Te-Moak Bands of Western Shoshone Indians of Nevada v. U.S.

• Decision Date: 07 November 1991
• Docket Number: TE-MOAK,No. 91-5053,91-5053
• Citation: 948 F.2d 1258
• Parties: BANDS OF WESTERN SHOSHONE INDIANS OF NEVADA, et al., Plaintiffs-Appellants, v. The UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1258

948 F.2d 1258

TE-MOAK BANDS OF WESTERN SHOSHONE INDIANS OF NEVADA, et al Plaintiffs-Appellants, v. The UNITED STATES, Defendant-Appellee.

No. 91-5053.

United States Court of Appeals Federal Circuit.

Nov. 7, 1991.

Rehearing Denied Dec. 10, 1991.

Suggestion for Rehearing In Banc

Declined Dec. 19, 1991.

Charles A. Hobbs, Hobbs, Straus, Dean & Wilder, Washington, D.C., argued for plaintiffs-appellants, with him on the brief was Frances L. Horn.

Peter A. Appel, Dept. of Justice, of Washington, D.C., argued for defendant-appellee, Richard B. Stewart, Asst. Atty. Gen. and Robert L. Klarquist, Atty., Dept. of Justice, were on the brief for defendant-appellee.

Before LOURIE, Circuit Judge, BENNETT, Senior Circuit Judge, and CLEVENGER, Circuit Judge.

BENNETT, Senior Circuit Judge.

The Te-Moak Bands of Western Shoshone Indians of Nevada appeal the judgment of the United States Claims Court, 18 Cl.Ct. 74 (1989), which granted the United States' (Government) motion to dismiss the Indians' water claim exceptions (Exceptions 15 & 16, filed June 29, 1982) to the Government's accounting report. The Claims Court held that these exceptions were outside the scope of their original accounting petition, did not relate back to the accounting claims of the original petition and were thus barred by the Indian Claims Commission Act's limitations provision, 60 Stat. 1052 (1946). ¹ This court affirms the Claims Court's judgment on alternative grounds.

BACKGROUND

On August 10, 1951, the Western Bands of the Shoshone Nation, represented by the Te-Moak Bands, filed a claim before the Indian Claims Commission (Commission) seeking relief for the alleged taking of Western Shoshone lands without just compensation and requesting an accounting of funds and proceeds held by the Government in trust accounts for the Western Shoshone, pursuant to trusts created as a result of the Treaty of Ruby Valley in 1863. In 1957, the Commission severed the accounting claim from the takings claim. ²

On the takings issue, in 1962 the Commission found that Western Shoshone lands had been taken. In 1979, the Commission certified to the General Accounting Office an award of $26,145,189.89 and the case was closed in 1980, with attorneys fees proceedings continuing into 1981. The Secretary of the Interior was required to submit a distribution plan for remitting the award.

On the accounting claim, plaintiffs filed an amended petition for a general accounting in 1967, 10 years after the accounting was ordered severed from the taking claim. The General Services Administration (GSA) filed its accounting report in response to the petition in 1968. Plaintiffs filed two sets of exceptions to the GSA report (in 1969 and 1973), alleging 14 separate violations of the trust agreement, citing misuse and failure to account for certain items in the trust. In 1978, the accounting claim was transferred from the Indian Claims Commission to the Court of Claims and on October 7, 1982, it was transferred to the Claims Court. However, before transfer to the Claims Court, on June 29, 1982, plaintiffs filed three additional exceptions to the GSA accounting report. Two of these exceptions (Exception 15 & Exception 16) referred to the Government's alleged misuse of and failure to protect Western Shoshone water rights on the reservation. Specifically, the exceptions charged that (1) the Government was liable for failing to provide reservoirs for the reservations granted to the Western Shoshone under the Treaty of Ruby Valley, and that (2) the Government, in violation of Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908), failed to stop white settlers from diverting water resources away from the reservations. ³

In 1987, the Government, represented by the Environmental and Natural Resources Section of the Justice Department, moved to dismiss the Western Shoshone's 1982 water-related claims (Exceptions 15 & 16) as being outside the scope of the 1951 petition, arguing that these later filed claims did not relate back to the original petition. The Claims Court severed these claims from plaintiffs' other objections and found that plaintiffs' water claims in Exceptions 15 and 16 were outside the scope of the original accounting claims in the 1951 petition and thus could not relate back to the original petition under the Commission's version of Fed.R.Civ.P. 15(c).

