Olson v. United States

In the United States Court of Federal Claims

No. 18-287C

(E-Filed: January 14, 2021)

)

AARON OLSON, et al., )

)

Plaintiffs, )

) Motion for Partial Dismissal; Lack of

v. ) Subject Matter Jurisdiction; RCFC

) 12(b)(1); Privity of Contract.

THE UNITED STATES, )

)

Defendant. )

)

James A. Perkins, Yakima, WA, for plaintiff. D.R. (Rob) Case, of counsel.

Borislav Kushnir, Trial Attorney, with whom were Joseph H. Hunt, Assistant Attorney

General, Robert E. Kirschman, Jr., Director, Steven J. Gillingham, Assistant Director,

Commercial Litigation Branch, Civil Division, United States Department of Justice,

Washington, DC, for defendant. Stephanie Lynch and Duane Mecham, United States

Department of the Interior, of counsel.

OPINION AND ORDER

CAMPBELL-SMITH, J.

Before the court is defendant’s motion for partial dismissal. See ECF No. 35.

Defendant contends that this court lacks jurisdiction to consider claims made by some of

the plaintiffs, pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal

Claims (RCFC), and in the alternative, moves to dismiss the claims for failure to state a

claim upon which relief can be granted, pursuant to RCFC 12(b)(6). In ruling on the

motion, the court also considered: (1) plaintiffs’ amended complaint, ECF No. 34; (2)

plaintiffs’ response, ECF No. 36; (3) the declaration of D.R. (Rob) Case, ECF No. 37; (4)

defendant’s reply, ECF No. 40; (5) defendant’s supplemental brief in support of its

motion to dismiss, ECF No. 46; and (6) plaintiff’s response to defendant’s supplemental

brief, ECF No. 47.

The motion is now fully briefed and ripe for ruling. The court has considered all

of the arguments presented by the parties and addresses the issues that are pertinent to the

court’s ruling in this opinion. For the following reasons, defendant’s motion for partial

dismissal is GRANTED.

I. Background

Plaintiffs in this case “were customers of the Wapato Irrigation Project [(WIP)]

during the 2013 crop season.” ECF No. 34 at 4. The WIP delivered irrigation water to

customers within the boundaries of the Yakama Indian Reservation, which is in south-

central Washington State. See id. at 3. Plaintiffs allege that, at all relevant times, the

WIP was operated by the Bureau of Indian Affairs (BIA), which is part of the United

States Department of the Interior (DOI). See id. at 4.

In the amended complaint, fifteen plaintiffs seek compensation related to several

parcels of land serviced by the WIP. See id. at 1, 4. Plaintiffs divide themselves roughly

into two categories: (1) those who own property serviced by the WIP, or fee lands; and

(2) those who lease property held in trust by defendant for individual members of the

Yakama Indian Nation and serviced by the WIP, or trust lands. 1 See id. at 3, 5-6.

According to the amended complaint, each plaintiff—whether an owner or a

leaseholder—was “a party to one or more express or implied contracts with [defendant].

Such express or implied contracts obligated [defendant], via its [WIP], to deliver

irrigation water to each Claimant’s land in proportionate amounts in exchange for the

Claimants’ payment of their respective monetary assessments.” Id. at 4-5. Plaintiffs

allege that they paid their “respective monetary assessments in full.” Id. at 5.

Nevertheless, the WIP “failed to deliver proportional irrigation waters” to plaintiffs,

causing them to suffer financially. Id.

Plaintiffs include voluminous attachments to the amended complaint, eleven of

which are lease or permit documents. See ECF No. 34-1 (Exhibit A); ECF No. 34-2

(Exhibit B); ECF No. 34-3 (Exhibit C); ECF No. 34-4 (Exhibit D); ECF No. 34-17

(Exhibit Q); ECF No. 34-18 (Exhibit R); ECF No. 34-21 (Exhibit U); ECF No. 34-25

(Exhibit Y); ECF No. 34-26 (Exhibit Z); ECF No. 34-29 (Exhibit CC); ECF No. 34-32

1

In its motion to dismiss, defendant counts thirty-six parcels at issue, seventeen of which

are trust lands. See ECF No. 35 at 10. In their response, plaintiffs state that there are thirty-

seven parcels at issue, eighteen of which are trust lands. See ECF No. 36 at 9. The court has

reviewed the amended complaint and the parties’ briefs, but the source of this discrepancy is not

apparent. Because the court’s legal reasoning does not depend on such precise identification, the

parties will have an opportunity to clarify which parcels are affected by the decision at a later

time. The court also notes that plaintiff attaches only eleven leases to its amended complaint.

