker 04:
So why isn't that claim time barred, which is what the Court of Federal Claims says?

[00:11:13] Speaker 01:
Well, first of all, the assertion was that it started in 1940.

[00:11:17] Speaker 01:
But we're only asking for convalesces as of 1946 in the Claims Commission Act date.

[00:11:25] Speaker 01:
It's not barred, because the government's responsibility is not limited to 1972 to 1992, as the Cherokee case indicated.

[00:11:37] Speaker 04:
I understand your argument.

[00:11:38] Speaker 04:
Sir, please stop.

[00:11:39] Speaker 04:
I understand your argument about what the government has to do or not do.

[00:11:43] Speaker 04:
The problem is, the Court of Federal Claims found, that you knew or had enough reason to know the government didn't do what it was supposed to by 1970, or worst case scenario, by 2000, and you didn't bring a lawsuit.

[00:11:58] Speaker 04:
So this isn't a question about whether the government did something wrong.

[00:12:01] Speaker 04:
Let's accept for purposes of these arguments, I agree with you, they did.

[00:12:05] Speaker 04:
But you had an obligation to bring a lawsuit within six years of when you were made aware of that wrongdoing.

[00:12:12] Speaker 04:
So what is your argument that tells me you were not aware of that wrongdoing until a six-year period preceding your complaint?

[00:12:20] Speaker 01:
Well, the 1994 Act states that an accounting should be had to the earliest possible date.

[00:12:26] Speaker 01:
And we can go back to... But you have an accounting in 1996.

[00:12:30] Speaker 01:
There's no obligation for the beneficiary of a trust to bring a lawsuit.

[00:12:38] Speaker 01:
At that time, the account balances are the same.

[00:12:43] Speaker 01:
The tribe can bring a lawsuit at any time for trust accounting.

[00:12:51] Speaker 01:
The money isn't lost.

[00:12:52] Speaker 01:
It stays in those accounts.

[00:12:54] Speaker 01:
And the P-94 Act requires a meaningful accounting of all those funds pre-1972.

[00:13:00] Speaker 04:
Yes, but if your concern is over the inadequacy of the accounting, a district court is the proper forum in which to bring that claim.

[00:13:07] Speaker 04:
This is a claim for money damages.

[00:13:08] Speaker 04:
And the money damages you're seeking related to the Parker dam

[00:13:12] Speaker 04:
Those damages were set decades ago, and you've not put forward any evidence to suggest that there's something about that claim that you didn't know and justifies not filing it for the last.

[00:13:24] Speaker 01:
Well, the fact of the matter is, there was no tribe in existence from 1940 to 1970, the tribal government.

[00:13:34] Speaker 01:
The tribe was a federally recognized tribe, but they didn't reorganize as a tribe until 1970.

[00:13:39] Speaker 01:
So how do you expect the tribe

[00:13:41] Speaker 01:
that was just dispersed to members of all the cities.

[00:13:45] Speaker 01:
They didn't have a working government to bring a lawsuit when there's no government there to bring it from 1940 to 1970.

[00:13:55] Speaker 04:
Well, that's very sad indeed, but I have to follow the law, sir.

[00:13:58] Speaker 04:
I can't disregard the law.

[00:14:00] Speaker 04:
And the law says you have six years from when you learn about a wrongdoing to bring a suit.

[00:14:06] Speaker 04:
And you can ask for equitable tolling in certain circumstances, but I don't think here on the statute of limitations you can.

[00:14:13] Speaker 01:
Well, the distinction here is that you're dealing with trust funds for the Indian tribe, not a regular type of trust relationship.

[00:14:23] Speaker 01:
In the Indian tribe, there's different legal principles that you follow.

[00:14:28] Speaker 01:
And if there's an ambiguity there, you resolve in favor of the tribe under

[00:14:33] Speaker 01:
Ken is a construction.

[00:14:35] Speaker 01:
So is there an ambiguity here?

[00:14:36] Speaker 04:
You're now into your rebuttal time.

[00:14:38] Speaker 04:
Would you like to save some so that you can respond to the government's argument?

[00:14:43] Speaker 01:
I'm taking comfort.

