# Oral argument — Chemehuevi Indian Tribe v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/argument%3A90046 ## Record - **Collection:** Oral argument - **Document type:** Oral argument - **Published:** January 10, 2024 ## Text case for argument today is 21-1366. Okay, tell me how to say the name of the Indian Tribe. Chemehuevi Indian Tribe v. United States. Mr. Gonzales, please proceed. May I? May I please record? Yes, come up here. May I please record? The government argues on page 9 of its censoring brief that the tribe received a complete accounting when it received the Arthur Anderson report of 1996. The tribe responded on pages 8-10 that the AA report it received was not a complete, full accounting as required by 25 U.S.C. 42-82. And in fact, the report itself stated that it did not consist of a complete accounting as required by 40-44-28. Would it be helpful to talk about things in terms of various counts and maybe even which counts you are associating with the accounting? I think that might be helpful as you do your argument. Okay. I don't quite get your question. Go ahead. Am I correct in hearing you that you're not basing any of your allegations on the Arthur Anderson accounting then? That you're not saying the Arthur Anderson report suggests that you're entitled to money as you presently do in Owing? Yeah. We're arguing that the Arthur Anderson report doesn't constitute a complete accounting as required by the 94 Act. Okay. Well, let me try that once again because I think it makes a difference. Are you relying at all on the Arthur Anderson report to suggest that it shows you're entitled to money or are you saying that there has to be another accounting, a completely different accounting that would show you're entitled to money? Isn't that a problem for you because there is no different accounting and the Court of Federal Claims doesn't have general equity authority to order an accounting absent a claim for money damages, which in general on the accounting issue I don't see. There are other specific allegations that might come closer. We brought our lawsuit for money damages and we're asking for an accounting in aid of the court's jurisdiction. We're not asking for an accounting of the same. Yes, but what is, some of these claims don't specifically state the money damages you're entitled to. They don't have enough allegations to get over 12B6 for money damages. You can't just say an accounting might show money damages, therefore we have Court of Federal Claims jurisdiction. You have to have specific allegations of we were damaged by the government's actions here and therefore if we prove those claims we want damages and we also want an accounting to clarify all that. Here's the problem is that the court, claims court, ruled as a matter of law that the Arthur Anderson report constituted a meaningful accounting, complete meaningful accounting pursuant to 42. Okay, I get that. That's why I ask those questions, but we can set that aside. If you're not relying on the Arthur Anderson report, you still have to point to your complaint and the specific allegations where you make claims for money damages. I have a more general question. Why are you in the Court of Federal Claims? Why aren't you in a district court asking for an accounting based upon all of these alleged improprieties or failures or the like? There have been dozens if not more of these district court cases where the district court judges take them and ultimately end up ordering the accounting because they have full equitable powers. That's true, but we're not here for an accounting. We're here for damages. We're asking for this accounting in aid of the court's jurisdiction. Here's the problem. Can we get to which, because you've got a lot of counts here and you don't have enough time to argue, which ones do you want us to focus on that you think state a claim for money damages presently owe in doing sufficient to survive 12b-6? Okay, here's the problem. Is that the court ruled as a matter of law that Arthur Anderson monitored an accounting and it dismissed pursuant to 12b-6. I want to point this out. No, no, no, no, no. That is improper. Sorry, stop. Can we stop talking about the Arthur Anderson report? Assume I agree with you that the Arthur Anderson report is not a complete accounting and that wasn't a reason to reject your claims. You went on that. That's hypothetically, but that's where we're going to go from now on through the questions. Which of these counts do you think you most state a claim for money damages and what's the theory? Okay. All these claims we've filed are for money damages. We wouldn't have filed them. You're saying counts one through five? Is that what you're saying in response to judges? Yes, the Parker Dam shoreline was a taking. And so that would be a Fifth Amendment taking. But the other claims are all for money damages. And we're asking for accounting and aid of jurisdiction. The Parker Dam taking, which is really, really old. I mean, the facts seem to show that the tribe was compensated for all of this and it was put in a trust fund. Well, that's not true. That is not true. Well, what's not true about