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

Filing 48

REPORTED OPINION AND ORDER granting in part and denying in part 41 Renewed Motion to Dismiss. Joint Status Report due by 7/3/2024. Signed by Judge Ryan T. Holte. (nd) Service on parties made.

In the United States Court of Federal Claims
No. 21-1527
(Filed: 3 June 2024)

***************************************
CONFEDERATED TRIBES AND BANDS *
OF THE YAKAMA NATION, et al.,
*
*
Plaintiffs,
*
*
v.
*
*
THE UNITED STATES,
*
*
Defendant.
*
*
***************************************
Ethan Jones, Attorney, with whom was Marcus Shirzad, Of Counsel, Yakama Nation
Office of Legal Counsel, of Toppenish, WA, with whom were Josh Newton, Partner, and Sarah
R. Monkton, Of Counsel, Best Best & Krieger LLP, of Bend, Oregon, for plaintiffs.
Peter Kryn Dykema, Senior Trial Attorney, Environment and Natural Resources
Division, Natural Resources Section, with whom was Todd Kim, Assistant Attorney General, all
of Washington, DC, for the government.
OPINION AND ORDER
HOLTE, Judge.
In 2015, the Cougar Creek Fire spread to the Yakama Forest on the Yakama Reservation
in Washington State. The forest, held in trust by the United States for the Yakama Tribe,
suffered alleged damages in excess of $10 million. Confederated Tribes and Bands of the
Yakama Nation and co-plaintiff Yakama Forest Products contend the government breached its
duties to maintain the forest under the National Indian Forest Resources Management Act and
various other statutes and regulations, which resulted in the alleged damages. In the alternative,
plaintiffs argue the government’s failure to devote resources to wildfire suppression resulted in a
compensable taking of the Tribe’s land. This is the second case the Tribe has pending with the
Court alleging the government’s breach of trust with respect to the Yakama Forest. In 2019,
plaintiffs brought their first case, Yakama I, alleging the government breached its duties to
maintain a sustained yield of timber pursuant to both an 1855 treaty with the Tribe and the same
statutory and regulatory scheme purported to establish a duty here. Confederated Tribes &
Bands of the Yakama Nation v. United States (Yakama I), 153 Fed. Cl. 676 (2021). There, the
Court denied the motion to dismiss, finding the statutes, regulations, and treaties imposed
money-mandating duties sufficient to maintain jurisdiction under the Tucker Act. In the instant
case, the government moves to dismiss, alleging the Tribe was required to bring this suit at the

same time as Yakama I and contending the alleged breach of duties do not fall within the statute
of limitations. Alternatively, the government alleges the cited statutes and regulations do not
establish specific, money-mandating fiduciary duties, and the government’s omissions cannot
give rise to a takings claim. The government notably makes analogous arguments to those
recently addressed in another case, Confederated Tribes of the Colville Rsrv. v. United States,
No. 21-1664, (Fed. Cl. May 30, 2024), where the court granted in part and denied in part a
similar motion, determining the same forestry statutes and regulations cited here do indeed
impose specific and money-mandating fiduciary duties. For the following reasons, the Court
grants in part and denies in part the government’s Motion to Dismiss. On plaintiff’s breach of
trust claim, the Court denies in part, finding plaintiffs have pled a plausible and compensable
breach of duty. The Court grants in part to the extent plaintiffs’ claim relies on a breach of duty
occurring prior to a 2013 settlement agreement. On plaintiffs’ takings claim, the Court denies in
part to the extent plaintiffs’ claim is based on the government’s actions resulting in the
accumulation of slash piles in the Yakama Forest. The Court grants in part to the extent
plaintiffs’ claim is based on general forest mismanagement and the reallocation of firefighting
resources.
I.

Factual Background

The Court presents the facts drawn from plaintiffs’ Complaint, “drawing all inferences in
[plaintiffs’] favor . . . .” See First Hartford Corp. Pension Plan & Tr. v. United States, 194 F.3d
1279, 1288 (Fed. Cir. 1999) (noting an obligation of courts to “construe the complaint broadly
[by] drawing all inferences in [plaintiffs’] favor” at the motion to dismiss stage). The Court
previously outlined facts relevant to this case in Yakama I. Plaintiffs’ current allegations differ
from their previous allegations, yet some of the underlying factual background related to forest
management is the same. The relevant facts from Yakama I are reproduced below.
Plaintiff Yakama Nation is an Indian tribe federally recognized under the Treaty
with the Yakamas, dated June 9, 1855. Compl., ECF No. 1 (“Compl.”), at ¶ 3. The
Treaty created the 1.4 million-acre Yakama Reservation (“Reservation”) in southcentral Washington state, approximately 650,000 acres of which are forested lands
(“Yakama Forest” or “Forest”). Id. at ¶¶ 2, 3, 6. The Reservation is located on the
traditional homeland of the Tribes comprising the Yakama Nation, which they have
occupied “since time immemorial.” Pls.’ Resp. to Mot. to Dismiss, ECF No. 14
(“Pls.’ Resp.”), at 7. Plaintiffs’ claim centers on the government’s commitments to
the Tribe in managing the extensive forest resources on this land. Compl. at ¶ 10–
14.
....
The United States holds in trust all tribal forest land on the Yakama Reservation.
Compl. ¶ 5; see also 25 U.S.C. § 3101(2) (“[T]he United States has a trust
responsibility toward Indian forest lands.”).
....
Plaintiff Yakama Forest Projects (“YFP”) is a tribal corporation wholly owned by
the Yakama Nation. Compl. at ¶ 4. The Tribe incorporated YFP in 1995 to
“promote the development and utilization of the Reservation’s timber resources on
a sustained yield basis.” Id. The Tribe intended YFP to create jobs for tribal
-2-

members by operating a commercial log sort yard and sawmill on the Reservation.
Id. The YFP sawmill’s “principal log supply comes from the Yakama Nation’s
forest land,” making the mill’s productivity dependent on the government’s
management of the Yakama Forest. Id.; see also Tr. at 100:9–12 (plaintiffs noting
YFP only processes logs “from off-reservation sources in very limited
circumstances because it’s just not economically viable.”).
The United States Department of the Interior’s (“Interior”) Bureau of Indian Affairs
(“BIA”) manages the Tribe’s forest resources. Compl. at ¶ 8; 25 U.S.C. §§ 406–
407; 25 U.S.C. § 5109; 25 U.S.C. §§ 3101–3120. It does so pursuant to a Forest
Management Plan (“FMP”), the “principal document, approved by the secretary . . .
which provides for the regulation of the detailed, multiple use operation of Indian
forest land.” 25 U.S.C. § 3103(5). The current operative FMP for the Yakama
Forest was approved by the Secretary in 2005 (“2005 FMP”). Compl. ¶ 8–9.
The 2005 FMP prescribes the Yakama Forest’s current management process and
objectives. See 2005 FMP at 11 (discussing the FMP’s “mission, goals,
objectives”). The plan sets, inter alia, harvest goals and schedules, id. at 126,
silviculture prescriptions, id. at 125, and forest-fire-control measures, id. at 110.
....
The United States began its major commercial timber harvesting program in the
Yakama Forest following the outbreak of World War II. Pls.’ Resp. at 9. The BIA
first prepared a Timber Management Plan specifying which portions of the Yakama
Forest were subject to harvest each year. Id. Soon after adoption of the plan,
“[i]ntensive federal forest management” to increase timber harvests began. Id. The
Tribe’s reliance on forest resources, and the income it created, grew steadily with
the increase of federal timber harvests. See id.
....
In 2014 the BIA also assembled a team of federal and private experts, known as the
“Tiger Team,” to “conduct a review of the Yakama Forestry Program.” Pls.’ Resp.
at 16. This “Tiger Team” released its final report on 29 January 2015, which was
signed by the director of the BIA. Id. In the Report’s cover letter, the BIA director
noted “key tasks require immediate attention and advised the BIA Northwest
Regional Director it is now the responsibility of the Northwest Region to oversee
this effort to ensure the Yakama Agency begins to implement the action items.” Id.
(internal quotation and alteration marks omitted). Plaintiffs point to a “remarkable
admission” from the Tiger Team Report: “certain events over the past few years
have allowed the BIA’s Yakama Forestry Program to diminish in its capacity to the
point that it is on the verge of collapse.” Id. (original emphasis and internal
alteration marks omitted).
Confederated Tribes & Bands of the Yakama Nation v. United States, 153 Fed. Cl. 676, 681–84
(2021).
Plaintiffs’ instant Complaint further alleges facts related to the Cougar Creek Fire key to
the issues in this case. For example, plaintiffs note the Tiger Team report addressed fire risk
-3-

concerns in the Yakama Forest, stating “[s]lash piles from past timber sales are so numerous that
they are . . . creating a tremendous wildfire hazard,” and “all slash piles represent a threat to the
Yakama forest in the form of excessive fuel loading in the event of a wildfire.” Pl.’s Resp. Mot.
Dismiss (“Pls.’ Resp.”) at 5–6, ECF No. 42. The report additionally states: “[O]nce they start
burning[,] [slash piles] prove extremely difficult to extinguish,” and “slash piles present a
significant safety risk to wildland firefighters and severely complicate fire suppression efforts on
the Yakama forest.” Id. at 6. Plaintiffs allege the United States failed to dispose of the slash
piles as far back as 1998. Id. at 4.
The Yakama Forest has also been subject to other factors allegedly increasing its
susceptibility to fires, including infestations of “Mountain Pine Beetle, Spruce Budworm, and
Dwarf Mistletoe that stress trees” and thick duff layers on the Yakama forest floor, “crowding
out fire resistant tree species in favor of fir species . . . susceptible to fire when those duff beds
burn.” Id. The Yakama Nation also contracted with the United States Fuels Management
program to conduct fuel treatments in the early 2000s, but the program was partially defunded in
2010. Id.
On 10 August 2015, lightning struck near the Yakama Forest and ignited the Cougar
Creek Fire. Id. The Yakama Nation contracted with the United States Wildland Fire
Management Program to fight the fires in Yakama Forest. Id. at 4. The government initially
devoted over 300 firefighters to suppress the fire but reassigned many of the firefighters to other
wildfires before the Cougar Creek Fire was suppressed. Id. at 4–5. The Cougar Creek Fire
ultimately burned 41,530 acres in the Yakama Reservation. Second Am. Compl. at 7, ECF No.
44.
II.

Procedural History

Plaintiffs filed their Complaint on 30 June 2021 asserting the government breached its
trust with the Yakama Tribe. Compl., ECF No. 1. The Court granted multiple motions for
extension of time to answer as the parties engaged in settlement discussions. See Order, ECF.
Nos. 7, 9, 11, 13, 17. The Court then granted a motion for referral to alternative dispute
resolution (ADR) on 24 March 2022. Order, ECF No. 19. After unsuccessful ADR, plaintiffs
filed an amended complaint on 22 September 2022, which added a new count alleging a takings
claim in addition to the breach of trust claim. Am. Compl., ECF No. 30. The government filed a
motion to dismiss on 23 November 2022. Mot. Dismiss, ECF No. 31. Plaintiffs filed their
Response on 18 February 2023. Pls.’ Resp. Mot. Dismiss, ECF No. 33. The government replied
on 7 April 2023. Reply. Mot. Dismiss, ECF No. 34.
On 25 July 2023, the parties and the Court held a status conference. The parties agreed
(1) plaintiffs could submit a second amended complaint following the Supreme Court’s decision
in Arizona v. Navajo Nation (Navajo III), 143 S. Ct. 1804 (2023), and (2) the government would
file a renewed Motion to Dismiss based on the newly amended complaint and addressing any
implications from Navajo III. Plaintiffs filed their Stipulated Motion to File a Second Amended
Complaint on 27 July 2023, including a copy of their new complaint attached as Exhibit A.
Stipulated Mot. File Second Am. Compl., ECF No. 38. On 27 July 2023, the Court struck ECF
Nos. 31, 33, and 34 from the record, ordered new briefing addressing the Supreme Court’s recent
-4-

decision in Arizona v. Navajo Nation, 143 S. Ct. 1804 (2023), and granted plaintiffs’ Stipulated
Motion to File a Second Amended Complaint. Order, ECF No. 40. The government filed a
renewed Motion to Dismiss on 18 August 2023. Mot. to Dismiss (“Gov’t’s Renewed MTD”),
ECF No. 41. Plaintiffs responded on 1 September 2023, and the government replied on 8
September 2023. Pls.’ Resp. to Mot. Dismiss (“Pls.’ Resp.”), ECF No. 42; Reply in Supp. of
Mot. Dismiss (“Gov’t’s Reply”), ECF No. 43. The Court held oral argument in Yakima,
Washington on 4 December 2023. See Order, ECF No. 45.
III.

