[00:00:00] Speaker 00:
Our last case this morning is Winnemucca Indian Colony versus the United States, 2024-1108.

[00:00:07] Speaker 00:
Mr. Cisneros.

[00:00:11] Speaker 04:
Yes, Your Honor.

[00:00:12] Speaker 04:
Good morning.

[00:00:14] Speaker 04:
Almost afternoon.

[00:00:16] Speaker 04:
May it please the court?

[00:00:18] Speaker 04:
I just want to reflect that I represent the Winnemucca Indian Colony.

[00:00:22] Speaker 04:
I'm very honored to do that.

[00:00:24] Speaker 04:
And the chairman, Eric Macgera, is on the court.

[00:00:27] Speaker 04:
Marlene McGeer is in the court, and Joseph Killip, they're members of the Tribal Council.

[00:00:32] Speaker 04:
Obviously, this is a complex case.

[00:00:36] Speaker 04:
It's been briefed quite a bit.

[00:00:38] Speaker 04:
We've got lengthy briefs, so I'm going to try and cover a couple of things that I think are extremely important to the Winnemuc Indian Colonies case.

[00:00:45] Speaker 03:
And it's going to begin with... We've got this 1,500 colon, which it seems to me

[00:00:51] Speaker 03:
raises the question of whether the operative facts, not just the facts generally, but the operative facts are overlapping between the district court action and the court of federal crimes action.

[00:01:05] Speaker 03:
There's no issue in the court of federal crimes action about the standing of your group to bring this now that the BIA has recognized your group as representing the colony, right?

[00:01:19] Speaker 03:
That is correct, Your Honor.

[00:01:20] Speaker 04:
It actually was raised in their initial motion to dismiss, but later withdrawn by them, by the government.

[00:01:26] Speaker 04:
So it no longer is an issue.

[00:01:28] Speaker 04:
However, it was raised originally.

[00:01:31] Speaker 04:
And that was going to be my first argument, Your Honor, which is obviously that the 1500 argument we're dealing with here, the Federal District Court case, has really nothing to do with the Court of Federal Claims case.

[00:01:44] Speaker 03:
Well, the problem is putting aside the standing issue.

[00:01:47] Speaker 03:
As I read counts five and six of the complaint, there does seem to be an issue there, an allegation that somehow the government breached its duty to the colony by its actions with respect to government recognition.

[00:02:10] Speaker 03:
So there is some overlap there.

[00:02:13] Speaker 03:
I'm not clear from the complaint.

[00:02:15] Speaker 03:
how central or significant that allegation is.

[00:02:19] Speaker 03:
Could you help me on that?

[00:02:21] Speaker 04:
Sure, absolutely, Your Honor.

[00:02:22] Speaker 04:
So at this point, it's not significant to the complaint.

[00:02:26] Speaker 04:
It actually, as you've mentioned, Your Honor, the difference between operative facts versus background facts.

[00:02:31] Speaker 04:
Background facts are not going to make them the same type of case.

[00:02:35] Speaker 04:
The alleged dispute, which is actually never a dispute.

[00:02:39] Speaker 04:
It was never a leadership dispute in this colony.

[00:02:41] Speaker 04:
But the fact that there was issues in relation to BIA failing to recognize the properly seated counsel, because of that, they suffered damages.

[00:02:51] Speaker 04:
That's the only relevance it has.

[00:02:53] Speaker 04:
This case is about the damages.

[00:02:55] Speaker 03:
Well, that seems to involve some overlap, no?

[00:02:57] Speaker 04:
Well, it would if there was an actual dispute over leadership.

[00:03:01] Speaker 04:
There never really was.

[00:03:03] Speaker 03:
Now, but what five and six are saying is that there was a dispute about leadership and that the government reached its trust obligation by failing to resolve that dispute in your favor.

[00:03:17] Speaker 03:
That seems to be the allegation.

[00:03:19] Speaker 03:
And in that one respect, it seems to me that there is overlap between the complaint here and what was going on in the district court.

[00:03:27] Speaker 04:
Right.

[00:03:27] Speaker 04:
And I can appreciate that, Your Honor.

[00:03:30] Speaker 04:
But my response to that would be that in relation to the leadership dispute, there never was.

[00:03:35] Speaker 04:
Leadership disputes are specifically when you have two groups who are members of a tribe arguing over who should be leader.

