CONFEDERATED TRIBES AND BANDS OF THE YAKAMA NATION et al v. USA

Filing 14

PUBLISHED OPINION - Denying Defendant's 7 Motion to Dismiss - Rule 12(b)(1). Joint Status Report by Oct. 23, 2009, with discovery schedule. Signed by Judge Christine O.C. Miller. (smg)

C O N F E D E R A T E D TRIBES AND BANDS OF THE YAKAMA NATION et al v. USA

D o c . 14

In the United States Court of Federal Claims
N o . 09-160L (F ile d October 8, 2009) *********************** CONFEDERATED TRIBES AND B A N D S OF THE YAKAMA NATION, e t al., Plaintiffs, v. T H E UNITED STATES, Defendant. *********************** * * * * * * * * * * * * * * * C o n tra c ts ; breach of trust; RCFC 1 2 (b )(1 ); motion to dismiss for la c k of ripeness; jurisdiction u n d e r 28 U.S.C. § 1491(a)(1) ( 2 0 0 6 ) , 28 U.S.C. § 1505 (2006); s ta tu te of limitations for c o lle c tio n action, 28 U.S.C. § 2415 (2006); Indian LongT e rm Leasing Act, 25 U.S.C. § 380 (2006), 25 C.F.R. pt. 162 (2 0 0 9 ); Debt Collection Im p ro v e m e n t Act, 31 U.S.C. §§ 3701-3720E (2006); statute o f limitations for Court of F e d e ra l Claims, 28 U.S.C. § 2501 (2006).

T h o m a s Zeilman, Yakima, WA, for plaintiffs. M a u re e n E. Rudolph, Washington, DC, with whom was Acting Assistant Attorney G e n e ra l John Cruden, for defendant. Marlene Zichlinsky, U.S. Department of the In ter io r, of counsel. M E M O R A N D U M OPINION AND ORDER M I L L E R , Judge. B e f o re this court after argument is defendant's motion to dismiss for lack of subject m a tte r jurisdiction pursuant to RCFC 12(b)(1). Defendant contends that the claim of an A m e ric a n Indian tribe and Indian allotment owners for breach of trust and fiduciary duties is not ripe because it is premised on contingent future events--namely, debt collection and e n f o rc e m e n t actions under the aegis of the Secretary of the United States Department of the In te rio r-- th a t may not occur as anticipated, if at all. Plaintiffs maintain that the statute of lim ita tio n s applicable to the Secretary's actions has expired, so that their claim has accrued.

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FACTS T h e facts are drawn from the complaint, as supplemented by documents reflecting the o p e ra tiv e contract history, as well as records of decisions by the cognizant government o f f ic ia ls , the Bureau of Indian Affairs (the "BIA"), and an appellate review board. Mindful th a t plaintiffs must establish subject matter jurisdiction on disputed evidence, see Reynolds v . Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988); see also N. Hartland, L .L .C . v. United States, No. 2008-5008, 2009 WL 223867, at *3 (Fed. Cir. Feb. 2, 2009) ("`A ll other facts underlying the controverted jurisdictional allegations are in dispute and are s u b j e c t to fact-finding by the district court.'" (quoting Cedars-Sinai Med. Ctr. v. Watkins, 1 1 F.3d 1573, 1584 (Fed. Cir. 1993))); Moyer v. United States, 190 F.3d 1314, 1318 (Fed. C ir. 1999) ("Fact-finding is proper when considering a motion to dismiss where the ju ris d ic tio n a l facts in the complaint . . . are challenged."), the court makes findings based on th e materials submitted with the parties' briefs on defendant's motion, see Rocovich v. U n ite d States, 933 F.2d 991, 994 (Fed. Cir. 1991) (allowing and considering submissions of relev an t evidence to resolve factual dispute regarding subject matter jurisdiction). T h e following facts are established, for the purpose of ruling on defendant's motion, b y the record submitted to date. The claim over which the United States Court of Federal C la im s ' subject matter jurisdiction is contested alleges the Government's breach of trust and f id u c ia ry duties in collecting rent owed by a lessee to plaintiff lessors, the Confederated T rib e s and Bands of the Yakama Nation (the "Yakama Nation") and eighteen individual lan d o w n e rs (together with the Yakama Nation "plaintiffs"). The lessee's debt of unpaid p r in c i p a l arose from 1996 until 2000, during the second quarter of a twenty-year lease a p p r o v e d and administered by the United States Department of the Interior on plaintiffs' b e h a lf . Implicated by plaintiffs' complaint are the activities of three entities within the D e p a rtm e n t of the Interior: the Superintendent of the Yakama Agency (the "Superintendent") o f the BIA; the Northwest Regional Director of the BIA (the "Regional Director"), who o v e rs a w the Superintendent's activities and received appeals of decisions by the BIA; and the In te rio r Board of Indian Appeals (the "IBIA"), which reviewed appeals of decisions of the R eg ion al Director. A treaty concluded on June 9, 1855, between the Government and the Yakama Nation re se rv e d , for the use of and occupation by the Yakama Nation, a tract of land on the banks o f the Yakama and Attah-num Rivers (the latter now the Ahtanum Creek) in what is now the S ta te of Washington (the "Yakama Reservation"). Treaty Between the United States and the Y a k a m a Nation of Indians, U.S.-Yakama Nation, art. II, June 9, 1855, 12 Stat. 951. C u rre n tly, the Yakama Nation possesses a fractional ownership interest in adjoining parcels o f land within the Yakama Reservation, Yakama Allotments Nos. 955 and 956 (the " A llo tm e n ts " ), obtained through a purchase made pursuant to 25 U.S.C. § 607 (2006). The 2

o th e r named plaintiffs--the eighteen individual landowners, of whom seventeen are enrolled m e m b e r s of the Yakama Nation and one is an enrolled member of the Colville Confederated T rib e s of American Indians--possess fractional ownership interests in the Allotments as h e i rs of the original allottees. The Secretary of the Interior holds the Allotments in a trust s ta tu s for the benefit of plaintiffs. Compl. filed Mar. 11, 2009, ¶ 1; see also 25 C.F.R. pt. 162 (20 0 9 ). T h e Indian Long-Term Leasing Act and the regulations promulgated under 25 U.S.C. § § 380, 415(a) (2006), provide that the owners of interests in restricted Indian lands which a re held in trust may lease these lands with the approval of the Secretary of the Interior. See 2 5 C.F.R. pt. 162. On September 2, 1992, the Superintendent, according to authority d e le g a te d by the Secretary of the Interior, approved Recreational Lease No. 5-1-7865-9110 (th e "Lease") between plaintiffs and Yakima Ridgerunners, Inc., a Washington non-profit c o rp o ra tio n ("Ridgerunners"). 1/ See generally Def.'s Br. filed June 11, 2009, Ex. A at 1; C o m p l. ¶ 5. For a period of what was expected to be twenty years, from January 1, 1991, u n til December 31, 2010, plaintiffs leased 15.17 acres of the Allotments to Ridgerunners for R id g e ru n n e rs ' use as a park for camping and recreational vehicles. Plaintiffs and R i d g e ru n n e rs agreed to an initial annual rent of $1,200.00, due in advance to the S u p e rin te n d e n t on December 1 of each year, which then would be subject to review and a d ju s tm e n t by the Superintendent at not less than five-year intervals. 2/ Additionally, an