See generally ECF No. 34; ECF No. 36 at 9 n.3 (noting that plaintiffs were unable to locate all of

the relevant leases). The court makes no ruling on the legal effect of leases that have not been

presented to the court.

2

(Exhibit FF). Each of these documents states that the lease or permit is a contract entered

into “by and between the Indian or Indians named below (the Secretary of the Interior

acting for and on behalf of the Indians) hereinafter called the ‘landlord,’” and an

individual tenant. ECF No. 34-1 at 2; ECF No. 34-2 at 2; ECF No. 34-3 at 2; ECF No.

34-4 at 2; ECF No. 34-17 at 2; ECF No. 34-18 at 2; 2 ECF No. 34-21 at 2; ECF No. 34-25

at 2; ECF No. 34-26 at 2; ECF No. 34-29 at 2; ECF No. 34-32 at 2.

Plaintiffs allege that these lease or permit documents were contracts entered into

between plaintiffs and “the [WIP], which contracts included specific water

rights/allotments to be fulfilled by the [WIP].” ECF No. 34 at 8, 23, 27, 32, 34, 39, 45.

According to plaintiffs, their “water rights/allotments arose via [these] written contracts,”

which “obligated the [WIP] to supply each respective Claimant with a proportionate

amount of irrigation water from the aggregate waters possessed and controlled by the

[WIP] during the crop year of 2013.” Id. at 47. Plaintiffs further allege that the WIP’s

failure to deliver the appropriate amount of water was a breach of the lease and permit

contracts. See id. And, plaintiffs contend, defendant “is liable and accountable for all

such breaches.” Id. Plaintiffs also argue that the WIP’s failure to provide adequate water

violated “statutes and/or regulations,” for which defendant is also liable. 3 Id. at 50.

In response to the amended complaint, defendant filed a motion to dismiss the

claims made by plaintiffs who hold leases or permits on the trust lands at issue. See ECF

No. 35 at 7. According to defendant, “plaintiffs cannot establish this [c]ourt’s subject-

matter jurisdiction over claims related to trust lands, because plaintiffs are not in privity

of contract with [defendant] and the statutes and regulations that plaintiffs cite are not

money-mandating.” Id. Defendant’s argument hinges on the structure of the leases. As

noted above, the leased property is property that is held in trust for either the Yakama

Indian Nation or individual members of the Tribe. See id. at 9 (citing Brendale v.

Confederated Tribes & Bands of Yakima Indian Nation, 492 U.S. 408, 415 (1989)).

“[E]ach lease or permit is entered into by two parties: one of the plaintiffs as tenant or

2

Exhibit R is a permit rather than a lease, and as such, the language is slightly modified to

indicate that the contract is entered into “by and between the Indian or Indians named below (the

Secretary of the Interior acting for and on behalf of the Indians) hereinafter called the

‘permitter,’” and an individual permittee. See ECF No. 34-18 at 2. Because the parties make no

legal distinction between the leases and the permit with regard to the issues raised in this case,

the court treats all of the contracts as a group in this opinion.

3

In their response to defendant’s motion to dismiss, plaintiffs raise a third theory for

recovery based on appurtenant water rights. See ECF No. 36 at 18-19. Plaintiffs state that

“[e]nforcement of the appurtenances would be separate and distinct from trying to enforce the

actual leases and permits against the defendant.” Id. at 19. Plaintiffs, however, do not allege any

such rights in the amended complaint. See generally ECF No. 34. Accordingly, plaintiffs’

claims to recover based on appurtenant water rights, separate from any recovery under the

contracts at issue, are not properly before the court and are not further addressed in this opinion.

3

permittee, and ‘the Indian or Indians named below (the Secretary of the Interior acting for

and on behalf of the Indians)’ as landlord or permitter.” Id. at 10 (citing the eleven leases

attached to plaintiffs’ complaint). In addition, according to defendant, “each lease or

permit embodies an agreement to lease land for cultivation purposes, without mentioning

[defendant’s] obligation to provide irrigation water.” Id.

Defendant also argues, in the alternative, that plaintiffs have failed to state a claim

on which relief may be granted with regard to the leased properties: “even if plaintiffs

could somehow establish jurisdiction, they fail to state a claim because no cited

contractual, statutory, or regulatory obligation compels [defendant] to deliver irrigation

water to plaintiffs.” Id. at 7.