[00:03:43] Speaker 03:
I'm just not understanding your response.

[00:03:45] Speaker 03:
I'm sorry.

[00:03:45] Speaker 03:
I mean, I'm asking about operative fact overlap.

[00:03:49] Speaker 03:
And here you are in the complaint.

[00:03:51] Speaker 03:
arguing that the failure to recognize was a trust breach and that seems to overlap with what happened at the district court.

[00:04:00] Speaker 03:
Now it's only one part of one claim.

[00:04:02] Speaker 03:
I understand that.

[00:04:03] Speaker 03:
But in that one respect, I mean, there does seem to be overlap between the two actions, right?

[00:04:09] Speaker 04:
Well, again, I would argue, Your Honor, that that's background fact related to the fact that we had a tribe.

[00:04:15] Speaker 04:
Regardless of who the leadership was, which we know who the leadership was, they were denied certain things that were based that we've alleged in the complaint.

[00:04:24] Speaker 04:
So they were denied that regardless of the leadership issue, which again, we contend that there was no leadership dispute,

[00:04:32] Speaker 04:
for the reasons we've stated our complaint.

[00:04:35] Speaker 04:
But having said that, regardless of who the leadership was, the tribe suffered this damage.

[00:04:40] Speaker 04:
So the leadership issue is tangential.

[00:04:42] Speaker 04:
It really has nothing to do with whether or not.

[00:04:44] Speaker 01:
Could you turn to the actual language of the complaint to maybe help center us as you answer the questions posed by Judge Dye?

[00:04:51] Speaker 04:
Sure.

[00:04:51] Speaker 01:
I believe the pertinent claims that he's pointing to on appendix pages 90 through 100.

[00:05:01] Speaker 04:
All right.

[00:05:02] Speaker 04:
And we're talking about five and six, correct?

[00:05:04] Speaker 01:
Yes, that's what I heard in terms of the question that he posed to you.

[00:05:08] Speaker 04:
Right.

[00:05:08] Speaker 04:
And so those are dealing with, obviously, the various rights of ways and power lines, utilities, things of that nature that have been placed upon the tribal lands.

[00:05:19] Speaker 04:
And they've been placed upon the tribal lands with no compensation to the tribe whatsoever.

[00:05:25] Speaker 01:
But what I want you to focus in on just right now is his question in terms of

[00:05:31] Speaker 01:
potentially overlap with respect to operative facts or basically the standard that's applicable.

[00:05:37] Speaker 01:
So I appreciate you giving us background, but as you probably could tell, he's read it all and we've read the pertinent information.

[00:05:45] Speaker 01:
We just want the answer to this question in particular.

[00:05:48] Speaker 04:
And that question is what, Your Honor, if I could...

[00:05:50] Speaker 04:
So my understanding is right now the question is for these items, does there overlap with the alleged... Let's take as an example.

[00:05:57] Speaker 03:
Let's look at page 99 of the appendix.

[00:06:00] Speaker 03:
This is in count five and it's paragraph 190.

[00:06:04] Speaker 03:
It says the BIA by its arbitrary capricious and unreasonable failure for 14 years to recognize a council blah blah blah.

[00:06:12] Speaker 03:
That sounds very much like what was going on in the district court.

[00:06:18] Speaker 04:
Right.

[00:06:19] Speaker 04:
In the sense, Your Honor, that there was that dispute, but it has nothing to do with the loss that occurred here for the tribe itself.

[00:06:26] Speaker 04:
The purpose of the district court case was to force me.

[00:06:30] Speaker 03:
So we could just say, OK, that there's no claim here about a breach of trust obligation, or to the extent there is, it's barred by 1,500 and go on and address the other claims, right?

[00:06:42] Speaker 03:
That's correct, Your Honor.

[00:06:43] Speaker 04:
Yes.

[00:06:44] Speaker 04:
So again, though, I mean,

[00:06:46] Speaker 04:
the claim that the district court case had to do with only one issue and that had to do with forcing the BIA to decide who the leadership was.

[00:06:56] Speaker 04:
That's all it was.

[00:06:57] Speaker 04:
We're not asking the Court of Federal Claims to do that in any way, shape, or form in this case.

[00:07:02] Speaker 04:
It has nothing to do with our claims.