[00:14:46] Speaker 04:
You are now using your rebuttal time.

[00:14:48] Speaker 04:
Would you like to save some of it so that you can respond after the government's argument?

[00:14:52] Speaker 01:
Yes, I would.

[00:14:53] Speaker 04:
OK.

[00:14:54] Speaker 04:
And we'll restore his three minutes of rebuttal time.

[00:14:58] Speaker 04:
Let's hear from the government.

[00:15:08] Speaker 03:
Good morning, Your Honors.

[00:15:08] Speaker 03:
May it please the court?

[00:15:10] Speaker 03:
As to your point, Judge Hughes, there are no specific claims for money damages.

[00:15:15] Speaker 02:
Can I just start with this?

[00:15:17] Speaker 02:
And I'm sure you have all kinds of defenses and arguments why you don't want to do it.

[00:15:21] Speaker 02:
But if what they're claiming is really they think there's mismanagement in these trust funds accounts and setting aside any kind of such limitations problems, that claim goes to district court, doesn't it?

[00:15:33] Speaker 03:
Yes, if they're seeking, and which they are.

[00:15:36] Speaker 02:
An accounting of a trust fund.

[00:15:37] Speaker 02:
Correct.

[00:15:38] Speaker 02:
And we don't have to determine whether that's actually possible here or not.

[00:15:43] Speaker 02:
I'm sure there's statute of limitations defenses to that and the like.

[00:15:47] Speaker 02:
But a pure accounting claim doesn't go to the court of federal claims.

[00:15:51] Speaker 02:
That's correct.

[00:15:51] Speaker 02:
You have to tie it to a specific claim for money damages within the statute of limitations to get an accounting from the person.

[00:15:58] Speaker 03:
That's absolutely correct.

[00:15:59] Speaker 02:
So almost all these claims, even though they say they allege money damages, seem to me to just allege, oh, these takings and all these actions occurred way in the past.

[00:16:10] Speaker 02:
They set up a trust fund.

[00:16:11] Speaker 02:
It's been mismanaged.

[00:16:13] Speaker 02:
There's no claim for money damages in them.

[00:16:17] Speaker 02:
Is that right?

[00:16:17] Speaker 02:
That's correct.

[00:16:18] Speaker 02:
So the one that bothers me here is the water rights claim, because

[00:16:26] Speaker 02:
I'm a little confused.

[00:16:29] Speaker 02:
I'll tell you, I'm not convinced with the Court of Federal Claims decision that their property right was only in the water they used up to the amount.

[00:16:39] Speaker 02:
It seems to me that they were the first, I don't know what the right word is, but you know what I'm saying, the first user.

[00:16:45] Speaker 02:
And they had an entitlement to use up to whatever.

[00:16:48] Speaker 02:
Let's just say it was 10,000 acre feet is probably something else.

[00:16:51] Speaker 02:
But just say up to that amount.

[00:16:53] Speaker 02:
And they asked for a lease to sell some of that.

[00:16:58] Speaker 02:
Why weren't they allowed to do that?

[00:17:00] Speaker 02:
And if that's part of their property rights, again, we're going to have statute of limitations problems.

[00:17:04] Speaker 02:
So let's just talk about the merits of the claim first.

[00:17:07] Speaker 02:
Why isn't that a taking of their property right if they're not allowed to transfer water rights that belonged to them to another entity?

[00:17:17] Speaker 03:
The first answer is we need to

[00:17:21] Speaker 03:
consider the time frame that this occurred.

[00:17:23] Speaker 03:
So the lease proposal was in 1990.

[00:17:24] Speaker 03:
OK.

[00:17:26] Speaker 02:
We can get that.

[00:17:27] Speaker 02:
Can we talk about the merits first?

[00:17:28] Speaker 02:
Yeah.

[00:17:29] Speaker 02:
I understand.

[00:17:29] Speaker 02:
The lease proposal was a long time ago, and it was denied, and they didn't file within the statute of limitations on that.

[00:17:37] Speaker 02:
But I would like first to talk about the underlying merits.

[00:17:40] Speaker 02:
If that proposal was brought a year ago, and you denied it, and they brought suit, that would be timely.

