[00:00:02] Speaker 01: Okay, the next argued case is number 17-2340, Crow Creek Sioux Tribe against the United States. [00:00:10] Speaker 01: Mr. Tye. [00:00:11] Speaker 04: Good morning, Your Honor. [00:00:11] Speaker 04: Thank you. [00:00:12] Speaker 04: Austin Tye, Nick Patterson, and Roach for the Crow Creek Sioux Tribe. [00:00:15] Speaker 04: May it please the court. [00:00:17] Speaker 04: I stand before you today because the court below took a shortcut in dismissing my case. [00:00:22] Speaker 03: What is the property interest that's being asserted here? [00:00:25] Speaker 03: Is it a property, is it what would be called a winter property interest? [00:00:29] Speaker 04: It is, sir. [00:00:30] Speaker 04: It's a winter's reserved water right. [00:00:33] Speaker 04: So we have an ownership interest in that water. [00:00:37] Speaker 04: But in order to bring the 162 AD8 claim for mismanagement, we don't need to have an ownership interest. [00:00:45] Speaker 04: That's not a prerequisite to bringing that claim. [00:00:49] Speaker 04: The error committed by the court below was the shortcut. [00:00:53] Speaker 04: And that's not my word. [00:00:54] Speaker 04: That's Judge Hodges' word. [00:00:55] Speaker 04: And what he said was, look, [00:00:57] Speaker 04: I don't see how you're ever going to be able to prove damages. [00:01:01] Speaker 04: These cases tend to go on for a long, long time. [00:01:04] Speaker 04: And what's the point? [00:01:06] Speaker 04: That's another quote from him. [00:01:07] Speaker 04: What's the point of letting this case go forward if you can't prove damages and try? [00:01:10] Speaker 03: Well, he may have used the wrong language. [00:01:15] Speaker 03: But if there's no allegation of injury, then you have no claim, right? [00:01:21] Speaker 03: That's absolutely true. [00:01:22] Speaker 03: But there is an allegation of injury. [00:01:25] Speaker 03: But there's no allegation that you were deprived of any water that would fall within a winter strike. [00:01:33] Speaker 04: Well, we don't have to be deprived of the actual use of water to have a claim for the mismanagement of that water. [00:01:39] Speaker 04: If that water is diverted, as it has been, if that water... But why is that right? [00:01:44] Speaker 02: I mean, all 162A DEH says is that the department has to manage natural resources [00:01:54] Speaker 02: It doesn't define the natural resources to which the tribe has rights. [00:02:00] Speaker 02: Winters does that. [00:02:02] Speaker 02: So unless you can, unless you have alleged, and I think Judge Hodges concluded you hadn't, that you had gotten less than Winters entitled you to, then neither your takings nor mismanagement claim has a foundation, does it? [00:02:20] Speaker 04: I respectfully disagree, Your Honor, because that conflates 162.88 with the winter's rights. [00:02:27] Speaker 04: I agree with you that 162.88 does not speak to winter's rights. [00:02:33] Speaker 04: What it does say clearly is that the government has an obligation to appropriately manage natural resources. [00:02:39] Speaker 04: I don't think anyone could argue that water is not a natural resource. [00:02:42] Speaker 04: So my claim is, is that they did not appropriately manage my natural resource, the water. [00:02:49] Speaker 04: It doesn't require ownership. [00:02:51] Speaker 03: So where's the injury, though? [00:02:52] Speaker 03: I mean, let's suppose they did mismanage it, but the question is whether that led to any injury, whether you've alleged that that led to any injury, any deprivation of the winter's water, if you call it that. [00:03:06] Speaker 04: The key word in your question, Your Honor, and I'm glad you used it, is did I allege? [00:03:11] Speaker 04: Because we have to make a very fine line here between what I have to prove at trial, [00:03:15] Speaker 04: and what I have to allege in order to trigger subject matter jurisdiction. [00:03:18] Speaker 04: So to answer your question, yes, both 162.88 and the Fifth Amendment are money-mandating causes of action. [00:03:28] Speaker 04: So have I alleged an injury? [00:03:30] Speaker 04: I certainly have. [00:03:31] Speaker 04: 162.88 gives rise to a money-mandating claim, the breach of which is a foundation. [00:03:38] Speaker 04: That statute alone gives rise to a claim. [00:03:41] Speaker 04: And