Parties’ Arguments

The government contends plaintiffs’ claims fail on four grounds: (1) plaintiffs’
Complaint fails to allege breach of any statutes and regulations with money-mandating duties;
(2) plaintiffs’ Complaint fails to allege governmental actions and inactions satisfying the
causation and appropriation standards for a takings claim; (3) plaintiffs’ Complaint was not filed
within the Court’s six-year statute of limitations or, alternatively, plaintiffs waived their claims
pursuant to a settlement agreement; and (4) plaintiffs’ claims are barred by the doctrine against
claim splitting. The government does not clearly differentiate its arguments pursuant to RCFC
12(b)(1) and 12(b)(6). For example, the government presents no additional arguments beyond
RCFC 12(b)(1) against plaintiffs’ Breach of Trust claim. See Gov’t’s Renewed MTD. Plaintiffs
argue “[i]f the Court denies the United States’ Rule 12(b)(1) motion, it should also deny its Rule
12(b)(6) motion because the Court will have necessarily concluded that Plaintiffs have stated a
plausible claim for relief.” Pls.’ Resp. at 17. At oral argument, the government confirmed it
agreed with plaintiffs’ argument subject-matter jurisdiction and plausibility rise and fall together
in this case. 4 Dec. 2023 Oral Arg. Transcript (“Tr.”) at 9:1–12, ECF No. 47. To the extent the
parties’ legal arguments under RCFC 12(b)(1) are analogous to those under RCFC 12(b)(6), the
Court addresses both together, considering factual allegations under the appropriate standards
outlined infra Section IV.
A.

The Government’s Arguments Plaintiffs Fail to Establish a Breach of Trust
Claim Under the Navajo II Two-Step Test

The government alleges plaintiffs’ first count for breach of trust should be dismissed for
lack of subject-matter jurisdiction under the two-step test established in Navajo I and confirmed
in Navajo II (“the Navajo test”). United States v. Navajo Nation (Navajo I), 537 U.S. 488
(2003); United States v. Navajo Nation (Navajo II), 556 U.S. 287 (2009). Under step one of the
Navajo test, the Government argues Yakama has failed to identify statutory or regulatory
provisions which “impose money-mandating fiduciary duties on the United States with respect to
biomass accumulation, fire hazard reduction (e.g., fuels reduction, firebreaks, prescribed burns,
and insect and disease control), wildfire prevention programs, firefighting equipment and fire
detection systems, wildfire readiness, fire suppression tactics, or the allocation of resources for
fire-fighting on the Yakama Reservation.” Gov’t’s Renewed MTD at 20–22 (citing Navajo II,
556 U.S. 287, 290–91 (2009)). The government asserts the Supreme Court’s recent decision in
Navajo III clarifies “the court may not infer a duty not explicitly stated in a statute or regulation.”
Id. at 22–23 (citing United States v. Navajo Nation (Navajo III), 143 S. Ct. 1804, 1813 (2023)).
Under step two of the Navajo II test, the government argues many of the sections lack “language
expressly or impliedly mandating the payment of money damages.” Gov’t’s Renewed MTD at
-5-

27. Plaintiffs respond Mitchell II established many of the alleged statutes at issue here were
money mandating and “[t]he other statutes and regulations that [p]laintiffs’ rely upon only
further strengthen the United States’ trust duties to manage and suppress wildfires in Indian
forests.” Pls.’ Resp. at 15–16. The government replies: “Mitchell II found money-mandating
duties relating to the harvest and sale of Tribal timber . . . [but] involved no alleged duties to
prevent or suppress forest fires—a very different subject.” Gov’t’s Reply at 13.
Plaintiffs contend various statutes and regulations related to the government’s
maintaining of tribal forest lands establish a duty encompassing forest fire prevention. Pls.’
Resp. at 10–11. Based on the language in NIFRMA, the statutes assessed in Mitchell II, and
various other provisions related to the government’s relationship with the Yakama Forest,
plaintiffs allege the government had an explicit duty to prevent wildfire risk. Id. at 10–11.
According to plaintiffs, “[t]he relevant inquiry is whether the government’s statutory directive
‘bears the hallmarks of a “conventional fiduciary relationship”’ with the Indian tribe.” Id. at 9
(quoting Navajo II, 556 U.S. at 301). The duties derived from plaintiffs’ cited statutes and
regulations discuss duties for timber management, which plaintiffs allege “impose fiduciary
duties . . . to manage and protect the Yakama Forest from wildfire.” Id. at 11. Plaintiffs contend
“[w]hen the Cougar Creek Fire ignited in 2015, it did not burn through a healthy, well-managed
forest.” Id. at 14. These statutes and regulations, plaintiffs allege, are “based, in part, on the
same comprehensive statutory and regulatory framework . . . that the Supreme Court reviewed in
Mitchell II and concluded to be money mandating.” Id. at 16 (citing United States v. Mitchell
(Mitchell II), 463 U.S. 206, 222 (1983)).
B.

The Government’s Argument Plaintiffs Fail to State a Plausible Takings
Claim Under the Ridge Line Test

Both parties cite Ridge Line, Inc. v. United States, 346 F.3d 1346 (Fed. Cir. 2003) as the
appropriate legal standard for plaintiffs’ takings claim. Gov’t’s Renewed MTD at 10 (citing
Ridge Line, 346 F.3d 1346); Pls.’ Resp. at 35 (citing Ridge Line, 346 F.3d at 1355–56). The
two-part test in Ridge Line requires plaintiffs to show causation and appropriation. Ridge Line,
346 F.3d at 1355–56. Under this test, the government argues plaintiffs’ claim fails for lack of
causation under Cary v. United States, where the court found a third-party hunter’s negligent
ignition of a forest fire was a superseding cause of a fire that damaged plaintiffs’ property.
Gov’t’s Renewed MTD at 11–12 (citing Cary v. United States, 552 F.3d 1373 (Fed. Cir. 2009)).
The government argues, as in Cary, “[t]he only relevant direct, natural, or probable result of the
[government] policies pleaded by the landowners was a heightened risk, not a wildfire.” Id. at 13
(quoting Cary, 552 F.3d at 1378). The government also argues its actions were not intentional
and therefore do not rise to the level of appropriation. Id. at 15–16.
In response, plaintiffs allege the United States caused an invasion of protected property
interests because the Cougar Creek Fire was the direct, natural, or probable result of the United
States’ failure to manage the Yakama Forest for wildfire risk; its decision to withdraw fire
suppression resources from Cougar Creek Fire; its failure to remove slash piles; and its failure to
conduct thinning or prescribed burn operations. Pls.’ Resp. at 36. Plaintiffs additionally argue
“the United States’ fire suppression tactics caused an invasion of Plaintiffs’ protected property
interests” because it is similar to Trinco, where “the U.S. Forest Service’s decision to light fires
-6-

adjacent to Trinco’s property in order to suppress an ongoing wildfire could result in a
compensable taking.” Id. at 38 (citing Trinco v. United States, 722 F.3d 1375, 1380 (Fed. Cir.
2013)). Plaintiffs assert “a federal fire-fighting agency’s suppression tactics create a triable issue
of fact for an inverse condemnation claim.” Id. Plaintiffs conclude “[p]laintiffs have plausibly
alleged that the nature and extent of the invasion of its forest lands by the Cougar Creek Fire was
the “likely, foreseeable result” of the United States’ actions (and inactions) before and after the
fire started.” Id. at 39. Plaintiffs further allege these failures fulfill the appropriation
requirement because they “preempted Plaintiffs’ right to enjoy the Yakama Forest, and all the
benefits it offers, for an extended period of time.” Id. Here, plaintiffs argue, “[t]he United States
had an affirmative duty imposed by Congress” and thus “it is irrelevant whether the United
States’ failures to meet its duties to act were caused by federal action or inaction.” Id. at 41.
Plaintiffs further contend “[r]esolving these material factual disputes is inappropriate at this early
stage of the litigation—when the Court must draw all reasonable inferences in favor of the
plaintiff.” Id. at 43.
C.

The Government’s Argument Plaintiffs’ Claims Are Untimely or,
Alternatively, Plaintiffs Waived Their Claims Under the Yakama Tribal
Trust Settlement

The government alleges eight of plaintiffs’ ten claims accrued prior to six years before
plaintiffs’ 30 June 2021 filing date. Gov’t’s Renewed MTD at 32–33. “Specifically, these are
[p]laintiffs’ claims that the United States failed to (1) manage the forest in accordance with
principles of sustained yield, (2) maintain timber productivity, (3) sell timber, (4) remove
accumulated biomass, (5) reduce fire hazards (e.g., fuels reduction, firebreak construction,
prescribed burning, and insect and disease control), (6) conduct an adequate wildfire prevention
program, (7) acquire and maintain adequate firefighting equipment and fire detection systems,
and (8) maintain an adequate level of wildfire readiness.” Id. (citing Second Am. Compl. ¶ 22
(a)–(g), (j)). The government alleges plaintiffs knew or should have known of the government’s
mismanagement in the lead up to the 2015 fire and brought its claim at that time, not when “the
consequences of the acts [became] most painful.” Id. at 39 (quoting Navajo Nation v. United
States, 631 F.3d 1268, 1277 (Fed. Cir. 2011)).
The government further argues all claims regarding events before 2013 are barred by a
previous settlement agreement. Gov’t’s Renewed MTD at 41. In 2013, the government
contends “[p]laintiff Yakama Nation waived and released . . . ‘any and all claims, causes of
action, obligations, and/or liabilities of any kind or nature whatsoever, known [or] unknown,
regardless of legal theory, for any damages or any equitable or specific release, that are based on
harms or violations occurring before the date of the Court’s entry of [the] Joint Stipulation of
Settlement as an order and that relate to Defendants’ management or accounting of [p]laintiff[s’]
trust funds or [p]laintiff[s’] non-monetary trust assets or resources.” Id. at 41–42. The
government concludes “to the extent that the Complaint includes claims regarding the United
States’ alleged breaches of trust relating to forest and fire management activities that accrued
prior to June 18, 2013, those claims are barred by the doctrine of waiver of release and must be
dismissed.” Id. at 43.

-7-

Plaintiffs respond, “in order for a claim to accrue, the plaintiff must have suffered
damages.” Pls.’ Resp. at 22 (citing Rosebud Sioux Tribe v. United States, 75 Fed. Cl. 15, 24
(2007)). Plaintiffs argue while some federal actions prior to the fire worsened the subsequent
damages, their claims still accrued at the ignition of the fire on 10 August 2015; until plaintiffs
sustained damages, there was no case or controversy to present to the court “because [any claim]
would rest on ‘contingent future events that may not occur as anticipated, or indeed may not
occur at all.’” Id. at 22 (quoting Texas v. United States, 523 U.S. 296, 300 (1998)).
Plaintiffs additionally contend “[p]laintiff Yakama Forest Products was not a party” to
the 2013 settlement agreement “and is not bound by its terms, but regardless, the settlement was
not fashioned in a way to restrict prospective claims, and this present action alleges damages
arising from the 2015 Cougar Creek Fire that fall outside the applicable settlement period.” Pls.’
Resp. at 26–27. Plaintiffs argue “[p]laintiff Yakama Nation only released claims for damages
based on harms suffered before the Court’s June 18, 2013 entry of the stipulation” and “[t]he
harms caused by the Cougar Creek Fire were all incurred more than two years later.” Id. at 27.
D.