[00:17:48] Speaker 02:
Would there be merit to that claim?

[00:17:50] Speaker 03:
Well, what I'd first like to point out is that the question of whether they could bring a lease is a question that's not before this court.

[00:18:00] Speaker 03:
So what we have now is a determination of the timing, which I understand you don't want to get to.

[00:18:08] Speaker 03:
But what's important as to water rights, we have several categories.

[00:18:12] Speaker 03:
And the government went to great lengths to try to explain this.

[00:18:16] Speaker 03:
We have what's the winter's right.

[00:18:17] Speaker 03:
which we understand is a property right.

[00:18:20] Speaker 03:
And it was established when the reservation was established.

[00:18:22] Speaker 03:
It was reserved for the reservation when the reservation was established long ago.

[00:18:28] Speaker 03:
Then there is the water itself.

[00:18:32] Speaker 03:
It's a usufructory.

[00:18:33] Speaker 03:
The right that the tribe has is usufructory in nature, meaning that it doesn't own the water.

[00:18:40] Speaker 03:
It has the ability to use the water.

[00:18:43] Speaker 04:
But it can also sell the ability to use the water.

[00:18:47] Speaker 03:
Well, no, see, that's where you get it.

[00:18:49] Speaker 03:
The ability to use water comes from a winter's rate.

[00:18:52] Speaker 04:
And I'm sure the tribe doesn't want to... You're making it sound as though winter's established that they only had the right to use water for as long as they continue to be agricultural or nature and use it for irrigation purposes.

[00:19:02] Speaker 04:
That's clearly not the case.

[00:19:03] Speaker 03:
Correct.

[00:19:04] Speaker 03:
That's not the case.

[00:19:04] Speaker 04:
The Supreme Court says they're entitled to X amount of water.

[00:19:07] Speaker 04:
There's actually a number of the amount.

[00:19:09] Speaker 04:
It's like seven gallons.

[00:19:10] Speaker 03:
Yes.

[00:19:11] Speaker 03:
Okay.

[00:19:11] Speaker 04:
Not the right number.

[00:19:12] Speaker 04:
Sure.

[00:19:12] Speaker 04:
But, you know, so why...

[00:19:15] Speaker 04:
There's nothing in Winters that suggests that they cannot lease that right of use to someone else.

[00:19:22] Speaker 03:
But Winters establishes that it's for purposes of the reservation.

[00:19:26] Speaker 04:
Suppose the reservation decided that they no longer had the infrastructure to do their own irrigation.

[00:19:34] Speaker 04:
So they're going to lease the water rights to someone else who's going to grow food that they can then purchase.

[00:19:39] Speaker 04:
And that that is a more efficacious method of feeding the tribe than attempting to grow the crops themselves.

[00:19:47] Speaker 04:
It's still for the purpose of the tribe.

[00:19:49] Speaker 03:
Understood.

[00:19:49] Speaker 03:
That hypothetical is closer to for purposes of the reservation.

[00:19:54] Speaker 03:
But just to make sure you're clear,

[00:19:56] Speaker 03:
What happens here is the tribe has a certain amount of water, according to the Arizona decree, that it can use annually.

[00:20:04] Speaker 03:
When the tribe does not use that amount over the course of the annual year, the water simply remains in the Columbia River system.

[00:20:12] Speaker 03:
It's not that the government makes a decision or flips a switch and diverts the water to somebody else.

[00:20:17] Speaker 03:
It remains in the system and goes to junior users.

[00:20:20] Speaker 03:
That, as the tribe acknowledges in its complaint, has been the circumstance since 1964.

[00:20:24] Speaker 02:
So I get that.

[00:20:26] Speaker 02:
And I don't think the fact that they don't use it all and then it gets allocated to somebody else.

[00:20:32] Speaker 02:
per se as a taking.

[00:20:33] Speaker 02:
That's not what we're asking about.

[00:20:34] Speaker 02:
I know they have that theory.

[00:20:36] Speaker 02:
We're not asking about that.

[00:20:38] Speaker 02:
But this for the use of the tribe or for the use of the reservation in the winter's right, I don't see it limited to specific use of the water

[00:20:47] Speaker 02:
for the tribe and its own members, personally, why wouldn't it be for the use of the tribe if they say, we don't need this much water, we're going to lease it to somebody else, and we're going to use that money to build new schools on the reservation?