II. Legal Standards

Pursuant to the Tucker Act, the court has jurisdiction to consider “any claim

against the United States 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. § 1491(a)(1). To invoke the court’s jurisdiction, plaintiffs must show

that their claims are based upon the Constitution, a statute, or a regulation that “can fairly

be interpreted as mandating compensation by the Federal Government for the damages

sustained.” United States v. Mitchell, 463 U.S. 206, 217 (1983) (quoting United States v.

Testan, 424 U.S. 392, 400 (1976)); see also Fisher v. United States, 402 F.3d 1167, 1172

(Fed. Cir. 2005) (stating that to fall within the scope of the Tucker Act “a plaintiff must

identify a separate source of substantive law that creates the right to money damages”)

(citations omitted).

Plaintiffs bear the burden of establishing this court’s subject matter jurisdiction by

a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv., 846

F.2d 746, 748 (Fed. Cir. 1988). In reviewing plaintiffs’ allegations in support of

jurisdiction, the court must presume all undisputed facts are true and construe all

reasonable inferences in plaintiffs’ favor. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974),

abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-15 (1982);

Reynolds, 846 F.2d at 747 (citations omitted). If, however, a motion to dismiss

“challenges the truth of the jurisdictional facts alleged in the complaint, the . . . court may

consider relevant evidence in order to resolve the factual dispute.” Reynolds, 846 F.2d at

747. If the court determines that it lacks subject matter jurisdiction, it must dismiss the

complaint. See RCFC 12(h)(3).

4

III. Analysis

A. Plaintiffs Are Not in Privity with Defendant

The United States Court of Appeals for the Federal Circuit “has consistently held

that for the government to be sued on a contract pursuant to the Tucker Act, there must be

privity of contract between the plaintiff and the United States.” Chancellor Manor v.

United States, 331 F.3d 891, 899 (Fed. Cir. 2003). “This is so because the doctrine of

sovereign immunity precludes a suit against the United States without its consent and

because, under the Tucker Act, the United States has ‘consent[ed] to be sued only by

those with whom it has privity of contract.’” Normandy Apartments, Ltd. v. United

States, 100 Fed. Cl. 247, 254 (2011) (quoting Flexfab, L.L.C. v. United States, 424 F.3d

1254, 1263 (Fed. Cir. 2005)). As such, “finding a lack of privity deprives this court of

jurisdiction.” Id. (citations omitted).

According to defendant, both the express language of the contracts at issue and

binding precedent from the Supreme Court of the United States and the Federal Circuit,

preclude plaintiffs from establishing the requisite privity to support this court’s

jurisdiction. See ECF No. 35 at 14-15. As an initial matter, each of the contracts states

that it was entered into “by and between the Indian or Indians named below (the

Secretary of the Interior acting for and on behalf of the Indians) hereinafter called the

‘landlord,’” and an individual tenant. ECF No. 34-1 at 2; ECF No. 34-2 at 2; ECF No.

34-3 at 2; ECF No. 34-4 at 2; ECF No. 34-17 at 2; ECF No. 34-18 at 2; ECF No. 34-21 at

2; ECF No. 34-25 at 2; ECF No. 34-26 at 2; ECF No. 34-29 at 2; ECF No. 34-32 at 2.

The plain meaning of this contract language indicates that the Secretary of the Interior

was acting as an agent on behalf of the Indian landlords, and was not directly assuming

obligations for defendant. 4

Long-standing precedent from the Supreme Court, along with more recent binding

precedent from the Federal Circuit, makes clear that the exercise of such agency does not

place plaintiffs in privity with defendant. In United States v. Algoma Lumber Co., 305

U.S. 415 (1939), the Supreme Court considered whether the defendant incurred any

obligations to the plaintiffs when the Superintendent of the Klamath Indian School

executed, and the Assistant Secretary of the Interior approved, contracts for the purchase

of timber from Indian-owned land on behalf of members of the Klamath Indian Tribe. In

that case, each contract at issue stated that it was “entered into ‘between the

4

The court also notes that there is a provision in the contracts, not discussed by the parties,

which provides: “Nothing contained in this lease shall operate to delay or prevent a termination

of federal trust responsibilities with respect to the land by the issuance of a fee patent or

otherwise during the term of this lease; however, such termination shall not serve to abrogate this

lease.” E.g., ECF No. 34-1 at 3. The fact that the contract contemplates the end of defendant’s

trust responsibilities, but specifically states that such a change would not abrogate the lease, is

further evidence that defendant has not assumed direct contractual obligations.