it's also a basis for my breach of fiduciary duty. [00:03:43] Speaker 04: I have alleged an injury. [00:03:44] Speaker 04: The whole thing sort of swirling around here is, well, OK, so there's no question I can go down to the river tomorrow and take that water. [00:03:53] Speaker 04: There's no question. [00:03:54] Speaker 04: I have a primary right under the winner's doctrine to do so. [00:03:58] Speaker 04: What are my damages now, considering that I can walk down and take that water? [00:04:03] Speaker 04: Well, inherent in that question is, well, there's more water coming down around the bend. [00:04:09] Speaker 04: You can still go down and get that water. [00:04:11] Speaker 04: What are your damages? [00:04:12] Speaker 04: I have a present perfected right under Arizona in that water. [00:04:17] Speaker 04: That exists. [00:04:19] Speaker 04: The taking of that water gives rise to a damages claim. [00:04:22] Speaker 04: The mismanagement of that water gives rise to a damages claim. [00:04:27] Speaker 04: The standard here under Fisher is I merely need to invoke a money mandating statute. [00:04:34] Speaker 04: If I invoke a money mandating statute or constitutional provision, and I've done both, the district court has subject matter jurisdiction [00:04:42] Speaker 04: and can't dismiss the case. [00:04:44] Speaker 04: Can't, Fisher says, shall proceed forward with the case in the normal course. [00:04:50] Speaker 04: Jan's helicopter says, no further jurisdictional inquiry is necessary. [00:04:55] Speaker 04: The mistake made here is that we started to go down this path of, well, what do you really own? [00:05:00] Speaker 04: How were you really injured? [00:05:03] Speaker 04: That's premature. [00:05:05] Speaker 04: My complaint invokes a money-mandating statute and a money-mandating constu... Pardon me. [00:05:12] Speaker 04: constitutional provision. [00:05:14] Speaker 03: Well, that may be true, but you've got to allege a claim in the complaint as well. [00:05:21] Speaker 03: And I do. [00:05:23] Speaker 03: I do. [00:05:23] Speaker 04: A breach of duty, a breach of 162-88. [00:05:26] Speaker 03: What's the allegation of injury? [00:05:28] Speaker 04: The allegation of injury is they diverted that water, used it for their own purpose, sold it to the water of the Missouri River, which the government concedes at page 14 of their brief. [00:05:40] Speaker 04: that if that water is mismanaged, we have a claim. [00:05:45] Speaker 04: If that water is taken, we have a claim. [00:05:48] Speaker 04: The takeaway from page 14 of their concession is the word if. [00:05:53] Speaker 04: So that's on page 14. [00:05:54] Speaker 04: They say, we agree, for purposes of rule 12, that if that the tribe has winter's reserved water rights, that if mismanaged or if taken, give rise to a claim. [00:06:09] Speaker 04: If is a small word, but it's the word of the day here. [00:06:13] Speaker 04: If is a merits word. [00:06:16] Speaker 04: If it's taken. [00:06:17] Speaker 04: If he can prove it's taken. [00:06:18] Speaker 04: If he can prove that it was mismanaged. [00:06:21] Speaker 04: But they concede that those rights give rise to a claim. [00:06:24] Speaker 04: I have pled a claim that a breach of 162.88, money mandating, allows me to recover damages. [00:06:35] Speaker 04: Taking of the water, [00:06:37] Speaker 04: allows me to recover damages because I have a present, perfected property interest in it. [00:06:43] Speaker 04: There's another overarching reason here, too, why we should reverse this and send it back to the trial court. [00:06:51] Speaker 04: And that reason is that the basis for the claim, subject matter jurisdiction, are both inextricably intertwined. [00:07:01] Speaker 04: In other words, 162.88 is my basis for subject matter jurisdiction and my basis for recovery. [00:07:07] Speaker 04: And so under CAWA and its progeny, in those instances, the better course of action is to send it back down. [00:07:13] Speaker 04: Let the trial court resolve the merits issue, either at summary judgment, or have the trier of fact resolve it. [00:07:20] Speaker 04: Because when the basis for both subject matter jurisdiction and recovery is inextricably intertwined, then the court should not dismiss the case. [00:07:29] Speaker 04: So my whole argument rises and falls on Fisher. [00:07:34] Speaker 