The Government’s Argument Plaintiffs’ Impermissibly Split Their Claim
from Their 2019 Complaint

The government alleges plaintiffs are claim splitting between Yakama I and Yakama II.
Gov’t’s Renewed MTD at 27. The government points to the Federal Circuit’s language in Mars
Inc. v. Nippon Conlux Kabushiki-Kaisha, stating “[i]t is well established that a party may not
split a cause of action into separate grounds of recovery and raise the separate grounds in
successive lawsuits; instead, a party must raise in a single lawsuit all the grounds of recovery
arising from a single transaction or series of transactions that can be brought together.” 58 F.3d
616, 619–20 (Fed. Cir. 1995) (citing RESTATEMENT (SECOND) OF JUDGMENTS § 24(2) (1982)).
Plaintiffs insist the government’s claim splitting allegation fails for lack of final
judgment. Id. at 20. In addition, plaintiffs differentiate their claims by stating Yakama I
“[alleged] the United States breached its fiduciary duties by failing to prepare and approve
sufficient timber sales by failing to provide an adequate timber supply for Yakama Forest
Products, and by failing to manage the Yakama forestry program in a manner that would allow
the Yakama Nation to not only receive the stumpage value from its forest lands, but also the
benefit of all labor and profit that the Yakama Forest is capable of yielding.” Id. at 21. Plaintiffs
contrast this case from Yakama I, alleging here “the United States breached its money mandating
trust duties with respect to forest management, fire prevention, fire planning, fire suppression,
and did not take steps reasonably necessary to protect the Yakama Forest from loss by fire.” Id.
(citing Second Amended Compl. at 4, 13).
IV.

Legal Standards Under RCFC 12(b)(1) and 12(b)(6)

When resolving a motion to dismiss under both RCFC 12(b)(1) and 12(b)(6), the Court
engages in two independent inquires. See Jan’s Helicopter Serv., Inc. v. FAA, 525 F.3d 1299,
1307 (Fed. Cir. 2008) (holding that when considering a motion to dismiss, “the merits of the
claim [are] not pertinent to the jurisdictional inquiry”). Although the analyses are distinct,
plaintiffs must plead sufficient facts to state a plausible claim and establish jurisdiction. See
-8-

Crow Creek Sioux Tribe v. United States, 900 F.3d 1350, 1354–55 (Fed. Cir. 2018) (“[T]he
Supreme Court’s ‘plausibility’ requirement for facial challenges to claims under Rule 12(b)(6),
as set out in Bell Atlantic Corp v. Twombly . . . and Ashcroft v. Iqbal . . . also applies to facial
challenges to subject-matter jurisdiction under Rule 12(b)(1).”).
A.

RCFC 12(b)(1) Motion to Dismiss for Lack of Subject-Matter Jurisdiction

When considering a motion to dismiss under RCFC 12(b)(1), “[a] plaintiff bears the
burden of establishing subject-matter jurisdiction by a preponderance of the evidence.” InterTribal Council of Ariz. v. United States, 956 F.3d 1328, 1337–38 (Fed. Cir. 2020) (quoting M.
Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1327 (Fed. Cir. 2010)) (internal
quotation marks omitted). “In determining jurisdiction, a court must accept as true all
undisputed facts asserted in the plaintiff’s complaint and draw all reasonable inferences in favor
of the plaintiff.” Acevedo v. United States, 824 F.3d 1365, 1368 (Fed. Cir. 2016) (citing Trusted
Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011)).
1.

Subject-Matter Jurisdiction Under the Indian Tucker Act

The Indian Tucker Act is a jurisdictional statute—it does not create substantive rights.
See Navajo II, 556 U.S. 287, 290 (2009) (“Neither the Tucker Act nor the Indian Tucker Act
creates substantive rights; they are simply jurisdictional provisions that operate to waive
sovereign immunity for claims premised on other sources of law.”). “A substantive right must
be found in some other source of law.” Mitchell II, 463 U.S. 206, 216 (1983). This Court
accordingly may assert Indian Tucker Act jurisdiction over a claim only if plaintiffs: (1) identify
a substantive source of law creating fiduciary duties for the government, and allege the
government breached those duties; and (2) demonstrate the statute “can fairly be interpreted as
mandating compensation for damages sustained as a result of a breach of the duties the
governing law imposes.” Inter-Agency Tribal Council of Ariz. v. United States, 956 F.3d 1328,
1338 (Fed. Cir. 2020) (quoting Navajo II, 556 U.S. at 291).
2.

Subject-Matter Jurisdiction Under 28 U.S.C. § 2501

A claim before the United States Court of Federal Claims is timely if “filed within six
years after such claim first accrues.” 28 U.S.C. § 2501. The time bar is “jurisdictional,” which
means it is “more absolute” because it is a limit to Congress’s waiver of sovereign immunity.
John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133–34 (2008). A claim first accrues
“when all the events which fix the government’s alleged liability have occurred and the plaintiff
was or should have been aware of their existence.” Hopland Band of Pomo Indians v. United
States, 855 F.2d 1573, 1577 (Fed. Cir. 1988).
When a breach is continuing, the “suit is not barred by the Statute of Limitations, . . . but
recovery, if any, may be had only for violations of the alleged agreement which occurred not
more than six years before the filing of the petition.” Aktiebolaget Bofors v. United States, 139
Ct. Cl. 642, 645 (1957). Typically, in a continuing claim case, “the plaintiff’s claim could be
broken down into a series of independent and distinct wrongs or events, each such wrong or
event having its own associated damages.” Brown Park Estates-Fairfield Dev. Co. v. United
-9-

States, 127 F.3d 1449, 1457 (Fed. Cir. 1997). “[A] claim based upon a single distinct event,
which may have continued ill effects later on, is not a continuing claim.” Id. at 1456.
B.

RCFC 12(b)(6) Motion to Dismiss for Failure to State a Plausible Claim

When considering a motion to dismiss under RCFC 12(b)(6), the Court is “obligated to
assume all factual allegations to be true and to draw all reasonable inferences in plaintiff’s
favor.” Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995). The Court cannot rely on
conclusory statements and legal assertions when determining whether the complaint contains
sufficient allegations to plausibly claim breach of trust. Ashcroft v. Iqbal, 556 U.S. 662, 678–79
(2009). “A complaint should not be dismissed for failure to state a claim, ‘unless the complaint
fails to “state a claim to relief that is plausible on its face.”’” Inter-Tribal Council of Ariz., 956
F.3d at 1338 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The complaint is
facially plausible if the court can “draw the reasonable inference that the [d]efendant is liable for
the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a
‘probability requirement,’ but asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
V.

Navajo Step One: Whether Plaintiffs Allege Statutes and Regulations Establishing
Specific Fiduciary Duties

Plaintiffs allege the government breached its trust relationship with the Yakama Tribe by
failing to meet statutory and regulatory duties to maintain the Yakama Forest. Pls.’ Resp. at 9–
11. In order for plaintiffs to establish a breach of trust, the Supreme Court requires tribes to
satisfy the two-step jurisdictional test established in Navajo I and confirmed in Navajo II. See
Navajo I, 537 U.S. 488, 506 (2003); Navajo II, 556 U.S. 287, 290–91 (2009). The Court
previously outlined the first step of the Navajo test in Yakama I:
The first step of the Navajo II jurisdictional analysis requires plaintiffs
“identify a substantive source of law that establishes specific fiduciary or other
duties, and allege that the government has failed faithfully to perform those duties.”
Navajo II, 556 U.S. at 290. The substantive law must establish specific fiduciary
responsibilities the government owes to the tribe under an explicit statutory
provision. See Inter-Agency Tribal Council of Ariz. Inc., 956 F.3d at 1338 (quoting
Shoshone Indian Tribe of Wind River Reservation, Wyo. v. United States, 672 F.3d
1021, 1039–40 (Fed. Cir. 2012)) (“‘[T]ribes must point to specific statutes [or]
regulations that ‘establish the fiduciary relationship and define the contours of the
[government’s] fiduciary responsibilities.’”).
A statutorily created general-trust relationship between the government and
the Tribe does not, by itself, establish fiduciary duties sufficient for Indian Tucker
Act jurisdiction. See United States v. Mitchell, 445 U.S. 535 (1980) (“Mitchell I”)
(holding the General Allotment Act establishes a “limited trust” relationship
between the Government and the tribe, and does not create specific fiduciary duties
the government must fulfill). Plaintiff must point to specific statutory language
defining the government’s fiduciary role. Navajo II, 556 U.S. at 290. Such duties
- 10 -

often arise when the government has “comprehensive control” over the trust’s
corpus. See United States v. White Mountain Apache Tribe, 537 U.S. 465, 475
(2003) (observing the government’s physical occupation of tribal land inherently
leads to government “control at least as plenary as its authority over the timber in
Mitchell II”). Comprehensive control, however, is not always dispositive of a
fiduciary relationship. See Hopi Tribe v. United States,782 F.3d 662, 671 (Fed. Cir.
2015) (holding the government’s comprehensive control over the Hopi Tribe’s
water system did not create a fiduciary relationship). The relevant inquiry is
whether the government’s statutory directive “bears the hallmarks of a
‘conventional fiduciary relationship,’” with the tribe. Navajo II, 556 U.S. at 301
(quoting White Mountain Apache, 537 U.S., at 473).
The fiduciary responsibilities must flow from the statutory or regulatory
language itself. See Hopi Tribe, 782 F.3d at 667 (“[T]he United States is only
subject to those fiduciary duties that it specifically accepts by statute or
regulation.”). Common law principles—which are often used to define the contours
of a fiduciary relationship in other contexts—cannot serve such a purpose at this
stage of an Indian Tucker Act jurisdictional analysis. See United States v. Jicarilla
Apache Nation, 564 U.S. 162, 185 (2011) (“The common law of trusts does not
override the specific trust-creating statute and regulations.”). Ultimately, the Court
must “train on specific rights-creating or duty-imposing statutory or regulatory
prescriptions” when considering whether the statute creates a sufficient fiduciary
relationship for Indian Tucker Act jurisdiction. United States v. Navajo Nation,
537 U.S. 488, 506 (2003) (“Navajo I”).
Yakama I, 153 Fed. Cl. 676, 694 (2021). Under this standard, the Court turns to the statutes and
regulations cited by plaintiffs to determine whether plaintiffs have alleged breach of a specific
rights-creating or duty imposing prescription. See also Ute Indian Tribe of the Uintah & Ouray
Indian Rsrv. v. United States, 99 F.4th 1353 (Fed. Cir. 2024) (“[A] Tribe first ‘must identify a
substantive source of law that establishes specific fiduciary or other duties’” (quoting Navajo I,
537 U.S. at 506)).
A.

