Opinion
Case No. 2:03-CV-603 TC.
January 6, 2005.
ORDER
This matter is before the court on Plaintiffs' Motion for Partial Summary Judgment and Defendant United States Bureau of Indian Affairs' ("BIA") Motion to Dismiss. The Intervening Defendants (Knight's Canal Company and Shanks Ditch Company, collectively "Knight and Shanks") are not the subject of either motion.
For the reasons stated below, the Plaintiffs' Motion for Partial Summary Judgment is denied, and the Defendant BIA's Motion to Dismiss is granted on the basis that this court does not have subject matter jurisdiction.
Because the court does not have subject matter jurisdiction, it does not reach any other issues raised by the parties.
BACKGROUND
Plaintiffs' suit revolves around a dispute concerning two underground water pipelines and a diversion structure built on portions of the Ute Indian Tribe's Uintah and Ouray Reservation (the "Reservation"). The pipelines divert water from Rock Creek for irrigation of farm land on and off the Reservation. The pipelines and a diversion structure were built in 1989 pursuant to, among other agency approvals, a 1988 right-of-way granted by the BIA to Knight and Shanks.The Parties
The Plaintiffs in this case are three individual members of the Ute Indian Tribe: Richard Mountain, Stewart Pike, and Floyd Wopsock. Richard Mountain holds agricultural land on the Reservation pursuant to both an allotment and an assignment of Tribal land. Stewart Pike also holds agricultural land on the Reservation pursuant to an allotment of Tribal land. Mr. Pike's land is currently leased to other individuals until March 2006. One or both of the pipelines crosses Mr. Mountain's land and Mr. Pike's land, which properties historically have been irrigated with waters from Rock Creek through old ditches that have since been replaced with the pipelines. Although Floyd Wopsock apparently holds land on the Reservation, his land is not affected by the pipelines or the distribution of water from Rock Creek. He essentially claims an interest as a fisherman and a more general interest as a member of the Tribe through Plaintiffs' claims for partial dewatering of Rock Creek, impairment of fisheries and destruction of riparian habitat. Because those claims have since been withdrawn by the Plaintiffs, see infra note 5, Mr. Wopsock has, in effect, withdrawn his claim against the United States and no longer has an interest in this lawsuit against the BIA.
The Ute Indian Tribe is not a party to this litigation.
The Plaintiffs brought this suit against the BIA and two BIA officials (Wayne Nordwall and Chester Mills). The two groups of individuals who do business as Knight's Canal Company and Shanks Ditch Company ("Intervening Defendants") intervened as defendants because they use water from the pipelines to irrigate their farms. Although the Plaintiffs have asserted claims against the Intervening Defendants, those claims are not at issue in the motions currently before the court.
Plaintiffs' Claims
In general, Plaintiffs contend that the BIA has violated certain duties by allowing the pipelines to trespass on Indian lands (they claim the right-of-way is not valid), divert water away from those Indian lands, impair fisheries in Rock Creek, and destroy riparian habitat along Rock Creek. They also claim that the BIA has failed to act to remove the alleged trespassing pipelines and bring irrigation water back to the Reservation despite numerous requests to do so.
The claims for dewatering, impairment of fisheries and destruction of riparian habitat have since been withdrawn by the Plaintiffs, who originally cited to section 505(d) of Public Law No. 102-575 (pertaining to minimum flows for Rock Creek) as a basis for BIA's duty to prevent dewatering of Rock Creek. But Plaintiffs, in a footnote in their brief opposing BIA's Motion to Dismiss, state that "[b]ecause the claims associated with the partial dewatering of Rock Creek by the diversion facility used to supply water to the Knight and Shanks pipelines involves [sic] expert opinions relating to the existence and extent of minimum flows and injuries to native fish, . . . Plaintiffs accordingly dimiss [sic] that claim." (Pls.' Br. in Opp'n to United States Mem. Dated June 23, 2004, at 2 n. 1.) This statement, albeit in a footnote, eliminates the need to address issues relating to section 505(d) of Pub.L. No. 102-575, including Plaintiffs' claims regarding dewatering of Rock Creek, impairment of fisheries and destruction of riparian habitat.