04: It's Fisher and Jan's helicopter. [00:07:36] Speaker 04: All I need to do is to invoke a money-mandating statute or constitutional provision, and that's the end of the analysis. [00:07:43] Speaker 04: I would submit to your auditors that because I have done so, it was improper for the court to dismiss the case. [00:07:49] Speaker 04: The court dismissed the case, Judge, sort of along the same line of question you're asking me, which is, what's your injury? [00:07:54] Speaker 04: What are your damages? [00:07:55] Speaker 04: I don't think you can get there. [00:07:56] Speaker 04: And so I'm going to dismiss the court today. [00:07:59] Speaker 04: I'm going to dismiss the case today because what's the point? [00:08:05] Speaker 04: And my response to that would be, you don't get to skip Fisher, and you don't get to skip Jan's helicopter, because you don't think that I can prove damages at the end of the day. [00:08:15] Speaker 04: There are injuries alleged. [00:08:16] Speaker 04: What is the injury? [00:08:18] Speaker 04: The breach of 162AV8. [00:08:19] Speaker 04: That's the injury. [00:08:22] Speaker 02: Does it mandate one? [00:08:24] Speaker 02: It seems to me that is a kind of category mistake. [00:08:28] Speaker 02: Injury does not follow from an assertion [00:08:34] Speaker 02: violation of a legal norm. [00:08:36] Speaker 02: It's a separate thing. [00:08:38] Speaker 02: And I think what Judge Hodges was saying, put aside the reference to damages and focus just on the part of injury, he said, you agree that your such rights as you have comes from winters, which has to do with getting enough water for the reservation's needs, however that's defined. [00:08:57] Speaker 02: You have not said we've ever gotten less than we need. [00:09:02] Speaker 02: So even if [00:09:05] Speaker 02: Somehow there's a breach of some duty because, I don't even know how that follows, but the injury requirement is you have to allege, and you haven't, he said, that you've gotten less than you need, which is what the winter's right gives you, as I think you concede. [00:09:30] Speaker 04: I do concede that, and I do think that that goes to the takings claim, certainly. [00:09:36] Speaker 04: I don't think that that goes to the mismanagement claim, though. [00:09:39] Speaker 04: The water can be mismanaged without being taken. [00:09:43] Speaker 04: The water can be mismanaged without impeding my ability to go down to the river and take the water necessary to, and the key phrase is fulfill the purpose of the reservation. [00:09:53] Speaker 04: So I can still go down and do that. [00:09:54] Speaker 04: I grant you that. [00:09:56] Speaker 04: The reason I can do that is because I have presently perfected property rights in that water. [00:10:04] Speaker 04: That's what Winters gives me. [00:10:06] Speaker 04: That's what I get from winters. [00:10:08] Speaker 04: Now, if you accept that as a premise, that that's what I have, then the taking of that, and how is it taken? [00:10:15] Speaker 04: It's diverted to other uses. [00:10:17] Speaker 04: It's taken by consumption. [00:10:19] Speaker 04: It's a billion dollars a year in WAPA, hydroelectricity. [00:10:24] Speaker 04: All of those are things that take away from me my present perfected property right. [00:10:31] Speaker 04: Notwithstanding the fact that, yes, I can still go down there tomorrow and get the water. [00:10:36] Speaker 04: The fact that the water can be replaced. [00:10:38] Speaker 03: Why is it your property right? [00:10:40] Speaker 03: You don't own all the water in the Missouri River. [00:10:43] Speaker 03: I have the primary right. [00:10:44] Speaker 03: You only have the water that's necessary for reservation use and you're not being deprived of that. [00:10:51] Speaker 03: That's the problem according to your allegations. [00:10:54] Speaker 04: Well, I would argue that I am being deprived of that. [00:10:56] Speaker 03: How so? [00:10:57] Speaker 04: Well, once we have the statute, once we have a money mandating statute invoked, then all of the general [00:11:05] Speaker 04: fiduciary duties that the government owes the tribe come into play. [00:11:10] Speaker 04: I want to be very clear. [00:11:11] Speaker 04: General fiduciary duties does not get me subject matter jurisdiction. [00:11:16] Speaker 04: But once I have