Whether NIFRMA and Its Implementing Regulations Establish Specific
Fiduciary Duties

The government argues plaintiffs’ allegation of breach under NIFRMA and BIA’s
corresponding implementing regulations do not mention wildfire prevention and accordingly
cannot establish a specific fiduciary duty as required under the Navajo test. Id. at 24–26.
Plaintiffs cite to 25 U.S.C. § 3103(4)(D) and § 3104 as establishing a “duty to manage the
Yakama Forest to prevent wildfire risk” and a “duty to suppress wildfires that occur throughout
the Yakama Forest.” Pls.’ Resp. at 12–13 (emphasis omitted). Specifically, plaintiffs allege the
government “failed to adequately address the substantial fire hazard, manage accumulating fuel
loads, remove accumulated biomass, defend against insects and disease, dispose of slash piles
from past timber sales, perform essential fuel treatments such as thinning and prescribed burning,
construct adequate firebreaks, carry out adequate timber harvests . . . , adequately analyze the
wildfire risk, prepare and plan for its wildfire response, or acquire necessary fire-fighting and
- 11 -

detection equipment.” 1 Pls.’ Resp. at 13 (quoting Second Am. Compl. at 9). Each of these
duties plaintiffs contend “fall[s] within the comprehensive federal forest management framework
that was recognized by the Supreme Court in Mitchell II and codified in NIFRMA.” Id. At oral
argument, plaintiffs further clarified the relevant implementing regulations (25 C.F.R. Part 163),
which largely or completely mirror NIFRMA, do not add any further duties beyond those
required by NIFRMA and are “belts and suspenders” to the alleged statutory duties. Tr. at
67:12–68:9; Tr. at 65:15–66:12 (“THE COURT: [The regulations] mirror the language from
NIFRMA[?] [PLAINTIFFS]: Correct. THE COURT: . . . So it’s underlying that NIFRMA is
the mandatory language. [PLAINTIFFS]: Yes, Your Honor.”). The Court accordingly
addresses the congressionally established duties under NIFRMA, recognizing the same duties
may also stem from provisions mirrored in BIA regulations. In reviewing the statutory language
of NIFRMA, the Court analyzes the statutory requirements of NIFRMA to determine whether
the government’s trust duties encompass wildfire prevention and suppression. See Navajo II,
556 U.S. at 290.
1.

Whether NIFRMA Itself Establishes Mandatory Duties to Wildfire
Suppression and Prevention

Plaintiffs propose a nesting doll of statutory interpretation to arrive at the government’s
alleged duties to the Yakama Forest, asserting the broad forestry duties required by NIFRMA are
narrowed by specific activities outlined in the statute’s Definitions section. Pls.’ Resp. at 18–19.
Section 3104 of NIFRMA is titled “Management of Indian forest land.” Subsection (a) of
§ 3104 describes the scope of “management activities” to be undertaken by the government:
The secretary shall undertake forest land management activities on Indian forest
land, either directly or through contracts, cooperative agreements, or grants under
the Indian Self-Determination Act.

Plaintiffs’ Second Amended Complaint only alleges one breach of trust count. Second Am. Compl. ¶¶ 20–25.
Plaintiffs characterize the government’s duties as “fiduciary obligations to protect and preserve the Yakama Forest
from damages caused by wildfire . . . [and] duties with respect to forest management, fire prevention, fire planning,
and fire suppression,” contending the government “did not take the steps reasonably necessary to protect the trust
resource from loss by fire.” Id. ¶ 22; see also id. ¶ 21 (“[The government] has obligated itself, as trustee, to
protecting and preserving [plaintiffs’] timber resources against losses from wildfire.”). Despite characterizing the
breach of duty as wildfire-based, plaintiffs’ Second Amended Complaint lists several breaches of fiduciary duties
not directly related to wildfires. See, e.g., id. ¶ 21(a)–(b) (“The duty . . . to authorize the felling, cutting,
removing . . . [and] to consent to the sale of timber . . . .”). The substance of plaintiffs’ Second Amended
Complaint, however, relates wholly to an alleged breach of wildfire duties and not every possible breach of duty
stemming from the alleged actions. See Second Am. Compl. ¶ 1 (“This action . . . seek[s] money damages . . . for
breaches of fiduciary duties . . . arising out of [the government’s] failure to adequately maintain and protect the
Yakama Forest and its resources from damages caused by the 2015 Cougar Creek Fire.”). Indeed, some of these
related duties, such as the duty “to authorize the felling, cutting, removing, and selling” of timber are addressed
elsewhere without any reference to wildfire prevention or suppression. See Yakama I, 153 Fed. Cl. 676 (2021). The
Court interprets plaintiffs’ Complaint as alleging governmental actions and omissions which amount to a breach of
wildfire duties (“forest management, fire prevention, fire planning, and fire suppression . . . to protect the trust
resource from loss by fire”), even though these actions may give rise to breaches of other, non-wildfire duties. Id.
¶ 22. The Court accordingly treats plaintiffs’ Second Amended Complaint as alleging the government breached
statutory and regulatory duties for “wildfire prevention and suppression.”
1

- 12 -

25 U.S.C. § 3104(a); see also 25 C.F.R. § 163.10(a). Subsection (b) further contextualizes the
“[m]anagement objectives” for forest land management:
Indian forest land management activities undertaken by the Secretary shall be
designed to achieve . . .
(1) the development, maintenance, and enhancement of Indian forest land in a
perpetually productive state in accordance with the principles of sustained yield and
with the standards and objectives set forth in forest management plans by providing
effective management and protection through the application of sound silvicultural
and economic principles to—
(A) the harvesting of forest products,
(B) forestation,
(C) timber stand improvement, and
(D) other forestry practices;
25 U.S.C. § 3104(b); see also 25 C.F.R. § 163.3(b). The statutory language is notably mandatory
(“shall undertake” and “shall be designed to achieve”) rather than permissive.
While § 3104 describes mandatory duties, however, the statute does not directly mention
fire prevention or suppression duties, nor even the word “fire.” To arrive at the alleged wildfire
duties, plaintiffs instead contend the “forest land management activities” which “[t]he secretary
shall undertake” are governed by the term’s definition. See Pls.’ Resp. at 12–13. The definition
of “forest land management activities,” located one section prior in § 3103, is long and
enumerates several duties within the term’s scope; most relevantly, the provision recites:
For the purposes of this chapter, the term—
....
(4) “forest land management activities” means all activities performed in the
management of Indian forest lands, including—
....
(D) protection against losses from wildfire, including acquisition and
maintenance of fire fighting equipment and fire detection systems,
construction of firebreaks, hazard reduction, prescribed burning, and the
development of cooperative wildfire management agreements;
(E) protection against insects and disease, including—
(i) all aspects of detection and evaluation,
(ii) preparation of project proposals containing project description,
environmental assessments and statements, and cost-benefit
analyses necessary to secure funding,
(iii) field suppression operations, and
(iv) reporting;
(F) assessment of damage caused by forest trespass, infestation or fire,
including field examination and survey, damage appraisal, investigation
assistance, and report, demand letter, and testimony preparation; . . .

- 13 -

25 U.S.C. § 3103(4) (emphases added); see also 25 C.F.R. § 163.1. According to plaintiffs,
these “fire” provisions within the Definitions section, as well as the general requirements to
maintain forest health, “plainly detail[] the United States’ duty to prevent and suppress wildfires
within the Yakama Forest.” Pls.’ Resp. at 18.
The government contends plaintiffs’ statutory and regulatory citations do not establish a
duty because a definitions section cannot “create legal obligations or independent causes of
action for damages.” Gov’t’s Renewed MTD at 25. The government argues these provisions
merely “authorize[]” the secretary to act and “[s]uch discretionary language undermines the
assertion of a fiduciary duty.” Id. at 26 & n.8 (citing Wolfchild v. United States, 731 F.3d 1280,
1289 (Fed. Cir. 2013)). Citing Evans v. United States, the government contends “definitions do
not create legal obligations or independent causes of actions.” Id. at 29 (citing Evans v. United
States, 107 Fed. Cl. 442, 450 (2012) (“The definitions do not by themselves grant . . .
independent rights.”)). To the extent the statute imposes duties, the government stated at oral
argument, “the fact [NIFRMA] identif[ies] those land management activities undertaken by the
secretary clearly contemplates that there will be . . . Indian forest land management activities not
undertaken by the secretary, which is entirely inconsistent with the idea that all such activities
are mandatory.” Tr. at 144:12–145:6. Plaintiffs argue Evans is not analogous, as “[u]nlike in
Evans, [p]laintiffs do not offer . . . a series of definitions . . . as the sole source for the existence
of a money mandating trust duty.” Pls.’ Resp. at 18. Instead, plaintiffs allege the definitions
“are clearly actionable insofar as they define terms in a separate regulation that establishes a
money mandating trust duty,” including § 3104. Id. at 18–19.
Evans, as in this case, involved a definitions section alleged to establish a governmental
duty to a tribe. This court considered whether a pro se plaintiff, the son of an Alaska Native, had
adequately alleged the existence of a money-mandating statute or regulation which created a
specific duty sufficient to establish jurisdiction over the plaintiff’s inheritance claim. Evans¸ 107
Fed. Cl. at 445–46. The court indicated in a single line: “The regulation at 25 C.F.R. § 15.2,
titled, ‘What definitions do I need to know?’ is an alphabetical list of definitions relevant to the
probate of certain Indian estates . . . but the definitions do not by themselves grant this, or any
other plaintiff, independent rights.” Id. at 450. Although the Court generally agrees with the
government a definitions section typically does not establish a duty by itself, the statutory duties
here are different than the bare definitions section at issue in Evans. Unlike in Evans, where the
definitions did not provide any “independent rights” and were disconnected from a dutyimposing statutory provision, the definitions section in NIFRMA provides meaning (i.e.,
definition) to the mandatory duties defined in § 3104. In other words, § 3104 states the secretary
“shall undertake forest land management activities” using the mandatory language of “shall
undertake” and “shall be designed to achieve.” § 3104. By using the term “forest land
management activities,” § 3104 adopts the term’s corresponding definition from § 3103. Section
3104 does not require the secretary to undertake “some forest land management activities”; it
requires the secretary to “undertake forest land management activities,” as guided by the
objectives in § 3104(b) and as defined by § 3103. These forest land management activities are
defined as including wildfire prevention and suppression duties, including “protection against
losses from wildfire . . . and assessment of damage cause by . . . fire.” § 3103(4). Section 3104
therefore includes the mandate to “undertake [protection against losses from wildfire . . . and
assessment of damage caused by . . . fire] on Indian forest land.” § 3104(a); § 3103(4).
- 14 -

Despite acknowledging “shall” in § 3104 is “a term of mandate,” the government
interprets the statute as permitting the BIA to pursue any subset of the enumerated forest land
management activities, making the specific duties non-binding. Tr. at 69:24–70:15. At oral
argument, the government stated:
[The statute] says, You shall undertake forest land management activities. And it’s
up to the secretary to determine which forest land management activities it will
undertake. And that’s the specific import of 25 U.S.C. 3104(b)(1), which states
that Indian forest land management activities undertaken by the secretary shall be
designed to achieve a whole bunch of objectives. . . . Well, that states that some
forest land management activities will be undertaken by the secretary and some
won’t.
Id. The government accordingly acknowledged “some forest land management activities will be
undertaken,” id. (emphasis added), but also argued “[t]here’s nothing specifically mandated by
that statement.” Tr. at 68:14–69:12; see also id. (“[THE COURT:] [W]hat duties does this
provision bind the government to? [GOVERNMENT]: To undertaking forest land management
activities by its language. THE COURT: Yes. . . . What’s that? [GOVERNMENT]: It could
be any of dozens of different things that they articulate. THE COURT: Like fire suppression?
[GOVERNMENT]: It could be, yes. THE COURT: But that’s permissive?
[GOVERNMENT]: Absolutely.”). The government agrees NIFRMA includes “term[s] of
mandate,” Tr. at 70:2, and agrees Congress’s statutory language requires at least some action by
the government, see Tr. at 70:13–15 (“[GOVERNMENT:] [S]ome forest land management
activities will be undertaken by the secretary and some won’t.”). As the statutory language is
mandatory, the Court is unpersuaded §§ 3104 and 3103, in a vacuum, would not establish a
mandatory duty on behalf of the government. § 3104(a) (“[The government shall u]ndertake
[protection against losses from wildfire and assessment of damage cause by fire] on Indian forest
land.”); 3103(4).
NIFRMA, however, includes a final provision, § 3120, which the government alleges
prevents NIFRMA from establishing any mandatory duties because it prevents “diminish[ing] or
expand[ing]” the trust responsibility of the government. Section 3120 states in full: “Nothing in
this chapter shall be construed to diminish or expand the trust responsibility of the United States
toward Indian forest lands, or any legal obligation or remedy resulting therefrom.” 25 U.S.C.
§ 3120. According to the government, finding a duty related to wildfire prevention and
suppression would “establish new trust duties,” as the government was not previously burdened
with these wildfire responsibilities. Gov’t’s Renewed MTD at 25. In Yakama I, the Court
previously addressed § 3120, interpreting the provision as indicating NIFRMA created no new
responsibilities but rather “clarifie[d] what trust duties the government already owes to tribes in
managing their timber resources under the other forest management statutes.” Yakama I, 153
Fed. Cl. at 705. As outlined in Yakama I, “Congress . . . clarified the government’s fiduciary
responsibilities related to the management of tribal forest land when it enacted [NIFRMA] in
1990”; this clarification created no new responsibilities. Yakama I, 153 Fed. Cl. at 686; see also
Confederated Tribes of the Colville Rsrv. v. United States, No. 21-1664, slip op. at 12–13, 19–22
(Fed. Cl. May 30, 2024) (reviewing “the history of the [g]overnment’s management of Indian
- 15 -