1/ During argument defendant cited 25 C.F.R. § 162.14 (1999), of the pre-2001 In d ia n Long-Term Leasing Act regulations as the express delegation of authority from the S e c r e ta r y of the Interior to the BIA. Transcript of Proceedings, Confederated Tribes & B a n d s of the Yakama Nation v. United States, No. 09-160L, at 21 (Fed. Cl. Sept. 14, 2009) (" T r ." ). To ensure clarity in citing to the amended and current regulations, citations to the p re -2 0 0 1 enactment of 25 C.F.R. pt. 162 (1999), will include the parenthetical "(1999)". S e c tio n 162.14 describes the Secretary of the Interior's available remedial options w h e n responding to violations of leases of Indian lands. See 25 C.F.R. § 162.14 (1999). E ls e w h e re in the pre-2001 regulations, the Secretary of the Interior is authorized to grant le a s e s of Indian lands that are held in trust by the United States. 25 C.F.R. §§ 162.1(b), 162.2 (1 9 9 9 ). As used in these regulations, "Secretary" encompasses "the Secretary of the Interior o r his authorized representative acting under delegated authority." 25 C.F.R. § 162.1(a) (19 9 9 ). The parties have not supplied the express delegation of authority from the Secretary o f the Interior to the BIA specific to the approval and administration of the Lease. 2 / The Lease states: "Such review shall give consideration to the economic conditions a t the time, exclusive of improvement or development required by this contract or the c o n trib u tio n value of such improvements." Def.'s Br. filed June 11, 2009, Ex. A at 2. 3

a g re e d -u p o n rider attached to the Lease provided that rent payments remaining delinquent f o r more than thirty days would be penalized at an annual rate of 18%, to be applied from the p a ym e n t due-date until the date of actual payment. Ridgerunners paid the $1,200.00 annual re n t due for the first quarter of the Lease (spanning the calendar years and rental periods of 1 9 9 1 through 1995), notwithstanding an incidental carry-over balance of $135.52 for latep a ym e n t penalties. In 1995, pursuant to the Lease's rental adjustment provisions, the Superintendent re a p p ra is e d Ridgerunners' annual rent from $1,200.00 to $3,230.00 for the Lease's second q u arter (1996 through 2000). See Yakima Ridgerunners, Inc., 44 I.B.I.A. 72, 73-74 (2007). N e v e rth e le ss , the BIA failed to notify Ridgerunners of this reappraisal until November 26, 1 9 9 6 , on which date Ridgerunners was advised by certified letter that its rent had increased to $3,230.00, retroactive for the full 1996 calendar year. At that time Ridgerunners had thirty d ays within which to appeal the Superintendent's decision. See 25 C.F.R. § 2.9(a). R id g e ru n n e rs failed to appeal the reappraisal decision within thirty days; therefore, the re a p p ra is a l became final on or about December 27, 1996. 3/ Yakima Ridgerunners, 44 I.B .I.A . at 73-74; see also 25 C.F.R. § 2.6(b). A dispute between Ridgerunners and the BIA soon arose. Inexplicably, despite the re a p p ra is a l's finality, the BIA continued to invoice Ridgerunners for $1,200.00 annually, not $ 3 ,2 3 0 .0 0 . See Yakima Ridgerunners, 44 I.B.I.A. at 74; see also Def.'s Br. filed July 27, 2 0 0 9 , Ex. J at 10-13. In turn, Ridgerunners continued to pay the invoiced amount of $ 1 ,2 0 0 .0 0 , not the reappraised $3,230.00 amount. See Yakima Ridgerunners, 44 I.B.I.A. at 7 4 . On October 10, 1997, Ridgerunners received a certified letter from the BIA with the

3/ In its January 11, 2007 decision, the IBIA stated that "[i]t is undisputed that [ R id g e ru n n e rs ] did not timely appeal [the Lease's second-quarter rent reappraisal]." Yakima R id g e ru n n e rs , 44 I.B.I.A. at 74. In correspondence to the Superintendent dated December 9 , 2000, Ridgerunners asserted that, upon learning of the Lease's second-quarter rent re a p p ra is a l via the November 26, 1996 notice, it had "precisely followed the appeal p ro c e d u re , with the exception of the new address of the Area Director . . . . [and] [d]ue to the w ro n g address on the appeal, it was returned . . . after the 30 day time window for appeal." D e f .'s Br. filed July 27, 2009, Ex. J at 19. Ridgerunners then called the Superintendent "to s e e what action could be taken, [but] was informed that the Yakima [sic] Agency had not re c eiv e d the appeal." Id. Had the BIA received the appeal, it likely would have been d e ter m in e d to be timely. See 25 C.F.R. § 2.9(a) (allowing that "[a] notice of appeal that is f ile d by mail is considered filed on the date that it is postmarked"). The record suggests that R id g e ru n n e rs made no subsequent effort to re-file the appeal. 4

f o llo w in g message: Ridgerunners' rent principal was $4,030.00 4/ in arrears for the calendar ye a rs 1996 and 1997, plus 18% interest. See id. The BIA provided Ridgerunners with ten d a ys within which to show cause as to why the Lease should not be cancelled. W h i le it appears that Ridgerunners never provided the BIA with a written response to the show-cause letter, Ridgerunners has maintained, as evidenced by its letter of April 19, 2 0 0 4 , that it "ask[ed] for negotiation on lease increases, retroactive billing, and interest a c cru in g on debt not owed since 1997 . . . ." Def.'s Br. filed July 27, 2009, Ex. J at 2. F u rth e r, Ridgerunners argued to the IBIA in a January 19, 2005 letter that, in response to R id g e ru n n e rs ' protests, BIA employees instructed Ridgerunners to continue paying $ 1 ,2 0 0 .0 0 until the dispute was resolved. Although the record is not clear regarding when o r with whom these conversations may have occurred, 5/ see Yakima Ridgerunners, 44 I.B .I.A . at 74, it is undisputed that the BIA did not cancel the Lease at that time and that R id g e ru n n e rs continued to pay the $1,200.00 invoiced annually by the BIA. 6/

4/ As previously found by the IBIA, "[t]he amount in arrears appears to have been m is c a lc u la te d and should have been $4,060 as [Ridgerunners] continued to pay the original a n n u a l rent amount of $1,200, but paid nothing towards the increased rent amount of $ 2 ,0 3 0 ." Yakima Ridgerunners, 44 I.B.I.A. at 74 n.6. 5 / Ridgerunners contended before the IBIA that between 1996 and 1999 R id g e ru n n e rs frequently expressed its concerns with a BIA Realty Office employee, Ruben B e n d in g , and that Ridgerunners was told to continue paying $1,200.00. Def.'s Br. filed July 2 7 , 2009, Ex. H at 3. Whether Ridgerunners did speak with Mr. Bending or any other BIA e m p l o ye e during this time period is unclear. On one hand, the IBIA found that these c o n v e rs a tio n s with Mr. Bending apparently took place after 2001. See Yakima R id g e ru n n e rs , 44 I.B.I.A. at 74 n.7. Similarly, in an appeal to the Regional Director dated A p ril 19, 2004, Ridgerunners referred to six conversations with "Rubin [sic] Bending" that s e e m to have occurred no earlier than November 2002. Def.'s Br. filed July 27, 2009, Ex. J at 2. On the other hand, in an appeal to the IBIA dated January 19, 2005, Ridgerunners c la im e d that it contacted Mr. Bending "on many occasions" before 1999. Id., Ex. H at 3. 6 / It is unclear whether the BIA invoiced Ridgerunners for $1,200.00 (improperly) o r $3,230.00 (properly) for the calendar year 2000. Ridgerunners previously has maintained th a t an invoice for calendar year 2000 provided by the BIA to the IBIA, dated on or about N o v e m b e r 1999 and showing an amount due from Ridgerunners of $3,230.00, was a " f a b ric a tio n ." Yakima Ridgerunners, 44 I.B.I.A. at 74 n.4. Yet, in its April 2004 appeal to th e Regional Director, Ridgerunners admitted that "[i]n November 1999, the billing was in th e amount of $3230 [sic]." Def.'s Br. filed July 27, 2009, Ex. J at 2; see also Yakima R id g e ru n n e rs , 44 I.B.I.A. at 74 n.4. Moreover, although Ridgerunners in its April 2004 5