subject matter jurisdiction, then I am entitled to that whole wealth of rights, that whole wealth of duties owed by the government as a fiduciary. [00:11:25] Speaker 04: I would argue that that includes them giving us as our trustee all the water [00:11:33] Speaker 04: that's necessary to fulfill the purpose of the trial. [00:11:36] Speaker 04: They haven't done that. [00:11:37] Speaker 04: My second claim is breach of fiduciary duty. [00:11:40] Speaker 04: The injury is that they failed to give us that water. [00:11:44] Speaker 04: They breached their fiduciary duty to give us the water necessary to fulfill the purpose of the trial. [00:11:51] Speaker 04: But that's something I argue after we have subject matter jurisdiction. [00:11:57] Speaker 04: And all that's required for subject matter jurisdiction, money-mandating statute, [00:12:02] Speaker 04: money mandating constitutional provision. [00:12:05] Speaker 04: That, says Fisher, the case shall proceed forward. [00:12:09] Speaker 04: That, says Jan's helicopter, is the end of the jurisdictional inquiry. [00:12:14] Speaker 04: That's it. [00:12:15] Speaker 04: That's what I've planned. [00:12:17] Speaker 04: That's what I have. [00:12:18] Speaker 04: These later questions are going to have to be dealt with. [00:12:21] Speaker 04: But they're not determinative of whether or not the court had subject matter jurisdiction. [00:12:25] Speaker 01: Harvey. [00:12:30] Speaker 01: OK. [00:12:30] Speaker 01: Let's hear from the government. [00:12:32] Speaker 04: Thank you. [00:12:38] Speaker 01: Ms. [00:12:38] Speaker 01: Blaha. [00:12:39] Speaker 00: Good morning. [00:12:39] Speaker 00: May it please the court? [00:12:40] Speaker 00: Amber Blaha for the United States. [00:12:43] Speaker 00: So at the outset, I'd like to address counsel's statements about Fisher. [00:12:48] Speaker 00: I think that the tribe has the holding of Fisher exactly backwards in two important ways. [00:12:53] Speaker 00: First, I think the holding in Fisher and the subsequent cases of this court did nothing to eliminate the other jurisdictional requirements for the Court of Federal Claims. [00:13:03] Speaker 00: These include standing, rightness, [00:13:06] Speaker 00: that a claim is not barred by the statute of limitations. [00:13:09] Speaker 00: So I think even where the requirements of Fisher are satisfied, those jurisdictional prerequisites still must be met. [00:13:19] Speaker 00: The second point on the money-mandating statute assertion that all needs to be done is sort of an allusion to a money-mandating statute. [00:13:27] Speaker 00: I think the holding of Fisher is really contrary to that. [00:13:31] Speaker 00: What Fisher did, prior to Fisher, [00:13:33] Speaker 00: the Court of Federal Claims could essentially take that money-mandating statute inquiry and break it into two steps. [00:13:39] Speaker 00: They could sort of find that there was a non-frivolous allegation at the threshold stage of the case and look at it again later. [00:13:47] Speaker 00: What this court did in Fisher was say, no, you need to really make a decision at the very beginning of the case where there is a matter of law, there is a money-mandating statute on which the court's jurisdiction is based. [00:13:58] Speaker 01: But how do you cross the barrier of all of the cases that we have [00:14:03] Speaker 01: Routine, I'll call them water rights cases. [00:14:06] Speaker 01: This question of saying we're not going to consider the merits of your claim is very curious. [00:14:14] Speaker 01: They're saying this tribe on this claim cannot have a day in court. [00:14:19] Speaker 01: And I find it very hard to reconcile with all of the precedent in which the tribes have had the day in court. [00:14:27] Speaker 01: Some have prevailed, some have not. [00:14:29] Speaker 01: Some have not been able to prove the [00:14:32] Speaker 01: full scope of the monetary damages. [00:14:36] Speaker 01: But what's really troubling to me is about this case. [00:14:40] Speaker 01: They say, we don't want to hear what you have to say. [00:14:43] Speaker 01: We're not interested because you haven't proved your case and your complaint seems to be what the government position is. [00:14:53] Speaker 01: That seems very curious to me. [00:14:56] Speaker 00: Well, I think what the tribe has failed to do