[00:07:04] Speaker 04:
The claims have to do with the BIA's failure to ensure their trust obligations are met, and the met based upon the items that we list in our complaint, which the damages we suffered related to the rights of ways and also the utilities and things of that nature, like the diversion of water.

[00:07:22] Speaker 04:
Those were all the damages that the tribe suffered.

[00:07:25] Speaker 04:
Regardless of whether they recognized the council or not, those are the claims they suffered because BIA failed to actually ensure that their resources and their natural resource rights were maintained.

[00:07:38] Speaker 04:
So in other words, even if a leadership had been decided way back since 2000, the fact that BIA did not ensure that the Winnemucke Indian colonies

[00:07:50] Speaker 04:
resources for being maintained properly, they breach their trust obligations.

[00:07:55] Speaker 03:
Could you address the statute of limitations issue?

[00:07:58] Speaker 03:
Because it seems to me that the continuing claims doctrine may preserve claims with respect to actions that took place after 2014.

[00:08:12] Speaker 03:
But as to actions that

[00:08:14] Speaker 03:
took place before 2014, such as the building of the road, that would seem to be barred by the statute of limitations, wouldn't it?

[00:08:23] Speaker 04:
Well, again, it has to do with two different arguments we made in our

[00:08:28] Speaker 04:
in our brief, your honor.

[00:08:29] Speaker 04:
So we argued, number one, that was a statute of limitations issue.

[00:08:33] Speaker 04:
We argued that there are continuing violations.

[00:08:36] Speaker 04:
And there were two separate cases.

[00:08:38] Speaker 03:
OK, so that would cover claims with respect to things that happened after 2014.

[00:08:43] Speaker 03:
Correct.

[00:08:44] Speaker 03:
But the building of the road, as an example, didn't happen after 2014.

[00:08:49] Speaker 04:
Correct.

[00:08:50] Speaker 04:
There was one road that was built after 2014.

[00:08:53] Speaker 03:
In fact, the- Yeah, but with roads that were built before 2014.

[00:08:56] Speaker 04:
So the roads that were built before 2014, we believe that this case is very analogous to the case we cited, the Shoshone case we cited, which is 672, F3, 1021, had to do with gas and mineral rights.

[00:09:11] Speaker 04:
When companies went back out and forth, they continued the violation.

[00:09:15] Speaker 04:
Here, there's a continued violation for a number of reasons.

[00:09:18] Speaker 03:
Yes, the road.

[00:09:19] Speaker 03:
I understand that, but I'm really asking about what happened before 2014.

[00:09:23] Speaker 03:
You can't sue on that.

[00:09:25] Speaker 03:
it seems to me, and that there isn't any reason that the claim didn't accrue in this part by the statute of limitations, to the extent it's pre-2014.

[00:09:39] Speaker 04:
If your honors go with the theory that we provided in relation to continuing violations, you're correct.

[00:09:44] Speaker 04:
that we can only go back six years from filing of the complaint.

[00:09:48] Speaker 04:
But we believe that we can file the complaint and the statute of limitations be continued after the 2014 date.

[00:09:55] Speaker 04:
It's for a variety of reasons.

[00:09:57] Speaker 04:
For the roads, for example.

[00:09:58] Speaker 04:
The roads are not just put down and then that's it.

[00:10:02] Speaker 03:
No, no, I understand that.

[00:10:03] Speaker 03:
Let's stick with pre-2014.

[00:10:05] Speaker 03:
You argue

[00:10:06] Speaker 03:
that the tribal governance wasn't established so you couldn't sue.

[00:10:10] Speaker 03:
But it was recognized by BIA in 2014.

[00:10:14] Speaker 03:
Correct.

[00:10:16] Speaker 04:
Right.

[00:10:16] Speaker 04:
And we filed this action within six years of that letter where the BIA actually finally recognized the tribal council.

[00:10:24] Speaker 04:
So we filed within that six year statute of limitations from that point.

[00:10:28] Speaker 04:
And that's our second argument, is that everything should have been told up to that letter because there was no recognized tribal council.

[00:10:36] Speaker 03:
What happened before 2014 is still barred by limitations, because if you look at 2501, which in the case of disability gives you three years to file, that seems not to help you under these circumstances, because you didn't file within three years of the 2014 recognition.

[00:10:59] Speaker 03:
You filed in 2020.