D u rin g late 2000, at about the same time that the BIA conducted and notified R id g e ru n n e rs of the results of a new five-year rent appraisal, the BIA again advised R id g e ru n n e rs of its outstanding rent balance from the Lease's second quarter. On November 3 0 , 2000, a certified letter from the BIA provided Ridgerunners with another ten-day window w ith in which to show cause as to why the Lease should not be cancelled on account of R id g e ru n n e r s ' outstanding balance of cumulative principal and interest: $10,150.00. One d a y later, the BIA informed Ridgerunners that its annual rent again had been reappraised and w o u ld increase from $3,230.00 to $3,320.00 for the Lease's third quarter, effective D e c em b e r 1, 2000. 7/ R id g e ru n n e rs responded to both the show-cause letter and the rent reappraisal. In a D e c e m b e r 9, 2000 letter to the BIA, Ridgerunners argued that, notwithstanding its failure to tim e ly appeal the rent reappraisal for the second quarter, it did not owe the increased rent b e c au s e the BIA consistently had billed Ridgerunners for only $1,200.00. The BIA, which a p p a re n tly did not respond to Ridgerunners' December 2000 correspondence, neither c a n ce lle d the Lease nor attempted, at that time, to collect the $10,500.00 balance. O n January 5, 2001, Ridgerunners appealed the Lease's third-quarter rent reappraisal to the Regional Director. Ridgerunners by this appeal also attempted to appeal--again--the L e a se 's second-quarter rent reappraisal. On April 12, 2001, the Regional Director dismissed R id g e ru n n e rs ' appeal of the Lease's third-quarter rent reappraisal as untimely, as it had not b e e n mailed within thirty days of the date on which Ridgerunners received notice of the B IA 's third-quarter rent reappraisal, i.e., December 1, 2000. In his September 19, 2001 o rde r, the Regional Director declined to consider Ridgerunners' attempt to appeal the Lease's seco n d -qu a rter reappraisal, concluding that the second-quarter reappraisal became final when R id g e ru n n e rs had failed to file a timely appeal.

6/ (Cont'd from page 5.) a p p e al claimed that it had paid $3,230.00 for the November 1999 billing (applicable to the 2 0 0 0 calendar year), Def.'s Br. filed July 27, 2009, Ex. J at 2, the record to date does not e v id e n c e any payment by Ridgerunners for the 2000 calendar year beyond the $1,200.00 that it consistently had paid for the previous years, see Def.'s Br. filed June 11, 2009, Ex. B at 1. 7 / In its April 2004 appeal to the Regional Director, Ridgerunners stated that "[i]n N o v em b er 2002, we were informed the lease payment had been increased by $90 per year, re tro a c tiv e to the year 2000." Def.'s Br. filed July 27, 2009, Ex. J at 2. The record undercuts this statement. Four years earlier, in a December 9, 2000 letter to the BIA, Ridgerunners a f f irm e d that it "received a notice that the payment for 2001 has increased by $90 to $3,320." Id ., Ex. J at 20. 6

O n May 11, 2001, Ridgerunners submitted a timely notice of appeal of the Regional D ire c to r's decision to the IBIA. While Ridgerunners did not dispute that its appeal of the th ird -q u a rte r rent reappraisal was untimely, it once again challenged the second-quarter rent re a p p ra is a l. In the Answer of Regional Director & Request for Expedited Consideration and R e m a n d filed on August 8, 2001, in response to Ridgerunners' appeal, the Regional Director re q u e ste d expedited consideration of Ridgerunners' appeal and asked the IBIA to affirm the d is m is s a l of Ridgerunners' appeal of the third-quarter rent reappraisal. Additionally, the R e g io n a l Director stated that to the extent [Ridgerunners] has raised any issues with respect to the [secondq u a rte r] rental adjustment, or the enforcement actions taken or threatened by th e BIA, [the Regional Director] requests that all those issues be remanded to h i m for potential settlement discussions among the Indian landowners, [ R id g e ru n n e rs ], and the BIA. Y a k i m a Ridgerunners, 44 I.B.I.A. at 75 (internal quotation omitted). Prior to its decision, th e IBIA on August 30, 2001, received a letter from Ridgerunners again disputing the s e c o n d -q u a rte r rent reappraisal. On September 19, 2001, the IBIA affirmed the Regional D irector's dismissal of Ridgerunners' appeal of the third-quarter rent reappraisal, vacated the re m a in d e r of the April 12, 2001 decision that involved the second-quarter rent reappraisal, a n d remanded the issues concerning the earlier rent invoices to the Regional Director for f u r th e r proceedings. T h e IBIA's order prompted both rent payments and settlement negotiations. R i d g eru n n e rs timely paid the reappraised $3,320.00 rent for 2002, 2003, and 2004, re sp e c tiv e ly. Although at the time of the IBIA's decision Ridgerunners had not yet paid its re n t for the 2001 calendar year--due on December 1, 2000, the first date on which the re a p p ra is e d $3,320.00 was due--it subsequently paid the overdue principal and interest for 2 0 0 1 ($5,345.29) in full on May 14, 2004. Meanwhile, the Superintendent, pursuant to in s tru c tio n s from the Regional Director, attempted to facilitate a settlement between the Ind ian landowners, now plaintiffs in this action, and Ridgerunners regarding the Lease's se c o n d -q u a rte r principal and interest remaining in arrears. 8/ The settlement negotiations

8/ In its April 2004 appeal to the Regional Director, Ridgerunners disputed whether n e g o tia tio n s ever occurred. Ridgerunners argued that "[a]t no time since the first signing of this lease in 1970 have there been any negotiations concerning rent increases, nor has there b ee n any negotiation concerning the [BIA's Yakama Nation] Reality [sic] Office's r e tr o a c tiv e increases and interest on them." Def.'s Br. filed July 27, 2009, Ex. J at 2. R id g e ru n n e rs quoted a dictionary definition of "negotiation" as "to confer with another to 7

u ltim a te ly reached an impasse, as the records reflect that one of the Indian landowners c o n ta c te d the BIA on January 30, 2004, requesting the collection of all overdue payments and th e cancellation of the Lease. T h e BIA's subsequent attempts to collect payment, encourage settlement, and cancel th e Lease were unavailing. On February 5, 2004, according to a chronology of Lease events p re p a re d for this litigation by the BIA entitled "Yakama Agency Lease No. 5-1-7865-9110" (th e "lease summary"), Ridgerunners received a letter from the BIA's Yakama Nation Realty O f f i c e (the "Realty Office") demanding payment of the Lease's overdue principal and in te re st and threatening cancellation of the Lease in accordance with the show-cause letter re c eiv e d by Ridgerunners on October 10, 1997. 9/ Def.'s Br. filed July 27, 2009, Exs. I at 3 , J at 21. Ridgerunners promptly responded. By a telephone call to the Realty Office, R id g e ru n n e rs inquired about the status of settlement negotiations, and, in a February 17, 2 0 0 4 letter to the Realty Office, Ridgerunners protested that 1) Ridgerunners had paid the in v o ic e d amount; 2) the Realty Office was responsible for any accrued rent and interest; and 3 ) Ridgerunners was "interested in trying to reach a solution which would be equitable to all p a r tie s ." Id., Ex. I. at 3. In a subsequent March 26, 2004 letter in response to Ridgerunners, th e BIA gave official notice of 1) its cancellation of the Lease, effective immediately in a c c o rd a n c e with the BIA's October 1997 and November 2000 show-cause letters; 2) a sixtyd a y grace period within which Ridgerunners could remove its improvements to the A llo tm e n ts; and 3) Ridgerunners' right, with the posting of a $52,362.02 appeal bond, to a p p e a l the Lease's cancellation to the Regional Director within thirty days. R id g e ru n n e rs' timely appeal, which was received by the Regional Director on April 2 1 , 2004, disputed as unreasonable--and Ridgerunners thus declined to submit--an appeal b o n d . Def.'s Br. filed July 27, 2009, Ex. J at 3 (citing 25 C.F.R. § 2.5 (2003)). As with its earlier protests, Ridgerunners again characterized the Lease's second-quarter rent reappraisal,