here is identify a money-mandating duty [00:15:02] Speaker 00: for the damages that they say they've sustained, which I think has been discussed already are unclear what the actual injury is. [00:15:10] Speaker 00: But in the cases that you're referring to, they are mostly, I think, about trust funds. [00:15:16] Speaker 00: And then they're pointing to money-mandating duty for the damages that they claim in their complaint, which have to do with specific concerns about the management of trust funds or other items that are specifically mentioned in [00:15:29] Speaker 00: in statutes and thus meet the test that the Supreme Court has set forth in Navajo and recognized in Hickory and others. [00:15:38] Speaker 00: So I think those are very distinct from here, where there is no money-mandating statute that they're pointing to that relates at all to the damages they are claiming, which relate to purported mismanagement of water rights. [00:15:53] Speaker 03: That's a really confusing way to look at it. [00:15:56] Speaker 03: Look, they cited a money-mandating statute, but they didn't file a complaint that stated a claim under the statute. [00:16:04] Speaker 00: Well, I think if you want to look at it that way, that's also possible. [00:16:09] Speaker 00: But it's still, as a matter of law, they haven't stated a claim under the statute. [00:16:14] Speaker 00: And so I think 12b6 dismissal would be equally appropriate. [00:16:18] Speaker 00: Because I do think it's clear that 162a d8, [00:16:24] Speaker 00: Other parts of 162A have been relied on by other courts as being a money-mandating statute for other types of claims. [00:16:33] Speaker 00: But I think it is really a stretch to then say that 162A D8 creates a money-mandating duty for the government with respect to the management of water rights. [00:16:44] Speaker 00: But even if you were to assume, treat the whole statute as a whole and say that, well, it's money-mandating for some purpose, so we just want to look at whether you've stated a claim within [00:16:54] Speaker 00: the context of that statute. [00:16:57] Speaker 00: I still think the tribe's claims fail because the damages that they have claimed don't fit within the scope of whatever the money-mandating duty is in 162A, because it does not reach the management of water rights. [00:17:15] Speaker 02: Do you understand the trouble at least one of us has with the reliance on this word [00:17:24] Speaker 02: Damages in this threshold, get rid of the case determination. [00:17:30] Speaker 02: Injury is a very different word from damages. [00:17:34] Speaker 02: Injury is part of a standing inquiry. [00:17:37] Speaker 02: It's part of even an element of the claim, injury or harm. [00:17:42] Speaker 02: Damages sounds rather a lot like something that you get to only later in the proceeding. [00:17:49] Speaker 00: I agree with that. [00:17:49] Speaker 02: And twice now, I think, in formulating [00:17:53] Speaker 02: your argument besides that there is no money mandated statute. [00:17:59] Speaker 02: You've relied on the term damages and I guess I'm trying to understand if your argument really turns on that or everything you said could have been said with the word injury instead. [00:18:12] Speaker 00: The latter, Your Honor. [00:18:13] Speaker 00: I mean when I'm using the term damages I am speaking in terms of injury not a quantification of damages. [00:18:19] Speaker 00: I mean I think what is missing here is [00:18:22] Speaker 00: any allegation at all that the tribes legally protected right, and I want to take issue with one thing the council said, that what their property right was is in the water. [00:18:34] Speaker 00: It's not in the water. [00:18:35] Speaker 00: They have a use right. [00:18:37] Speaker 00: And they've made no allegation at all that that use right has been injured. [00:18:41] Speaker 00: that it's been impaired in any way. [00:18:43] Speaker 00: I point the court to the 2013 decision in Casillas. [00:18:47] Speaker 03: What difference does it make whether it's a use right or a right in the water? [00:18:50] Speaker 03: They haven't alleged that any of their water has been taken, and they haven't alleged that the use has been interfered with. [00:18:58] Speaker 00: I agree with that. [00:18:59] Speaker 00: I don't think they have alleged either. [00:19:01] Speaker 