[00:11:00] Speaker 03:
Right.

[00:11:01] Speaker 04:
And we have not gone under the, our theories have not gone under legal disability anymore.

[00:11:06] Speaker 04:
We have gone under two things.

[00:11:08] Speaker 04:
One was the continuing violations.

[00:11:10] Speaker 04:
So every time there's a continuing violation, statute of limitations resets.

[00:11:14] Speaker 04:
So we did, in that six years, we will have our claims.

[00:11:19] Speaker 04:
And we understand that we can only get back six years if you adopt our continuing violations argument, which for each of the issues we have, Your Honor, I can explain why there's a continuing violation.

[00:11:31] Speaker 03:
No, I understand.

[00:11:33] Speaker 04:
Right.

[00:11:33] Speaker 04:
Now, the second argument we made in relation to statute of limitations was, well, that statutes were told up until the moment we got that letter.

[00:11:42] Speaker 04:
The Windermark Indian colony got the letter stating that we now recognize this council.

[00:11:47] Speaker 04:
And there's actually, it was interesting, because in the motion to dismiss that the government first filed, they cited the dorgan.

[00:11:59] Speaker 04:
the no-cast Indian tribe versus Zinke case, which is 2017 WL1957076.

[00:12:06] Speaker 04:
And in that case, it was a district court case.

[00:12:10] Speaker 04:
But the case basically said the court doesn't have the right to decide who the tribal council is.

[00:12:16] Speaker 04:
They don't have the right to do that.

[00:12:17] Speaker 04:
So although there may be not a standing issue, there is an authorization issue, whether the tribal council is authorized to file that claim.

[00:12:25] Speaker 04:
So up to 2014,

[00:12:27] Speaker 04:
The court cannot come in and say, you're the right counsel.

[00:12:30] Speaker 04:
You can bring this claim.

[00:12:32] Speaker 04:
And in fact, the court, and again, it was cited by the government, says, when the BIA recognizes entity as a tribal leadership, federal courts must do the same.

[00:12:43] Speaker 04:
Logically, therefore, the Congress must also be true, where BIA refuses to recognize tribal leadership.

[00:12:48] Speaker 04:
Federal courts must do the same.

[00:12:51] Speaker 04:
So that case, and it cites the Timbershaw case, which is a appellate court case, and the Cayuga Nation case, and they're in our brief.

[00:12:59] Speaker 04:
What it's stating is that until a tribal leadership is identified by the BIA, because the court cannot, then the statute of limitations can't run.

[00:13:09] Speaker 04:
They can't bring a claim.

[00:13:10] Speaker 04:
It's impossible for them to bring it back.

[00:13:12] Speaker 00:
You want to save three minutes?

[00:13:14] Speaker 00:
You're well into your rebuttal time.

[00:13:16] Speaker 00:
You can continue or save it.

[00:13:18] Speaker 04:
No, I will reserve my time, Your Honor.

[00:13:20] Speaker 00:
Thank you very much.

[00:13:20] Speaker 00:
We'll give you three minutes when you come back.

[00:13:22] Speaker 04:
I appreciate that.

[00:13:23] Speaker 04:
Thank you.

[00:13:24] Speaker 00:
Mr. Richmond.

[00:13:46] Speaker 02:
Good morning, your honor.

[00:13:47] Speaker 02:
May I please the court?

[00:13:49] Speaker 02:
Ben Richmond for the United States.

[00:13:51] Speaker 02:
So I just want to emphasize there are multiple paths for the court to affirm the judgment of the CFC.

[00:13:56] Speaker 02:
You can affirm on.

[00:13:57] Speaker 03:
Let's talk about 1,500.

[00:13:59] Speaker 03:
So I mean, it would seem as though there are many claims here which don't involve any overlap with the district court action with respect to the operative facts.

[00:14:11] Speaker 03:
And there may be some claims where there is some overlap.

[00:14:14] Speaker 03:
But the government seems to say that there's overlap as to all claims.

[00:14:19] Speaker 03:
I'm having a hard time seeing that.

[00:14:22] Speaker 02:
So Your Honor, I mean, the calling here, 12 pages of this complaint, were devoted to these allegations.

[00:14:29] Speaker 03:
Yeah, yeah, yeah.

[00:14:29] Speaker 03:
There's a lot of extraneous stuff there.