[00:21:01] Speaker 03:
Isn't that within the winners' right?

[00:21:05] Speaker 03:
That's somewhat extrapolated.

[00:21:07] Speaker 03:
It's not that we're going to use it for the reservation.

[00:21:09] Speaker 03:
We're going to use it to market it to then build a school.

[00:21:12] Speaker 03:
But what's important here, and I understand your honor's concern about whether the tribe can or can't lease.

[00:21:18] Speaker 03:
But that's not the question that's before this court.

[00:21:21] Speaker 03:
What's before this court is a threshold question.

[00:21:24] Speaker 03:
And it goes back to the timing and failure to state a claim.

[00:21:27] Speaker 03:
Because if it's not a timely claim, the court never gets to the question of whether the

[00:21:32] Speaker 02:
In your view, the lease request was in, what, the 80s or something, and you denied it?

[00:21:38] Speaker 02:
Yes.

[00:21:38] Speaker 02:
And that's the act that could have possibly been the taking of the Romeo and Juliet.

[00:21:42] Speaker 02:
Indeed.

[00:21:42] Speaker 02:
But what I'm interested in, maybe because this is an interesting question, is if the tribe goes back to Interior tomorrow and says, we want to lease these, and you deny it, is that a takings claim?

[00:21:54] Speaker 03:
Well, it strikes me more as an APA claim, because it's either the agency's action or inaction to do or not do what the tribe asked.

[00:22:03] Speaker 02:
There might be a claim there somewhere.

[00:22:05] Speaker 03:
Correct.

[00:22:06] Speaker 03:
And it would perhaps be a timely claim.

[00:22:08] Speaker 03:
Again, it doesn't seem like one within the jurisdiction of the CFC.

[00:22:11] Speaker 04:
Now, to be clear, the CFC in this case made two separate holdings with regard to these water rights.

[00:22:17] Speaker 04:
The first was that it's barred by the statute of limitations.

[00:22:20] Speaker 04:
But the second was failure to state a claim.

[00:22:23] Speaker 04:
The failure to state a claim seems to be clearly wrong in light of the discussion we're having now.

[00:22:27] Speaker 04:
Now maybe we don't need to reach that because of the untimeliness, but it's the discussion that the three of us or four of us seem to be having is that there is a real problem with denial of use by the tribe of the full extent of the water rights that they were entitled to.

[00:22:43] Speaker 04:
That is a claim.

[00:22:46] Speaker 04:
And that is a valid claim.

[00:22:47] Speaker 04:
That is not something that should have been dismissed under 12-B-6.

[00:22:50] Speaker 04:
Now, maybe 12-B-1, because the only act they alleged that they deprived them of full use was the denial of the lease.

[00:22:58] Speaker 04:
And that happened a long time ago.

[00:23:00] Speaker 04:
But I don't see how there's a failure to state a claim.

[00:23:03] Speaker 03:
Well, again, the government's point is that there hasn't been a claim that they have lost their winter's right.

[00:23:09] Speaker 03:
They always have had this.

[00:23:10] Speaker 03:
Sure, there is.

[00:23:10] Speaker 04:
The claim they lost their winter right was that it was denied when you denied the right to lease

[00:23:16] Speaker 04:
the excess water rights.

[00:23:17] Speaker 04:
That is a claim.

[00:23:18] Speaker 03:
The winter's right is what allows them to use water in the first instance.

[00:23:23] Speaker 03:
They haven't lost that.

[00:23:24] Speaker 03:
The fact that they can use the water exists only because of the winter right.

[00:23:27] Speaker 04:
No, you denied them the right to use water because their use included wanting to lease some.

[00:23:31] Speaker 03:
No, no.

[00:23:32] Speaker 03:
Well, that's not been established.

[00:23:34] Speaker 03:
And that's not a question that's before this court, as to whether they can use it.

[00:23:37] Speaker 04:
Wait, did you or did you not deny them the right to lease water?

[00:23:41] Speaker 03:
No, the department actually never denied it.