5

Superintendent of the Klamath Indian School, for and on behalf of the Klamath Indians,

party of the first part’ and the Lumber Company, ‘party of the second part.’” Id. at 421.

Based on this language, the Supreme Court concluded that “[n]either the United States

nor any officer purporting to act on its behalf is named a party to the contract.” Id.

Under such circumstances, the United States does not assume any contractual obligations

absent “action taken by the government or on its behalf indicating such a purpose.” Id.

The Supreme Court found no such evidence in Algoma and held that the defendant had

incurred no obligations under the contracts by acting as an agent for the Klamath Indian

Tribe. See id. at 422-23. Accordingly, the Supreme Court found that this court lacked

jurisdiction to hear the case. See id. at 423.

More recently, in Moody v. United States, 931 F.3d 1136 (Fed. Cir. 2019), the

Federal Circuit affirmed this court’s decision dismissing a complaint in which the

plaintiffs alleged breach of contract claims similar to those at bar. As the court

explained, plaintiffs “leased various parcels on the Pine Ridge Indian Reservation in

South Dakota for agricultural use. The question [before the court was] whether the

United States was a party to those contracts.” Id. at 1137-38. Each of the leases at issue

in Moody “defined ‘the Indian or Indians’ as the ‘LESSOR’ and the [plaintiffs] as

‘LESSEE.’” Id. at 1138. The leases also “stated that ‘the Secretary of the Interior [was]

acting for and on behalf of Indians,’ and that the land being leased was ‘lands and

interest(s) held in trust or restricted status by the United States for the benefit of an Indian

Tribe.’” Id.

The plaintiffs in Moody alleged, in part, that they were in privity of contract with

the defendant, rendering the defendant liable for various alleged breaches of the leases.

See id. at 1139-40. This court dismissed the contract claims for lack of jurisdiction,

concluding that the defendant was not a party to the leases. See id. at 1140. On appeal,

the Federal Circuit affirmed that ruling. The Circuit explained that:

The theory that the United States is a party to the leases is contrary to the

express contractual language, which distinguished between the

Secretary/United States “acting for and on behalf of” the Indian landowners

and the parties to the lease—the Oglala Sioux Tribe as the “LESSOR” and

the [plaintiffs] as the “LESSEE.”

Id. The Circuit then quoted the Supreme Court’s decision in Algoma, stating that “the

United States’ entry into leases on behalf of an Indian landowning tribe and exercise of

its trust responsibilities to Indian beneficial landowners ‘does not necessarily involve the

assumption of contractual obligations’ ‘in the absence of any action taken by the

government or on its behalf indicating such a purpose.’” Id. (quoting Algoma, 305 U.S.

at 421). The court also found that “there are no alleged facts that would support a

conclusion that the United States was acting as anything other than a trustee when

approving and managing the leases.” Id. Accordingly, “[u]nder Algoma, the allegations

of the complaint are legally insufficient to support a conclusion that the United States was

6

a party to the leases.” Id. Because the defendant was not a party to the leases, it had not

“waived its sovereign immunity by approving and acting for the benefit of the Indian or

Indians with respect to the leases.” Id. at 1141.

Thus, under Algoma and Moody, in order to establish privity with defendant,

plaintiff must demonstrate that the United States took some action indicating its intent to

assume contractual obligations. See Algoma, 305 U.S. at 421; Moody, 931 F.3d at 1140.

There is simply nothing in the contracts at issue, and plaintiffs alleged no facts

surrounding the execution or performance of the contracts, that indicates such an intent.

After careful review of the contracts, the court has found no provision that speaks to any

intent to assume the obligation to deliver irrigation water—on the part of defendant or

any other entity. The only provisions that address irrigation or water use read as follows:

(1) “It is understood and agreed that the tenant will pay all [Operation and

Maintenance] assessments annually in advance on the due date

preceding each irrigation season, including any penalties accruing

against the above-described land under irrigation, and will pay all

charges assessed in connection with any other improvement project or

district within which the lands may be located, pursuant to existing or

future orders or regulations of the Secretary.” ECF No. 34-1 at 5; ECF

No. 34-2 at 5; ECF No. 34-3 at 5; ECF No. 34-4 at 5; ECF No. 34-17

at 5; ECF No. 34-18 at 9 (modifying language to reflect that the

contract is a permit rather than a lease); ECF No. 34-21 at 5; ECF No.

34-25 at 5; ECF No. 34-26 at 5; ECF No. 34-29 at 5; ECF No. 34-32

at 5.