forests,” including more than a century of fire-related forest management regulations, and noting
“NIFRMA’s prescriptions are a clear clarification of pre-existing duties”). As the government
contends, the language of the saving clause is clear: NIFRMA cannot “diminish or expand the
[government’s] trust responsibility.” § 3120. To the extent plaintiffs are alleging a duty beyond
the pre-NIFRMA “trust responsibility” of the government, their claims must accordingly fail.
§ 3120; see Yakama I, 153 Fed. Cl. at 705. The only forestry duties which can be gleaned from
NIFRMA are therefore those which the statute clarifies from other statutory provisions. § 3120;
Yakama I, 153 Fed. Cl. at 705.
2.

Whether NIFRMA Clarifies Wildfire Duties in §§ 406, 407, and 5101,
as Interpreted by Mitchell II

As NIFRMA cannot establish a duty on its own due to 25 U.S.C. § 3120, the Court next
considers whether NIFRMA’s wildfire prevention and suppression duties are nevertheless
grounded in the forestry statutes invoked in Mitchell II, namely 25 U.S.C. §§ 406, 407, and/or
5101. The government, though contending the Mitchell II statutes do not encompass wildfire
duties, nevertheless agreed at oral argument the case provides some clarity on the responsibilities
recognized in NIFRMA:
THE COURT: Well, but you must admit that NIFRMA understands that there is a
trust responsibility towards Indian forest lands.
[GOVERNMENT]: Yes.
THE COURT: What are those?
[GOVERNMENT]: It doesn’t say.
THE COURT: So how do we understand what they are in order to hold the
government to it?
[GOVERNMENT]: Well, we can look at Mitchell II. We can look at the statutes
that Mitchell II evoked . . . . Congress, in NIFRMA, doesn’t purport to define the
extent of the trust relationship. In fact, they’re saying quite the opposite: We’re
not trying to expand . . . or constrict it. It does provide guidance to the secretary.
But is it money-mandating requirement guidance? No, it’s not. At least not with
respect to firefighting.
Tr. at 96:7–24. The Court accordingly “look[s] at the statutes that Mitchell II evoked” to
determine whether the statutes, as clarified by NIFRMA, establish a duty to wildfire prevention
and suppression.
The government alleges the Mitchell II forestry statutes do not include “specific, rightscreating, duty imposing language” for “fire hazard reduction, wildfire prevention, wildfire
readiness, firefighting equipment and detection systems, fire suppression, or the allocation of
firefighting resources.” Gov’t’s Renewed MTD at 23 (citing Navajo III, 143 S. Ct. at 1813).
- 16 -

Specifically, the government contends “[t]he plain language of these timber sale statutes does not
specifically impose duties on the United States for fire hazard reduction, wildfire prevention,
wildfire readiness, firefighting equipment and detection systems, fire suppression, or the
allocation of firefighting resources.” Id. The government contends these statutes may provide a
duty to fire suppression “in the context of Yakama I” and the obligations for sustained yield
timber management, but the government maintains there is no duty to wildfire prevention and
suppression on its own. Tr. at 53:23–54:11 (“[GOVERNMENT:] [I]f there is a mandatory duty
to produce sustained yield . . . handling fire could be a part of that duty.”); Tr. at 61:12–19
(“[THE COURT:] But is there not under statute an affirmative duty? [GOVERNMENT]: An
affirmative duty to pursue sustained yield? THE COURT: Yes. [GOVERNMENT]: There is.
THE COURT: And where is that from? [GOVERNMENT]: In current Section 407 . . . .”).
The difference, according to the government, is “a separate duty to prevent and control wildfire
is not something that Congress has imposed.” Tr. at 54:8–11 (emphasis added). Whereas a duty
may exist for sustained yield of timber, the government argues finding wildfire-based duties
would “imply into a sustained yield obligation[,] . . . [and] you can’t imply . . . every conceivable
obligation that could have a bearing on sustained yield.” Tr. at 54:18–24; Tr. at 61:24–62:5
(“[GOVERNMENT:] [W]hile [§ 407] is entirely permissive that the secretary . . . can set
regulations for sales of land, it does require that if he’s going to do so, then sustained-yield
management should guide those decisions.”).
The government notably does not dispute Mitchell II found the same statutes alleged here
impose some money-mandating fiduciary duties on the government and argues only the statutes
do not establish wildfire duties. See Gov’t’s Renewed MTD at 23 (“[T]he Court examined the
particular statutes and regulations the plaintiff identified and found that those statutes only
specifically created an enforceable duty regarding the sale and harvest of Indian timber.”); Tr. at
22:2–7 (“[GOVERNMENT:] [I]f we are to take the Supreme Court at its word that the analysis
has to train on specific and express statutory requirements or rights . . . Mitchell II dealt with . . .
sales of trees.”). The Court previously addressed the same money-mandating duties in Yakama I:
As a jurisdictional matter, there is little distinction between the claims at issue
in Mitchell II and plaintiffs’ claim here. Plaintiffs rely on the same statutory and
regulatory framework governing Indian-forest management to both define the
fiduciary relationship between the government and the Tribe and prescribe the
government’s specific fiduciary duties owed in managing Indian timber resources.
Compl. ¶¶ 11–12. This includes the statutes and regulations analyzed by the
Supreme Court in Mitchell II. Id. at ¶ 11 (citing 25 U.S.C. §§ 406–
[40]7, 5109 (previously 25 U.S.C. § 466))
Yakama I, 153 Fed. Cl. at 698. At oral argument, the government agreed the Court’s decision in
Yakama I established money-mandating fiduciary duties under §§ 406, 407:
THE COURT: With respect to [§§ 406 and 407] and . . . Yakama I’s discussion of
Mitchell [II], didn’t the Court . . . find that these statutes plausibly do impose duties
and are money-mandating?
[GOVERNMENT]: Yes, Your Honor. But not having to do with fire. . . .
- 17 -

[THE COURT:] [I]s it not that the government has timber duties and timber
responsibilities?
[GOVERNMENT]: That’s correct. . . .
THE COURT: But the argument is that the government’s duties there do not
include fire prevention or fire suppression?
[GOVERNEMNT]: That’s correct, Your Honor. Absolutely.
Tr. at 51:16–52:8.
Plaintiff, however, alleges duties beyond the sustained yield obligations, arguing the
government has specific duties to wildfire prevention and suppression. The Court accordingly
turns to the language of the “statutes that Mitchell II evoked” to determine whether the statutory
language also encompasses wildfire prevention and suppression. See Tr. at 96:7–24 (“THE
COURT: Well, but you must admit that NIFRMA understands . . . there is a trust responsibility
towards Indian forest lands. [GOVERNMENT]: Yes. . . . THE COURT: So how do we
understand what they are . . . ? [GOVERNMENT]: Well, we can look at Mitchell II. We can
look at the statutes that Mitchell II evoked . . . .”). Section 406 recites, in relevant part:
The timber on any Indian land held under a trust or other patent containing
restrictions on alienations may be sold by the Secretary of the Interior without the
consent of the owners when in his judgment such action is necessary to prevent loss
of values resulting from fire, insects, disease, windthrow, or other natural
catastrophes.
25 U.S.C. § 406(e) (emphasis added). This provision’s reference to sale of timber when
“necessary to prevent loss of values resulting from fire” accordingly notes the government has
some fire-based responsibilities. Id.
Mitchell II provides a helpful analytical framework for determining whether the firebased provision in § 406(e) amounts to obligations to prevent and suppress wildfires. In
assessing whether §§ 406, 407, and 466 established a duty for sustained yield, the Supreme Court
began by recognizing the statutes as a whole do not create “a bare trust” but instead “clearly give
the Federal Government full responsibility to manage Indian resources and land for the benefit of
the Indians . . . [and] thereby establish a fiduciary relationship and define the contours of the
United States' fiduciary responsibilities.” Mitchell II, 463 U.S. at 224. Turning to the language
specifically, the Supreme Court noted § 406(a) “expressly mandates that sales of timber from
Indian trust lands be based upon the Secretary’s consideration of ‘the needs and best interests of
the Indian owner and his heirs’ and that proceeds from such sales be paid to owners ‘or disposed
of for their benefit.’” Id. at 224 (quoting § 406(a)). The Court determined the government’s
“fiduciary relationship” encompassed the express duties from § 406(a), as confirmed by the
government’s “elaborate control over forests and property belonging to Indians.” Id. at 225 (“All
of the necessary elements of a common-law trust are present: a trustee (the United States), a
- 18 -

beneficiary (the Indian allottees), and a trust corpus (Indian timber, lands, and funds).” (citing
RESTATEMENT (SECOND) OF TRUSTS § 2 cmt. h (AM. L. INST. 1959))). The Court therefore held
the statutes “clearly establish fiduciary obligations of the Government in the management and
operation of Indian lands and resources.” Id. at 226.
In this case, plaintiffs allege the duties to wildfire management and suppression are
established, in part, by the same statutes addressed in Mitchell II, §§ 406, 407, and 5101
(recodified from § 466). As the Court stated in Mitchell II, these statutes “clearly give the
Federal Government full responsibility to manage Indian resources and land for the benefit of the
Indians . . . [and] thereby establish a fiduciary relationship and define the contours of the United
States’ fiduciary responsibilities.” Id. at 224. Turning to the specific statutory language at issue
in this case, § 406(e) notes a responsibility to sell timber “when . . . such action is necessary to
prevent loss of values resulting from fire, insects, disease, windthrow, or other natural
catastrophes.” 25 U.S.C. § 406(e) (emphasis added). This provision, falling within the statutory
provisions the Supreme Court has already noted “establish fiduciary obligations,” id. at 226,
indicates at least some duty to consider fire prevention in managing Indian forestland. Just as
Mitchell II recognized the statutory language for sustained yield directly supported the
“‘comprehensive’ responsibilities . . . in managing the harvesting of timber,” the language in
§ 406(e) accordingly establishes at least some responsibility for “prevent[ing] loss of values
resulting from fire,” imposing at least some fire-based duties, see § 406(e). Mitchell II, 463 U.S.
at 222.
As § 406 establishes some fire-based duties, the Court turns to NIFRMA for clarity on
the extent of the government’s duties encompassed within the “prevent[ion] [of] loss of values
resulting from fire,” § 406(e). 2 See Yakama I, 153 Fed. Cl. at 705. NIFRMA, as indicated
supra Section V.A, prescribes “[t]he secretary shall undertake forest land management activities
on Indian forest land,” § 3104, and defines “forest land management activities” as including
“protection against losses from wildfire . . . and assessment of damage cause by . . . fire,”
§ 3103(4). This provision in NIFRMA accordingly clarifies the duties related to the
“prevent[ion] [of] loss of values resulting from fire” under § 406(e). This interpretation aligns
with the Supreme Court’s recognition “[t]he language of [§ 406] directly supports the existence
of a fiduciary relationship.” Mitchell II, 463 U.S. at 224. Supported by the Supreme Court’s
analysis in Mitchell II, the Court finds §§ 406, 407, and 5101, as clarified by NIFRMA,
2

The Court explained in Yakama I, Congress is presumed to be aware of Mitchell II when it passed NIFRMA:
Congress plainly intended for NIFRMA to not alter the Supreme Court's holding in Mitchell
II. See 1 COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 17.04 (2019) (citing 25 U.S.C. § 3120)
(“Express language in both NIFRMA and the Tribal Self-Governance Act of 1994 demonstrates the
federal government's continuing trust responsibility for Indian forest lands.”). The Court assumes
Congress was aware of the Supreme Court’s Mitchell II decision when it enacted
NIFRMA. See Miles v. Apex Marine Corp., 498 U.S. 19, 32, 111 S.Ct. 317, 112 L.Ed.2d 275
(1990) (“We assume that Congress is aware of existing law when it passes legislation.”); see
also Cannon v. Univ. of Chicago, 441 U.S. 677, 696–97, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) (“It
is always appropriate to assume that our elected representatives, like other citizens, know the law.”).