00: But to the extent that they are asserting that the government's actions in managing the flows of the Missouri River writ large, [00:19:10] Speaker 00: are somehow taking their right. [00:19:14] Speaker 00: My point is only that they, as I think I alluded to earlier, they don't have a right in the entire Missouri River. [00:19:22] Speaker 00: They have a use right to access water. [00:19:24] Speaker 01: That's what they want to litigate. [00:19:26] Speaker 01: And you're saying you're not going to get a chance to make your case. [00:19:31] Speaker 00: I think that the threshold requirement to be able to proceed with a claim [00:19:35] Speaker 00: is to have actually alleged injury for a takings claim to the actual property right, which here is their water use right. [00:19:44] Speaker 00: And I think their complaint is devoid of any allegation that that right has been injured or impaired in any way. [00:19:51] Speaker 00: So I do think this is appropriate at the threshold for that reason. [00:19:56] Speaker 00: I think it fits squarely within the court's holding in Casitas that a claim is not ripe and is not ready for [00:20:05] Speaker 00: adjudication by a court when you haven't alleged that your actual right in the water has been... I thought the governor was saying this claim is 40 years old. [00:20:15] Speaker 01: It's overripe. [00:20:17] Speaker 00: Well, I think we're dealing with a complaint that doesn't have a lot of precision in what the injury is, but if you were to get to the point where you found that there was actually some injury alleged that could support standing, when you look at the complaint, [00:20:34] Speaker 00: the only action taken by the government, you know, where the injury accrued and where all of the subsequent purported injuries would flow from, are actions that were taken in the 40s, 50s and 60s. [00:20:48] Speaker 01: Well, exactly. [00:20:49] Speaker 01: But you're negating your entire premise because you're saying we don't want to hear that. [00:20:54] Speaker 01: We're not going to let you tell us that. [00:20:58] Speaker 00: Well, I think we are [00:21:01] Speaker 00: It's an alternative argument and I think an additional jurisdictional defect in their complaint. [00:21:09] Speaker 02: Why is it right that if indeed, so the two dams are built in the 50s and 60s or something, but each year whoever is doing whatever, who's ever managing the reservoir is diverting the water to making individual yearly decisions [00:21:30] Speaker 02: these farmers get the water, everybody else gets the water, but not the reservation. [00:21:36] Speaker 02: And if, in fact, that had been alleged to deprive the tribe of necessary water for the reservation, why would that be an out-of-time complaint when it's the year-by-year diversion decisions that would have caused that, not the building of the dam [00:22:01] Speaker 02: that the dams 50 years ago. [00:22:04] Speaker 00: There may be a case or a complaint that could be theoretically brought where there is a specific action from which you can identify specific damages. [00:22:15] Speaker 00: That's been this court standard. [00:22:16] Speaker 00: Is it an independent and distinct action from which identifiable damages flow? [00:22:20] Speaker 03: Well, that's what they're talking about. [00:22:21] Speaker 03: They're talking about the management of the water. [00:22:24] Speaker 03: They're not complaining that the building of the dam was a taking and that [00:22:30] Speaker 03: You know, plenty of cases, including the Supreme Court's decision in Arkansas Fish and Game, which says that you can operate a dam in such a way as to accomplish a taking. [00:22:41] Speaker 00: Certainly, but they haven't, I mean, it's just the operation of the dam in the normal course. [00:22:47] Speaker 00: Like they haven't pointed to any major change in the operation that has suddenly resulted in... That's a different question. [00:22:55] Speaker 03: It's not a substantial limitation. [00:22:57] Speaker 00: Well, I think looking at what's in their complaint, they haven't identified any specific event or action by the federal government that is within the six years. [00:23:09] Speaker 00: So I think from our perspective, there is a statute of limitations problem when the only thing is you created these dams, you installed