In Plaintiffs' Motion for Partial Summary Judgment, they seek the following: (1) a declaration that the BIA has violated 25 C.F.R. § 166.801 (setting forth BIA's trespass policy with respect to Indian agricultural lands and grazing permittees) by failing to "evict" the alleged trespassing pipelines; (2) a declaration that the BIA has breached its trust duty regarding allottee and tribal trust lands by allowing the pipelines to be built through Tribal lands and by allowing Rock Creek waters to be diverted away from Tribal lands; and (3) an order to BIA to either remove the pipelines or install water distribution systems to provide irrigation water to the Indian trust lands that received water before the pipelines were installed.
Plaintiffs also seek up to $10,000 in monetary damages under 25 C.F.R. Part 166, but they purposely do not address that claim in their Motion. (See Pls.' Mot. for Partial Summ. J. at 2.) That claim is, however, still subject to Defendant BIA's Motion to Dismiss.
BIA's Defenses to Plaintiffs' Claims
BIA, in its Motion to Dismiss, contends that (1) the court lacks subject matter jurisdiction because the United States has not waived its sovereign immunity; (2) the Plaintiffs do not have standing; (3) the Plaintiffs have failed to state a claim upon which relief may be granted; and (4) Plaintiffs' claims are barred by the six-year statute of limitations set forth in 28 U.S.C. § 2401(a).
Because the threshold issue of subject matter jurisdiction raised by the BIA is dispositive, the court does not reach the other defenses raised by the BIA or the merits of Plaintiffs' Motion for Partial Summary Judgment.
ANALYSIS
Waiver of Sovereign Immunity and the Court's Jurisdiction
The BIA contends that the court does not have jurisdiction because the United States has not waived sovereign immunity, a prerequisite to establishing jurisdiction over Plaintiffs' claims against the government. Plaintiffs bear the burden of proving the United States has waived its sovereign immunity. James v. United States, 970 F.2d 750, 753 (10th Cir. 1992).
A claim against the federal government or any of its agencies is not allowed to proceed unless there has been a specific and unequivocal waiver of sovereign immunity by Congress. United States Dep't of Energy v. Ohio, 503 U.S. 607, 615 (1992);Affiliated Ute Citizens v. United States, 406 U.S. 128, 141-42 (1972); United States v. Murdock Machine Eng'g Co. of Utah, 81 F.3d 922, 930-31 (10th Cir. 1996). Moreover, "[w]hen the United States consents to be sued, the terms of its waiver of sovereign immunity define the extent of the court's jurisdiction." United States v. Mottaz, 476 U.S. 834, 841 (1986) (emphasis added). Such waiver must be strictly construed in favor of the sovereign. United States Dep't of Energy v. Ohio, 503 U.S. 607, 615 (1992). "Federal law rightly provides Indians with a range of special protections. But even for Indian plaintiffs, [a] waiver of sovereign immunity cannot be lightly implied but must be unequivocally expressed." Mottaz, ( 476 U.S. at 851) (internal quotation marks and citation omitted).
Plaintiffs, in their complaint, cite to three statutes purportedly giving the court jurisdiction. They cite to 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. §§ 2201- 2202 (Declaratory Judgment Act allowing for injunctive and declaratory relief), and 28 U.S.C. § 1346(a)(2) (Little Tucker Act allowing district court to hear monetary claims less than $10,000 against the United States).
Plaintiffs filed a First Amended Complaint after this matter had been briefed and argued by the parties. In that subsequent pleading, Plaintiffs do cite to the Administrative Procedure Act ("APA") as a basis for jurisdiction and waiver of sovereign immunity.