(2) “Tenant is required to make beneficial use of water delivered through

the irrigation project.” ECF No. 34-1 at 6; ECF No. 34-2 at 6; ECF

No. 34-3 at 6; ECF No. 34-4 at 6; ECF No. 34-17 at 6; ECF No. 34-

18 at 10; ECF No. 34-21 at 6; ECF No. 34-25 at 6; ECF No. 34-26 at

6; ECF No. 34-29 at 6; ECF No. 34-32 at 6.

While these isolated references to irrigation and water use indicate that some agreement

to deliver water may have existed, these contract provisions themselves do not create any

rights to receive water, or any obligations to deliver it. See San Carlos Irr. & Drainage

Dist. v. United States, 877 F.2d 957, 959 (Fed. Cir. 1989) (noting that in order to recover

for an alleged breach of contract, a plaintiff must establish, among other things, “an

obligation or duty arising out of the contract” and a “breach of that duty”). Plaintiffs

allege, throughout their complaint, that defendant is responsible for the WIP’s failure to

deliver water. See generally ECF No. 34. Even if that were true—a question the court

does not answer here—the sources of those obligations are not the contracts at bar.

In their response to defendant’s motion, plaintiffs urge the court to follow the

reasoning in Oswalt v. United States, 85 Fed. Cl. 153 (2008). See ECF No. 36 at 12-13.

7

As here, Oswalt involved the alleged right to receive irrigation water from the WIP on a

combination of fee land and trust land. See Oswalt, 85 Fed. Cl. at 156. And as plaintiffs

now allege, the court held in Oswalt that the “right to obtain irrigation water for trust

lands is governed by the Lease Agreements.” Id. The court ultimately concluded that the

government, through the WIP, had breached an obligation to deliver irrigation water to

certain Oswalt plaintiffs. See id. at 160.

The court in Oswalt predicated its analysis on its conclusion that “[p]laintiffs

[were] parties to express contracts with the United States granting them irrigation rights

for the seven trust lands plaintiffs lease directly from the government.” Oswalt, 85 Fed.

Cl. at 159 (citation omitted). Here, however, the express terms of the contracts do not

grant—or even address—irrigation rights. And under binding Supreme Court and

Federal Circuit precedent, the United States is not a party to the contracts. To the extent

that Oswalt is inconsistent with this conclusion, the court declines to follow its

reasoning. 5

Accordingly, the court concludes that plaintiffs are not in privity with defendant,

and, as such, the contracts at issue do not establish this court’s jurisdiction.

B. The Statutes and Regulations Cited by Plaintiffs Are Not Money-

Mandating

Plaintiffs also allege, in the amended complaint, that this court has jurisdiction

because several statutes or regulations are “implicated” in this case. See ECF No. 34 at

2. In their response to defendant’s motion to dismiss they explain their position more

clearly:

As alleged in the Amended Complaint, the leases and permits entitled the

plaintiffs to “a proportionate amount of irrigation water from the aggregate

waters possessed and controlled by the [WIP] during the crop year of 2013.”

This is because each lease and/or permit expressly incorporates—as an

operative “part” of each cont[r]act—“the provisions of existing law and the

regulations” and also “existing or future orders or regulations of the

Secretary.”

5

Plaintiffs also cite to an earlier, unpublished opinion in the Oswalt case to support

their argument that the passing references to irrigation or beneficial use of water in the

leases at issue create obligations for defendant to deliver water. See ECF No. 36 at 14;

ECF No. 7-1 at 3-17 (unpublished opinion, attached to defendant’s first motion to

dismiss). The court has reviewed that decision, and acknowledges some similarity

between the leases described therein and the contracts at issue here. In light of the

precedent described in the present analysis, however, the court’s decision not to follow

the reasoning in Oswalt, 85 Fed. Cl. 153, extends to that earlier decision by the court.

8

ECF No. 36 at 9-10 (citations omitted).

In the amended complaint, plaintiffs identify the following statutes and regulations

as “implicated” here: “the Act of August 1, 1914 (38 Stat. 604); the Act of May 18, 1916

(39 Stat. 154); the Reclamation Act of 1902 (43 U.S.C. §§371-600e); the Act of March 6,

1906 (32 Stat. 53); 25 U.S.C. §§402a, 403, 415 & 3701-3702; 33 Stat. 595; and 33 Stat.