[00:23:44] Speaker 03:
department didn't act on it.

[00:23:46] Speaker 03:
Actually, there are two federal register notices.

[00:23:48] Speaker 03:
It considered the request, had a federal register notice for public comment, and didn't reach a decision.

[00:23:57] Speaker 03:
But the point, the reason the tribe brings up that... I don't see how that's a failure to state a claim on their part.

[00:24:03] Speaker 04:
I do see how it might be untimely, but I don't see how it's a failure to state a claim.

[00:24:07] Speaker 03:
Well, indeed, it's untimely.

[00:24:11] Speaker 03:
The point here is that, well, perhaps the distinction that I should make is what makes this more complicated and not a simple question of using water or marketing or leasing water that they didn't use is that this is for off-reservation use.

[00:24:27] Speaker 04:
Do they continue to have these water rights today?

[00:24:31] Speaker 03:
Yes, they always have had the water right to use.

[00:24:34] Speaker 04:
So listen more carefully.

[00:24:35] Speaker 04:
I'm talking to both of you.

[00:24:36] Speaker 04:
Listen carefully.

[00:24:38] Speaker 04:
Go out and seek to lease the excess tomorrow.

[00:24:41] Speaker 04:
then bring a claim within six years saying it's a taking if they deny you the right.

[00:24:46] Speaker 04:
Then you've got a timely takings claim.

[00:24:49] Speaker 02:
Am I understanding?

[00:24:50] Speaker 02:
I think I understand the distinction you're making now, but I think it's not.

[00:24:54] Speaker 02:
a failure to set a claim.

[00:24:55] Speaker 02:
I think it's a merits-based claim, which is I think your view is the winner's rights cover the use of the water on the reservation for whatever purpose, but don't cover the use of the water off reservation.

[00:25:09] Speaker 02:
We would have to determine as a matter of law whether winners extends to off-reservation use, such as leasing it so that the money gained from that lease is used on the reservation.

[00:25:22] Speaker 03:
All of what you said, Your Honor, is something that could be briefed and discussed and argued if we had timely claims before the court.

[00:25:32] Speaker 02:
But the complaint makes clear that- It sounded like you might have some arguments about why that's not a takings claim.

[00:25:40] Speaker 02:
It's an APA claim.

[00:25:41] Speaker 02:
We would get into that if it came to us.

[00:25:43] Speaker 02:
The district court would get into that if they go to that.

[00:25:47] Speaker 02:
But it does not seem to me to be a frivolous claim.

[00:25:51] Speaker 02:
argument that the winner's right expands to include leases for off reservation use if the profits are used on the reservation.

[00:26:03] Speaker 02:
You may disagree with that.

[00:26:04] Speaker 02:
I get it.

[00:26:04] Speaker 02:
But that's a legal argument.

[00:26:05] Speaker 02:
It's not a failure to state a claim

[00:26:09] Speaker 02:
in the case.

[00:26:09] Speaker 03:
Well, that's separate.

[00:26:10] Speaker 03:
You're absolutely right.

[00:26:11] Speaker 03:
That's separate.

[00:26:11] Speaker 03:
And it's not before this court.

[00:26:12] Speaker 03:
It's separate.

[00:26:13] Speaker 02:
But it's only not before us because it's untimely.

[00:26:16] Speaker 03:
Indeed.

[00:26:17] Speaker 03:
But the reason I'm trying to make a point as to the distinction between the winter's right and the actual use of the water is because I'm trying to distinguish between what the government does realize is a cognizable property right.

[00:26:34] Speaker 03:
That's the winter's right.

[00:26:37] Speaker 03:
What's not a property right is the water itself.

[00:26:40] Speaker 03:
And it's the government's position that the excess water, the molecules of water, the water in the river do not belong to the tribe.

[00:26:50] Speaker 03:
And so if a claim is that you take it.

[00:26:53] Speaker 02:
No, no.

[00:26:54] Speaker 02:
I get why you're arguing that, too, because there are certain

[00:26:58] Speaker 02:
I mean, to the extent I can understand it, there seems to be arguments, particularly based on the continuing claim doctrine, that every time they don't use all of their water, that that's a continuous taking.

