Birdbear v. United States

Decision Date16 September 2022
Docket Number16-75L
PartiesROGER BIRDBEAR, et al. Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant.
CourtU.S. Claims Court

Filed Under Seal: September 9, 2022

Michael R. Cashman, Hellmuth & Johnson, PLLC, Edina, MN for Plaintiffs. Terrance W. Moore, Hellmuth & Johnson PLLC, Edina, MN, Of Counsel.

Thomas A. Benson, Environment & Natural Resources Division, U.S Department of Justice, Washington, DC, with whom was Todd Kim, Assistant Attorney General, for Defendant. Karen Boyd and Christopher King, Office of the Solicitor, U.S. Department of the Interior, Washington, DC, Of Counsel.



Plaintiffs in this case, Nelson Birdbear, Roger Birdbear, Thomas Birdbear, Jamie Lawrence, and Rae Ann Williams, are members of the Three Affiliated Tribes of the Fort Berthold Indian Reservation ("the Reservation"). They are the beneficial owners of allotted land on the Reservation that is held in trust for them by the United States. Portions of Plaintiffs' allotted lands are subject to oil and gas leases that the Secretary of the Interior ("the Secretary") approved and manages pursuant to federal statutes and regulations. Plaintiffs claim that these statutes and regulations impose fiduciary obligations on the United States with respect to the approval and management of mineral leases on their allotted lands and that the United States has breached those obligations in numerous respects. They seek an award of damages to compensate them for the tens of millions of dollars in losses they assert they have experienced as a result of those breaches.

Currently before the Court are Plaintiffs' Motion for Partial Summary Judgment as to Count 4 of their Third Amended Complaint and the government's Cross-Motion for Partial Summary Judgment as to Counts 1-4 and 6-10 of Plaintiffs' Third Amended Complaint. The government's cross-motion challenges the Court's jurisdiction over the claims set forth in Counts 1, 3, 7, 8, 9, and 10. The government also contends that it is entitled to summary judgment as to Counts 2, 4, 6, and 7 because Plaintiffs have not developed any factual support for the claims set forth in those counts.

Oral argument was held on the cross-motions on February 4, 2022. For the reasons set forth below, Plaintiffs' motion is DENIED, and the government's cross-motion is GRANTED-IN-PART and DENIED-IN-PART.


As noted above, Plaintiffs are enrolled members of the Three Affiliated Tribes of the Fort Berthold Reservation, "a federally recognized Indian Tribe with its reservation in northwestern North Dakota." Three Affiliated Tribes of the Fort Berthold Rsrv. v. Wold Eng'g, P.C., 467 U.S. 138, 141 (1984) (citing Act of Mar. 3, 1891, ch. 543, § 23, 26 Stat. 1032); see also City of New Town v. United States, 454 F.2d 121, 122 n.2 (8th Cir. 1972) (observing that the Three Affiliated Tribes "is a corporate entity, organized under the Indian Reorganization Act of 1934, 48 Stat. 984, 25 U.S.C. §§ 461 et seq., which has succeeded to the interests of the Arikara, Gros Ventre and Mandan Tribes of Indians"). Each plaintiff is the beneficial owner of allotted land on the Reservation.

According to Plaintiffs, the majority of their lands "are located above multiple formations including the Bakken Formation, which consists of three separate formations rich in oil and natural gas and constitutes one of the largest contiguous deposits of oil and natural gas in the country." Third Am. Compl. at 2, ECF No. 147. Some 1,550 acres of Plaintiffs' allotted land are subject to thirty-eight or more separate oil and gas leases with various oil companies ("Lessees"). Id.; Pls.' Mot. for Partial Summ. J. Ex. 2 ("Chavarria Dep.") at 45:5-12, ECF No. 177-2.

As noted, Plaintiffs allege that the United States has breached a number of its fiduciary obligations to them with respect to the management of their allotted lands and their mineral resources. See generally Third Am. Compl. They filed the present lawsuit on January 13, 2016, see Compl., ECF No. 1, and an amended complaint on May 11, 2016, see First Am. Compl., ECF No. 7. On June 8, 2016, the government filed a motion for partial dismissal of the First Amended Complaint under Rules 12(b)(1) and 12(b)(6) of the Rules of the Court of Federal Claims ("RCFC"). See Def.'s Mot. to Dismiss, ECF No. 10. Among other things, the government argued that Plaintiffs lacked standing to assert claims with respect to land for which they could not prove they held interests. See id. at 6-10. In a brief filed on July 25, 2016, Plaintiffs responded that they lacked sufficient information to identify all of the tracts of land and mineral rights that the United States held in trust for their benefit. See Pls.' Opp'n to Def.'s Mot. to Dismiss at 14-15, ECF No. 18.