1094,” and “25 C.F.R. §§162.101-.256.” ECF No. 34 at 2. Plaintiffs offer a slightly

different list in their response to defendant’s motion to dismiss, identifying the following

statutes and regulations as “incorporated within the leases and permits”:

• 43 U.S.C. §377a, referring to “water users”, “benefits of lands” and “any

individual”;

• 43 U.S.C. §384(b), referring to “an individual water user”;

• 43 U.S.C. §372, referring to the “beneficial use” of an “appurtenant”

perpetual water right;

• Act of Mar. 6 1906, Pub. L. No. 59-36, 34 Stat. 53-54, referring to “any

person qualified to acquire water rights”;

• Act of Aug. 1, 1914, Pub. L. No. 63-160, 38 Stat. 582, 604, specifying

that the irrigation water must be delivered “at the northern boundary of

said Yakima Indian Reservation”; and

• 25 C.F.R. §§ 403, 415, 3701-3702 & Subpart B §§162.101-.265,

authorizing leases and permits to non-Indians.

Id. at 10.

“The Tucker Act itself does not create a substantive cause of action; in order to

come within the jurisdictional reach and the [sovereign immunity] waiver of the Tucker

Act, a plaintiff must identify a separate source of substantive law that creates the right to

money damages.” Fisher, 402 F.3d at 1172 (citing United States v. Mitchell, 463 U.S.

206, 216 (1983); United States v. Testan, 424 U.S. 392, 398 (1976)). In other words, the

source of substantive law, here the statutes and regulations cited by plaintiffs, must be

“money-mandating” in order to establish this court’s jurisdiction. Id.

“A statute or regulation is money-mandating for jurisdictional purposes if it ‘can

fairly be interpreted as mandating compensation for damages sustained as a result of the

breach of the duties [it] impose[s].’” Id. at 1173 (quoting Mitchell, 463 U.S. at 217). A

“fair inference” that the statute or regulation mandates compensation for damages

sustained is sufficient to establish this court’s jurisdiction. Id. at 1173-74 (citing United

States v. White Mountain Apache Tribe, 537 U.S. 465, 472-73 (2003)).

9

According to plaintiffs, if a statute includes the word “shall” it is money-

mandating. See ECF No. 36 at 19 (citing Agwiak v. United States, 347 F.3d 1375, 1380

(Fed. Cir. 2003) (finding that a statute providing that remote duty allowance “shall be

paid” was money-mandating)). As defendant notes in its reply, however, in order for this

general rule to operate, the word “shall” must refer to the payment of monetary

compensation. See ECF No. 40 at 11; see also, e.g., Rana v. United States, 664 Fed.

App’x 943, 948 (Fed. Cir. 2016) (dismissing plaintiff’s claim under the Military

Whistleblower Protection Act, 10 U.S.C. § 1034, which provides that “[t]he Secretary

concerned shall order such action . . . as is necessary to correct the record of a

[prohibited] personnel action,” for lack of jurisdiction, finding that the statute was not

money-mandating); Perri v. United States, 340 F.3d 1337, 1340-41 (Fed. Cir. 2003)

(“Unless the statute requires the payment of money damages, there has been no waiver of

the government’s sovereign immunity from liability for such damages, and the Court of

Federal Claims would not have jurisdiction to entertain the claim.”).

The only citations to the statutes or regulations identified by plaintiff that the court

could find in the contracts at issue were references to the regulations described by

plaintiffs as authorizing leases and permits to non-Indians. See ECF No. 34-1 at 12

(citing 25 C.F.R. § 162.214), 15 (citing 25 C.F.R. § 162.203, § 162.234), 16 (citing 25

C.F.R. § 162.203, § 162.234, § 162.602, § 162.604); ECF No. 34-2 at 12 (citing 25

C.F.R. § 162.214), 15 (citing 25 C.F.R. § 162.203, § 162.234), 17 (citing 25 C.F.R.

§ 162.234, § 162.602, § 162.604); ECF No. 34-3 at 12 (citing 25 C.F.R. § 162.214), 14

(citing 25 C.F.R. § 162.207, § 162.209); ECF No. 34-4 at 12 (citing 25 C.F.R.

§ 162.214), 15 (citing 25 C.F.R. § 162.203, § 162.234), 16 (citing 25 C.F.R. § 162.203,

§ 162.234, § 162.602, § 162.604); ECF No. 34-17 at 12 (citing 25 C.F.R. § 162.214), 14

(citing 25 C.F.R. § 162.203, § 162.234), 16 (citing 25 C.F.R. § 162.234, § 162.602,

§ 162.604); ECF No. 34-18 at 3 (citing 25 C.F.R. § 162.203, § 162.234), 6 (citing 25

C.F.R. § 162.234, § 162.602, § 162.604), 14 (citing 25 C.F.R. § 162.214); ECF No. 34-21

at 12 (citing 25 C.F.R. § 162.214), 15 (citing 25 C.F.R. § 162.203, § 162.234), 17 (citing

25 C.F.R. § 162.234, § 162.602, § 162.604); ECF No. 34-25 at 12 (citing 25 C.F.R.

§ 162.214), 14 (citing 25 C.F.R. § 162.209); ECF No. 34-26 at 12 (citing 25 C.F.R.

