Tribes v. United States

• Decision Date: 28 May 2021
• Docket Number: No. 19-1966,19-1966
• Parties: CONFEDERATED TRIBES AND BANDS OF THE YAKAMA NATION, et al. Plaintiff, v. THE UNITED STATES, Defendant.
• Court: U.S. Claims Court

CONFEDERATED TRIBES AND BANDS OF THE YAKAMA NATION, et al. Plaintiff, v. THE UNITED STATES, Defendant.

No. 19-1966

United States Court of Federal Claims

May 28, 2021

Motion to Dismiss; RCFC 12(b)(1); RCFC 12(b)(6); Indian Tucker Act; NIFRMA; Mitchell II; Breach of Trust; Fiduciary Duties; Tribal Forest Management; Yakama Tribe.

Ethan Jones, with whom was Marcus Shirzad, Yakama Nation Office of Legal Counsel, of Toppenish, Washington, for all plaintiffs, and Josh Newton, with whom was Sarah Monkton, Karnopp Petersen LLP, of Bend, Oregon, for plaintiff Confederated Tribes and Bands of the Yakama Nation.

Peter K. Dykema, Trial Attorney, Environment and Natural Resources Division, with whom was Paul E. Salamanca, Deputy Assistant Attorney General, Environment and Natural Resources Division, all of Washington, D.C. for the defendant.

OPINION AND ORDER

HOLTE, Judge.

Plaintiffs Confederated Tribes and Bands of the Yakama Nation ("Tribe") and Yakama Forest Products ("YFP") bring this action under 28 U.S.C. § 1505 ("Indian Tucker Act") and 28 U.S.C. § 1491(a)(1) ("Tucker Act"), alleging the United States breached fiduciary duties owed to plaintiffs in managing the Yakama Forest. Plaintiffs argue federal forest management statutes, regulations, and an 1855 treaty between the Tribe and the United States require the government to ensure timber harvests in the Yakama Forest meet minimum targets. Plaintiffs claim the government's failure to do so breached the government's fiduciary duties to plaintiffs, and those breaches are enforceable through money damages. The government moved to dismiss plaintiffs' complaint for lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted under Rules 12(b)(1) and 12(b)(6) of the Rules of the Court of Federal Claims ("RCFC"). The Court held oral argument on the government's motion on 2 February 2021. For the following reasons, the Court DENIES the government's motion to dismiss.

I. Background

The Court draws the following facts from plaintiffs' complaint and response to the government's motion to dismiss, construing the complaint broadly and drawing all inferences in plaintiffs' favor. See First Hartford Corp. Pension Plan & Trust v. United States, 194 F.3d 1279, 1288 (Fed. Cir. 1999) (noting an obligation of courts to "construe the complaint broadly [by] drawing all inferences in [plaintiffs'] favor" at the motion to dismiss stage).

A. The Yakama Tribe and the Management of the Yakama Forest

This case presents a claim with its genesis as old as this Court.¹ Plaintiff Yakama Nation is an Indian tribe federally recognized under the Treaty with the Yakamas, dated June 9, 1855. Compl., ECF No. 1 ("Compl."), at ¶ 3. The Treaty created the 1.4 million-acre Yakama Reservation ("Reservation") in south-central Washington state, approximately 650,000 acres of which are forested lands ("Yakama Forest" or "Forest"). Id. at ¶¶ 2, 3, 6. The Reservation is located on the traditional homeland of the Tribes comprising the Yakama Nation, which they have occupied "since time immemorial." Pls.' Resp. to Mot. to Dismiss, ECF No. 14 ("Pls.' Resp."), at 7. Plaintiffs' claim centers on the government's commitments to the Tribe in managing the extensive forest resources on this land. Compl. at ¶ 10-14.

Through the Treaty, the government made many commitments to the Tribe. See Treaty with the Yakamas, dated June 9, 1855, 12 Stat. 951, Art. IV-X ("Treaty") (listing the government's obligations to the Tribe). Among them include the commitment to set the Reservation aside "for the exclusive benefit" of the Yakama Nation, and the government would build a sawmill for the Tribe and to keep the mill "in repair and furnished with the necessary tools and fixtures." Pls.' Resp. at 8; Compl. at ¶ 7 (quoting Treaty at Art. V). While it is unclear whether the government followed through with its commitment to build the sawmill, harvesting timber resources from the Yakama Forest eventually became an important source of revenue for the Tribe. Id. at ¶¶ 3-9.²

The United States holds in trust all tribal forest land on the Yakama Reservation. Compl. ¶ 5; see also 25 U.S.C. § 3101(2) ("[T]he United States has a trust responsibility toward Indian forest lands."). While the forest lands on the Yakama Reservation are federally managed for the Tribe's benefit, harvesting timber resources on the Reservation must proceed under the process prescribed by federal forest management statutes and regulations. See 25 U.S.C. § 407 ("Under regulations prescribed by the Secretary of the Interior, the timber on unallotted trust land in Indian reservations or on other land held in trust for tribes may be sold in accordance with the principles of sustained-yield management . . . .") (emphasis added). The Tribe itself cannot harvest timber or organize timber sales to non-tribal members absent approval from the government. See 25 C.F.R. § 163.3(b)(2) (providing tribes a "consultation" role in developing forest management plans); Forest Management Plan for Yakama Reservation (September 2005),ECF No. 14-5 ("2005 FMP"), at 171-78 (describing the process for approving a timber sale in tribal lands pursuant to federal government's forest management program).³