8/ (Cont'd from page 7.) a rriv e at the settlement of some matter; to arrange or bring about through conference, d i sc u ss io n and compromise." Id. (internal quotation omitted). Semantics aside, R idg eru n n e rs then declared that "[t]he negotiation by the Reality [sic] Office [of the BIA's Y a k a m a Nation] has been to tell the landowners that Ridgerunners owed them a large sum o f money, and do they want to cancel the lease because of this." Id. Thus, regardless of w h e th e r Ridgerunners approved of the negotiating posture taken by the BIA, it tacitly a c k n o w le d g e d that negotiations had taken place. 9 / During argument defendant clarified that the BIA is responsible for the lease s u m m a ry. Tr. at 22. 8

in c lu d in g the principal and interest thereby due, as unjust and unreasonable. Similarly, R id g e ru n n e rs recounted the BIA's continued billing of $1,200.00 after the reappraisal and th e BIA's failure to negotiate a settlement that would be agreeable to both Ridgerunners and th e Indian landowners, concluding that, "[i]f there is money owed to the landowners due to in a c tio n by the Reality [sic] Office, it is owed by the Reality [sic] Office, as this is their [sic] n e g lig e n c e in not performing lease payment negotiations in a timely manner, and not billing R id g e ru n n e r s for the correct amount." Id., Ex. J at 3. Ridgerunners at the same time d e c la re d its continued interest in a "reasonable solution to this issue," and, although d isav o w ing any liability for accrued interest on overdue rent for the Lease's second quarter, R id g e ru n n e rs offered "to pay one half of the remaining rent shown in arrears on the a ttac h m e n t to the 10 day show cause letter if the Reality [sic] Office will pay the other half p lu s the interest." Id., Ex. J at 4. In conclusion, Ridgerunners requested that the Regional D ire c to r withhold consideration of its appeal for sixty days to allow the parties to continue s e ttle m e n t negotiations. In response to Ridgerunners' appeal, Roger A. Jacob, Sr., Manager of the Yakama N a tio n Trust Real Estate Services, on May 14, 2004, issued a notice--with copies to the N o rth w e st Regional Office and the Superintendent--rescinding the Lease's cancellation and c o n f irm in g a face-to-face settlement meeting scheduled for June 16, 2004. 10/ The June 16, 2 0 0 4 settlement meeting proved unsuccessful, and Ridgerunners and the Indian landowners re m a in e d at loggerheads. In his letter dated June 23, 2004, the Superintendent summarized R id g e ru n n e rs ' and the Indian landowners' respective positions: Ridgerunners insisted "that th e y [sic] paid what they [sic] were billed, and that since they [sic] were not notified in time, th a t the Bureau of Indian Affairs should be liable for the increase," while the Indian land o w n ers requested immediate payment in full and the Lease's cancellation. Def.'s Br. f ile d June 11, 2009, Ex. E at 2-3. The Superintendent concluded that

10/ Mr. Jacob's notice also acknowledged receipt of Ridgerunners' payment of the o v e rd u e principal and interest for the 2001 calendar year, which originally was due on D e c em b e r 1, 2000. Def.'s Br. filed June 11, 2009, Ex. D at 1. Defendant's generalized re f ere n c e to the payment received on May 14, 2004, might imply that this payment was for a c cru e d principal and interest from the Lease's second quarter, see id. at 8, but plaintiffs c la rif y that this payment was "a full payment of the adjusted rent for lease year 2001 (plus in te re st), not a partial payment for any of the outstanding rent for lease years 1996-2000, w h ic h is the subject of [plaintiffs'] action," Pls.' Br. filed July 8, 2009, at 2. The language o f Mr. Jacob's letter--"[w]e received your lease payment for the rental due 12/1/00 . . ."--and the BIA's record of Ridgerunners' payments, see Def.'s Br. filed June 11, 2009, E x . B at 1, validate plaintiffs' clarification of this ambiguity. 9

1 ) with its certified letters of November 1996, October 1997, and November 2 0 0 0 , the BIA had properly notified Ridgerunners of the Lease's secondq u a rte r rent reappraisal; 2) notwithstanding the BIA's November 1996, October 1997, and November 2 0 0 0 letters, the BIA had not timely informed Ridgerunners of the rental in c re a se due on December 1, 1995, and therefore, Ridgerunners was not liable fo r the unpaid principal or interest for the 1996 calendar year; 3 ) Ridgerunners' appeal of the second-quarter reappraisal was untimely; 4) Ridgerunners was liable for the unpaid principal and interest for the 19972 0 0 0 calendar years, a total of $17,007.73 (of which $8,887.73 was interest c a lc u la te d through June 30, 2004); and 5 ) Ridgerunners had thirty days within which to post an appeal bond and ap p ea l the decision to the Regional Director. Id ., Ex. E at 1-4. O n July 23, 2004, Ridgerunners timely appealed the Superintendent's decision to the R e g io n a l Director. Yakima Ridgerunners, 44 I.B.I.A. at 76. On October 8, 2004, the R e g io n a l Director modified, but otherwise affirmed, the Superintendent's decision. The R e g io n a l Director held that the BIA's continued billing of $1,200.00 after the November 1 9 9 6 notice did not absolve Ridgerunners of its responsibility to pay the $3,230.00 amount a s to which it had been properly notified. The Regional Director then directed the S u p e r i n t e n d e n t to invoice Ridgerunners for the Lease's unpaid principal and interest; the S u p e rin te n d e n t, in turn, issued a payment demand on October 27, 2004, in the amount of $ 2 2 ,7 7 3 .8 5 , representing the accrued principal and interest for the Lease's entire second q u arter (including the unpaid principal and interest from the 1996 rental period). R id g e ru n n e rs was given fifteen days within which to satisfy the debt. O n November 5, 2004, Ridgerunners timely appealed the Regional Director's October 8 , 2004 decision to the IBIA. After Ridgerunners' opening brief professed a willingness to m e d ia te the dispute, the IBIA on January 31, 2005, removed the appeal from its active docket a n d ordered Ridgerunners and the Indian landowners to participate in an assessment c o n f ere n c e to evaluate the likely success of additional alternative dispute resolution (" A D R " ). However, on October 24, 2005, the Department of the Interior's Office of C o lla b o ra tiv e Action and Dispute Resolution informed the IBIA that ADR would not be su cc essf u l. On January 11, 2007, after returning the appeal to its active docket, the IBIA 10

s lig h tly modified, but otherwise affirmed, the Regional Director's decision, holding R idg eru n n e rs liable for all accrued principal and interest from the Lease's second quarter, le ss the interest levied on the principal due for the 1996 calendar year. 11/ According to the I B I A , Ridgerunners fruitlessly challenged the Lease's second-quarter rent reappraisal and th e BIA's subsequent collection efforts: T h e bottom line is this: In return for having a 20-year lease with a fixed a n n u a l rent for a minimum of five years, [Ridgerunners] agreed that its rent c o u ld be adjusted periodically at increments of not less than five years. . . . T her efo re, when [Ridgerunners] received notice that its rent had been adjusted, i t could not claim surprise--it knew it was subject to a rent increase and it a g re e d to have its rent adjusted. T h e decision to adjust [Ridgerunners'] rent became final and effective a t the end of the 30-day appeal period when [Ridgerunners] did not file an a p p e a l in this timeframe [sic]. Therefore, for the second quarter of [ R id g e ru n n e rs '] lease, the annual rental amount due then became $3,230. T h u s , there is nothing in the above "process" that merits vacating the Regional D ire c to r's decision that [Ridgerunners] is liable for $10,150 in unpaid rent for c a le n d a r years 1996-2000. Id . at 81-82. T h e BIA's collection efforts subsequent to the IBIA's January 11, 2007 decision rem aine d unsuccessful. On January 26, 2007, the BIA billed Ridgerunners for the Lease's u n p a id principal ($10,150.00) and interest ($12,587.80). Ridgerunners did not pay, and on F e b ru a ry 9, 2007, Ridgerunners received a BIA demand providing ten days within which to s a tis f y the accrued debt ($22,737.80) and to show cause why the Lease should not be

