Gros Ventre Tribe v. U.S., 04-36167.

• Decision Date: 13 November 2006
• Docket Number: No. 04-36167.,04-36167.
• Citation: 469 F.3d 801
• Parties: GROS VENTRE TRIBE; Assiniboine Tribe; The Fort Belknap Indian Community Council of the Fort Belknap Indian Reservation, Plaintiffs-Appellants, v. UNITED STATES of America; United States Bureau of Land Management, an agency of the U.S. Dept' of Interior; Bureau of Indian Affairs, an agency of the U.S. Dept' of Interior; and Indian Health Service, an agency of the U.S. Dept' of Health and Human Services, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

469 F.3d 801

GROS VENTRE TRIBE; Assiniboine Tribe; The Fort Belknap Indian Community Council of the Fort Belknap Indian Reservation, Plaintiffs-Appellants, v. UNITED STATES of America; United States Bureau of Land Management, an agency of the U.S. Dept' of Interior; Bureau of Indian Affairs, an agency of the U.S. Dept' of Interior; and Indian Health Service, an agency of the U.S. Dept' of Health and Human Services, Defendants-Appellees.

No. 04-36167.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 6, 2006.

Filed November 13, 2006.

COPYRIGHT MATERIAL OMITTED

Michael D. Axline, Western Environmental Law Center, Sacramento, CA, for the plaintiffs-appellants.

John E. Arbab, Trial Attorney, Department of Justice, Environment and Natural Resources Division, Washington, D.C., for the defendants-appellees.

Appeal from the United States District Court for the District of Montana; Donald W. Molloy, Chief District Judge, Presiding. D.C. No. CV-00-00069-DWM.

Before: TALLMAN and BYBEE, Circuit Judges, and HUFF,^* District Judge.

TALLMAN, Circuit Judge:

Appellants Gros Ventre Tribe, Assiniboine Tribe, and the Fort Belknap Indian Community Council (collectively "the Tribes") appeal the district court's order granting summary judgment for the United States. The Tribes filed suit in the District of Montana against the United States, its Bureau of Land Management ("BLM"), the Bureau of Indian Affairs, and the Indian Health Service (collectively "the government"), alleging that the government had violated specific and general trust obligations to protect tribal trust resources (primarily water rights) by authorizing and planning to expand two cyanide heap-leach gold mines located upriver from the Tribes' reservation. We affirm.

The Tribes urge a theory of liability conflating general trust law principles with an attack on agency inaction under the Administrative Procedure Act ("APA"). See 5 U.S.C. § 706(1). But none of the treaties cited by the Tribes impose a specific duty on the United States to regulate third parties or non-tribal resources for the benefit of the Tribes. Because the government's general trust obligations must be analyzed within the confines of generally applicable statutes and regulations, we reject the suggestion to create by judicial fiat a right of action Congress has not recognized by treaty or statute. Therefore, because the Tribes do not have a cognizable non-APA claim, we agree with the district court that the Tribes are required to comply with the APA's "final agency action" requirement. See id. § 704. We also hold that after bifurcating the trial into a liability and remedy phase, the district court did not abuse its discretion by granting the government's motion for summary judgment upon conclusion of the liability phase.

I

A

The Gros Ventre and Assiniboine Tribes reside on the Fort Belknap Indian Reservation ("Reservation") located in northcentral Montana. Pertinent to this appeal is the fact that in 1851 seven different Indian nations, including the two Tribes, signed the Treaty of Fort Laramie. The Indian nations had "assembled for the purpose of establishing and confirming peaceful relations amongst themselves," and, by signing the treaty, they "agree[d] to abstain in future from all hostilities whatever against each other, to maintain good faith and friendship in all their mutual intercourse, and to make an effective and lasting peace." Treaty of Fort Laramie art. 1, Sept. 17, 1851, 11 Stat. 749. The Tribes also formally recognized "the right of the United States Government to establish roads, military and other posts, within their respective territories." Id. at art. 2. In return, the United States agreed to "protect the . . . Indian nations against the commission of all depredations by the people of the said United States." Id. at art. 3. The Treaty of Fort Laramie did not convey any land to the Indians "but instead chiefly represented a covenant among several tribes which recognized specific boundaries for their respective territories." Montana v. United States, 450 U.S. 544, 553, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981).

The United States made a similar promise to protect the Tribes and their territory in the 1856 Treaty with the Blackfeet. The Tribes "agree[d] that citizens of the United States may live in and pass unmolested through the countries respectively occupied and claimed by them." Treaty with the Blackfeet art. 7, Oct. 17, 1855, 11 Stat. 657. The United States agreed to be "bound to protect said Indians against depredations and other unlawful acts which white men residing in or passing through their country may commit." Id.

