Hopi Tribe v. United States

• Decision Date: 02 April 2015
• Docket Number: No. 2014–5018.,2014–5018.
• Parties: The HOPI TRIBE, a federally recognized Indian Tribe, Plaintiff–Appellant v. UNITED STATES, Defendant–Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

782 F.3d 662

The HOPI TRIBE, a federally recognized Indian Tribe, Plaintiff–Appellant

v.UNITED STATES, Defendant–Appellee.

No. 2014–5018.

United States Court of Appeals, Federal Circuit.

April 2, 2015.

Michael David Goodstein, Hunsucker Goodstein PC, Washington, DC, argued for plaintiff-appellant.

Ellen J. Durkee, Environment and Natural Resources Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by Robert G. Dreher.

Before LOURIE, CHEN, and HUGHES, Circuit Judges.

Opinion

HUGHES, Circuit Judge.

The Hopi Tribe filed suit against the United States in the Court of Federal Claims seeking damages to cover the cost of providing safe drinking water on the Hopi Reservation. In order to invoke the trial court's jurisdiction, the Hopi Tribe must identify a statute or regulation imposing a specific obligation on the United States to provide adequate drinking water that would give rise to a claim for money damages. Because the Court of Federal Claims properly concluded that the Hopi Tribe failed to identify any source for a money-mandating obligation, we affirm.

I

The Hopi Tribe is a federally recognized Indian tribe that occupies a reservation of land in northeastern Arizona. President Chester Arthur first established the reservation by executive order in 1882 (the Executive Order). The Executive Order declared the land would be “withdrawn from settlement and sale, and set apart for the use and occupancy of the [Hopi] and other such Indians as the Secretary of the Interior may see fit to settle thereon.” See I Charles J. Kappler, Indian Affairs: Laws and Treaties 805 (1904). Congress ratified the Executive Order in the Act of July 22, 1958, Pub.L. No. 85–547, 72 Stat. 403 (1958). The Act provides that:

[L]ands described in the Executive order dated December 16, 1882, are hereby declared to be held by the United States in trust for the Hopi Indians and such other Indians, if any, as heretofore have been settled thereon by the Secretary of the Interior pursuant to such Executive order.

Id.

The present dispute relates to the quality of drinking water on the Hopi Reservation. The public water systems on the reservation rely on groundwater drawn from subsurface layers of water-bearing rock. The Hopi Tribe alleges that the public water systems serving five communities on the eastern portion of the reservation contain unsafe levels of arsenic that exceed the federally allowed maximum. See 40 C.F.R. § 141.62 (setting a maximum contaminant level of 10 micrograms per liter). Arsenic is a toxic chemical that occurs naturally in rock and soils. Office of Ground Water and Drinking Water, Envt'l Prot. Agency, Complying With the Revised Drinking Water Standard for Arsenic:

Small Entity Compliance Guide 3 (August 2002), available at http://water.epa.gov/lawsregs/rulesregs/sdwa/arsenic/Compliance.cfm. According to the Hopi Tribe, arsenic can cause bladder, lung, and skin cancer

; as well as harm to the nervous system, heart, and blood vessels.

The Hopi Tribe alleges the United States funded and provided technical assistance for the construction of many of the wells that supply contaminated groundwater. Currently, the Hopi Tribe owns and operates the public water systems serving four of the affected communities—Mishongnovi, Polacca, Sipaulovi, and Shungopavi. The Department of the Interior, Bureau of Indian Affairs (BIA), owns and operates the system serving the fifth community, Keams Canyon.

The Hopi Tribe filed a complaint against the United States in the Court of Federal Claims seeking damages to cover the cost of providing alternative sources of drinking water in all five communities. The Court of Federal Claims dismissed the complaint, finding the Hopi Tribe failed to establish jurisdiction under the Indian Tucker Act. The Court of Federal Claims also denied the Hopi Tribe's request for jurisdictional discovery. The Hopi Tribe appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(3).

II

We review de novo a grant or denial of a motion to dismiss for lack of jurisdiction. Bell/Heery v. United States, 739 F.3d 1324, 1330 (Fed.Cir.2014). “A plaintiff bears the burden of establishing subject-matter jurisdiction by a preponderance of the evidence.” M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1327 (Fed.Cir.2010).