it and what specific allegations in your complaint suggests that you haven't gotten compensated for a taking related to the Parker Dam? That's right. That's right. It was only for a temporary taking of the part that was restored to the tribe. It wasn't transferred back to the tribe. The description was adjusted and the part that the government had been using went to the tribe all along. It wasn't transferred back to the tribe. Do you have access to the appendix, sir? The appendix? Yes. Do you have access to it? Yeah. Maybe it would be helpful for you to pull out the Second Amendment complaint while you're addressing and answering the questions. I would like to get through this, finish my argument here on the 12B1 motion also. Go ahead. What appendix number? It's your job. You need to tell us what in your complaint you're relying on to show that you've made a sufficient claim for money damages. I don't see anything except with the exception of the water rights. But beyond that, you're saying all these claims that really just say we want an accounting and then say we get money damages actually have specifics. Well, if you'll allow me to continue here, what I'm saying is that the court cut us off from discovery. If we were allowed to have fact discovery, not jurisdictional discovery, we would have been able to show the facts necessary to prove our claim. You don't get fact discovery if you haven't met the 12B6 burden to allege sufficient facts to say to claim for money damages. Well, we were allowed to allege sufficient facts, but we were cut off from discovery. I just want to point out that there is a case here. Are you ever going to go to the complaint and tell us which are the specific facts that support a claim for money damages? No. I mean, this is your time. We can stop asking questions and listen to you argue something that we're not interested in, but we're trying to give you an opportunity to show specific facts in your complaint. Okay. The per capita payments. The government admits that there is an unpaid per capita payment account, but we're not allowed jurisdictional or fact discovery to determine what's in that account because the court cut us off from discovery. If it's helpful, I believe it's around appendix page 226 where some of the counts are, so if you want to answer some of the questions posed by Judge Hughes, it may be helpful to turn to appendix 226. Okay. Well, I want to point out here that there's a case here. It's a dual case, and it describes how you deal with 12b motions, and it says that the courts, when you're dealing with Indian Trust property, assets, or funds, you cannot dismiss a case on a 12b6 motion. It states it right in that case, and what it states is the parties have not had an opportunity to develop a record to discovery when the plaintiff's claim is true, and the factual issues related to approval preclude the site of the issue, the statute of limitations, and the motion at this stage. Sir, do we make a motion to speak to the 12b1 grounds? Do you want to talk to that at all? Yeah. The court erred by dismissing it on 12b1 and 6, these claims, and then this was followed by the Cherokee Nation case of January 15, 2020, where the plaintiff said this rule applies to both 12b1 and 12b6 motions. So the court erred in cutting us off from fact discovery. It cannot do it. It's a jurisdictional fact discovery. It cannot do so when there's trust funds or common trust funds involved. So, you know, there's error there. We should have been allowed to engage in fact discovery, and we were cut off because the court ruled, as a matter of law, I guess, that we didn't have enough facts to support. Well, why don't we start with count one, which is the Parker Dam construction compensation claim that you made. You know, it seems to be that the alleged wrongdoing occurred many, many, many, many years ago, and it also seems like you should have known all the operative facts about that Parker Dam concern at least by 1970, which is the last known date the monies were held in trust, or if not 1970, by 2000, which is the last date you could have received the Arthur Anderson report. So why isn't that claim time-barred, which is what the Court of Federal Claims said? Well, first of all, the assertion was that it started in 1940, but we're only asking for common balances as of 1946 in the Claims Commission Act. It's not barred because the government's responsibility is not limited to 1972 to 1992, as the Cherokee case indicated. I understand your argument. Sir, please stop. I understand your argument about what the government has to do or not do. The problem is, the Court of Federal Claims found, that you knew or had enough reason to know the government didn't do what it was supposed to. By 1970, or worst-case scenario, by 2000, and you didn't bring a lawsuit. So this isn't a question about whether the government did something wrong. Let's accept for purposes of these arguments, I agree with you, they did. But you had an obligation to bring a lawsuit within six years of when you were made aware of that wrongdoing. So what is your argument that tells me you were not aware of that wrongdoing