them, and you've continued to operate them in the way that they have been operated for decades. [00:23:24] Speaker 00: That does not seem to meet the standard of [00:23:27] Speaker 00: a distinct event with identifiable damages that this court is required. [00:23:35] Speaker 02: Can I ask you one question to which I don't think anything turns on this question? [00:23:40] Speaker 02: The Missouri River, the boundary of the reservation is at, in, over? [00:23:48] Speaker 00: I'm not certain. [00:23:49] Speaker 00: I'm not sure that that boundary has been defined precisely. [00:23:55] Speaker 02: It's not like the middle of the navigable channel or anything. [00:23:59] Speaker 02: I don't know exactly, but my understanding is that... Because some of what you were discussing in your brief, I think not so much this morning, was that the water is actually not on the reservation or something. [00:24:11] Speaker 00: I think there's at least some question as to whether it would fit within the scope of, even with the very, very broadest reading of 162A D8, whether it would fit within the scope of that. [00:24:26] Speaker 00: I did want to also just address, we spoke a bit about the nature of the water right. [00:24:33] Speaker 00: Council refers to it as a present perfected property interest. [00:24:38] Speaker 00: You know, I just want to point out that that is a term that was used that's specific to the Colorado River and I don't think is a generally applicable term for the purposes of, to the extent he's suggesting that it's giving them some interest in the molecules of water that are flowing in the Missouri River. [00:24:55] Speaker 00: I don't think that's accurate. [00:25:01] Speaker 00: Are there any other questions from the court? [00:25:07] Speaker 01: Any more questions? [00:25:08] Speaker 01: OK, thank you. [00:25:15] Speaker 04: May I please report? [00:25:16] Speaker 04: In my remaining five minutes, I'd like to address two things. [00:25:18] Speaker 04: I want to go back and speak with Judge Dyke about the injury issue, the aspect of injury. [00:25:23] Speaker 04: I'm confident with where I am, or let's say I'm comfortable with where I am in terms of the money-mandating invocation of a statute and constitutional claim, but I hear the questions about injury. [00:25:33] Speaker 04: The other thing that I want to discuss is statute of limitations, and I think I can make short thrift of that, so I'll devote most of my time to the injury aspect. [00:25:42] Speaker 04: I'd like to begin by citing the Ward case, 1975 Supreme Court case that says, actual injury required by Article III may be [00:25:53] Speaker 04: or may exist solely by virtue of statutes creating rights. [00:25:58] Speaker 04: The violation of said statutes giving rise to an injury. [00:26:01] Speaker 04: I'll go back to 162 AD 8. [00:26:03] Speaker 02: If you mismanage- Put that broadly, that's not the most robust constitutional standard for standing anymore. [00:26:15] Speaker 04: Well, it's indicative of the view that like [00:26:22] Speaker 04: leading a statute that triggers subject matter jurisdiction? [00:26:27] Speaker 02: Later cases I think have said, maybe it's Lujan, maybe it's something else, that what Congress cannot do is statutorily declare something that is not an injury in fact to be an injury in fact. [00:26:42] Speaker 02: All it can do is take an injury in fact [00:26:46] Speaker 02: and say, this is now legally cognizable when it wouldn't have been before. [00:26:50] Speaker 02: True. [00:26:51] Speaker 04: And Lujan was in fact my very next site, which at pages 560 and 61 talks about wharf and says that that is an injury. [00:26:59] Speaker 04: In fact, a violation of a statute that gives rise to a claim. [00:27:03] Speaker 04: Sure. [00:27:03] Speaker 03: The statute gives you water. [00:27:05] Speaker 03: They take your water. [00:27:06] Speaker 03: That's an injury. [00:27:07] Speaker 03: But the problem is you haven't alleged that they took your water. [00:27:12] Speaker 04: We certainly have, your honor. [00:27:13] Speaker 04: We've alleged that they diverted the water. [00:27:16] Speaker 04: They used it for their own consumption. [00:27:18] Speaker 04: They sold it to non-Indians. [00:27:20] Speaker 04: The it is our water. [00:27:23] Speaker 04: The it is our winter's reserved rights in that