[00:14:31] Speaker 03:
And our cases have made clear that race-gesti allegations, I guess we'd call them that, don't count.

[00:14:39] Speaker 03:
It's only operative facts.

[00:14:40] Speaker 03:
So I don't understand how the tribal governance dispute is an operative fact with respect to most of these claims.

[00:14:48] Speaker 02:
So I think, Your Honor, you're right, that Counts 5 and 6, I mean, they specifically address the leadership dispute here.

[00:14:55] Speaker 02:
I claim Counts 5 and 6, so I think Section 1500 is a clear bar on those counts.

[00:15:00] Speaker 01:
On those counts in their entirety, or just aspects of those counts?

[00:15:03] Speaker 02:
On the counts in their entirety.

[00:15:05] Speaker 02:
I mean, Count 5 alleges that the BIA's failure for 14 years to recognize a council

[00:15:11] Speaker 02:
has affirmatively conveyed the possessive interest in the land held by trespassers, which required the colony to expend funds to remove the trespassers.

[00:15:18] Speaker 02:
I mean, the 14 years is a direct reference to the leadership dispute that's at issue in the District of Nevada litigation.

[00:15:26] Speaker 02:
That's the basis of the claims.

[00:15:28] Speaker 02:
With respect to counts one.

[00:15:30] Speaker 00:
1500 isn't case specific, though, is it?

[00:15:34] Speaker 00:
It relates to claims, which are counts.

[00:15:37] Speaker 00:
Is that right?

[00:15:38] Speaker 00:
In other words, if there's partial overlap, that doesn't disqualify the whole case.

[00:15:45] Speaker 00:
Is that right?

[00:15:46] Speaker 02:
Well, I think the styling of a certain counter complaint shouldn't affect the section 1500 bar.

[00:15:51] Speaker 03:
The answer to that is yes, isn't it?

[00:15:53] Speaker 03:
It doesn't cover the whole complaint.

[00:15:55] Speaker 03:
If there are counts that don't involve any overlap, then it's no problem.

[00:15:59] Speaker 02:
That's true.

[00:15:59] Speaker 02:
If there are counts that don't involve overlap, then the section 1500 bar wouldn't apply.

[00:16:04] Speaker 03:
And there's no issue here in this case about the standing of this group to bring suit, right?

[00:16:10] Speaker 02:
No, no, not in the appeal.

[00:16:11] Speaker 02:
I do want to emphasize that counts one, two, and three do have facts that are operative, that overlap with the Nevada suit.

[00:16:20] Speaker 02:
So if we look at the complaint, counts one, two, and three, they seem to be based on allegations that the colony failed to approve rights of way.

[00:16:27] Speaker 02:
or receive certain payments.

[00:16:28] Speaker 02:
That's at appendix 94 through 97.

[00:16:31] Speaker 02:
So I think the key issue is who in the colony had those responsibilities?

[00:16:36] Speaker 02:
And the colony is making allegations about harms within the past 10 years.

[00:16:40] Speaker 02:
That's at appendix 94.

[00:16:42] Speaker 02:
So I think the CFC reasonably held that those claims are related to the leadership dispute at issue in the Nevada dispute.

[00:16:48] Speaker 01:
Just to make sure that I am level-set with you on this,

[00:16:51] Speaker 01:
Is it that the claims need to share substantially the same operative facts as opposed to just overlap?

[00:16:56] Speaker 01:
I want us to be precise regarding what we need to.

[00:17:00] Speaker 02:
Yeah, so Tohono O'odham is a very broad standard, substantially the same operative facts.

[00:17:05] Speaker 02:
It's not supposed to create some sort of pleading exercise to evade the section 1500 bar.

[00:17:11] Speaker 02:
If there's the same underlying facts, a common factual basis, the section 1500 bar applies.

[00:17:19] Speaker 01:
So recognizing that we have had this discussion about the fact that it would not bar the complaint in its entirety, is it only counts five and six?

[00:17:30] Speaker 01:
that would potentially be barred by Section 1500?

[00:17:32] Speaker 02:
I think all of the counts, all the counts still alive in this appeal can be barred.

[00:17:37] Speaker 02:
As Your Honors were discussing, counts five and six can be barred because of those specific references and the reliance on the 14-year leadership dispute.