Yakama I, 153 Fed. Cl. at 703. To the extent Mitchell II found §§ 406, 407, and 466 “clearly establish fiduciary . . .
obligation[s] of the [g]overnment,” Mitchell II, 463 U.S. at 226, Congress is presumably aware of the Court’s
interpretation. Yakama I, 153 Fed. Cl. at 703.

- 19 -

accordingly establish a specific fiduciary duties on behalf of the government. 3 § 406(e); § 3104;
§ 3103(4); Mitchell II, 463 U.S. at 224–26; Navajo II, 556 U.S. at 301; Yakama I, 153 Fed. Cl. at
705; Colville, No. 21-1664, slip op. at 7–8, 18.
Further supporting the Court’s conclusions, Judge Meyers indicates in his recent
decision, Confederated Tribes of the Colville Reservation, the United States has a long-standing
history of statutes and regulations “explicitly call[ing] for fire prevention efforts by the
[g]overnment.” Colville, No. 21-1664, slip op. at 19. First, 1911 Department of Interior
regulations—which the Supreme Court discussed in Mitchell II—outline several fire-based
duties. Id. (quoting regulations requiring “patrol[ling] . . . districts to prevent and report . . .
fires,” OFF. INDIAN AFFS., REGULATIONS AND INSTRUCTIONS FOR OFFICERS IN CHARGE OF
FORESTS ON INDIAN RESERVATIONS § 3, at 4 (1911)); building “fire lines for the proper
protection and administration of the forests,” id.; and noting “[f]ires caused by lightning are not
rare, especially in dry mountain regions. . . [and] a special effort should be made to locate and
extinguish any such fires before they are well underway,” id. § 6, at 7). Second, regulations
issued in 1966 note similar fire-based duties. Id. at 21 (citing regulations which “required the
[g]overnment to prevent losses from fires and react to emergencies such as fires,” including 25
As plaintiffs note, the Court of Federal Claims previously reached a similar conclusion on NIFRMA’s fiduciary
obligations in Blackfeet. Pls.’ Resp. at 10 (citing Op. and Order on Cross-Mots. for Partial Summ. J., Blackfeet
Tribe of the Blackfeet Rsrv. v. United States, No. 12-429 (Fed. Cl. Aug. 21, 2015), ECF No. 62, vacated by
stipulation, Order on Mot. Vacate, Blackfeet, No. 12-429 (Fed. Cl. Dec. 28, 2017), ECF No. 183). Although the
order was eventually vacated by stipulation, the Court nevertheless considers its reasoning as helpful here, as with
any non-binding decision from this court. Similar to the present case, Blackfeet involved wildfire damage to Indian
forestland. Blackfeet, No. 12-429, slip op. at 1. The plaintiff there alleged the government breached specific
fiduciary duties found in NIFRMA, the BIA’s implementing regulations, and the forestry statutes at issue in Mitchell
II to perform “essential fuel treatments, timber harvesting, and forest management . . . to protect the Blackfeet
Tribe’s forest trust lands from the risk of wildfires.” Id. at 1–2. Judge Wheeler wrote:
3

Supreme Court precedent is dispositive of the [g]overnment’s concerns. In Mitchell v.
United States, . . . the Court analyzed the comprehensive scope of the statutes and regulations
mandating the [g]overnment’s management of tribal forests, covering “virtually every aspect of
forest management,” and noting the “comprehensive responsibilities of the Federal
Government.” . . .
The statutes in question specifically address the obligation of the [g]overnment to prevent
“loss of values resulting from fire,” 25 U.S.C. § 406(e), tree “thinning,” the “use of silvicultural
treatments,” and “protection against losses from wildfire” through the “construction of firebreaks,”
25 U.S.C. § 3103(4). See also 25 C.F.R. § 163.1 (stating the same definitions). When the statutory
structure creates such a comprehensive set of responsibilities, the duties [p]laintiff ascribes to the
[g]overnment in its complaint are either explicitly stated or can be fairly inferred from the language
of the statutes. There is no basis to the [g]overnment’s contention that every detail of the duties
owed to the Tribe must be expressly stated in the statutes.
....
The Court’s conclusion is that, as a matter of law, the Government has the fiduciary duties
alleged in the Tribe’s complaint, and that money damages are available for breach of the fiduciary
duties.
Id. at 2–4. Although Blackfeet did not directly address the effect of § 3120, Judge Wheeler’s opinion similarly
determined the statute provided specific trust duties for forest management, which necessarily includes a
responsibility for wildfire prevention. Like Blackfeet, however, the Court does not reach the merits of whether these
duties have been breached. Id. at 4.

- 20 -

C.F.R. §§ 141.4, .7(b), .8(b), .18, .21, .3(a) (1966)). Third, 1982 regulations “also mandate the
[g]overnment perform certain duties to prevent losses from fire as well as fire prevention and
suppression duties.” Id. at 21–22 (citing 25 C.F.R. § 163.21, .4, .7(b), .18, .3(a)(1) (1982)).
Fourth, regulations from 1984, which were “in effect at the time of NIFRMA,” id., “similarly
demonstrate the historical reality that the [g]overnment accepted fire prevention and suppression
duties . . . [for] ‘the protection of Indian forest resources.’” Id. (citing 25 C.F.R. § 163.1,
.21(b)–(c), .18, .4, .3(a) (1984)). This history confirms the Court’s analysis of NIFRMA supra.
NIFRMA did not “diminish or expand” the trust responsibilities of the United States but merely
clarified the history of statutes and regulations establishing a duty to wildfire prevention and
suppression. See 25 U.S.C. § 3120. The statutes and regulations provide for “specific rightscreating or duty-imposing statutory or regulatory prescriptions” over forest management which
“bear[] the hallmarks of a ‘conventional fiduciary relationship’” with Indian forestland. Navajo
II, 556 U.S. at 301 (first quoting Navajo I, 537 U.S. at 506; and then quoting White Mountain
Apache, 537 U.S. at 473). Sections 406, 407, and 5101, as clarified by NIFRMA, accordingly
establish specific fiduciary duties on behalf of the government for wildfire prevention and
suppression. 25 U.S.C. § 406(e) (“[t]he timber on any Indian land held under trust . . . may be
sold . . . [when] such action is necessary to prevent loss of values resulting from fire.” (emphasis
added)); § 3104 (“The secretary shall undertake forest land management activities . . . .”);
§ 3103(4) (“‘forest land management activities’ means . . . protection against losses from
wildfire, including acquisition and maintenance of fire fighting equipment and fire detection
systems, construction of firebreaks, hazard reduction, prescribed burning, and the development
of cooperative wildfire management agreements” (emphases added)); Mitchell II, 463 U.S. at
224–26; Navajo II, 556 U.S. at 301; Ute Indian Tribe, 99 F.4th at 1368–69 (citing White
Mountain Apache, 537 U.S. at 473); Yakama I, 153 Fed. Cl. at 705.
B.

Whether Additional Statutes Establish Specific Fiduciary Duties

Plaintiffs further allege 25 U.S.C. § 196 and 16 U.S.C. § 594, though “permissive” in
their language, nevertheless “have an important role to play . . . [in] providing context for the[]
mandatory duties.” Tr. at 64:4–16. Section 196 states in relevant part:
The President of the United States may from year to year in his discretion under
such regulations as he may prescribe authorize the Indians residing on reservations
or allotments, the fee to which remains in the United States, to fell, cut, remove,
sell or otherwise dispose of the dead timber standing, or fallen, on such reservation
or allotment for the sole benefit of such Indian or Indians.
25 U.S.C. § 196. Section 594 states:
The Secretary of the Interior is authorized to protect and preserve, from fire,
disease, or the ravages of beetles, or other insects, timber owned by the United
States upon the public lands, national parks, national monuments, Indian
reservations, or other lands under the jurisdiction of the Department of the
Interior owned by the United States, either directly or in cooperation with other
departments of the Federal Government, with States, or with owners of timber; and
appropriations are authorized to be made for such purposes.
- 21 -

16 U.S.C. § 594. Plaintiff admitted at oral argument §§ 196 and 594 do not impose mandatory
duties but instead give “context” to the NIFRMA statutes. Tr. at 64:4–16 (“THE COURT: So
you agree [Sections] 196 and 594 are permissive. [PLAINTIFFS]: Yes, Your Honor. We still
think they have an important role to play in that they’re providing context for these mandatory
duties that we’ve already discussed and . . . [NIFRMA] as well as the general Indian forestry . . .
regulations.”). The Court agrees with plaintiffs these statutes are part of the “context” of the
government’s management duties to tribal forestland, particularly considering NIFRMA clarifies
duties in §§ 406, 407, and 5101 to wildfire prevention and suppression. See supra Sections V.A–
B. These additional statutes only provide more support for the existence of fire prevention and
suppression duties within the scheme clarified by NIFRMA. As these statutes are not “specific”
and “rights-creating or duty-imposing”—and plaintiffs acknowledge as much—they cannot
establish a duty under a Navajo II analysis alone; upon further development of the record,
however, it may be these duties are encompassed within a conventional trust relationship, as
discussed infra Section VII, see Navajo III, 143 S. Ct. 1804 (2023). Navajo I, 537 U.S. at 506;
Navajo II, 556 U.S. at 290–93.
VI.