until a six-year period preceding your complaint? Well, the 1994 Act states that an accounting should be had to the earliest possible date. And we can go back to 1946. But you had an accounting in 1996. There is no obligation for the beneficiary of a trust to bring a lawsuit at that time. The account balances are the same, and the tribe can bring a lawsuit, you know, at any time for a trust accounting. The money isn't lost. It stays in those accounts. And the 1994 Act requires a meaningful accounting of all those funds pre-1972. Yes, but if your concern is over the inadequacy of accounting, a district court is the proper forum in which to bring that claim. This is a claim for money damages. And the money damages you're seeking, related to the Parker Dam, those damages were set decades ago, and you've not put forward any evidence to suggest that there's something about that claim that you didn't know and justifies not filing it for the last... Well, the fact of the matter is, there was no tribe in existence from 1940 to 1970, the tribal government. The tribe was a readily recognized tribe, but they didn't reorganize as a tribe until 1970. So how do you expect a tribe that was just dispersed, you know, members of all the cities, they didn't have a working government, to bring a lawsuit when there's no government there to bring it from 1940 to 1970? Well, that's very sad indeed, but I have to follow the law, sir. I can't disregard the law. And the law says you have six years from when you learn about a wrongdoing to bring a suit. And you can ask for equitable tolling in certain circumstances, but I don't think here on the statute of limitations you can. Well, the distinction here is that you're dealing with trust funds for an Indian tribe, not a regular type of, you know, a trust relationship. In the Indian tribe, there's different legal principles that you follow. And if there's an ambiguity there, you do resolve in favor of the tribe under canons of construction. So is there an ambiguity here? We're now into your rebuttal time. Would you like to save some so that you can respond to the government's argument? I'm taking comfort. You are now using your rebuttal time. Would you like to save some of it so that you can respond after the government's argument? Yes, I would. Okay. And we'll restore his three minutes of rebuttal time. Let's hear from the government. Go ahead. Good morning, Your Honors. May it please the Court. As to your point, Judge Hughes, there are no specific claims for money damages. Can I just start with this? And I'm sure you have all kinds of defenses and arguments why you don't want to do it. But if what they're claiming is really they think there's mismanagement in these trust funds accounts and setting aside any kind of statute of limitations problems, that claim goes to district court, doesn't it? Yes, if they're seeking and which they are. An accounting of a trust fund. Correct. And we don't have to determine whether that's actually possible here or not. I'm sure there's statute of limitations defenses to that and the like. But a pure accounting claim doesn't go to the Court of Federal Claims. That's correct. So we don't have to tie it to a specific claim for money damages within the statute of limitations to get an accounting from the Court of Federal Claims. That's absolutely correct. So almost all these claims, even though they say they allege money damages, seem to me to just allege, oh, these takings and all these actions occurred way in the past. They set up a trust fund. It's been mismanaged. There's no claim for money damages in them. Is that right? That's correct. So the one that bothers me here is the water rights claim. Because I'm a little confused. I'll tell you, I'm not convinced with the Court of Federal Claims' decision that their property right was only in the water they used up to the amount. It seems to me that they were the first prior. I don't know what the right word is, but you know what I'm saying, the first user. And they had an entitlement to use up to whatever. Let's just say it was 10,000 acre feet. It was probably something else. But just say up to that amount. And they asked for a lease to sell some of that. Why weren't they allowed to do that? And if that's part of their property rights, again, we're going to have statute of limitations problems, so let's just talk about the merits of the claim first. Why isn't that a taking of their property right? If they're not allowed to transfer water rights that belong to them to another entity? The first answer is we need to consider the time frame that this occurred. So the lease proposal was in 1999. Okay. We can get that. Can we talk about the merits first? Yeah. I understand. The lease proposal was a long time ago, and it was denied, and they didn't file within the statute of limitations on that. I would like first to talk about the underlying merits. If that proposal was brought a year ago, and you denied it, and they brought suit, that would be timely. Would there be merit to that claim? What I'd first like to point out is that the question of whether they could bring a lease is a question that's not before