DISCUSSION

This court's function on review is to determine whether the Claims Court erred in applying a relation back analysis to this case. That inquiry is not restricted to consideration of whether the requirements of Fed.R.Civ.P. 15(c) were met in the circumstances of this case. We must also determine whether the Claims Court abused its discretion by allowing the Te-Moak Bands to file their 1982 Exceptions to the GSA accounting report under Fed.R.Civ.P. 15(a). See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 802, 28 L.Ed.2d 77 (1971) (determining "when justice so requires" that amendments under 15(a) be granted rests within the sound discretion of the trial court); Mitsui Foods, Inc. v. United States, 867 F.2d 1401, 1403 (Fed.Cir.1989) ("It is well established that the grant or denial of an opportunity to amend pleadings is within the discretion of the trial court").

Fed.R.Civ.P. 15(a) states:

A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.... ⁴

The Supreme Court, interpreting Rule 15(a) in Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), stated:

Rule 15(a) declares that leave to amend "shall be freely given when justice so requires"; this mandate is to be heeded. See generally, 3 Moore, Federal Practice (2d ed. 1948), pp 15.08, 15.10. If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.--the leave sought should, as the rules require, be "freely given." Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court,....

Foman, 371 U.S. at 182, 83 S.Ct. at 230 (emphasis added). As explained in Foman, reasons for denying leave to amend pleadings under Rule 15(a) may include undue delay, bad faith, dilatory motive, failure to correct deficiencies which could have been cured earlier and undue prejudice to the non-amending party by allowance of the amendment. See Mitsui Foods, 867 F.2d at 1403-04.

The chronological history of the accounting claims in this case is as follows:

July 5, 1957--Indian Claims Commission ordered the severance of the causes of action; the accounting claim was separated from the takings claim

May 18, 1967--The Tribe filed its amended accounting claim petition

Sept. 18, 1968--Government filed its Initial GSA Accounting Report

February 26, 1969--The Tribe filed 11 exceptions to the GSA report

July 30, 1970--GSA filed a Supplemental Accounting Report

November 28, 1973--The Tribe filed three supplemental exceptions to the GSA report

July 26, 1974--GSA filed a supplemental accounting with information on the Treaty of Ruby Valley trust fund and the IMPL trust fund, pursuant to Te-Moak Bands of W. Shoshone Indians, 23 Ind.Cl.Comm. at 70.

1974-1982--Delay, attributed by current counsel to an "erosion of the relationship between claims counsel ... and the Western Shoshones who believed themselves entitled to the land itself and not its 1872 value, [which] resulted in a suspension of contract relations between ourselves [counsel] as claims counsel and the then-ascendant leadership of the Western Shoshone. This caused almost a shutdown of the accounting case until 1982, ...." In 1982, the Te-Moak band requested that claims counsel complete the case.

June 29, 1982--The Tribe filed three supplemental and amended exceptions to the GSA accounting which included Exceptions 15 & 16, which are those at issue here.

For the reasons set forth below, we conclude that Exceptions 15 and 16 should not have been allowed to have been filed because they ran afoul of the requirements for amendment of pleadings in Fed.R.Civ.P. 15(a): because of the "apparent reasons" that they could have been cured by earlier amendment, and were filed after a period of undue delay. ⁵

COULD HAVE BEEN CURED EARLIER

Our predecessor court, the United States Court of Claims, stated in Navajo Tribe of Indians v. United States, 624 F.2d 981, 224 Ct.Cl. 171 (1980):

In these Navajo cases, the trial judge commented unfavorably on the continuous flow of exceptions and supplemental exceptions from the plaintiff, and ruled that the supplemental exceptions then before him "must be the last." We confirm and emphasize that holding. ⁹ There must be an end to the filing of exceptions to the existing accounting reports in these Navajo cases, and in other Indian accounting cases there should not be allowed the successive filings of exceptions to the same reports which have been permitted in the present cases. ¹⁰

Id. 624 F.2d at 985 (footnote 9 omitted). Footnote 10 states:

As Trial Judge Bernhardt pointed out: "It has been 17 years since the filing of the 1961 [Accounting] Report at which the present supplemental exceptions are aimed. The grist of the...