The Court of Federal Claims' jurisdiction over suits against the United States is limited by the doctrine of sovereign immunity. The United States may not be sued without its consent. United States v. Navajo Nation, 556 U.S. 287, 289, 129 S.Ct. 1547, 173 L.Ed.2d 429 (2009) (Navajo II ). The United States has waived sovereign immunity in various statutes, including the Indian Tucker Act. United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (Mitchell II ). The Indian Tucker Act provides that the Court of Federal Claims shall have jurisdiction over claims against the United States by Indian tribes:

[W]henever such claim is one arising under the Constitution, laws or treaties of the United States, or Executive orders of the President, or is one which otherwise would be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe, band, or group.

28 U.S.C. § 1505. The final clause—“one which otherwise would be cognizable”—refers to the waiver of sovereign immunity in the Tucker Act, which gives the Court of Federal Claims jurisdiction over any claim “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).

Although the Indian Tucker Act waives sovereign immunity by granting jurisdiction over certain claims, it does not itself create any substantive rights. Navajo II, 556 U.S. at 290, 129 S.Ct. 1547. The Indian tribe must assert a claim arising out of other sources of law specified in the Act, such as a statute or contract. Id. And not any claim arising out of these sources of law will do. “The claim must be one for money damages against the United States ... and the claimant must demonstrate that the source of substantive law he relies upon can fairly be interpreted as mandating compensation by the Federal Government for damages sustained.” Mitchell II, 463 U.S. at 216–17, 103 S.Ct. 2961 (citations and internal quotation marks omitted).

Accordingly, the Supreme Court has established a two-part test for determining jurisdiction under the Indian Tucker Act. First, the claimant “must identify a substantive source of law that establishes specific fiduciary or other duties, and allege that the Government has failed to faithfully perform those duties.” Navajo II, 556 U.S. at 290, 129 S.Ct. 1547. Second, “[i]f that threshold is passed, the court must then determine whether the substantive source of law can be fairly interpreted as mandating compensation for damages sustained as a result of a breach of the duties [the governing law] impose [s].” Id. at 290–91, 129 S.Ct. 1547 (alterations in original) (internal quotation marks omitted).

At the first step, a statute or regulation that recites a general trust relationship between the United States and the Indian People is not enough to establish any particular trust duty. United States v. Mitchell, 445 U.S. 535, 542–44, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (Mitchell I ) (finding a statutory provision declaring land to be held “in trust for the sole use and benefit of the [Indian owner]” did not by virtue of using trust language impose any specific duty to manage timber resources on the land). “[T]he organization and management of the trust is a sovereign function subject to the plenary authority of Congress.” United States v. Jicarilla Apache Nation, ––– U.S. ––––, 131 S.Ct. 2313, 2323, 180 L.Ed.2d 187 (2011). Accordingly, the United States is only subject to those fiduciary duties that it specifically accepts by statute or regulation. Id. at 2325 ; United States v. Navajo Nation, 537 U.S. 488, 506, 123 S.Ct. 1079, 155 L.Ed.2d 60 (2003) (Navajo I ) (“[T]he analysis must train on specific rights-creating or duty-imposing statutory or regulatory prescriptions.”).

To establish that the United States has accepted a particular fiduciary duty, an Indian tribe must identify statutes or regulations that both impose a specific obligation on the United States and “bear[ ] the hallmarks of a conventional fiduciary relationship.” Navajo II, 556 U.S. at 301, 129 S.Ct. 1547 (internal quotation marks omitted). In Mitchell II, the Supreme Court addressed statutes and regulations granting the Secretary of the Interior the exclusive authority to sell or approve the sale of timber on allotted Indian lands. 463 U.S. at 220, 103 S.Ct. 2961. The statutes and regulations detailed “comprehensive responsibilities of the Federal Government in managing the harvesting of Indian timber,” id. at 222, 103 S.Ct. 2961 (internal quotation marks omitted), which addressed “virtually every aspect of forest management,” id. at 220, 103 S.Ct. 2961. Further, the statute required the Secretary to consider “the needs and best interests of the Indian owner and his heirs” and to return proceeds from the sales to the Indian owners or “dispose [ ] of [them] for their benefit.” Id. at 224, 103 S.Ct. 2961 ; see 25 U.S.C. § 406(a). Based on this trust-evoking language and the statutory and regulatory prescriptions giving the United States “full responsibility” over Indian resources, the Supreme Court found that Congress had accepted a fiduciary duty to manage timber resources according to those specific prescriptions. Mitchell II, 463 U.S. at 224–25, 103 S.Ct. 2961.

Similarly, in United States v. White Mountain Apache Tribe, 537 U.S. 465, 475, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003), the Supreme Court inferred that Congress accepted a fiduciary duty to preserve improvements to Indian land that it actually used. A statute...