11/ The IBIA found the following: Although the annual rent for 1996 was due on December 1, 1995, nothing in th e record shows that [Ridgerunners] was informed of the rent adjustment p rio r to November 26, 1996. [Ridgerunners] cannot be expected to remit p a ym e n t until it has been informed of the amount due. Therefore, we conclude th a t it is not reasonable to impose interest prior to the time the new adjustment w a s communicated to [Ridgerunners] and became due and payable. Yakima Ridgerunners, 44 I.B.I.A. at 82. 11

c a n ce lle d . Ridgerunners again did not pay, and on March 13, 2007, Ridgerunners received th e BIA's notice of the Lease's impending cancellation and a thirty-day window within w h ic h to appeal the cancellation, with bond, to the Regional Director. Ridgerunners neither p a id the accrued debt nor appealed, and the Lease's cancellation became effective on A p ril 12, 2007. 12/ On April 30, 2007, the BIA again invoiced Ridgerunners for the o u tsta n d in g debt ($22,752.80); again, Ridgerunners did not pay. Later, in separate c o rre sp o n d e n c e to Ridgerunners dated May 18, 2007; October 5, 2007; and January 18, 2008, re sp e c tiv e ly, the BIA restated Ridgerunners' liability ($22,752.80 as of April 3, 2007, plus in te re st) and affirmed the Government's commitment to collect payment. 13/ W h ile the BIA sparred with Ridgerunners concerning the Allotments' improvements a n d the accrued second-quarter rent, the lessors (now plaintiffs) initiated their own collection e f f o rts . On July 9, 2007, plaintiffs' attorney served a letter on the Secretary of the Interior th ro u g h the Office of the Regional Solicitor, Department of the Interior, demanding c o m p e n sa tio n in the amount of $50,426.41 for breach of trust and fiduciary duties allegedly a ri s in g from defendant's failure to collect the Lease's accrued rent. The Secretary did not re sp o n d . However, plaintiffs allege that the Secretary, acting through the Superintendent in M a r c h 2008, attempted to convince the Yakama Nation to file a legal action against R id g e ru n n e rs in Yakama Tribal Court in order to recover the outstanding rent balance. A c c o rd in g to plaintiffs, the Yakama Nation declined to take such action, citing lack of a u th o rity and/or personal jurisdiction. 14/ On September 3, 2008, the Yakama Nation served

12/ Plaintiffs' complaint filed March 11, 2009, alleges that "[o]n April 12, 2007, d e f en d a n t, acting through the Acting Superintendent [of the BIA], finally cancelled the le a se ." Compl. ¶ 37. Defendant's motion explains that the cancellation--which was noticed in the correspondence received by Ridgerunners on March 13, 2007--became effective on A p ril 12, 2007. Def.'s Br. filed June 11, 2009, at 9 n.4. 13/ The primary purpose of the May 18, 2007 correspondence was to advise R id g e ru n n e rs of its obligation to remove its improvements to the Allotments. On June 15, 2 0 0 7 , in response to Ridgerunners' suggestion that the Indian landowners desired to retain th e improvements, the BIA granted a sixty-day extension to Ridgerunners for the im p ro v e m e n ts ' removal. See Def.'s Br. filed June 11, 2009, Ex. F at 27, 29. After the Indian la n d o w n e rs agreed that the improvements should be removed, the BIA issued its October 5, 2 0 0 7 demand for the removal and restated the amount of Ridgerunners' liability for the a c cru e d rent. See id., Ex. F at 30-31. 1 4 / Defendant has asserted that as of June 11, 2009, plaintiffs had "not brought, nor a tte m p te d to bring, any enforcement actions against the lessee." Def.'s Br. filed June 11, 2 0 0 9 , at 10. 12

a letter on the Secretary through the Regional Director demanding compensation in the a m o u n t of $60,395.70 for breach of trust and fiduciary duties allegedly arising from d e f en d a n t's failure to collect the Lease's accrued rent. The Secretary did not respond. A lth o u g h the Secretary did not respond to plaintiffs' September 3, 2008 demand, the B IA recently had taken action on Ridgerunners' accrued debt. On August 8, 2008, the BIA re f erre d Ridgerunners' debt to the National Business Center (the "NBC"), the Department o f the Interior's internal office responsible for referring debt-collection efforts to the D e p a rtm e n t of the Treasury ("Treasury"). Stanley Chan, an Accounting Technician for the B illin g and Collection Office of the NBC, has submitted a declaration stating that the NBC h a s prepared Ridgerunners' file for transfer to Treasury, but is unable to make the transfer b e c au s e the Yakama Nation's employees, acting under an Indian Self-Determination Act c o n tra c t, 25 U.S.C. § 638 (2006), must provide additional information for the file. D e c la ra tio n of Stanley Chan, June 10, 2009, Def.'s Br. filed June 11, 2009, Ex. G. A c c o rd in g to Mr. Chan, on May 26, 2009, he received an e-mail from the Yakama Nation a c k n o w le d g in g the required additional information--and assuring that the Yakama Nation w o u ld provide this information in a timely manner--but he had received no follow-up c o rre s p o n d e n c e from the Yakama Nation. Mr. Chan further states that he will transfer R id g e ru n n e rs' file to Treasury as soon as the Yakama Nation completes its required data s u b m is s io n . The Yakama Nation evidently provided the required information to the NBC a f te r the conclusion of the litigants' briefing, as defendant informed the court at oral a rg u m e n t that Ridgerunners' debt has been transferred to Treasury. Transcript of P r o c e ed in g s , Confederated Tribes & Bands of the Yakama Nation v. United States, No. 091 6 0 L , at 4 (Fed. Cl. Sept. 14, 2009) ("Tr."). Plaintiffs filed their complaint on March 11, 2009. Plaintiffs claim that the S e c re tar y's acts and omissions have breached the Government's fiduciary and trust duties to e n f o rc e the Lease and collect the Lease's accrued second-quarter rent on plaintiffs' behalf p u rs u a n t to 25 U.S.C. §§ 380, 415(a), as well as the regulations implementing the Indian L o n g -T e rm Leasing Act found at 25 C.F.R. pt. 162. Plaintiffs allege that the Government b re a c h e d its fiduciary duty owed to plaintiffs by each of the following failures to act: 1 ) Ridgerunners failed to pay the Lease's accrued rent after receiving the B IA 's show-cause letter on October 10, 1997; nevertheless, the BIA failed to c a n c e l the Lease and failed to refer the Lease's outstanding balance to T r e a s u r y "for collection as a federal debt within 180 days as required by the D e b t Collection Improvement Act of 1996, 31 U.S.C. § 3711(g)(1)(A)." C o m p l. ¶ 14.

13

2 ) In 1997, 1998, and 1999, Ridgerunners paid only $1,200.00 for rent, failing to pay the full $3,230.00 due to the BIA for the corresponding upcoming rental p e rio d s ; nevertheless, the BIA failed to cancel the Lease and failed to refer the L e a se 's outstanding balance to Treasury for collection "within 180 days as re q u ire d by statute." Id. ¶¶ 15-17. 3 ) After its show-cause letter on November 30, 2000, the BIA failed to cancel th e Lease or refer the rent's outstanding balance to Treasury for collection. Id. ¶ 18. Plaintiffs cite the revised leasing regulations promulgated in 2001 under 2 5 C.F.R. pt. 162, according to which the BIA "`will ensure that tenants meet th e ir payment obligations to Indian landowners, through the collection of rent o n behalf of the landowners and the prompt initiation of appropriate collection an d enforcement actions.'" Id. ¶ 20 (quoting 25 C.F.R. § 162.108(a)). Im p o rta n tly, the complaint also suggests that the Secretary allowed the statute of limitations f o r judicial enforcement to expire, thus barring the BIA's ability to collect the Lease's unpaid b a la n c e through a judicial action for money damages. The applicable statute of limitations provides: [ E ] v ery action for money damages brought by the United States or an officer o r agency thereof which is founded upon any contract express or implied in la w or fact, shall be barred unless the complaint is filed within six years after th e right of action accrues or within one year after final decisions have been re n d e re d in applicable administrative proceedings required by contract or by la w , whichever is later: Provided, That in the event of later partial payment o r written acknowledgment of debt, the right of action shall be deemed to a c c ru e again at the time of each such payment or acknowledgment: Provided fu r th e r, That an action for money damages brought by the United States for or o n behalf of a recognized tribe, band or group of American Indians shall not b e barred unless the complaint is filed more than six years and ninety days a f te r the right of action accrued. 2 8 U.S.C. § 2415(a) (2006). P la in tif f s chart the following chronology to demonstrate that § 2415(a) bars the S e c re tar y's judicial enforcement of the Lease's accrued debt: 1 ) On or about March 27, 2003, a period of approximately six years and ninety d a ys lapsed since the $4,060.00 balance for 1996 and 1997 had accrued. C o m p l. ¶ 25. 14