Plaintiff Yakama Forest Projects ("YFP") is a tribal corporation wholly owned by the Yakama Nation. Compl. at ¶ 4. The Tribe incorporated YFP in 1995 to "promote the development and utilization of the Reservation's timber resources on a sustained yield basis." Id. The Tribe intended YFP to create jobs for tribal members by operating a commercial log sort yard and sawmill on the Reservation. Id. The YFP sawmill's "principal log supply comes from the Yakama Nation's forest land," making the mill's productivity dependent on the government's management of the Yakama Forest. Id.; see also Tr. at 100:9-12 (plaintiffs noting YFP only processes logs "from off-reservation sources in very limited circumstances because it's just not economically viable.").

The United States Department of the Interior's ("Interior") Bureau of Indian Affairs ("BIA") manages the Tribe's forest resources. Compl. at ¶ 8; 25 U.S.C. §§ 406-407; 25 U.S.C. § 5109; 25 U.S.C. §§ 3101-3120. It does so pursuant to a Forest Management Plan ("FMP"), the "principal document, approved by the secretary . . . which provides for the regulation of the detailed, multiple use operation of Indian forest land." 25 U.S.C. § 3103(5). The current operative FMP for the Yakama Forest was approved by the Secretary in 2005 ("2005 FMP"). Compl. ¶ 8-9.

The 2005 FMP prescribes the Yakama Forest's current management process and objectives. See 2005 FMP at 11 (discussing the FMP's "mission, goals, objectives"). The plan sets, inter alia, harvest goals and schedules, id. at 126, silviculture prescriptions, id. at 125, and forest-fire-control measures, id. at 110. The FMP also establishes the Annual Allowable Cut ("AAC"), which provides a targeted-maximum harvest level for the forest's timber resources. See 2005 FMP at 126. The AAC is designed to meet the principles of sustained yield as mandated by the forest management statutes. See, e.g., 25 U.S.C. § 3104(b)(1) ("Indian forest land management activities undertaken by the Secretary shall be designed to achieve the following objectives . . . the development, maintenance, and enhancement of Indian forest land in a perpetually productive state in accordance with the principles of sustained yield and with the standards and objectives set forth in forest management plans . . . ."). The 2005 FMP, approved by both the Secretary of the Interior and the Tribe, prescribes an AAC of 143 million board feet. Compl. at ¶ 9.⁴ In 2015, the BIA issued an addendum to the 2005 FMP ("Addendum"), revising the AAC to 93.4 million board feet.⁵ Id. Plaintiffs claim "[a]t all times since June 18, 2013, the BIA has failed to authorize sufficient timber sales that would achieve either the AAC contained in the 2005 FMP or the 2015 proposed revision to the AAC." Id.

B. Plaintiffs' Supplemental Jurisdictional Facts⁶

The Yakama Nation has "inhabited the Yakama Reservation's land since time immemorial," Pls.' Resp. at 7, with the forest lands on the Reservation "continu[ing] to be critical to the Yakama Nation's economic well-being." Id. When the Tribe and the United States entered the 1855 Treaty, agreements over "land, timber and the future sawmill were an integral part of the [] negotiations." Id. at 8. The Tribe believed the Treaty would ensure long-term access to forest resources for the Tribe's benefit. Id. The Tribe ultimately agreed to the Treaty, and demand for Yakama Forest timber quickly grew. Id. at 9.

The United States began its major commercial timber harvesting program in the Yakama Forest following the outbreak of World War II. Pls.' Resp. at 9. The BIA first prepared a Timber Management Plan specifying which portions of the Yakama Forest were subject to harvest each year. Id. Soon after adoption of the plan, "[i]ntensive federal forest management" to increase timber harvests began. Id. The Tribe's reliance on forest resources, and the income it created, grew steadily with the increase of federal timber harvests. See id.

The government "increased the Yakama Forest AAC from 135 million board feet ("MMBF") in 1962 to a planned 186 MMBF in 1974." Id. at 9. The increased AAC resulted in harvests of "1.5 billion board feet with a gross stumpage value of $201 million" over the life of the 1962 plan. Pls.' Resp. at 9. In 1983, the government adjusted the AAC to 162.7 MMBF "after the Yakama Nation decided to place twenty-five percent of the Yakama Forest into reserved status." Id. In total, the 1983 plan "authorized harvests of 636 MMBF over the next decade with a gross stumpage value of $132 million." Id. at 9-10. Instead of continuing under the 1983 AAC, however, the government in 1993 "identified a plan for a lower AAC of 143 MMBF with potential for greater revenues." Id.

By the early 1990s, the...