§ 162.214), 14 (citing 25 C.F.R. § 162.203, § 162.234), 17 (citing 25 C.F.R. § 162.234,

§ 162.602, § 162.604); ECF No. 34-29 at 12 (citing 25 C.F.R. § 162.214), 14 (citing 25

C.F.R. § 162.203, § 162.234), 16 (citing 25 C.F.R. § 162.203, § 162.234, § 162.602,

§ 162.604); ECF No. 34-32 at 13 (citing 25 C.F.R. § 162.214), 15 (citing 25 C.F.R.

§ 162.234, § 162.602, § 162.604). Because plaintiffs do not explain any other

mechanism of incorporation, the court does not credit plaintiff’s claims that the identified

statutes are all “incorporated within the leases and permits,” as “operative” parts of the

contracts. ECF No. 36 at 10.

Moreover, none of the statutes identified by plaintiff use the word “shall” in the

context of mandating monetary compensation to which plaintiffs could be entitled. The

content of each cited statute or regulation is, in summary, as follows:

10

(1) 43 U.S.C. § 377a 6: stating that “no funds appropriated . . . shall . . . be used

for the particular benefit of lands” when certain conditions are met;

(2) 43 U.S.C. § 384(b): addressing extensions of time for payments due prior

to March 1925, and providing that if the Secretary, in his or her discretion,

adjusts the payment structure, “any penalties or interest which may have

accrued in connection with such unpaid . . . charges shall be canceled”;

(3) 43 U.S.C. § 372: stating, in its entirety, that “[t]he right to the use of water

acquired under the provisions of this Act shall be appurtenant to the land

irrigated, and beneficial use shall be the basis, the measure, and the limit of

the right”;

(4) Act of Mar. 6 1906, Pub. L. No. 59-36, 34 Stat. 53, 54: authorizing the

disposition of certain land on the Yakima Indian Reservation, and stating,

in the sentence quoted by plaintiff, that the Secretary of the Interior “is

hereby authorized . . . to dispose of all land in excess of twenty acres . . . to

any person qualified to acquire water rights,” and referring to payments

only in the context of fees or sale prices paid to the United States or to

funds established by the United States;

(5) Act of Aug. 1, 1914, Pub. L. No. 63-160, 38 Stat. 582, 604: making

appropriations for the BIA, and, in the section cited by plaintiffs,

directing the Secretary of the Interior “to furnish at the northern boundary

of said Yakima Indian Reservation . . . enough water . . . so that there shall

be, during the low-water irrigation season, at least seven hundred and

twenty cubic foot per second of water available when needed for

irrigation”;

(6) 25 C.F.R. §§ 162.101-.256 7: more than sixty regulations addressing

various aspects of leases and permits on Indian-owned land, none of

which discuss a tenant’s or permittee’s right to the delivery of

water;

6

In the complaint, plaintiffs cite to 43 U.S.C. §§ 371-600e, but narrow the focus in their

response to defendant’s motion to dismiss to only 43 U.S.C. § 377a. The court, therefore, has

not reviewed the entire Reclamation Act of 1902 in ruling on this motion. It is plaintiffs’

responsibility to specifically identify the statutes under which they assert their rights; the court

will not prosecute plaintiffs’ case on their behalf.

7

In their response, plaintiffs list 25 C.F.R. “Subpart B §§162.101-.265.” See ECF No. 36

at 10. Subpart B includes §§ 162.101-.256. The court assumes plaintiffs’ reference to “.265” is

a typographical error.