[00:27:11] Speaker 02:
But that does not seem to me correct, because that's what you're arguing.

[00:27:15] Speaker 02:
The water molecules itself are not the property.

[00:27:18] Speaker 02:
It's the winner's rights.

[00:27:19] Speaker 02:
But if they try to sell that excess winner's rights, that they're not

[00:27:25] Speaker 02:
personally using the water molecules for, that's a different story.

[00:27:30] Speaker 02:
I may have just confused the matter, but I think there's two different theories here.

[00:27:36] Speaker 02:
And the theory that just because they don't use the water and it's then used by somebody downstream, that that's a taking, that seems to me legally incorrect.

[00:27:47] Speaker 02:
Agree.

[00:27:49] Speaker 02:
But the other one we've been talking about, if it had been timely brought, I think is a much more serious issue.

[00:27:55] Speaker 03:
Well, it is more complicated.

[00:27:56] Speaker 03:
And indeed, that's why I'm trying to make it clear that this isn't something we should be trying to discuss on a motion to dismiss.

[00:28:03] Speaker 03:
And because most faithfully, the claims are untimely.

[00:28:09] Speaker 03:
There are just a few points of clarification that I'd like to make, because there are a few misstatements

[00:28:14] Speaker 03:
the tribe's reply brief.

[00:28:17] Speaker 03:
The first is that the tribe states that it's the government's position that with respect to count two, which involves the per capita claims, the unpaid per capita payments, the tribe contends that it's the government's position that the tribe is time barred under section 2501 from applying for restoration.

[00:28:41] Speaker 03:
of any unclaimed per capita payments.

[00:28:43] Speaker 03:
And just to be clear, the government isn't saying that the tribe is time-barred for making an administrative application to the Department of the Interior.

[00:28:53] Speaker 03:
The government's point is that the tribe has sought to file a lawsuit and is trying to get the same kind of relief by coming to the court instead of coming to the agency first.

[00:29:04] Speaker 02:
Can I just ask you, and I don't mean to have you help the tribe, but you work for

[00:29:09] Speaker 02:
for the Justice Department and the government has a special solicitude for the tribes.

[00:29:14] Speaker 02:
If they think there's a problem with the accounting in these trust funds, and you know there have been lots of these cases and there have been found to be substantial problems in some of them, what are they supposed to do?

[00:29:24] Speaker 02:
Should they be going to district court and filing a case based on the line of like the Cabell cases and the like?

[00:29:30] Speaker 03:
The district court would be the place, especially because they keep saying they're seeking an accounting.

[00:29:38] Speaker 03:
Well, not that it's worth it, but I'd also like to point out that in the complaint, it makes clear that even before the tribe got the Anderson report, they were of the opinion that there were problems with accounting such that

[00:29:51] Speaker 03:
they were experiencing losses.

[00:29:53] Speaker 03:
And as the CFC pointed out, when they then got the 1996 Anderson report, they said, oh, these problems haven't been cured, yet they still didn't bring a challenge to it.

[00:30:04] Speaker 03:
Unless the court has any further questions.

[00:30:06] Speaker 04:
Just in the government's view, do they have any vehicle now for challenging the adequacy of that accounting or for demanding a new accounting?

[00:30:16] Speaker 04:
Is there any way they can do that at this point?

[00:30:20] Speaker 03:
Time frame wise, I don't see a path.

[00:30:26] Speaker 03:
But for timing reasons, I wouldn't be able to say.

[00:30:30] Speaker 04:
So you think that at this point, they can't say we would like a new accounting?

[00:30:36] Speaker 03:
Given the time frame and that, as Your Honor said, all courts must adhere to the statute of limitations, I don't see a way.

[00:30:47] Speaker 04:
Thank you.

[00:30:48] Speaker 03:
Thank you.

[00:30:49] Speaker 04:
Mr. Gonzalez, do you have three minutes of your bottle time?

[00:30:54] Speaker 01:
Thank you, Your Honor.

[00:30:56] Speaker 01:
I just want to add that the tribe's claim for the water, it started in 1964 when the government started allocating the tribe's water to junior appropriators.

[00:31:09] Speaker 01:
But in our complaint, we're only going back six years from the filing of the complaint to be within the statute of limitations.