this court. So what we have now is a determination of the timing, which I understand you don't want to get to. But what's important as to water rights, we have several categories, and the government went to great lengths to try to explain this. We have what's the winter's right, which we understand is a property right, and it was established when the reservation was established. It was reserved for the reservation when the reservation was established long ago. Then there is the water itself. It's a usurpatory. The right that the tribe has is usurpatory in nature, meaning that it doesn't own the water. It has the ability to use the water. But it can also sell the ability to use the water. Well, no, see, that's where if you get it, the ability to use water comes from a winter's right, and I'm sure the tribe doesn't want to see that. You're making it sound as though winter's established, that they only have the right to use water for as long as they continue to be agricultural in nature and use it for irrigation purposes. That's clearly not the case. The Supreme Court says they're entitled to X amount of water. There's actually a number of the amount. It's like seven gallons. Clearly not the right number. Sure. But, you know, so there's nothing in winters that suggests that they cannot lease that right of use to someone else. But winters establishes that it's for purposes of the reservation. Correct. Right. Suppose the reservation decided that they no longer had the infrastructure to do their own irrigation, so they're going to lease the water rights to someone else who's going to grow food that they can then purchase, and that that is a more efficacious method of feeding the tribe than attempting to grow the crops themselves. It's still for the purpose of the tribe. That hypothetical is closer to for purposes of the reservation. But just to make sure you're clear, what happens here is the tribe has a certain amount of water, according to the Arizona decree, that it can use annually. When the tribe does not use that amount over the course of the annual year, the water simply remains in the Columbia River system. It's not that the government makes a decision or flips a switch and diverts the water to somebody else. It remains in the system and goes to junior users. That, as the tribe acknowledges in its complaint, has been the circumstance since 1964. I get that, and I don't think the fact that they don't use it all and then it gets allocated to somebody else, per se, is a taking. That's not what we're asking about. I know they have that theory. We're not asking about that. But this for the use of the tribe or for the use of the reservation and the winter's right, I don't see it limited to specific use of the water for the tribe and its own members. Personally, why wouldn't it be for the use of the tribe if they say, we don't need this much water, we're going to lease it to somebody else, and we're going to use that money to build new schools on the reservation? Isn't that within the winter's right? Well, that's somewhat extrapolated. It's not that we're going to use it for the reservation. We're going to use it to market it to then build a school. But what's important here, and I understand Your Honor's concern about whether the tribe can or can't lease, but that's not the question that's before this court. What's before this court is a threshold question. And it goes back to the timing and failure to state a claim, because if it's not a timely claim, the court never gets to the question of whether the tribe can or can't. And your view is the lease request was in, what, the 80s or something? And you denied it? Yes. And that's the act that could have possibly been the taking of a well-meaning land. Indeed. But what I'm interested in, maybe because this is an interesting question, is if the tribe goes back to Interior tomorrow and says, we want to lease these, and you deny it, is that a takings claim? Well, it strikes me more as an APA claim, because it's either the agency's action or inaction to do or not do what the tribe asked for. There might be a claim there somewhere. Correct. And it would perhaps be a timely claim. Again, it doesn't seem like one within the jurisdiction of the CFC. Now, to be clear, the CFC in this case made two separate holdings with regard to these water rights. The first was that it's barred by the statute of limitations, but the second was failure to state a claim. The failure to state a claim seems to me clearly wrong in light of the discussion we're having now. Now, maybe we don't need to reach that because of the untimeliness, but if the discussion that the three of us or four of us seem to be having is that there is a real problem with denial of use by the tribe of the full extent of the water rights that they were entitled to, that is a claim, and that is a valid claim. That is not something that should have been dismissed under 12b-6. Now, maybe 12b-1, because the only act they allege that they deprived them of for use was the denial of the lease, and that happened a long time ago. But I don't see how there's a failure to state a claim. Well, again, the government's