Navajo Step Two: Whether the Cited Statutes and Regulations are MoneyMandating

The second step of the Navajo test requires the statutes imposing specific duties on the
government to be money-mandating. The Court outlined the test’s second step in Yakama I:
The second step of the Navajo II test requires plaintiffs demonstrate the
fiduciary duties specifically flow from a money-mandating statute. See White
Mountain Apache, 37 U.S. at 472. The “other source of law need not explicitly
provide that the right or duty it creates is enforceable through a suit for damages.”
Navajo II, 556 U.S. at 290. Rather, “the statute and regulations must be such that
they ‘can fairly be interpreted as mandating compensation by the Federal
government for the damage sustained.’” Roberts v. United States 745 F.3d 1158,
1162 (Fed. Cir. 2014) (quoting White Mountain Apache Tribe, 537 U.S. at 472);
see also White Mountain Apache Tribe, 537 U.S. at 480 (“The dispositive question,
accordingly, is whether the [substantive source of law] . . . is fairly interpreted to
mandate compensation. . . .”) (emphasis added).
Unlike the first step of the Navajo II analysis, in the second step the Court
can look to common law trust principles when considering whether the statute
provides for damages as a remedy for breach. Inter-Tribal Council of Ariz. Inc.,
956 F.3d at 1338. These principles can inform the “interpretation of statutes and to
determine the scope of liability that Congress has imposed.” Jicarilla, 564 U.S. at
177. Specifically, “principles of trust law might be relevant in drawing the
inference that Congress intended damages to remedy a breach.” Navajo II, 556
U.S. at 291. If “the Tribe cannot identify a specific, applicable, trust creating statute
or regulation that the Government violated, . . . neither the Government’s ‘control’
over [Indian assets] nor common-law trust principles matter.” Jicarilla, 564 U.S.
at 177 (quoting Navajo II, 556 at 302).
- 22 -

Yakama I, 153 Fed. Cl. 676, 695 (2021). In Yakama I, the Court found NIFRMA and the statutes
at issue in Mitchell II established a money-mandating fiduciary relationship on behalf of the
government. Id. at 701–03. In Mitchell II, the Supreme Court indicated those statutes’ clear
establishment of a fiduciary duty may accordingly “fairly be interpreted as mandating
compensation by the government.” Mitchell II, 463 U.S. at 226 (“Because the statutes and
regulations at issue in this case clearly establish fiduciary obligations of the Government in the
management and operation of Indian lands and resources, they can fairly be interpreted as
mandating compensation by the Federal Government for damages sustained. Given the
existence of a trust relationship, it naturally follows that the Government should be liable in
damages for the breach of its fiduciary duties.”).
In this case, the Court finds both §§ 406 and 407, as clarified by NIFRMA, establish a
duty to prevent and suppress fire rooted in the same forestry obligations found to be money
mandating in Yakama I. See supra Section V.A–B; Yakama I, 153 Fed. Cl. at 701–03. The
government has provided no persuasive reason why, if the duties are the same, the statutes and
regulations should not be fairly interpreted as money-mandating. See United States v. White
Mountain Apache Tribe, 537 U.S. 465, 480 (Ginsburg, J., concurring) (“The dispositive question,
accordingly, is whether the [substantive source of law] . . . is fairly interpreted to mandate
compensation . . . .” (emphasis added)). The government devotes one paragraph in its Motion to
Dismiss arguing plaintiffs’ alleged statutes and regulations are non-money mandating. Gov’t’s
Renewed MTD at 21–22. The government cites Perri for support, arguing “[a] statute is not
money-mandating where ‘it does not specify the amount to be paid or the basis for determining
such amount.’” Id. (quoting Perri v. United States, 340 F.3d 1337, 1342 (Fed. Cir. 2003)). Even
if Mitchell II (and Yakama I) had not previously established the statutes here were moneymandating, the government’s argument under Perri would fail. Perri was a confidential
informant case, where the Federal Circuit distinguished “money-authorizing” statutes from
“money-mandating” statutes. Perri, 340 F.3d at 1341. The Federal Circuit in Perri did not
require a money-mandating statute to “specify the amount to be paid or the basis for determining
such amount”; the court merely indicated because the statute was “not a money-mandating
statute,” there were no other factors supporting an inference of being “money-mandating,” such
as an “amount to be paid.” See id. at 1341–42. In contrast, the Supreme Court indicated in
Mitchell II §§ 406, 407, and 466 (recodified at § 5101) “clearly establish fiduciary obligations of
the Government in the management and operation of Indian lands and resources [and] can fairly
be interpreted as mandating compensation by the Federal Government for damages sustained.”
Mitchell II, 463 U.S. at 226 (“Given the existence of a trust relationship, it naturally follows that
the Government should be liable in damages for the breach of its fiduciary duties.”). The statutes
in this case contemplate monetary compensation due to the trust relationship, as confirmed in
Mitchell II, and as previously held in Yakama I. Mitchell II, 463 U.S. at 226; Yakama I, 153 Fed.
Cl. at 701–03.
VII.

Whether Navajo III Changed the Standard for Breach of Trust with Indian Tribes

During the pendency of this case, the Supreme Court issued its decision in Arizona v.
Navajo Nation. See Navajo III, 143 S. Ct. 1804 (2023). The parties’ briefing on the
government’s Renewed Motion to Dismiss addressed the impact of this case on the immediate
- 23 -

claims. Although the parties agree on the pre-Navajo III standard, they disagree on the extent to
which the majority opinion in Navajo III modified the Navajo II test. Tr. at 10:5–11:20. The
government alleges “in emphasizing the use of the word ‘expressly’ in Jicarilla . . . [the Court]
tighten[ed] the . . . test a little bit. And . . . Navajo III also makes it clear that the same analysis
applies whether it’s a statute, a treaty, or a regulation.” Tr. at 12:15–20. According to the
government, Navajo III is “a gloss” on Navajo II, re-emphasizing the mandatory duties required
in the Navajo test. Tr. at 12:20–21. Navajo III, per the government, is not a substantial
departure from Navajo II, but stresses “both Jicarilla and Navajo III use the word ‘expressly’ . . .
[and] it’s a significant word.” Tr. at 17:11–20. Plaintiffs contend Navajo III did not change the
standard at all: “I think this . . . concept of the Supreme Court sharply focusing on express duties
is really as much as we can say for Navajo III. I don’t think it’s heightening the bar.” Tr. at
18:16–24; Tr. at 12:25–13:1 (“Navajo III did not change the two-part test.”). Plaintiffs allege
“the [government’s] position . . . that the requirement for identifying specific substantive
duties . . . have to be super-specific duties . . . [is not] anywhere in Navajo III.” Tr. at 13:14–18.
In Navajo III, the Supreme Court considered whether an 1868 treaty, which “‘set apart’ a
reservation for the ‘use and occupation of the Navajo tribe,’” “imposed a duty on the United
States to take affirmative steps to secure water for the Navajos.” Navajo III, 143 S. Ct. at 1813.
Justice Kavanaugh, writing for the Court, indicated: “The Federal Government owes judicially
enforceable duties to a tribe ‘only to the extent it expressly accepts those responsibilities.’
Whether the Government has expressly accepted such obligations ‘must train on specific rightscreating or duty-imposing’ language in a treaty, statute, or regulation.” Id. (first quoting United
States v. Jicarilla Apache Nation, 564 U.S. 162, 173–74, 177–78 (2011); and then citing Navajo
I, 537 U.S. at 506). The Court concluded the Navajo treaty did not impose such an affirmative
duty: “The 1868 [Navajo] treaty . . . contained no ‘rights-creating or duty-imposing language’
that imposed a duty on the United States to take affirmative steps to secure water for the Tribe.”
Id. (quoting Navajo I, 537 U.S. at 506).
Navajo III is the latest in a line of cases noting a requirement for specific, enumerated
duties in trust relationships with Indian tribes. In Jicarilla, the Supreme Court stated “[t]he
[g]overnment assumes Indian trust responsibilities only to the extent it expressly accepts those
responsibilities by statute.” United States v. Jicarilla Apache Nation, 131 S. Ct. 2313, 2325
(2023); Navajo I, 537 U.S. at 488 (“Although ‘the undisputed existence of a general trust
relationship between the United States and the Indian people’ can ‘reinforc[e]’ the conclusion
that the relevant statute or regulation imposes fiduciary duties, that relationship alone is
insufficient to support jurisdiction under the Indian Tucker Act. Instead, the analysis must train
on specific rights-creating or duty-imposing statutory or regulatory prescriptions.” (citations
omitted) (quoting Mitchell II, 463 U.S. at 225)). Although “the common law ‘could play a role’”
in imposing trust duties, the Supreme Court has stressed it is “the applicable statutes and
regulations” which “establish [the] fiduciary relationship and define the contours of the United
States’ fiduciary responsibilities.” Jicarilla, 131 S. Ct. at 2316, 2325 (citations omitted) (first
quoting Navajo II, 556 U.S. 287, 301 (2009); and then quoting Mitchell II, 463 U.S. 206, 209,
219–20, 222, 224–26 (1983)).
Despite disagreeing on the extent to which Navajo III heightened the requirement for
statutes to be explicit in establishing the government’s duties, plaintiffs contend the duties need
- 24 -

not be as explicit if they are derived from a “conventional trust relationship.” Tr. at 20:7–18. In
Navajo III, the Supreme Court found there was no “conventional trust relationship with respect
to water.” Navajo III, 143 S.Ct. at 1813–14. Justice Kavanaugh’s opinion explained: the
government’s “general trust relationship” with Indian tribes is more limited than that of a
“private trustee.” Id. The Court accordingly instructed:
[U]nless Congress has created a conventional trust relationship with a tribe as to a
particular trust asset, this Court will not ‘apply common-law trust principles’ to
infer duties not found in the text of a treaty, statute, or regulation.
Id. at 1814 (quoting Jicarilla, 564 U.S. at 178). The Court did not further define a “conventional
trust relationship,” and no previous Supreme Court case uses this exact term. The government
agreed the “negative implication” of the language is “if there is a conventional trust relationship,
then a court can infer duties not found in the text.” Tr. at 84:8–14. The District Court for the
District of Columbia (“DDC”) likewise acknowledged this “negative implication” of Navajo III,
rephrasing in the affirmative: “Courts thus ‘“apply common-law trust principles” to infer duties
not found in the text of a treaty, statute, or regulation’ only if ‘Congress has created a
conventional trust relationship with a tribe as to a particular trust asset.’” Hill v. U.S. Dep’t of
the Interior, No. 22-1781, 2023 WL 6927266, at *13 (D.D.C. Oct. 19, 2023). In other words, the
Navajo III Court—quoting and consistent with the Jicarilla Court—indicates “common-law trust
principles” are relevant if the government has a “conventional trust relationship” with the Tribe
for a particular asset. See Navajo III, 143 S. Ct. at 1814 (quoting Jicarilla, 564 U.S. at 178).
Notwithstanding whether a conventional trust relationship exists here, the government
contends the Supreme Court’s discussion of a conventional trust relationship is merely dicta.
Noting disagreement with the Supreme Court, the government stated at oral argument:
[GOVERNMENT:] I don’t . . . understand the negative implication of Justice
Kavanaugh’s sentence in Navajo III. I understand what the Court is saying. I
understand what the plaintiff[s] [are] saying about that. I don’t accept that that’s
true. And it is dicta. . . . [T]hat’s inconsistent with what the Supreme Court has
been at pains to teach us for . . . many years now.
Tr. at 85:15–25. Although the government contends the statement is dicta, the Court must
nevertheless consider the extent to which the statement is both persuasive and compatible with
other binding precedent. The government takes the position a “conventional trust relationship”
with less-explicit duties does not exist with Indian tribes. Tr. at 43:10–25 (“[GOVERNMENT:]
If what [Justice Kavanaugh is] referring to is a conventional trust relationship in the sense of a
trustee having comprehensive control over a designated trust asset and all aspects ensuring the
benefit and welfare of that asset for the benefit of the beneficiary . . . then my answer is no.”).
Plaintiffs, on the other hand, contend a conventional trust relationship could have been relevant
to the government’s duty to supply water in Navajo III if the Navajo had been able to establish a
conventional trust relationship with respect to agricultural operations on tribal land:
[THE COURT:] To the extent the [Navajo III] treaty said to . . . provide tilled farm
soil and agricultural equipment and support for agricultural operations in order to
- 25 -

