Navajo Nation v. U.S., 00-5086.

• Decision Date: 24 October 2003
• Docket Number: No. 00-5086.,00-5086.
• Citation: 347 F.3d 1327
• Parties: NAVAJO NATION, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

347 F.3d 1327

NAVAJO NATION, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.

No. 00-5086.

United States Court of Appeals, Federal Circuit.

Decided October 24, 2003.

Paul E. Frye, Frye Law Firm, P.C., of Albuquerque, NM, for plaintiff-appellant. Of counsel on the brief was Daniel I.S.J. Rey-Bear, Nordhaus, Haltom, Taylor, Taradash & Bladh, L.L.P., of Albuquerque, NM.

Todd S. Aagaard, Attorney, Environment & Natural Resources Division, Department of Justice, of Washington, DC, for defendant-appellee. With him on the brief were R. Anthony Rogers, of Washington, DC, and Kristine S. Tardiff, of Concord, New Hampshire, Attorneys. Of counsel was Elizabeth Ann Peterson, Attorney, of Washington, DC.

V. Thomas Lankford, Lankford & Coffield, P.L.L.C., of Alexandria, VA, for amici curiae Peabody Holding Company, Inc., et al. Of counsel were William F. Coffield and Terrance G. Reed.

Before NEWMAN, SCHALL, and LINN Circuit Judges.

Opinion of the court filed by Circuit Judge SCHALL, in which Circuit Judge LINN joins.

Opinion dissenting in part filed by Circuit Judge PAULINE NEWMAN.

SCHALL, Circuit Judge.

In Navajo Nation v. United States, 263 F.3d 1325 (Fed.Cir.2001), this court held that the Indian Mineral Leasing Act of 1938, codified at 25 U.S.C. § 396 et seq. ("IMLA"), imposes a fiduciary duty upon the United States, the breach of which could result in money damages. In United States v. Navajo Nation, 537 U.S. 488, 123 S.Ct. 1079, 155 L.Ed.2d 60 (2003), the Supreme Court reversed that ruling and remanded the case to us for further proceedings. 123 S.Ct. at 1095. We, in turn, now remand to the Court of Federal Claims for further proceedings as may be appropriate, as discussed below.

BACKGROUND

I.

The controversy in this case grows out of the 1987 amendments to a coal lease between the predecessor of Peabody Coal Company ("Peabody") and the Navajo Nation ("Tribe"), a federally recognized Indian tribe. After the Secretary of the Interior ("Secretary") approved the amendments to the lease, the Tribe brought suit against the United States ("government") in the Court of Federal Claims under the Indian Tucker Act, 28 U.S.C. § 1505, alleging, inter alia, that the Secretary's approval of the amendments constituted a breach of trust under IMLA.

The Court of Federal Claims granted summary judgment in favor of the government. Navajo Nation v. United States, 46 Fed. Cl. 217, 236 (2000). The court determined that the government owed general fiduciary duties to the Tribe, which, in its view, the Secretary had dishonored by acting in the best interests of Peabody rather than the Tribe. Id. Nevertheless, the court concluded that the Tribe had failed to link that breach of duty to any statutory or regulatory obligation which could "be fairly interpreted as mandating compensation for the government's fiduciary wrongs." Id. Accordingly, the court held that the government was entitled to judgment as a matter of law. Id.

The Tribe appealed to us. We reversed and remanded, holding that IMLA imposes a fiduciary duty upon the government, the breach of which could result in money damages. 263 F.3d at 1333. The Supreme Court granted certiorari. United States v. Navajo Nation, 535 U.S. 1111, 122 S.Ct. 2326, 153 L.Ed.2d 158 (2002). As noted, the Court reversed and remanded. 123 S.Ct. at 1084.

The Supreme Court noted that its decisions in United States v. Mitchell, 445 U.S. 535, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) ("Mitchell I"), and United States v. Mitchell, 463 U.S. 206, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) ("Mitchell II"), controlled the case. 123 S.Ct. at 1084. It stated that "Mitchell I and Mitchell II are the path-marking precedents on the question of whether a statute or regulation (or combination thereof) `can fairly be interpreted as mandating compensation by the Federal Government.'" Id. at 1089-90 (quoting Mitchell II, 463 U.S. at 218, 103 S.Ct. 2961).