point is that there hasn't been a claim that they have lost their winter's right. They always have had it. Sure there is. The claim they lost their winter right was that it was denied when you denied the right to lease the excess water rights. That is a claim. The winter's right is what allows them to use water in the first instance. They haven't lost that. The fact that they can use the water exists only because of the winter right. No, you denied them the right to use water because their use included wanting to lease some portion of the water. Well, that's not been established, and that's not a question that's before this court as to whether they can use it. Did you or did you not deny them the right to lease water? No, the department actually never denied it. The department didn't act on it. Actually, there are two Federal Register notices. It considered the request, had a Federal Register notice for public comment, and didn't reach a decision. The reason the tribe brings up that ... I don't see how that's a failure to state a claim on their part. I do see how it might be untimely, but I don't see how it's a failure to state a claim. Indeed, it's untimely, but the point here is that ... Perhaps the distinction that I should make is what makes this more complicated and not a simple question of using water that they ... or marketing or leasing water that they didn't use is that this is for off-reservation use. Do they continue to have these water rights today? Yes, they always have had the water right to use water. Listen carefully. I'm talking to both of you. Listen carefully. Go out and seek to lease the excess tomorrow, then bring a claim within six years saying it's a taking if they deny you the right. Then you've got a timely takings claim. In my understanding, I think ... I understand the distinction you're making now, but I think it's not a failure to state a claim. I think it's a merits-based claim, which is I think your view is the winner's rights cover the use of the water on the reservation for whatever purpose, but don't cover the use of the water off-reservation. We would have to determine as a matter of law whether winner's extends to off-reservation use, such as leasing it so that the money gained from that lease is used on the reservation. All of what you've said, Your Honor, is something that could be briefed and discussed and argued if we had timely claims before the court. But the complaint makes clear ... It sounded like you might have some arguments about why that's not a takings claim. It's an APA claim. We would get into that if it came to us. The district court would get into that if they go to that. But it does not seem to me to be a frivolous argument that the winner's right expands to include leases for off-reservation use if the profits are used on the reservation. You may disagree with that. I get it, but that's a legal argument. It's not a failure to state a claim in the case. Well, that's separate. You're absolutely ... That's separate, and it's not before this court. It's separate. It's only not before us because it's untimely. Indeed. But the reason I'm trying to make a point as to the distinction between the winner's right and the actual use of the water is because I'm trying to distinguish between what the government does realize is a cognizable property right. That's the winner's right. What's not a property right is the water itself. And it's the government's position that the excess water, the molecules of water, the water in the river, do not belong to the tribe. And so if a claim is that you ... No, no, I get that. Okay. I get that. Because I get why you're arguing that, too, because there's certain ... I mean, to the extent I can understand it, there seems to be arguments, particularly based on the continuing claim doctrine, that every time they don't use all of their water, that that's a continuous taking. But that does not seem to me correct, because that's what you're arguing. The water molecules itself are not the property. It's the winner's right. But if they try to sell that excess winner's rights, that they're not personally using the water molecules for, that's a different story. I may have just confused the matter. But there's two different ... I think there's two different theories here. And the theory that just because they don't use the water, and it's then used by somebody downstream, that that's a taking, that seems to me legally incorrect. Agreed. But the other one we've been talking about, if it had been timely brought, I think is a much more serious issue. Well, it is more complicated, and indeed that's why I'm trying to make it clear that this isn't something we should be trying to discuss on a motion to dismiss. And because most basically, the claims are untimely. There are just a few points of clarification that I'd like to make, because there are a few misstatements in the tribe's reply brief. The first is that the tribe states that it's the government's position that with respect to count two, which involves the per capita claims, the unpaid per capita payments, the tribe contends that it's the government's position that the tribe is time