Federal Question Jurisdiction Statute
The federal question jurisdictional statute provides that a federal district court has original jurisdiction over civil actions "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. But Section 1331 does not waive the government's sovereign immunity from suit. Neighbors for Rational Dev., Inc. v. Norton, 379 F.3d 956, 960-61 (10th Cir. 2004) ("district court jurisdiction [over government] cannot be based on § 1331 unless some other statute waives sovereign immunity."); City of Albuquerque v. United States Dep't of Interior, 379 F.3d 901, 907 (10th Cir. 2004) (same).
Declaratory Judgment Act
Likewise, the Declaratory Judgment Act, 28 U.S.C. §§ 2201- 2202, does not provide an independent basis for subject matter jurisdiction or a waiver of sovereign immunity. Neighbors for Rational Dev., 379 F.3d at 961 ("Sections 2201 and 2202 [of 28 U.S.C.] are unhelpful" in establishing that government has waived its sovereign immunity); Amalgamated Sugar Co. v. Bergland, 664 F.2d 818, 822 (10th Cir. 1981) ( 28 U.S.C. § 2201 "was adopted by Congress to enlarge the range of remedies available in federal court, and does not extend subject matter jurisdiction to cases in which the court has no independent basis for jurisdiction.").
The Little Tucker Act
The Little Tucker Act (a subset of the Tucker Act) provides that when the United States is named as a defendant,
The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims of . . . [any] civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. . . .28 U.S.C. § 1346(a)(2) (emphasis added). As noted in the language above, the Little Tucker Act only waives sovereign immunity for specific types of claims, United States v. Mitchell, 463 U.S. 206, 212 (1983), and the substantive right underlying such monetary claims "must be found in some other source of law. . . ." Id. at 216 ("[T]he Tucker Act does not create any substantive right enforceable against the United States for money damages.") (internal quotation marks and citations omitted). The Plaintiffs must point to some other substantive basis for their claims under the Little Tucker Act in order to maintain their action against the BIA.
Administrative Procedure Act
Although Plaintiffs do not cite to the Administrative Procedure Act, 5 U.S.C. § 701 et seq. ("APA"), in their Complaint, they do cite to it in a subsequent brief and in their First Amended Complaint, which was filed after the parties had briefed and argued the motions. Specifically, in response to the BIA's Motion to Dismiss, Plaintiffs state that they rely on 5 U.S.C. §§ 702 and 706 (relevant sections of the APA) for a waiver of sovereign immunity. (Pls.' Br. in Opp'n to the United States Mem. Dated June 23, 2004, at 2.)
Even though the Plaintiffs did not plead the APA as a source of sovereign immunity waiver in the original Complaint, the court nevertheless addresses whether the United States has waived sovereign immunity under the APA in the context presented by the Plaintiffs. See Benally v. Hodel, 940 F.2d 1194, 1198 (9th Cir. 1991) (considering claim under APA even though plaintiffs did not explicitly ground their complaint on the APA, because complaint in substance challenged agency action and inaction).
The fact that Plaintiffs are relying on the APA was clarified during oral argument and in their subsequently filed First Amended Complaint.
The United States does waive sovereign immunity under the APA, but only in limited circumstances. Specifically:
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action . . . seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States. . . .5 U.S.C. § 702 (emphasis added). Although the APA does waive sovereign immunity in certain circumstances, it does not provide an independent basis for subject matter jurisdiction. Hamilton Stores, Inc. v. Hodel, 925 F.2d 1272, 1276-77 (10th Cir. 1991) (because APA does not provide basis for jurisdiction, court must focus on "availability of jurisdiction under 28 U.S.C. § 1331 ofcivil actions arising under the federal Constitution, laws or treaties.") (emphasis added) (citing Califano v. Sanders, 430 U.S. 99 (1977)).