water, which is primary and is time eternal from the founding of the reservation. [00:27:33] Speaker 03: We're absolutely elected. [00:27:34] Speaker 03: Where do you allege that they took water which fell within the winter's rights? [00:27:39] Speaker 03: All of it. [00:27:41] Speaker 03: Where? [00:27:42] Speaker 03: It doesn't say. [00:27:43] Speaker 03: We needed this water for the reservation, and you took it. [00:27:46] Speaker 03: It doesn't say that. [00:27:47] Speaker 04: In those express words, it does not. [00:27:50] Speaker 04: What it does say repeatedly in multiple paragraphs in the complaint is, you diverted it, you mismanaged it, you sold it to non-Indians, you self-dealt it. [00:27:59] Speaker 04: The it is our water. [00:28:01] Speaker 02: Suppose there's this reservoir behind one of the dams, and it has, I'm going to make up some numbers, a million cubic feet or something. [00:28:11] Speaker 02: Under any circumstance, let's suppose your reservation needs a thousand cubic feet and the core or whoever is operating the dam moves hundreds of thousands of cubic feet of water, diverts it to others, but they're never anywhere near depriving you of the thousand cubic feet you have. [00:28:38] Speaker 02: For you to have a winter's right problem, don't you need to say they've gone below the thousand feet? [00:28:46] Speaker 04: No, because the winter's right says that we have a present property interest in water that is necessary to fulfill the purpose of the reservation. [00:29:00] Speaker 04: Us not having that water, us not having utilized that water, the government as our trustee [00:29:07] Speaker 04: not having said, here is the water necessary to fulfill the purpose of your reservation. [00:29:14] Speaker 04: All of that water, the taking of which, the mismanagement of which, gives rise to a present claim. [00:29:22] Speaker 04: You would have to look at it this way, Judge. [00:29:24] Speaker 04: You would have to say that unless and until you are going to take some of that water to fulfill the purpose of your reservation. [00:29:32] Speaker 04: At that point, we all agree that it's our water. [00:29:35] Speaker 04: But unless and until you do that, [00:29:37] Speaker 04: You don't have a presently perfected property interest in that water. [00:29:42] Speaker 04: And that's simply not true. [00:29:44] Speaker 04: We do. [00:29:45] Speaker 04: We have Winters was reserved water rights yesterday, today, and tomorrow. [00:29:50] Speaker 04: The idea that until it is taken or until it is not taken for some reason affects the rights in that water just simply isn't the law. [00:30:00] Speaker 04: And so the injury is, [00:30:03] Speaker 04: When they divert it and use it for other purposes, our presently perfected, winter's water. [00:30:08] Speaker 04: When they store it, when they sell it, when they self-deal with it, that is the injury. [00:30:14] Speaker 04: That gives rise to the claim. [00:30:16] Speaker 04: On the issue of statute of limitations, there's a single case that I think you could look at. [00:30:20] Speaker 04: I didn't get the sense that there was great concern about that issue with the court. [00:30:24] Speaker 04: If there is, I'm happy to answer questions. [00:30:26] Speaker 04: But I would suggest the court take a look at a case called Goodie [00:30:31] Speaker 04: Good Eagle actually involved 162 AD8. [00:30:33] Speaker 04: It's a mining case. [00:30:36] Speaker 04: And what the court in Good Eagle held, and it's interesting too, because it was 162 AD8 mismanagement of natural resources claim, not a monetary fund claim. [00:30:47] Speaker 04: They were actually mismanaging the minerals. [00:30:52] Speaker 04: In that case, the court held that every day that mine operated, because 162 AD8 imposes a duty [00:31:01] Speaker 04: on the government to properly manage natural resources. [00:31:05] Speaker 04: Each day the mine operated, to your point earlier, Judge, a new statute of limitations started because the duty was breached each day the natural resources were mismanaged. [00:31:17] Speaker 04: In this case, the duty is breached each day the natural resource of water is mismanaged. [00:31:23] Speaker 04: I'm happy to answer any other questions the court may have. [00:31:28] Speaker 01: Any more questions? [00:31:28] Speaker 01: Thank you, Judge.