Ute Indian Tribe of Uintah & Ouray Reservation v. United States

99 F.4th 1353

UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN RESERVATION, Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee

2021-1880

United States Court of Appeals, Federal Circuit

Decided: April 25, 2024

Appeal from the United States Court of Federal Claims in No. 1:18-cv-00359-RHH, Senior Judge Robert H. Hodges, Jr, Judge Armando O. Bonilla.

Michael W. Holditch, Patterson Earnhart Real Bird & Wilson LLP, Louisville, CO, argued for plaintiff-appellant. Also represented by Frances C. Bassett.

Andrew Marshall Bernie, Appellate Section, Environment and Natural Resources Division, United States Department of Justice, Washington, DC, argued for defendant-appellee.

Also represented by Todd Kim.

Before Dyk, Reyna, and Stark, Circuit Judges.

Opinion concurring-in-part and dissenting-in-part filed by Circuit Judge Reyna.

Dyk, Circuit Judge.

Plaintiff Ute Indian Tribe of the Uintah and Ouray Indian Reservation ("Tribe") brought suit against the United States in the Court of Federal Claims ("Claims Court") asserting various claims concerning water rights and water-related infrastructure. The First Amended Complaint ("Complaint") alleged that the United States breached duties of trust by mismanaging water rights and mismanaging water infrastructure held by the United States and operated for the Tribe, breached contracts with the Tribe, and effected unconstitutional takings of the Tribe's property. The Claims Court held that the Tribe had not identified a trust-creating source of law and dismissed all the breach of trust claims, held that one breach of contract claim was barred by a 2012 settlement agreement, and found the remaining breach of contract and takings claims time barred.

We hold that the Winters doctrine and the 1899 Act do not sufficiently establish trust duties to support Indian Tucker Act jurisdiction with respect to the Tribe's claims that the United States has a duty to construct new infrastructure and secure new water for the Tribe, but that the 1906 Act imposes trust duties on the United States sufficient to support a claim at least with respect to management of existing water infrastructure. Thus, as to the trust claims, we affirm in part and vacate and remand in part. With respect to one breach of contract claim, we affirm in part and vacate and remand in part. With respect to the takings claims and the other breach of contract claim, we affirm the dismissal.

BACKGROUND

I. Historical Background

The Tribe is a federally recognized and sovereign Indian Tribe that was organized into its present form under the Indian Reorganization Act of 1934. 25 U.S.C. § 5101 et seq. The Tribe occupies the Uintah and Ouray Indian Reservation ("Reservation"), which encompasses about four million acres in the Green River Basin of northeastern Utah and lies within the drainage of the Colorado River Basin. Approximately half of the Reservation was established by an 1861 Executive Order that was confirmed by an Act of Congress instructing the superintendent of Indian affairs for the territory of Utah to "collect and settle all or so many of the Indians of said territory as may be found practicable in the Uinta valley." Act of 1864, 38 Cong. Ch. 77, 13 Stat. 63. The other half was established by Congress in 1880. Act of 1880, 46 Cong. Ch. 223, 21 Stat. 199. Among "[t]he purposes of [the Act of 1880 was] to destroy the tribal structure and to change the nomadic ways of the Utes by forcibly converting them from a pastoral to an agricultural people." United States v. S. Ute Tribe or Band of Indians, 402 U.S. 159, 163, 91 S.Ct. 1336, 28 L.Ed.2d 695 (1971) (citing 10 Cong. Rec. 2059, 2066 (1880)). Because the Reservation is exceptionally arid, year-round water supply depends upon water storage infrastructure and irrigation systems to capture and distribute winter snowmelt in the rivers running through the Reservation. In 1905, the Commissioner of Indian Affairs remarked that the Tribe's future "depends upon a successful irrigation scheme, for without water their lands are valueless, and starvation or extermination will be their fate." Complaint at 6 (quoting Rep. of the Comm. of Ind. Affs., 1906).

The history of the relationship between the Tribe and the United States with respect to water rights is long and complicated. Several events essential to the Tribe's claims here are the following:

The 1899 Act

• In 1899, Congress enacted an appropriations statute with a provision permitting the Secretary of the Interior to grant rights of way on or through the Uintah Indian Reservation for the construction and maintenance of dams, ditches, and canals, provided that "it shall be the duty of the Secretary of the Interior to prescribe such rules and regulations as he may deem necessary to secure to the Indians the quantity of water needed for their present and prospective wants." Act of March 1, 1899, 55 Cong. Ch. 324, 30 Stat. 924, 941 ("1899 Act"). The Tribe maintains that this statute created a trust obligation to secure future water rights for the Tribe.