[00:31:19] Speaker 01:
Make that clear.

[00:31:20] Speaker 01:
We're not going back to 1964.

[00:31:22] Speaker 01:
Only six years prior to filing the complaint, we're asking for damages for the taking of temperate taking or the taking of our women's doctrine of water rights.

[00:31:32] Speaker 01:
And just in, you know, we're not... They didn't take it.

[00:31:39] Speaker 04:
They didn't take anything if you're not seeking to use it.

[00:31:42] Speaker 04:
In that six-year period that you're talking about, you didn't seek to use the rights.

[00:31:46] Speaker 04:
You weren't denied use.

[00:31:48] Speaker 01:
We were denied.

[00:31:50] Speaker 01:
How?

[00:31:51] Speaker 01:
Because we don't have irrigation equipment.

[00:31:54] Speaker 01:
Because the government's been feeding the water away.

[00:31:56] Speaker 01:
You didn't use the water.

[00:31:58] Speaker 04:
You didn't use it.

[00:31:59] Speaker 04:
What did they do wrong?

[00:32:01] Speaker 01:
Well, what they did wrong was that that's a property right.

[00:32:04] Speaker 01:
It's protected by the Fifth Amendment.

[00:32:07] Speaker 01:
And it's taken.

[00:32:08] Speaker 01:
We don't have to put it to a beneficial use.

[00:32:11] Speaker 01:
We as doctors in water rights do not require that we put it to a beneficial use.

[00:32:16] Speaker 01:
It's a property right.

[00:32:18] Speaker 01:
And if somebody else is going to take that property to government and give it to other public purpose, giving it to metropolitan water district or others, we're entitled to compensation.

[00:32:29] Speaker 01:
It's a property right.

[00:32:30] Speaker 01:
We don't have to put it in the water rights to not have to be put to a beneficial use to maintain them.

[00:32:39] Speaker 01:
And if somebody's going to take them, they should pay for it.

[00:32:42] Speaker 01:
I just want to close here by stating that, again, we would deny the right to engage in discovery by the district court's decision to dismiss pursuant to Toby one of the rules.

[00:32:59] Speaker 01:
And that's improper in the Indian Trust cases.

[00:33:03] Speaker 01:
The court has to allow the beneficiary of the trust to engage in discovery.

[00:33:11] Speaker 01:
to show the approval of the statute of limitations.

[00:33:17] Speaker 01:
We were not allowed to do that, because it just cut us off.

[00:33:20] Speaker 05:
You had jurisdictional discovery, though, right?

[00:33:22] Speaker 05:
I believe Judge Hughes asked you that previously?

[00:33:26] Speaker 01:
Well, pardon me.

[00:33:28] Speaker 01:
I really haven't.

[00:33:29] Speaker 05:
Did you have jurisdictional discovery, sir?

[00:33:32] Speaker 01:
Yeah, but that's not fact discovery.

[00:33:35] Speaker 01:
And we did put all our jurisdictional discovery

[00:33:38] Speaker 01:
the documents, attachments to the complaint, which are incorporated by reference.

[00:33:43] Speaker 01:
But there's a big difference between jurisdictional discovery and fact discovery.

[00:33:47] Speaker 01:
We do not have fact discovery.

[00:33:48] Speaker 01:
We have jurisdictional discovery.

[00:33:50] Speaker 01:
And the government did not comply with that completely.

[00:33:54] Speaker 01:
The government admits there's an unpaid trust per capita payment fund, but didn't give us any information on that fund in jurisdictional discovery.

[00:34:02] Speaker 01:
Now we need fact discovery to go and find out what's in that fund that pertains to the

[00:34:07] Speaker 01:
wavy Indian tribe.

[00:34:10] Speaker 01:
So we're asking for an opportunity to engage in tax discovery here, which was cut off improperly by the claims court by dismissing under 12b1 as a matter of law.

[00:34:22] Speaker 01:
And that's improper.

[00:34:25] Speaker 04:
Okay, counsel, I thank both counsels.

[00:34:27] Speaker 04:
This case is taken under submission.

[00:34:29] Speaker 01:
Thank you.