In Mitchell I, the Court held that the Indian General Allotment Act ("GAA") established insufficient government control and supervision of timber resources to impose upon the government a fiduciary duty, the breach of which could result in money damages. 445 U.S. at 540-44. However, in Mitchell II, the Court considered statutes and regulations other than the GAA; the court held that the statutes and regulations at issue placed a sufficient fiduciary obligation upon the government to warrant money damages for breach of that duty with respect to timber resources. 463 U.S. at 228, 103 S.Ct. 2961. The Court observed that "[i]n contrast to the bare trust created by the [GAA], the statutes and regulations now before us clearly give the Federal Government full responsibility to manage Indian resources and land for the benefit of the Indians." Id. at 224, 103 S.Ct. 2961. Having determined that the statutes and regulations "establish[ed] fiduciary obligations of the Government in the management and operation of Indian lands and resources," the Court concluded that the relevant legislative and executive prescriptions could "fairly be interpreted as mandating compensation by the Federal Government for damages sustained." Id. at 226, 103 S.Ct. 2961. A damages remedy, the Court explained, would "furthe[r] the purposes of the statutes and regulations, which clearly require that the Secretary manage Indian resources so as to generate proceeds for the Indians." Id. at 226-27, 103 S.Ct. 2961. In Navajo Nation, the Court described what it did in Mitchell II: "In Mitchell II, we held that a network of other statutes and regulations did impose judicially enforceable fiduciary duties upon the United States in its management of forested allotted lands." 123 S.Ct. at 1090. When the Court referred to "other statutes and regulations," it was, of course, referring to statutes and regulations other than the GAA.

In Navajo Nation, relying on its decisions in Mitchell I and Mitchell II, the Court observed that to state a claim cognizable under the Indian Tucker Act, "a Tribe must identify a substantive source of law that establishes specific fiduciary or other duties, and allege that the Government has failed faithfully to perform those duties." Id. at 1091 (citing Mitchell II, 463 U.S. at 216-17, 103 S.Ct. 2961). If that threshold is passed, stated the Court, "the court must then determine whether the relevant source of substantive law `can fairly be interpreted as mandating compensation for damages sustained as a result of a breach of the duties [the governing law] impose[s].'" Id. (quoting Mitchell II, 463 U.S. at 219, 103 S.Ct. 2961). The Court then considered "whether the IMLA and its implementing regulations can fairly be interpreted as mandating compensation for the Government's alleged breach of trust in this case." Id. It concluded that they could not. Id. It observed that "[t]he IMLA and its implementing regulations impose no obligations resembling the detailed fiduciary responsibilities that Mitchell II found adequate to support a claim for money damages." Id. It further observed that "[i]nstead, the Secretary's involvement in coal leasing under the IMLA more closely resembles the role provided for the Government by the GAA regarding allotted forest lands." Id. at 1092 (citing Mitchell I, 445 U.S. at 540-44, 100 S.Ct. 1349).

The Court also rejected the Tribe's argument that the actions of the Secretary violated certain other discrete statutory and regulatory provisions. Id. Specifically, the Court rejected the Tribe's arguments that relied on 25 U.S.C. § 399 and the Indian Mineral Development Act of 1982, 25 U.S.C. § 2101 et seq. ("IMDA"). 123 S.Ct. at 1092-93. Concerning section 399, the Court explained that the statute is not part of IMLA and does not govern the Peabody lease. Id. at 1092. As far as IMDA was concerned, the Court stated that IMDA "does not establish standards governing the Secretary's approval of mining leases negotiated by a Tribe and a third party," and the Court added that "[t]he lease in this case ... falls outside the IMDA's domain." Id. at 1093. The Court concluded: "[W]e have no warrant from any relevant statute or regulation to conclude that [the Secretary's] conduct implicated a duty enforceable in an action for damages under the Indian Tucker Act." Id. at 1095. It thus reversed and remanded. Id.

II.

The Tribe has submitted a "suggestion for proceedings on remand." In its submission, the Tribe states that the Court's decision in Navajo Nation was based on IMLA, and that the decision left open consideration of the effect of the "network" of relevant statutes, treaties, and regulations. The Tribe urges us to remand to the Court of Federal Claims so that it can consider the effect of the "network" of relevant statutes, treaties, and regulations.

The government opposes the requested remand. It argues that the Supreme Court's decision was not limited to IMLA. It also argues that the Tribe has waived any argument that "a network of other statutes and regulations" independently provides the basis for a viable breach of trust claim.

ANALYSIS

The parties' arguments present two issues. First, we must determine if the Supreme Court decided the question of whether, apart from IMLA, "a network of other statutes and regulations," Navajo Nation, 123 S.Ct. at 1090, imposes fiduciary duties upon the government, the breach of which could result in money damages. If we conclude that the Supreme Court has not decided that question, we must consider the government's contention that the Tribe has waived any argument that its breach of trust claim is viable independent of IMLA.

I. Scope of the Supreme Court's decision

The Tribe argues that the Court's decision in Navajo Nation was based on IMLA and that the decision left open for future consideration the issue of what the Tribe calls the "network" of relevant statutes, treaties, and regulations. The Tribe points out that the question presented to the Court in the government's petition for certiorari was directed...