[00:17:45] Speaker 02:
But counts one, two, and three, the allegations and the complaint are about the colony's failure to approve certain rights of way.

[00:17:53] Speaker 02:
and also the colony's failure to approve payments.

[00:17:56] Speaker 02:
So again, the key issue is who in the colony had those responsibilities.

[00:18:00] Speaker 03:
But look, after 2014, when the BIA recognized this group as representing the tribe,

[00:18:09] Speaker 03:
statute of limitations would appear to bar pre-2014 actions.

[00:18:13] Speaker 03:
So by 2014, they were the recognized group.

[00:18:17] Speaker 03:
And if there was a trust violation after 2014, that doesn't involve any question of who was in charge of tribal governance, right?

[00:18:27] Speaker 02:
If the allegation was specific to post-2014 when the colony, when we recognized the leadership of the colony, then that's true.

[00:18:36] Speaker 02:
But I don't think those allegations necessarily appear in the complaint.

[00:18:40] Speaker 02:
And potentially, where there's a case that they do, that would be counts five and six.

[00:18:44] Speaker 02:
So I think, well, yeah.

[00:18:47] Speaker 02:
So I think our position is, excuse me, I have to correct myself.

[00:18:50] Speaker 02:
Our position is that,

[00:18:56] Speaker 02:
Sorry, I'm just going to switch the statute of limitations.

[00:18:59] Speaker 02:
But our position is Cal 5 and 6.

[00:19:02] Speaker 01:
I get it.

[00:19:02] Speaker 01:
Don't worry.

[00:19:03] Speaker 01:
I have been in your shoes where you're having to answer questions that maybe you weren't necessarily think you'd have to answer.

[00:19:09] Speaker 01:
But I think it'd be useful for us if you could give us your answer on 1500 before you move on to statute of limitations.

[00:19:15] Speaker 02:
Yeah, so our answer on 1500 is it's a complete bar to 1, 2, 3, 5, and 6 because it's substantially the same operative facts.

[00:19:23] Speaker 03:
And also just want to- Why is it the same operative facts as to say counts 1, 2, and 3, which don't seem to, I mean, to the extent that they're post 2014.

[00:19:33] Speaker 03:
why is there any necessity there to resolve the same issues as in this report?

[00:19:40] Speaker 02:
So I don't think one, two, and three are post-2014.

[00:19:43] Speaker 02:
One, two, and three are about events that happened long ago.

[00:19:47] Speaker 02:
And so for one, two, and three, I think the bar is that there's an overlap.

[00:19:54] Speaker 03:
Well, it's fair to say that to the extent that the complaint alleges wrongs happening after 2014, then there's no

[00:20:03] Speaker 02:
uh... fifteen hundred issue with respect to that i think that's that's correct if it's alleging uh... it's alleging conduct post twenty fourteen uh... post leadership dispute being resolved and the section fifteen bar with the plot thank and also just wanna briefly make the forfeiture point uh... you know that the argument of the same operative fax was not raising cfc that's the only thing is it's appropriate to raise here so i'll move on to the statute of limitations arguments your honor

[00:20:32] Speaker 02:
So the colony's claims here, they concern alleged encroachments or occupations on colony land that commenced more than six years ago before the colony filed suit in November 2020.

[00:20:44] Speaker 02:
The government here submitted ample undisputed evidence about the factual predicates for these claims.

[00:20:52] Speaker 02:
So maps, deeds, satellite images, surveys.

[00:20:55] Speaker 02:
This is a supplemental appendix 483 through 511.

[00:20:59] Speaker 02:
None of those facts have been contested here.

[00:21:02] Speaker 02:
And so really, all we're arguing on statute of limitations is a set of exceptions to try to move around when the claims accrue.

[00:21:10] Speaker 02:
If we reach those exceptions, our argument is that the continuing claims doctrine does not apply here.

[00:21:17] Speaker 02:
So the continuing claims doctrine is when claims are inherently susceptible to being broken down into a series of independent and distinct events or wrongs, each having its own associated damages.

[00:21:27] Speaker 02:
This is from Brown Park.

[00:21:29] Speaker 02:
That's not the case here, where we have these single encroachments.

[00:21:32] Speaker 02:
I mean, the construction of a power line, the construction of a road,

[00:21:36] Speaker 02:
the construction of a power station.