2 ) On or about March 1, 2004, a period of approximately six years and ninety d a ys lapsed since the $2,030.00 balance for 1998 had accrued. Id. ¶ 26. 3) On or about March 1, 2005, a period of approximately six years and ninety d a ys lapsed since the $2,030.00 balance for 1999 had accrued. Id. ¶ 34. 4 ) On or about March 1, 2006, a period of approximately six years and ninety d a ys lapsed since the $2,030.00 balance for 2000 had accrued. Id. ¶ 35. 5 ) On or about January 11, 2008, a period of one year lapsed since the IBIA's f in a l decision dated January 11, 2007. Id. ¶ 40. D e f e n d a n t's motion challenges the court's subject matter jurisdiction to consider p lain tiff s' claim. Defendant argues that two sets of regulations under the Indian Long-Term L e a sin g Act apply to plaintiffs' claim and furnishes, in relevant part, excerpts from the pre2 0 0 1 and post-2001 enactments of 25 C.F.R. pt. 162. Defendant argues that plaintiffs' claim is not yet ripe because the Government continues to explore available judicial and nonju d icia l debt-collection mechanisms. Def.'s Br. filed June 11, 2009, at 1 ("Plaintiffs' suit is n o t yet ripe because it is premised upon `contingent future events that may not occur as a n tic ip a te d , or indeed may not occur at all.'" (quoting Texas v. United States, 523 U.S. 296, 3 0 0 (1998))). Defendant also disputes plaintiff's application of § 2415(a), contending that R id g e ru n n e rs ' "numerous acknowledgments and partial payments of the debt" re-started the s ta tu te of limitations for judicial action. 15/ Id. at 13 n.6; see also Def.'s Br. filed July 27,

15/ Defendant offers three examples of Ridgerunners' "numerous" acknowledgments a n d partial payments: 1) Ridgerunners' January 19, 2005 correspondence stating that "R idg eru n n ers is willing to pay one half of the principal amount from 1997 to 2000"; 2) a lea se summary entry dated February 17, 2004, providing that "[Ridgerunners] stated [that it] w o u ld pay the rent and interest [for 1999] . . . [Ridgerunners] feels that Yakima Agency R e a lity (sic) should be responsible for any back rent or interest; and . . . Ridgerunners is still in te re ste d in trying to reach a resolution which would be equitable to all parties"; and 3) R id g e ru n n e rs ' April 21, 2004 correspondence requesting negotiation with the Indian land o w n ers. Def.'s Br. filed July 27, 2009, at 5-6 (citing Midstates Res. Corp. v. Farmers A e ria l Spraying Serv., Inc., 914 F. Supp. 1424, 1426-27 (N.D. Tex. 1996), for proposition th a t requests to negotiate outstanding debt that do not express concomitant unwillingness to p a y such debt are considered "written acknowledgment" sufficient to restart limitations p e rio d ) (internal quotations omitted).

15

2 0 0 9 , at 5 (citing 28 U.S.C. § 2415(a) ("That in the event of later partial payment or written a c k n o w le d g m e n t of debt, the right of action shall be deemed to accrue again at the time of ea ch such payment or acknowledgment . . . .")). H a v in g discounted plaintiffs' invocation of the statute of limitations, defendant next m a in ta in s that the Debt Collection Act, as amended by the Debt Collection Improvement Act o f 1996, 31 U.S.C. §§ 3701-3720E (2006), and regulations promulgated thereunder, 31 C . F . R . pt. 900 (2009), anticipate the Secretary's continued and as-yet uninitiated debtc o llec tio n efforts. 16/ Defendant insists that the BIA--the executive agency charged with th e initial prosecution of the Lease's debt-collection efforts under 31 U.S.C. § 3 7 1 1 (a )(1 )-- o n ly recently and unsuccessfully has concluded its attempts to collect R id g e ru n n e rs' debt and that the BIA properly and timely has prompted the debt's transfer to T re a su ry. Treasury can refer the debt to the Department of Justice for litigation or initiate a n y of the "numerous non-judicial, administrative options available for continuing e n f o rc e m e n t" prescribed by the Debt Collection Improvement Act. 17/ Def.'s Br. filed June

15/ (Cont'd from page 15.) D e f en d a n t is mistaken in its interpretation of the lease summary entry for February 17, 2 0 0 4 . In full, the relevant section of the summary provides that "[i]f proof of payment c a n n o t be found for the rental due December 1, 2000, [Ridgerunners] stated [that it] would p a y the rent and interest." Id., Ex. I at 3 (emphasis added). Ridgerunners' rental payment d u e on December 1, 2000, was for the 2001 calendar year, a rental period falling within the L e a s e 's third, not second, quarter. On May 14, 2004, the BIA received Ridgerunners' $ 5 ,3 4 5 .2 9 payment for the 2001 calendar year, which included the $3,320.00 originally due o n December 1, 2000, plus interest. See Def.'s Br. filed June 11, 2009, Ex. B at 1. The q u o ted language from the lease summary entry dated February 17, 2004, does not constitute R id g e ru n n e rs ' acknowledgment that it would pay the accrued rent and interest from the relev an t period of plaintiffs' claim: the Lease's second quarter. 1 6 / Defendant correctly notes that 31 C.F.R. pt. 900 does not create private causes o f action. Def.'s Br. filed June 11, 2009, at 5 n.2 (citing 31 C.F.R. § 900.8 ("The standards in this chapter do not create any right or benefit, substantive or procedural, enforceable at law o r in equity by a party against the United States, its agencies, its officers, or any other person, n o r shall the failure of an agency to comply with any of the provisions of parts 900-904 of this chapter be available to any debtor as a defense.")). 1 7 / According to defendant, Treasury's arsenal of non-judicial and administrative d e b t-c o llec tio n tools includes "administrative offset, tax refund offset, Federal salary offset, re f erra l to private collection contractors, referral to agencies operating a debt collection 16

1 1 , 2009, at 13-14. Thus, defendant urges that ripeness has not been achieved because the S e c re ta ry's prospective judicial and administrative debt-collection actions may result in the f u ll recovery of Ridgerunners' accrued debt or, at a minimum, change the operative facts of th e case. P la in tif f s respond that any administrative debt-collection mechanism will be futile and u n a b le to ensure the collection of Ridgerunners' debt; therefore, the alleged expiration of the statu te of limitations for the judicial enforcement option has established the Government's b re a ch of trust and fiduciary duties. Plaintiffs re-assert the BIA's duties under the post-2001 v e rsio n of 25 C.F.R. pt. 162--to "ensure that tenants meet their payment obligations to In d ian landowners, through the collection of rent . . . and the prompt initiation of appropriate c o lle c tio n and enforcement actions," 25 C.F.R. § 162.108(a). Pls.' Br. filed July 8, 2009, at 3. Plaintiffs elaborate that, "assuming that the government does not succeed a d m in istra tiv e ly, the only way that defendant can `ensure' that Ridgerunners will `meet its p a ym e n t obligations' is to seek a judicial remedy before the applicable statute of limitations h a s expired." Id. at 4. Noting that the Government's claims against Ridgerunners accrued e a c h time Ridgerunners failed to pay according to its Lease obligations and that the statute o f limitations expired for each claim in the chronological order described in the complaint, 1 8 / plaintiffs emphasize that "[t]he crucial event for plaintiffs' claim was the government's