In 1888, Congress ratified an agreement to reduce the territory of the Gros Ventre, Piegan, Blood, Blackfeet, and River Crow Indian Tribes. See An Act to Ratify and Confirm an Agreement with the Gros Ventre, ch. 213, May 1, 1888, 25 Stat. 113. In return, Congress created the original Fort Belknap Indian Reservation, an area of land specifically set aside for the use and enjoyment of the Indian tribes. Although a reduction of their former territory, the original Fort Belknap Indian Reservation included the Little Rocky Mountains of Montana, a location long used by the Tribes for subsistence, social, and religious purposes.

In the early 1880s, prior to the formation of the original Fort Belknap Indian Reservation, gold was discovered on the southern slopes of the Little Rocky Mountains. Congress soon realized that the larger part of the mineral-bearing country was located within the boundaries of the newly delineated Fort Belknap Indian Reservation. In 1896, Congress ratified what later became known as the "Grinnell Agreement," wherein the Tribes agreed to relinquish all right, title, and interest to the mineral-bearing portion of the Little Rocky Mountains in return for certain monetary considerations. Agreement with the Indians of the Fort Belknap Indian Reservation in Montana, ch. 398, 29 Stat. 350 (1895). While not articulated in the agreement ratified by Congress, it was reported to the Senate that the commission authorized to negotiate with the Fort Belknap Indian tribes had assured the tribes that they "would not be giving up any of their timber or grasslands . . . and that they would have ample water for all their needs." S. Doc. No. 54-117, at 3-4 (1896). Within the next ten years, the Little Rocky Mountains mining district became Montana's largest gold producer.

The advent of cyanide heap-leach technology,¹ in conjunction with a sharp rise in gold prices, prompted the development of open pit mining operations beginning in the late 1970s. In 1979, the Montana Department of State Lands issued permits to Zortman Mining, Inc. ("ZMI"), a wholly owned subsidiary of Pegasus Gold, Inc. ("Pegasus"), authorizing the Zortman and Landusky cyanide heap-leach mines. Both mines are located near the southern boundary of the Reservation. The BLM did not establish federal regulations controlling the operation of mines on public lands until 1981. At that time, the BLM approved the Zortman and Landusky mines as pre-existing authorizations under its newly promulgated regulations. The BLM issued a Plan of Operation for each mine, and both plans were amended numerous times between 1979 and 1991.

In 1992, ZMI proposed to expand the Zortman mine. In the course of reviewing the proposed Zortman expansion, the BLM and the Montana Department of State Lands determined that acid rock drainage ("ARD")² had become a widespread problem at both the Zortman and Landusky mines. Despite these findings, in 1996, the BLM and the Montana Department of Environmental Quality³ issued an Environmental Impact Statement ("EIS") and Record of Decision ("ROD") approving a proposed expansion of mining operations at both locations. In late 1996, the Tribes appealed that decision to the Interior Board of Land Appeals ("IBLA"). In 1998, before the IBLA issued a decision on the merits, Pegasus and ZMI filed for bankruptcy. Consequently, the companies abandoned their plans to expand and announced that they would reclaim and close the mines. Ultimately, the IBLA found that the 1996 ROD did not comply with the National Environmental Policy Act ("NEPA"), the Federal Land Policy and Management Act ("FLPMA"), or the government's trust obligations to the Tribes. See Island Mountain Protectors, 144 IBLA 168 (May 29, 1998).

On June 1, 1998, the BLM issued a second ROD requiring reclamation of existing disturbances using agency-developed mitigation tactics. In doing so, it rescinded the 1996 ROD authorizing mine expansion. Because the BLM relied on the 1996 EIS in preparing the 1998 ROD, the IBLA denied the BLM's motion for reconsideration and vacated the 1998 ROD on the same grounds it had cited to vacate the earlier decisions. In response to the IBLA's decision, the BLM and the State of Montana engaged in consultation with the Tribes. The agency issued a Final Supplemental Environmental Impact Statement ("SEIS") in 2001 and signed a new ROD in May 2002.

B

In April 2000, the Tribes filed suit claiming that the government breached its trust responsibility to the Tribes by approving, permitting, and failing to reclaim the Zortman and Landusky mines, the operation of which had diminished and continues to diminish the quality and quantity of water resources available to the Tribes. The Tribes further alleged that the government failed to consult with the Tribes, and consider their spiritual, cultural, and religious interests in the Little Rocky Mountains. According to the Tribes, the government breached its common law trust obligations by failing to take action that it was legally required to take, or by acting in a fashion that was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. See 5 U.S.C. § 706. The Tribes filed an equitable action, asking the district court to (1) declare that the government violated its fiduciary duty to...