The 1906 Act and the Uintah Indian Irrigation Project

• In 1906, Congress enacted another appropriations statute that funded the construction of "irrigation systems to irrigate the allotted lands of the Uncompahgre, Uintah, and White River Utes in Utah." Act of June 21, 1906, 59 Cong. Ch. 3504, 34 Stat. 325, 375 ("1906 Act").

• These irrigation works were to be "held and operated, and water therefor appropriated under the laws of the State of Utah, and the title thereto . . . shall be in the Secretary of the Interior in trust for the Indians." Id.

• By about 1922, the irrigation system constructed pursuant to the 1906 Act, now known as the Uintah Indian Irrigation Project ("UIIP"), was essentially completed.

• The Tribe alleges that the infrastructure constructed under the 1906 Act today comprises several hundred miles of waterways and canals. The Tribe maintains that the 1906 statute created a trust obligation with respect to water rights and water infrastructure.

The Central Utah Project

• In 1956 Congress authorized the Central Utah Project, a major infrastructure project to transport water from the Colorado River system to lands within Utah.

• The initial phase included the Bonneville unit, which transports water from the Reservation to the Salt Lake City metropolitan region. This initial phase depended on diverting water subject to the Tribe's water rights, water which was not then being used to irrigate lands on the Reservation. The project could not proceed without the Tribe's agreement to delay the use of this water.

The 1960 Decker Report

• In order to quantify its claims to water rights in connection with the proposed Central Utah Project, in 1960 the Tribe employed E.L. Decker, a former employee of the Bureau of Reclamation, to prepare a report surveying present, historic, and future practicably irrigable lands within the Reservation (the "Decker Report").

• The Decker Report organized irrigable Reservation lands into seven different categories, which included four groups particularly relevant to the Tribe's claims here: Group 1, consisting of lands irrigated through the 1906 Act infrastructure with federally decreed water rights; Group 2, consisting of lands irrigated through the 1906 Act infrastructure with state-certified water rights; Group 3, consisting of lands designated as irrigable that were or could be served through 1906 Act infrastructure facilities, with some lands having a supplemental state-certified water right and other lands lacking a water right certificate; and Group 5, consisting of certain lands that were found economically feasible to irrigate but not yet irrigated.

The 1965 Deferral Agreement

• In 1965, after the Decker Report was completed, the Bureau of Indian Affairs ("BIA"), the Bureau of Reclamation, the Central Utah Water Conservancy District (a political subdivision of the State of Utah), and the Tribe entered into the "1965 Deferral Agreement," which provided that the Bonneville unit "may proceed without objection, interference or claim adverse to the water requirements for such unit" and that the Tribe would defer the use of water designated to irrigate Decker Report Group 5 lands until "the ultimate phase of the Central Utah project." J.A. 255-56.

• In exchange, the Tribe was granted "full and complete recognition of the water rights of said tribe, with a priority date of 1861 in groups (1), (2), (3), (4) and (5) as described in the book of claims filed with the State Engineer, State of Utah, by the Ute Indian Tribe [i.e., as described in the Decker Report], without resort to litigation." J.A. 256.

• The 1965 Deferral Agreement also required the United States to construct specific additional infrastructure units to increase the quantity of water available to the Tribe, including the Upalco unit and the Uintah unit, which were "to supply said Indian water rights by the 1st day of January, 2005," and "provide storage of the runoff waters of the Uintah River and its tributaries." J.A. 257, 258.

• These additional infrastructure units were never constructed. The Tribe alleges that the United States breached the 1965 Deferral Agreement.

The 1967 Midview Exchange Agreement

• In 1967, the Tribe, the United States, and an organization of secondary water rights users entered into the "Midview Exchange Agreement" to exchange particular water rights and irrigation facilities.

• As part of the exchange, title to "the Midview Dam and Reservoir, Duchesne Diversion Dam, Duchesne Feeder Canal, and Midview Lateral together with all facilities and property appurtenant thereto" (hereinafter the "Midview Property") was to be transferred to BIA to "become part of the project works of the Uintah Project," and BIA was to "operate and maintain" the same "as part of the Uintah Project [UIIP]." J.A. 263.

• The Tribe contends that because the Uintah Project (UIIP) infrastructure was to be held in trust for the Tribe pursuant to the 1906 Act, the Midview Property was also...