17/ (Cont'd from page 16.) c e n te r, reporting delinquencies to credit reporting bureaus, and garnishing the wages of d e lin q u e n t debtors." Def.'s Br. filed June 11, 2009, at 13-14 (citing 31 U.S.C. §§ 3716, 3 7 2 0 A , 3720B, 3720D, 3720E; 31 C.F.R. pt. 900). 1 8 / Setting aside how 28 U.S.C. § 2415(a) might apply following the January 11, 2 0 0 7 IBIA decision, plaintiffs slightly modify the complaint's chronological application of § 2415(a). The complaint calculated--and applied to each of the Secretary's claims for R id g e ru n n e rs ' unpaid rent--either a March 27 or a March 1 expiration of the six-year and n in e ty-d a y limitations period, as provided by § 2415(a). Compl. ¶¶ 25-26, 34-35. Thus, the co m p lain t's application of § 2415(a) for the March 27, 2003 expiration began with the BIA's N o v e m b e r 26, 1996, notice to Ridgerunners of the rent's reappraisal; for the subsequent M a rc h 1 expirations in 2004-2006, the limitations period began with Ridgerunners' annual p a ym e n t deadline of December 1. In contrast, plaintiffs now assert that, because rent notices w e re sent on or before December 1 of each year, Ridgerunners' lease payments were not due a n d payable until January 1, thereby accruing plaintiffs' claims approximately one month late r and causing the six-year and ninety-day statute of limitations to expire on or about April 1 , 2003, for the 1996-1997 lease years; April 1, 2004, for the 1998 lease year; April 1, 2004, f o r the 1999 lease year; and April 1, 2005, for the 2000 lease year. Pls.' Br. filed July 8, 2 0 0 9 , at 5. 17

f a ilu re to follow up [sic] on the [January 11,] 2007 IBIA decision with a diligent pursuit of th e delinquent rent within one year [by January 11, 2008]." Id. at 8. According to plaintiffs, th e Secretary neglected to refer Ridgerunners' debt to Treasury for collection within 180 d a ys, as required by 31 U.S.C. § 3711(g)(1)(A). Id. at 6. Consequently, the Government did n o t initiate judicial enforcement within the stipulated "one year after final decisions have b e e n rendered in applicable administrative proceedings." 28 U.S.C. § 2415(a). Id. at 4-8. P la in tif f s contend that regardless of the Secretary's administrative attempts to collect R id g e ru n n e rs ' debt, expiration of § 2415(a)'s statute of limitations on January 11, 2008, f ix e d the Government's liability for breach of trust and fiduciary duties, thereby accruing p la in tif f s' claim under the Court of Federal Claims' statute of limitations, 28 U.S.C. § 2501 (2 0 0 6 ), and making it ripe for adjudication. See id. at 9 ("A claim for damages against the U n ited States first accrues `when all the events have occurred which fix the alleged liability o f the defendant and entitle the plaintiff to institute an action' and the plaintiff `was or should h a v e been aware of their existence.'" (quoting Hopland Band of Pomo Indians v. United S tates, 855 F.2d 1573, 1577 (Fed. Cir. 1988))). D e f en d a n t counters that plaintiffs "inappropriately dismiss and disregard the n o n jud icial . . . mechanisms [available to the Government] for debt collection." Def.'s Br. f iled July 27, 2009, at 2; see also supra note 17. According to defendant, plaintiffs' claim is not ripe because the Secretary's administrative options are hardly futile and may result in th e collection of Ridgerunners' debt. Further, because of Ridgerunners' acknowledgments o f and requests to negotiate its debt, the statute of limitations has not expired on the G o v e rn m e n t's potential judicial enforcement. See supra note 15. Recognizing that p la in tif f s' claim stems from the collection of debt accrued between 1996 and 2000, defendant c ritic iz e s plaintiffs' reliance on 25 C.F.R. § 162.108 and other leasing regulations that b e c am e effective in 2001. Similarly, defendant argues that plaintiffs misread the Debt C o lle c tio n Improvement Act and its enacting regulations. Pursuant thereto, debt-collection e f f o rts must be transferred to Treasury after a 180-day delinquency, not within 180 days (as asse rted by plaintiffs). Def.'s Br. filed July 27, 2009, at 6 n.3 (citing 31 C.F.R. § 901.1(c)). F in a lly, defendant concludes by suggesting that if, as plaintiffs assert, their claim accrued

18/ (Cont'd from page 17.) If there is any merit to either application of § 2415(a), the correct application likely is that in the complaint. The Lease provides that Ridgerunners' rent was due on or before D e c e m b e r 1, not January 1, and Ridgerunners' history of rental payments tacitly a c k n o w led g e s as much, as well. Compare Def.'s Br. filed June 11, 2009, Ex. A at 1 (p ro v id in g Lease's terms), with id., Ex. B at 1 (showing that BIA received almost all annual p aym en ts before December 1). 18

u n d e r 28 U.S.C. § 2501 when plaintiffs knew or should have known of its existence, " [ p ]la in tiff s' claim are [sic] for outstanding rent due from 1996-2000[;] Plaintiffs were well aw are of the breach and is [sic] more than six years [as established by § 2501] before P la in tif f s filed this action." Id. at 7. D IS C U S S IO N D e f e n d a n t challenges this court's subject matter jurisdiction on two grounds. First, d e f en d a n t insists that plaintiffs' claim is not ripe for review. Second, defendant's reply brief s u g g e sts that plaintiffs' claim is barred by 28 U.S.C. § 2501. I . Standard of review and jurisdictional challenge relating to ripeness T h e ripeness doctrine is based on the "case or controversy" requirement of Article III o f the Constitution, Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 138 (1974), which is a necessary predicate to a federal court's subject matter jurisdiction over a plaintiff's claim, see Caraco Pharm. Labs., Ltd. v. Forest Labs., Inc., 527 F.3d 1278, 1290 (Fed. Cir. 2008). J u ris d ic tio n must be established before the court may proceed to the merits of a case. S tee l Co. v. Citizens for a Better Env't, 523 U.S. 83, 88-89 (1998). Courts are presumed to la c k subject matter jurisdiction unless it is affirmatively indicated by the record; therefore, it is a plaintiff's responsibility to allege facts sufficient to establish the court's subject matter ju ris d ic tio n . Renne v. Geary, 501 U.S. 312, 316 (1991). Once the court's subject matter ju risd ictio n is put into question, it is "incumbent upon [the plaintiff] to come forward with e v id e n c e establishing the court's jurisdiction . . . . [The plaintiff] bears the burden of e sta b lis h in g subject matter jurisdiction by a preponderance of the evidence." Reynolds, 846 F .2 d at 748; see also McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936) (" If [plaintiff's] allegations of jurisdictional facts are challenged by his adversary in any a p p ro p ria te manner, [plaintiff] must support them by competent proof."). When confronted with a motion to dismiss filed pursuant to RCFC 12(b)(1) and rev iew ing the sufficiency of a complaint for lack of subject matter jurisdiction, the court's tas k "is necessarily a limited one," whereby "[t]he issue is not whether a plaintiff will u ltim a te ly prevail but whether the claimant is entitled to offer evidence to support the c la im s ." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by H a rlo w v. Fitzgerald, 457 U.S. 800 (1982). When the movant challenges merely the facial s u f f ic ie n c y of the pleadings, the court will accept as true a plaintiff's undisputed allegations o f fact, see id., and indulge all reasonable inferences in favor of the non-movant, Henke v. U n ite d States, 60 F.3d 795, 797 (Fed. Cir. 1995). Nevertheless, when the RCFC 12(b)(1) m o tio n controverts the plaintiff's jurisdictional allegations and challenges the factual basis 19