Under the APA, the court's scope of judicial review is limited to authority to "compel agency action unlawfully withheld or unreasonably delayed" and "hold unlawful and set aside agency action, findings, and conclusions" that are found to be, among other things, arbitrary and capricious. 5 U.S.C. § 706. But first there must be some independent basis requiring the agency to act,i.e., an independent source imposing a duty on the agency, before a waiver of sovereign immunity may be found. See United Tribe of Shawnee Indians v. United States, 253 F.3d 543, 550 (10th Cir. 2001) (dismissing for lack of subject matter jurisdiction because Plaintiff "failed to identify any federal statute other than the APA itself that provides an express or implied cause of action in [plaintiff's] favor."); Fostvedt v. United States, 978 F.2d 1201, 1203 (10th Cir. 1992) (APA's explicit waiver of sovereign immunity coupled with grant of general jurisdiction may not create a waiver of sovereign immunity); Lonsdale v. United States, 919 F.2d 1440, 1444 (10th Cir. 1990) ("The language of [Section 702 of the APA] . . . merely suggest[s] that sovereign immunity will not be a defense in an action in which jurisdiction already exists.") (emphasis added).
In short, all of the above statutes upon which Plaintiffs rely require that Plaintiffs cite to an independent basis for a substantive cause of action before the court can find jurisdiction over the government. Given the circumstances pleaded by Plaintiffs, they have failed to establish an independent basis for a substantive cause of action against the BIA, for either agency action or agency inaction. See Norton v. Southern Utah Wilderness Alliance, 124 S. Ct. 2373, 2378-79 (2004) ("a claim under § 706(1) [of the APA for agency inaction] can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.") (emphasis in original). That is, Plaintiffs have not pointed to any statute or regulation that imposes a duty on the BIA to act in the manner Plaintiffs are pushing for.
Alleged Sources of Duties Relied Upon by Plaintiffs to Establish Jurisdiction Over the BIA 25 C.F.R. Part 166
Plaintiffs cite to 25 C.F.R. Part 166 (pertaining to grazing permittee trespass on Indian agricultural lands) to support what they assert are substantive claims for breach of a duty owed to the Plaintiffs. But Part 166 of Title 25 of the Code of Federal Regulations, upon which Plaintiffs rely, is not applicable to the situation at hand. 25 C.F.R. § 166.801, to which Plaintiffs specifically cite, sets forth the "BIA's trespass policy" and reads:
We [the BIA] will:
(a) Investigate accidental, willful, and/or incidental trespass on Indian agricultural land;
(b) Respond to alleged trespass in a prompt, efficient manner;
(c) Assess trespass penalties for the value of products used or removed, cost of damage to the Indian agricultural land, and enforcement costs incurred as a consequence of the trespass;
(d) Ensure that damage to Indian agricultural lands resulting from trespass is rehabilitated and stabilized at the expense of the trespasser.
This section must be read in the context of the entire Part 166, which is entitled "Grazing Permits." See, e.g., Rock of Ages Corp. v. Secretary of Labor, 170 F.3d 148, 155 (2d Cir. 1999) (regulation must be interpreted as a whole "since the meaning of statutory [and regulatory] language, plain or not, depends on context."); Grammatico v. United States, 109 F.3d 1198, 1204 (7th Cir. 1997) (when interpreting regulation, court must look to law's object and policy and avoid giving "unintended breadth" to the regulations); Colorado Dep't of Labor Employment v. United States Dep't of Labor, 875 F.2d 791, 797 (10th Cir. 1989) ("a court `cannot concentrate on individual [regulatory] terms and ignore a consideration of the context in which the term appears.'").
Part 166 has the following purpose and scope:
[T]he purpose of this part is to describe the authorities, policies, and procedures the BIA uses to approve, grant, and administer a permit for grazing on tribal land, individually-owned Indian land, or government land.25 C.F.R. § 166.1(a) (emphasis added); see also 66 Fed. Reg. 7068 (Jan. 22, 2001) (final rule codified at 25 C.F.R. Part 166). The Plaintiffs are attempting to apply Section 166.801 to a non-grazing permit context. This section may create some duty on the part of the BIA, but such duty is not relevant to this case. Accordingly, there is no substantive cause of action and no waiver of sovereign immunity for the purpose the Plaintiffs seek.