On July 25, 2016, Plaintiffs filed a motion to stay consideration of the government's motion for partial dismissal pending discovery and to give the government time to produce records that would allow Plaintiffs to more specifically identify their property interests. See Pls.' Mot. to Stay at 1, 8-10, ECF No. 24. Then, on August 24, 2016, the parties filed a joint motion to stay proceedings in the case for seventy-five days to facilitate further discussions, give themselves an opportunity to produce information regarding Plaintiffs' land interests, and resolve their pending motions. See Joint Mot., ECF No. 32. The Court granted the motion the next day. See Order, ECF No. 33.

Over the succeeding months, the parties engaged in discovery, and the Court was called upon to resolve several disputes arising out of that process. See, e.g., EOG Res.'s Mot. to Quash, ECF No. 34. On December 15, 2016, Plaintiffs filed their Second Amended Complaint, ECF No. 52, to which the government filed an answer on January 24, 2017, see Def.'s Answer to Pls.' Second Am. Compl., ECF No. 57, and an amended answer on March 9, 2017, see Def.'s Am. Answer to Pls.' Second Am. Compl., ECF No. 67. In the meantime, the Court denied the government's pending motion for partial dismissal as moot on February 6, 2017. See Order at 1- 2, ECF No. 64.

Over the next eighteen months the parties engaged in discovery, and on July 12, 2018, Plaintiffs moved for leave to file a third amended complaint. See Pls.' Mot. for Leave to Am. Compl., ECF No. 140. The Court granted that motion on August 3, 2018, see Order, ECF. No. 146, and Plaintiffs filed the amended complaint three days later, see Third Am. Compl., ECF No. 147.

In the Third Amended Complaint, which is the operative pleading, Plaintiffs allege that "[t]hey are the beneficial owners of more than 2,200 acres of allotted land, held in trust by the United States, within and surrounding the exterior boundaries of the . . . Fort Berthold Reservation." Third Am. Compl. at 2. They assert that "[m]ineral rights in more than 1,550 acres of [their] allotted lands are leased for oil and gas mining purposes," and that the Secretary, acting as trustee, "selected and approved" the Lessees. Id.

According to Plaintiffs, "the Department of Interior, and more specifically the Bureau of Land Management[,] . . . has consistently failed to collect revenue from oil and gas produced on federally managed lands and has failed to provide required oversight and management of oil and gas operations." Id. at 3. Among other things, they allege that their leases were not "properly advertised and bid competitively so the royalties they receive are markedly less than those received by non-Indian federal and tribal lessors on the Bakken Formation and elsewhere." Id. Further, Plaintiffs claim that the government "takes no action to rectify drainage of oil and gas from their lands, resulting in losses of tens of millions of dollars," "deducts expenses from royalties without explanation or documentation," "takes no action to address environmental contamination on Plaintiffs' properties," and has not "fully paid" Plaintiffs "the income derived from their land." Id. They also contend that they "have sought information from the United States . . . regarding the management of their leases, but the information is either refused, ignored, or not provided in a reasonable or timely manner." Id. at 3-4.

After Plaintiffs filed the Third Amended Complaint on August 6, 2018, the parties again engaged in extensive discovery until March 5, 2021, when Plaintiffs filed their motion for partial summary judgment. See Pls.' Mot. for Summ. J ("Pls.' Mot."), ECF. No. 177. The government filed its cross-motion and response on April 23, 2021, see Def.'s Cross-Mot. for Summ. J. and Opp'n to Pls.' Mot. ("Def.'s Cross-Mot."), ECF No. 180, and oral argument was held on the cross-motions on February 4, 2022, see Order, ECF No. 195.

I. Summary Judgment Standards

Summary judgment may be granted where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. RCFC 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is material if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. An issue is genuine if it "may reasonably be resolved in favor of either party." Id. at 250.

The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v Catrett, 477 U.S. 317, 325 (1986). The moving party "may discharge its burden by showing the court that there is an absence of evidence to support the nonmoving party's case." Dairyland Power Coop. v. United States, 16 F.3d 1197, 1202 (Fed. Cir. 1994) (citing Celotex, 477 U.S. at 325). In ruling on a motion for summary judgment, all evidence must be viewed in the light most favorable to the nonmoving party, and all...

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