o f the court's jurisdiction, the plaintiff must demonstrate facts sufficient to support ju ris d ic tio n . Cedars-Sinai Med. Ctr., 11 F.3d at 1583-84. In assessing a plaintiff's proof, the co u rt will not be limited to the allegations of the complaint, but instead "may consider [other] re le v a n t evidence in order to resolve the factual dispute." Reynolds, 846 F.2d at 747; see a ls o Moyer, 190 F.3d at 1318. As a sovereign, "the United States may be sued only to the extent that it has consented to suit by statute, and the terms of that consent define the jurisdiction of the court to hear th o s e suits." Shore v. United States, 9 F.3d 1524, 1525 (Fed. Cir. 1993) (citing United States v . Testan, 424 U.S. 392, 399 (1976)). Plaintiffs' complaint generally alleges subject matter ju ris d ic tio n under 1) the Tucker Act, 28 U.S.C. § 1491(a)(1) (2006); and 2) 28 U.S.C. § 1505 (2 0 0 6 ), which prescribes the court's jurisdiction over claims against the United States by or o n behalf of American Indians. The Tucker Act "confers jurisdiction upon the Court of F e d e ra l Claims over the specified categories of actions brought against the United States, and . . . waives the Government's sovereign immunity for those actions." 28 U.S.C. § 1491(a)(1); F ish e r v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc); see also Emery W o rld w id e Airlines, Inc. v. United States, 49 Fed. Cl. 211, 220 (2001), aff'd, 264 F.3d 1071 (F e d . Cir. 2001). The Tucker Act grants jurisdiction over "any claim against the United S ta te s founded either upon the Constitution, or any Act of Congress or any regulation of an e x e cu tiv e department, or upon any express or implied contract with the United States, or for liq u idated or unliquidated damages in cases not sounding in tort." § 1491(a)(1). A d d itio n a lly, § 1505 further establishes the Court of Federal Claims' jurisdiction, allowing th e court to hear any claim against the United States in favor of any tribe, band, or other identifiable group of American Indians re sid in g within the territorial limits of the United States or Alaska whenever s u c h claim is one arising under the Constitution, laws or treaties of the United S tate s, or Executive orders of the President, or is one which otherwise would n o t be cognizable in the Court of Federal Claims if the claimant were not an In d ia n tribe, band or group. 2 8 U.S.C. § 1505. II. Whether plaintiffs' claim is ripe A s a constitutional doctrine, ripeness ensures the existence of a justiciable case or c o n tro v e rs y by forcing federal courts to withhold consideration of premature adjudication. S e e Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967). The critical question is, u ltim a te ly, whether a case involves "contingent future events that may not occur as

20

a n tic ip a te d , or indeed may not occur at all." Texas v. United States, 523 U.S. 296, 300 (1 9 9 8 ) (internal quotation omitted); Cedars-Sinai Med. Ctr., 11 F.3d at 1583. A ripeness dispute requires the application of a two-part test by which a court must e v a lu a te 1) the fitness of the issues for judicial decision; and 2) the hardship to the parties of w ith h o ld in g court consideration. Caraco Pharm. Labs., 527 F.3d at 1294-95 (citing Abbott L a b s., 387 U.S. at 149). As to the former, "an action is fit for judicial review where further f a ctu a l development would not `significantly advance [a court's] ability to deal with the legal is s u e s presented.'" Id. at 1295 (quoting Nat'l Park Hospitality Ass'n v. Dep't of Interior, 538 U .S . 803, 812 (2003)). The latter anticipates an assessment of whether "withholding court c o n sid e ra tio n of an action causes hardship to the plaintiff where the complained-of conduct h a s an `immediate and substantial impact' on the plaintiff." Id. (quoting Gardner v. Toilet G o o d s Ass'n, 387 U.S. 167, 171 (1967)). A sufficient risk of immediate hardship may w a rra n t prompt adjudication. Cedars-Sinai Med. Ctr., 11 F.3d at 1580-81. Both prongs of th e two-part test must be satisfied for a claim to be found ripe. Id. at 1581. 1 . The fitness of the issues for judicial review D e f en d a n t's central premise--that the suit is not ripe because "many avenues of re c o u rs e [exist] by which the government can collect [the debt]," thus altering the operative f a cts of the case, Def.'s Br. filed June 11, 2009, at 14--implicates the fitness of the issues fo r judicial resolution. An evaluation of this fitness requires an assessment of the BIA's a d m in is tra tiv e and remedial activities corresponding to Ridgerunners' debt vis-à-vis the B IA 's express legal responsibilities pursuant to the Indian Long-Term Leasing Act, which the litigants agreed at argument would establish the relevant scope of any trust and fiduciary d u tie s . Tr. at 35, 49. Although plaintiffs' claim is not predicated on the Debt Collection Im p ro v e m e n t Act, it is discussed to illuminate the relevant framework for the collection of d e b ts arising under Indian leases--indicating what the BIA could have done to collect R id g e ru n n e rs ' debt and at what periods--and to substantiate the BIA's relative inactivity. P la in tif f s have shown a record of dilatory BIA behavior culminating in the expiration of the s ta tu te of limitations on one debt-collection tool contemplated by the Debt Collection Im p ro v e m e n t Act: litigation initiated by the Department of Justice. This expiration and the B IA 's debt-collection activity leading thereto implicate the BIA's trust and fiduciary duties a ss e rte d under the Indian Long-Term Leasing Act, rendering plaintiffs' claim fit for judicial re v ie w . 1 ) The Indian Long-Term Leasing Act T h e Indian Long-Term Leasing Act and its implementing regulations provide the legal f ra m e w o r k for the administration and review of leases of Indian lands by the BIA, the 21

R e g io n a l Director, and the IBIA. As an initial matter, the court agrees with defendant that th e pre-2001 enactment of 25 C.F.R. pt. 162 (1999), not the post-2001 regulations cited by p lain tiff s, applied to the day-to-day administration of the Lease from 1996-2000, the Lease's s e c o n d quarter. According to the pre-2001 regulations, owners of Indian lands held in trust o r restricted status could lease these lands with the approval of the Secretary of the Interior, 2 5 C.F.R. § 162.5(a) (1999), 19/ and, "[w]hile the leased premises [were] in trust or restricted sta tu s, all of the lessee's obligations under [the] lease . . . [were] to the United States as well a s to the owner of the land," id. § 162.5(g)(1) (1999). Upon a satisfactory showing that a le a se of Indian lands had been violated, "the lessee [was to] be served with written notice s e ttin g forth in detail the nature of the alleged violation and allowing him ten days from the d a te of receipt of notice in which to show cause why the lease should not be cancelled." Id. § 162.14 (1999). Thereafter, "[i]f within the ten-day period[] it [was] determined that the b r e a c h may be corrected and the lessee agree[d] to take the necessary corrective measures, h e [was to] be given an opportunity to carry out such measures and . . . a reasonable time w ith in which to take corrective action." Id. On the other hand, "[i]f the lessee fail[ed] within s u c h reasonable time to correct the breach or to furnish satisfactory reasons why the lease s h o u ld not be cancelled, the lessee [was to] forthwith be notified in writing of the c a n c e lla tio n . . . and demands [were to] be made for payment of all obligations." Id. Lease c a n c e llatio n s were appealable, and notices of cancellation were to "inform the lessee of his rig h t to appeal pursuant to part 2 of this chapter." Id. P la in tif f s ' cited regulations became applicable only after the amendment of 25 C.F.R. p t. 162. See Trust Management Reform: Leasing/Permitting, Grazing, Probate and Funds H e ld in Trust, 66 Fed. Reg. 7,068-01 (Jan. 22, 2001) (to be codified at 25 C.F.R. pts. 15, 1141 5 , 162, 166). Effective March 23, 2001, the superseding Indian Long-Term Leasing Act re g u latio n s now obligate the BIA to "ensure that tenants meet their payment obligations to In d ia n landowners, through the collection of rent on behalf of the landowners and the prompt initiation of appropriate collection and enforcement actions." 20/ 25 C.F.R. § 162.108(a). In the event of a lease violation by a tenant, the regulations stipulate that the BIA will send th e tenant and its sureties a notice of violation providing ten days within which to cure the v io la tio n , dispute the violation, or request additional time within which to cure the violation. Id . § 162.618. If violations are not cured within the requisite time period, the BIA will c o n su lt with the Indian lessors to determine the appropriate recourse, which may include

19/ Under these regulations the authority to approve and subsequently to administer In d ia n leases is delegated from the Secretary of the Interior to the BIA. See supra note 1. 2 0 / Without conceding the applicability of the post-2001 regulations, at oral argument defendant emphasized the discretionary nature of § 162.108(a)'s prescription for "appropriate co llec tio n and enforcement actions." Tr. at 55-56 (citing § 162.108(a)). 22

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