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(7) 25 U.S.C. § 402a 8: limiting leases of land on an Indian reservation to terms

of ten years, and including no mention of payments;

(8) 25 U.S.C. § 403: limiting leases of trust land to terms of five years, and

stating that the “proceeds of any such lease shall be paid to the allottee or

his heirs”;

(9) 25 U.S.C. § 415: limiting the terms of certain leases on restricted land and

noting a variety of additional restrictions on leases, but not using the word

“shall” in reference to mandating any payments;

(10) 25 U.S.C. §§ 3701-3702: identifying the relationship between the United

States and Indian tribes as “government to government,” stating that the

United States has a “trust responsibility” with regard the resources, and

authorizing the Secretary of the Interior to “take part in the management” of

Indian lands, and including no mention of payments;

(11) 33 Stat. 595, 596: addressing, in chapter 22, the Secretary of the Interior’s

authority “to sell or dispose of unallotted lands embraced in the Yakima

Indian Reservation,” setting out the conditions and particulars of such

disposition, and discussing payment only of the purchase price for the land

and collection, by the Secretary, of certain fees;

(12) 33 Stat. 1092 9: appropriating money for various purposes that appear

unrelated to the management of Indian lands or related water rights.

Because plaintiffs have failed to identify a money-mandating source of law, the

court lacks jurisdiction to consider their claims for violations of the statutes and

regulations plaintiffs have presented to the court.

C. The Court Can Not Exercise Jurisdiction as a Matter of Fairness

In addition to the arguments previously discussed, plaintiffs urge the court to

exercise jurisdiction in this case because if it declines to do so, “the tenant-plaintiffs will

have no remedy.” ECF No. 36 at 5. According to plaintiffs, accepting defendant’s

8

In their response, plaintiffs list “25 C.F.R. §§ 403, 415, 3701-3702” as provisions

incorporated into the contracts. See ECF No. 36 at 10. None of these provisions exist, and as

such, the court assumes plaintiff meant to refer, as they do in the amended complaint, to “25

U.S.C. §§ 402a, 403, 415, & 3701-3702.” See ECF No. 34 at 2.

9

In their amended complaint, plaintiffs included a citation to “33 Stat. 1094.” ECF No. 34

at 2. This appears to be a citation to a specific page of an appropriations bill that begins on page

1092. Accordingly, the court has reviewed 33 Stat. 1092.

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arguments for dismissal would amount to giving defendant “a license to steal from the

tenant-plaintiffs.” Id. Plaintiffs argue that the court “should look at the reality of the

situation . . . rather than the twisted, gotcha way the defendant has self-servingly

structured the contracts.” Id.

Plaintiffs’ frustration notwithstanding, this court is one of limited jurisdiction, and

it is not empowered to expand that jurisdiction beyond its prescribed boundaries on the

basis of what a litigant perceives as fair. Because, with regard to their claims related to

parcels on trust lands, plaintiffs have established neither contractual privity with

defendant nor alleged entitlement to damages pursuant to a money-mandating statute, as

detailed above, the court must dismiss those claims.

D. Multiple Plaintiffs Summary

This case involves multiple plaintiffs. See ECF No. 34. For proper case

management and statistical purposes, plaintiffs shall create and maintain a summary, in

the form of a chart, that accounts for each plaintiff added to or removed from this case,

and the status of each plaintiff’s participation in the case, as the contours of the case shift.

The chart shall include five columns of information: (1) the first column shall identify

the plaintiff either by name or pseudonym, if applicable; (2) the second column shall

identify the state of residency of the plaintiff; (3) the third column shall identify the

complaint in which the plaintiff was first included; (4) the fourth column shall state

whether the plaintiff remains a party to the case; and (5) if the plaintiff is no longer a

party to the case, the fifth column shall state the date on which the plaintiff was dismissed

from the case, and include a citation to the court’s case management/electronic case filing

(CM/ECF) system for such dismissal.

IV. Conclusion

Accordingly:

(1) For the foregoing reasons, defendant’s motion for partial dismissal, ECF

No. 35, is GRANTED;

(2) On or before February 5, 2021, the parties are directed to FILE a joint

status report identifying for the court all claims related to parcels located

on trust lands, to which this ruling applies, as well as plaintiffs’ claims that

remain viable, so that the court can dismiss and enter final judgment on the

appropriate claims;

(3) On or before February 5, 2021, plaintiffs are directed to FILE a status

report attaching their multiple plaintiffs summary to include the required

information for all plaintiffs who have been named in the complaints filed

in this case. Plaintiffs are further directed to FILE an updated chart

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following these same procedures within seven days of adding or

removing any plaintiffs for the duration of this case. Plaintiffs shall file

all such charts under the “Status Report (Multiple Plaintiffs Summary)”

docketing event in the court’s CM/ECF system;

(4) On or before February 19, 2021, defendant is directed to FILE an answer

to plaintiffs’ remaining claims.

IT IS SO ORDERED.

s/ Patricia Campbell-Smith

PATRICIA CAMPBELL-SMITH

Judge

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