[00:21:38] Speaker 02:
That's not inherently susceptible into being broken down into multiple different causes of action.

[00:21:45] Speaker 02:
The colony is relying on Shoshone here.

[00:21:48] Speaker 02:
But in Shoshone, each new purported entry

[00:21:52] Speaker 02:
under a purported invalid lease was associated with the extraction of additional trust resources.

[00:21:59] Speaker 02:
So each of those entries, each of those extraction of trust resources allowed for a new claim and cause of action.

[00:22:05] Speaker 02:
And that was susceptible to being broken down into a series of different claims.

[00:22:10] Speaker 02:
But here, where there are single, discrete, overt events, I don't think the continuing claims doctrine applies.

[00:22:16] Speaker 02:
Even to the extent the colony is making arguments about later effects,

[00:22:21] Speaker 02:
Later adverse effects that are traceable to the original single alleged wrong, that does not fall within the continuing claim structure.

[00:22:29] Speaker 03:
Let's give an example.

[00:22:30] Speaker 03:
Suppose a road is constructed before 2014, but after 2014 there's road maintenance.

[00:22:38] Speaker 03:
And they're alleging that the road maintenance constitutes a trespass.

[00:22:41] Speaker 03:
That wouldn't be barred by the statute of limitations, would it?

[00:22:44] Speaker 02:
No, but I don't think that's the situation we have here.

[00:22:47] Speaker 02:
We have allegations about single,

[00:22:50] Speaker 02:
physical encroachments and later effects like a car going along the road.

[00:22:55] Speaker 02:
That's my impression of what the allegations amount to here.

[00:23:02] Speaker 02:
not inherently susceptible to being broken down like a case like Shoshone.

[00:23:07] Speaker 02:
I think extending the continuing claims doctrine to a case like this, it's kind of like an exception that swallows the rules for these overt physical encroachments.

[00:23:16] Speaker 02:
This power line was constructed decades ago, according to our documentary evidence.

[00:23:23] Speaker 02:
I also want to talk briefly about the recognition issue and whether recognition of tribal leadership results would hold the statute of limitations.

[00:23:32] Speaker 02:
Our position is it does not.

[00:23:34] Speaker 02:
That's because a new claim doesn't accrue each time a tribe elects new leadership.

[00:23:39] Speaker 02:
That would essentially nullify the statute of limitations for a lot of claims like this.

[00:23:44] Speaker 02:
It might fall in the disability category in 2005 or 1, right?

[00:23:49] Speaker 02:
it might but then there were three years uh... in which case uh... you know it the plan was about during those three years i also just want to emphasize that the watson group brought suits in twenty eleven and twenty thirteen in the name of the colony so it wasn't under disability here that was the twenty eleven suit filed the district of nevada and the twenty thirteen suit filed in the cfc so i think both of those suits show that the colony wasn't under any type of disability in the statute of limitations accrued prior

[00:24:18] Speaker 02:
for these claims.

[00:24:20] Speaker 03:
Is there anything in 1500 that would prevent us from telling the Court of Federal Claims to allow this case to be repleted, to scrub out the overlap material and limit themselves to claims that don't involve tribal governance issues?

[00:24:40] Speaker 02:
not to my knowledge i think the language of section fifteen hundred is clear in tohono O'odham is clear that the statute should be applied as written it's a strict rule uh... but you know here uh... there

[00:24:54] Speaker 02:
overlapping operative facts on the pendency in the Vatican demands this.

[00:24:59] Speaker 03:
But if we said you've got to scrub out the overlap claims, you've mixed up the two together, for example, in five and six, then if they scrub out the overlap, then there's no 1500 problem.

[00:25:16] Speaker 02:
I think if this court didn't affirm dismissal as to certain claims on section 1500, then it could remand for further proceedings.

[00:25:26] Speaker 02:
So unless the court has any questions about count three, which is related to this alleged affirmative fiduciary duty, which we think does not exist under Arizona versus Navajo Nation.

[00:25:43] Speaker 02:
I think that's clear Supreme Court precedent.

[00:25:45] Speaker 02:
I just want to emphasize the character of the multiple grounds on which this case can be affirmed.

[00:25:51] Speaker 02:
And I want to talk to the court about our best case for dismissal for each of the different counts here.

[00:25:56] Speaker 02:
So our best case for dismissal counts one and two.