General Trust Duty
Plaintiffs also seem to rely on some alleged general common law trust duty supposedly owed by the BIA as trustee of the lands over which the pipelines cross. They cite to United States v. White Mountain Apache Tribe, 537 U.S. 465 (2003), which discusses "elementary trust law, [that] after all, confirms the commonsense assumption that a fiduciary actually administering trust property may not allow it to fall into ruin on his watch. `One of the fundamental common-law duties of a trustee is to preserve and maintain trust assets.'" Id. at 475. It appears to be Plaintiffs' contention that the BIA has a common law trust duty to protect any Indian lands crossed by the Knight and Shanks pipelines because the pipelines allegedly were built without a valid right-of-way. (See Pls.' Mem. in Supp. of Mot. for Summ. J. at 4-5.)
There is, however, no general trust duty owed by the United States and its agencies, including the BIA, to the Plaintiffs or the Ute Tribe. See, e.g., Shoshone Indian Tribe of the Wind River Reservation v. United States, 58 Fed. Cl. 77, 82 (Cl.Ct. 2003) ("[I]n order for a duty to be imposed on the government, there must be more than a general trust relationship between the United States and an Indian tribe.") (citing United States v. Navajo Nation, 537 U.S. 488, 506 (2003)). "Instead, the analysis must train on specific rights-creating or duty-imposing statutory or regulatory prescriptions." United States v. Navajo Nation, 537 U.S. 488, 506 (2003). Assuming, without deciding, that a duty owed to the Tribe would necessarily be owed to individual members of the Tribe such as the Plaintiffs in this case, Plaintiffs still cannot establish a general common law duty owed by the BIA.
Moreover, White Mountain is distinguishable from this case. In White Mountain, the White Mountain Apache Tribe alleged that the United States had allowed the buildings on the former Fort Apache Military Reservation to fall into ruin, in violation of its fiduciary duty as trustee of Indian lands. The court inWhite Mountain held that, under the Indian Tucker Act, the United States waived sovereign immunity, was subject to duties as a trustee under a 1960 Act, and was liable in damages for breach of those duties because it exercised exclusive control over the buildings. White Mountain, 537 U.S. at 471-74.
25 U.S.C. § 190Plaintiffs make a passing reference to 25 U.S.C. § 190, citing it for the proposition that the "United States has imposed upon itself the mandatory duty of protecting Tribal and individual trust lands from unlawful alienation and encumbrance since 1790." (Pls.' Mem. in Supp. of Mot. for Partial Summ. J. at 3.) That statutory provision (entitled "Sale of plants or tracts not needed for administrative or allotment purposes") reads in full:
Subject to applicable regulations under the Federal Property and Administrative Services Act of 1949, as amended, the Secretary of the Interior is authorized in his discretion to sell and convey by deed or patent, under such terms and conditions as he may prescribe, at not less than their appraised value, nonreservation Government tracts or plants or tribal administrative plants or reserves, or parts thereof, not exceeding forty acres in area and not exceeding $2,000 in value, not longer needed for Indian administrative or allotment purposes, and small unallotted tracts not exceeding forty acres, where a sale will serve the tribal interests. All sales made under this section shall be at public auction, to the highest and best bidder.
And the Secretary of the Interior is further authorized, where a tract to be disposed of under this section or any other Act authorizing the disposition of tribal lands requires survey as basis for a deed or patent, to accept from the grantee, in addition to the purchase price, an amount sufficient to cover the survey costs.
The net proceeds of sale of any tribal site, plant, or tract shall be deposited in the Treasury of the United States to the credit of the Indians owning the same, to be disposed of for their benefit in accordance with existing law.25 U.S.C. § 190. Plaintiffs provide no analysis as to how this statutory section creates the duty they allege in their papers. And the court fails to see how the text of the statutory provision supports Plaintiffs' claims.
Plaintiffs have not shown that the United States waived its sovereign immunity with respect to any of the claims asserted in the Complaint.
ORDER
For the foregoing reasons, the Defendants' Motion to Dismiss is GRANTED and Plaintiffs' Motion for Partial Summary Judgment is DENIED AS MOOT.