barred under Section 2501 from applying for restoration of any unclaimed per capita payments. And just to be clear, the government isn't saying that the tribe is time barred from making an administrative application to the Department of the Interior. The government's point is that the tribe has sought to file a lawsuit and is trying to get the same kind of relief by coming to the court instead of coming to the agency first. Can I just ask you, and I don't mean to have you help the tribe, but you work for the Justice Department and the government has a special solicitude for the tribes. If they think there's a problem with the accounting in these trust funds, and you know there have been lots of these cases and there have been found to be substantial problems in some of them, what are they supposed to do? Should they be going to district court and filing a case based on the line of the Cabell cases and the like? The district court would be the place, especially because they keep saying they're seeking an accounting. Not that it's worth it, but I'd also like to point out that in the complaint, it makes clear that even before the tribe got the Anderson report, they were of the opinion that there were problems with accounting such that they were experiencing losses. And as the CFC pointed out, when they then got the 1996 Anderson report, they said, oh, these problems haven't been cured, yet they still didn't bring a challenge to it. Unless the court has any further questions. Just in the government's view, do they have any vehicle now for challenging the adequacy of that accounting or for demanding a new accounting? Is there any way they can do that at this point? Time frame-wise, I don't see a path. But for timing reasons, I wouldn't be able to say. So you think that at this point, they can't say we would like a new accounting? Given the time frame and that, as Your Honor said, all courts must adhere to the statute of limitations. I don't see a way. Thank you. Mr. Gonzalez, do you have three minutes of rebuttal time? Thank you, Your Honor. I just want to add that the tribe's claim for the water started in 1964 when the government started allocating the tribe's water to junior appropriators. But in our complaint, we're only going back six years from the filing of the complaint to be within the statute of limitations. So I want to make that clear. We're not going back to 1964. Only six years prior to filing the complaint, we're asking for damages for the temporary taking of our water rights. And just in... They haven't taken anything if you're not seeking to use it. In that six-year period that you're talking about, you didn't seek to use the rights. You weren't denied use. No, we were denied. How? Because we don't have irrigation equipment. Because the government's been giving the water away. We couldn't use a lot of money. You didn't use it. What did they do wrong? Well, what they did wrong was that that's a property right. It's protected by the Fifth Amendment. And it's taken. We don't have to put it to a beneficial use. Water rights do not require that we put it to a beneficial use. It's a property right. And if somebody else is going to take that property, the government, and give it to other... a public purpose, giving it to Metropolitan Water District or others, we're entitled to compensation. It's a property right. We don't have to put it... Any water rights do not have to be put to a beneficial use to maintain them. And if somebody's going to take them, they should pay for it. I just want to close here by stating that, again, we were denied the right to engage in discovery by the District Court's... Claims Court's decision to dismiss pursuant to 12B1 of the rules. And that's improper in the Indian Trust cases. The court has to allow the beneficiary of the trust to engage in discovery to show, you know, prove the approval of the statute of limitations. We were not allowed to do that because it just cut us off. We had jurisdictional discovery though, right? I believe Judge Hughes asked you that previously. Yeah. Well, pardon me, I'm really having... Did you have jurisdictional discovery, sir? Uh, yeah, but that's not fact discovery. And we did put all our jurisdictional discovery, the documents, attachments to the complaint, which are incorporated by reference. But there's a big difference between jurisdictional discovery and fact discovery. We did not have fact discovery. We had jurisdictional discovery. And the government did not comply with that completely. The government admits there's an unpaid trust per capita payment fund, but they didn't give us any information on that fund in jurisdictional discovery. Now we need fact discovery to go and find out what's in that fund that pertains to the Chima-Waibi Indian Tribe. So, you know, we're asking for an opportunity to engage in fact discovery here, which was cut off improperly by the claims court by dismissing under 12b-1 as a matter of law. And that's improper. Okay, counsel, I thank both counsel. This case is taken under submission. Thank you. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/argument%3A90046. Public record. Not legal advice.