[00:26:01] Speaker 02:
These are overt physical acts like the construction of a road or a power line.

[00:26:06] Speaker 02:
The best case for dismissal is the statute of limitations because those overt physical acts were constructed decades ago, at least six years beyond when the suit was filed.

[00:26:17] Speaker 02:
Our best case for dismissal of Count 3, breach of trust, on the water diversion count, that could be statute of limitations.

[00:26:27] Speaker 02:
It could also be the CFC jurisdictional grounds, because no money-mandating fiduciary duty exists.

[00:26:32] Speaker 02:
Our best case for dismissal on Counts 5 and 6 is Section 1500, and that's because of the overlap of the operative facts, where those counts are directly addressing

[00:26:43] Speaker 02:
the leadership dispute, the 14 years in which the BIA did not recognize the leadership of the colony.

[00:26:51] Speaker 02:
Count A should be affirmed based on the lack of CFC jurisdiction as well, because there's no valid claim for money damages here.

[00:27:01] Speaker 02:
So unless the panel has any further questions, for these reasons, the judgment of the CFC should be affirmed.

[00:27:09] Speaker 00:
Thank you, Mr. Richmond.

[00:27:11] Speaker 00:
Mr. Assistant Neiros has three minutes.

[00:27:17] Speaker 04:
Yeah, I want to begin because I want to make sure I'm perfectly clear on the questions And I think I understand your honors better now, but in relation to 1500 The best way to determine their background facts or not is exactly what your honor

[00:27:32] Speaker 04:
suggested is if we scrubbed all of that language related to the leadership dispute, the claims would absolutely still survive.

[00:27:40] Speaker 04:
Our claims are for money damages related to the breach of trust by the BIA, the government.

[00:27:47] Speaker 03:
But not a breach of trust in failure to recognize?

[00:27:50] Speaker 04:
Correct, Your Honor.

[00:27:52] Speaker 04:
That is not a part of this, and we're not suing for damages related to their failure to recognize

[00:27:57] Speaker 04:
this tribal council this tribal council has now been uh... recognized by the bia and fact none of the claims in their requesting the court of federal claims judge to in any way shape or make any type of termination about leadership whereas the district court case was only about the court forcing the bia to recognize leadership because of course the district court could not uh... record

[00:28:24] Speaker 04:
Leadership the second thing I want to get to is continue a violation We actually put in our complaint in relation to the electric substation which I believe is is claimed three or two

[00:28:35] Speaker 04:
The electric substation just recently, the road got flooded, had to be repaved so they can get access to the substation.

[00:28:43] Speaker 04:
The substation's constantly being, of course, maintained.

[00:28:47] Speaker 04:
Roads, same thing.

[00:28:48] Speaker 04:
Roads only exist for so long, they need to be re-asphalted.

[00:28:52] Speaker 04:
There's no doubt these are implicit in our claims, and those are the continuing violations.

[00:28:57] Speaker 04:
The diversion of the stream continues to this day.

[00:28:59] Speaker 04:
In fact, half of Winnemucca, the city of Winnemucca, is water.

[00:29:03] Speaker 04:
is coming from water that should be going to the Winnemont Indian Colony because it was diverted and it's continuing to be diverted to this day and maintained in different ways.

[00:29:14] Speaker 04:
The trespass issue in relation to the people who had leases for homes that were on

[00:29:20] Speaker 04:
reservation.

[00:29:21] Speaker 04:
Those families were not just necessarily one family and they lived there forever.

[00:29:27] Speaker 04:
No, many passed away and heirs came in and took over those properties.

[00:29:31] Speaker 04:
These are the types of facts we need to explore on this continuing violation, but there's no doubt in every single

[00:29:37] Speaker 04:
aspect of resource or right of way or the water diversion.

[00:29:42] Speaker 04:
There has been acts and violations that BIA has done nothing to help in relation to these resources within the last six years or at least six years prior to the filing of the complaints, Your Honors.

[00:29:55] Speaker 04:
So I want to make sure that you understand that there are continuing violations if we have planned them.

[00:30:00] Speaker 04:
Other than that, are there any other questions, Your Honors?

[00:30:04] Speaker 00:
I suggest not.

[00:30:05] Speaker 00:
Thank you, counsel, both counsel.

[00:30:08] Speaker 00:
The case is submitted.