sustain food, that would be a conventional trust relationship that would be broad
enough to where the Court would have found . . . water can be inferred . . . and that
the United States also provide water, and the majority opinion would have gone
differently?
[PLAINTIFFS]: Yes, Your Honor.
Tr. at 38:4–12.
It is not clear from Navajo III what actions or statutory language create a “conventional
trust relationship.” Precedent, however, sheds some light on the term’s meaning. In White
Mountain Apache Tribe, the Court provided some guidance on “when it is fair to infer a
fiduciary duty qualifying under the Tucker Act and when it is not.” United States v. White
Mountain Apache Tribe, 537 U.S. 465, 466 (2003). Specifically, the Court distinguished
Mitchell I’s “limited” or “bare” trust from a trust “with hallmarks of a more conventional
fiduciary relationship.” Id. at 473 (emphasis added). The Court accordingly described the trust
from Mitchell I:
Although in form the United States “h[e]ld the land . . . in trust for the sole use and
benefit of the Indian,” the statute gave the United States no functional obligations
to manage timber; on the contrary, it established that “the Indian allottee, and not a
representative of the United States, is responsible for using the land,” that “the
allottee would occupy the land,” and that “the allottee, and not the United States,
was to manage the land.”
Id. (emphasis added) (citations omitted) (first quoting 25 U.S.C. § 348; and then quoting Mitchell
I, 445 U.S. 535, 542–43 (1980)). The Court contrasted this “bare” trust from the Mitchell II
trust:
The Department of the Interior [in Mitchell II] possessed “comprehensive control
over the harvesting of Indian timber” and “exercise[d] literally daily supervision
over [its] harvesting and management,” giving it a “pervasive” role in the sale of
timber from Indian lands under regulations addressing “virtually every aspect of
forest management.” As the statutes and regulations gave the United States “full
responsibility to manage Indian resources and land for the benefit of the Indians,”
we held that they “define[d] . . . contours of the United States’ fiduciary
responsibilities” beyond the “bare” or minimal level, and thus could “fairly be
interpreted as mandating compensation” through money damages if the
Government faltered in its responsibility.
Id. at 474 (emphases added) (citations omitted) (quoting Mitchell II, 463 U.S. 206, 209, 219–20,
222, 224–26 (1983)). Based on the Court’s analysis in White Mountain Apache, the closest
analog to Navajo III’s “conventional trust relationship” is accordingly what White Mountain
Apache described as Mitchell II’s “conventional fiduciary relationship.” See White Mountain
Apache, 537 U.S. at 473. The DDC similarly acknowledged Mitchell II, properly interpreted,
describes one example of a conventional trust relationship:
- 26 -

For example, in [Mitchell II], the Supreme Court noted that its “construction of
[certain] statutes and regulations [was] reinforced by the undisputed existence of a
general trust relationship between the United States and the Indian people.” That
was because the Mitchell [II] plaintiffs, unlike Plaintiffs here, identified specific,
statutory and regulatory provisions that established fiduciary obligations of the
Government in the management and operation of Indian lands and resources in the
first place.
Hill, 2023 WL 6927266, at *13 (citations omitted) (second and third alternations in original)
(emphasis altered). With the context of White Mountain Apache—and the analogous inferences
from Hill—the Court’s opinion in Navajo III therefore indicates the treaty at issue there did not
establish a “conventional trust relationship” because, unlike the regulations in Mitchell II, the
1868 Navajo treaty did not “[give] the United States ‘full responsibility to manage Indian
resources and land for the benefit of the Indians.’” White Mountain Apache, 537 U.S. at 474.
Whereas in the Mitchell II treaty the government “possessed ‘comprehensive control over the
harvesting of Indian timber,’ and ‘exercise[d] literally daily supervision over [its] harvesting and
management,’” id., in Navajo III, “nothing in the 1868 treaty establish[ed] a conventional trust
relationship with respect to water,” Navajo III, 143 S. Ct. at 1814. If, however—as in Mitchell
II—a statute, regulation, or treaty requires similar “comprehensive control” with “literally daily
supervision” and “full responsibility to manage” the resource, the relationship would exhibit the
“hallmarks of a more conventional fiduciary relationship,” and accordingly may qualify as a
“conventional trust relationship.” White Mountain Apache, 537 U.S. at 473–74; Navajo III, 143
S. Ct. at 1814.
In this case, the parties disagree whether a conventional trust relationship exists. The
government admits it “has trust obligations” but does not understand these obligations to stem
from a “conventional trust relationship.” Tr. at 40:9–13 (“[THE COURT:] [I]s there any
conventional trust relationship? [GOVERNEMNT]: Not as I understand what Justice
Kavanaugh is referring to here.”). 4 In other words, as discussed supra Section V.A–B, the
government acknowledges there are some duties to timber management but contends this does
not establish a “conventional trust relationship.” Tr. at 51:16–52:8 (“THE COURT: With
respect to [§§ 406 and 407] and . . . Yakama I’s discussion of Mitchell [II], didn’t the Court . . .
find that these statutes plausibly do impose duties and are money-mandating?
[GOVERNMENT]: Yes, Your Honor. But not having to do with fire. . . . [THE COURT:] [I]s
it not that the government has timber duties and timber responsibilities? [GOVERNMENT]:
That’s correct.”). Plaintiffs agree “the Court cannot imply trust duties” but contends if the duties
established at step one of the Navajo test are part of a conventional trust relationship, “the Court
can imply trust duties that are within the scope of what the statute is contemplating.” Tr. at
28:23–29:6. In other words, plaintiffs contend, “once a conventional trust relationship has been
established, . . . [the Court] can look to implied trust duties that are within the scope of the
express language.” Tr. at 27:15–21.

The government also asserted a lack of “conventional trust relationship” based on the 1855 Yakama Treaty. Tr. at
40:9–12. Plaintiffs’ Second Amended Complaint removed references to the 1855 Yakama Treaty, and the Court
need not consider the impact of the Treaty here. See Second Amended Compl.

4

- 27 -

Plaintiffs’ framing of “implied trust duties” as being “within the scope of the express
language” is not at odds with the Court’s interpretation of “conventional trust relationship”
supra. Although the government argues the duties must be “specific,” Tr. at 41:22–24, the
Supreme Court indicated in White Mountain Apache it is “fair to infer a fiduciary duty” when the
trust bears the “hallmarks of a more conventional fiduciary relationship.” White Mountain
Apache, 537 U.S. at 473. In alignment with White Mountain, the Supreme Court likewise noted
in Navajo III a court may infer duties when a “conventional trust relationship” exists. See
Navajo III, 143 S. Ct. at 1814 (“[U]nless Congress has created a conventional trust relationship
with a tribe as to a particular trust asset, this Court will not ‘apply common-law trust principles’
to infer duties not found in the text of a treaty, statute, or regulation.” (quoting Jicarilla, 564 U.S.
at 178)). To determine the extent to which duties may be inferred from a “conventional trust
relationship,” the Court asked the government a hypothetical scenario at oral argument: if the
government had significant historical and immediate obligations to provide educational benefits
to an Indian Tribe, would it also be required to ensure the efficacy of these educational benefits
as a conventional trust relationship? See Tr. at 44:12–45:19. Despite the government’s
extensive trust commitments in education, the government denied it would be required to ensure
the efficacy of such education:
[THE COURT:] [W]ould you say that to the extent the Navajo were complaining
about something related to schools, that the Supreme Court would have come out
the same way and said ‘Well, there’s all these requirements in the treaty about
teachers and buildings and things like that, but it’s not a conventional trust
relationship, so the government does not actually have to have windows in the
schools, or something else that’s school related?’ . . .
[GOVERNMENT:] I think that analysis would be valid, Your Honor. Yes, I do.
Absolutely. . . . [But] [d]oes the government have a trust responsibility to make sure
the teachers are good teachers?
....
I will say that a treaty that provides, for example, that [the government] will supply
teachers and will build a school doesn’t create comprehensive trust responsibilities.
Tr. at 44:1–45:19. The government’s position highlights the untenability of its argument here
and the rationale behind the inferred duties permissible within Navajo III’s “conventional trust
relationship.” If the government commits teachers and buildings for educational pursuits, yet
those educational pursuits are not met, the trust obligations are violated. Notably, the
conventional trust relationship for forest management alleged here is unlike the water obligations
found not to be a conventional trust relationship in Navajo III. Navajo III, 143 S. Ct. at 1814.
There, the treaty’s “set[ting] apart” a reservation for the “use and occupation of the Navajo
Tribe” and to provide “seeds and agricultural implements for up to three years” failed to
establish a “conventional trust relationship” for water. Id. at 1814–15. Based on the facts in
Navajo III, it was clear there was at least no “full responsibility to manage” the resource, and the
relationship did not seem to bear the “hallmarks of a more conventional fiduciary relationship.”
White Mountain Apache, 537 U.S. at 473–74. In this case, however, the government does have
extensive responsibilities to manage the Yakama Forest for the benefit of the Yakama Nation,
and the statutory and regulatory provisions cited “directly support[] the existence of a fiduciary
- 28 -

relationship.” Mitchell II, 463 U.S. at 224; see supra Section V (discussing the language of 25
U.S.C §§ 406, 407, 5101, and corresponding regulations). In combination, these elements
present the hallmarks of a conventional fiduciary relationship and a conventional trust
relationship with the duty to prevent and suppress wildfires in the Yakama Forest. See supra;
Ute Indian Tribe of the Uintah & Ouray Indian Rsrv. v. United States, 99 F.4th 1353, 1368–69
(Fed. Cir. 2024) (“By identifying a corpus, a trustee, a beneficiary, an intent to create a trust
relationship, and duties with respect to the property, the 1906 Act bears the ‘hallmarks of a more
conventional fiduciary relationship.’ Thus, like the statute at issue in White Mountain Apache,
the 1906 Act ‘goes beyond a bare trust and permits a fair inference that the Government is
subject to duties as a trustee’ to protect and preserve the property.” (first quoting White Mountain
Apache, 537 U.S. at 473; and then quoting id. at 474–75)); see also supra Section V (discussing
the statutory duties and historical background of the government’s trust duties with respect to
tribal forestland); Compl. ¶ 21 (“The United States has historically exercised, and continues to
exercise, comprehensive statutory and regulatory control over management of the Nation’s
Forest resources held in trust . . . .”); Ute Indian Tribe, 99 F.4th at 1368 n.6 (“The Tribe’s
complaint alleged that the [government] . . . exercises ‘pervasive and comprehensive control of
the [water infrastructure]’ . . . . The [government] did not challenge any of the factual
allegations relating to the trial court’s jurisdiction. At this stage of the proceedings, we must take
the well-pled factual allegations of the operative complaint as true.” (citing Reynolds v. Army &
Air Force Exch. Serv., 846 F.2d 746, 747 (1988))); Navajo Nation v. United States, No. 21-1746,
slip op. at 19–20 (Fed. Cl. Apr. 30, 2024) (finding a compensable fiduciary duty under White
Mountain Apache and Ute Indian Tribe despite a statutory provision being “written in the
permissive rather than the imperative” because the statute “contain[ed] all the ‘hallmarks of a
more conventional fiduciary relationship’ . . . [which] are ‘a corpus, a trustee, a beneficiary, an
intent to create a trust relationship, and duties with respect to the property’” (first quoting White
Mountain Apache, 537 U.S. at 473; and then quoting Ute Indian Tribe, 99 F.4th at 1368)). The
Court accordingly finds plaintiffs have plausibly alleged a breach of duty which falls within a
conventional trust relationship for the Yakama Forest. 5 See Navajo III, 143 S. Ct. at 1814; White
Mountain Apache, 537 U.S. at 473–74; Yakama I, 153 Fed. Cl. at 701–03; supra Section V.B.
During pendency of this case, the Federal Circuit issued an opinion in Ute Indian Tribe which likewise relied
heavily on White Mountain Apache to address a breach of trust claim. Ute Indian Tribe of the Unitah & Ouray
Indian Rsrv. v. United States, 99 F.4th 1353 (Fed. Cir. 2024). There, the Federal Circuit addressed three alleged
duties: (1) a duty to “secure new water for the Tribe, including by constructing new water storage infrastructure,”
id. at 1365; (2) a duty to “manage[] particular infrastructure . . . held in trust for the Tribe’s benefit,” id. at 1366; and
(3) a “general obligation to protect and preserve water rights,” id. at 1370. As to the first alleged duty, the majority
found the relevant statute “neither expressly nor implicitly impose[d] such duties [to secure new water] on the
United States” because it did not “create[e] a trust duty with respect to particular property.” Id. at 1366 (first citing
Act of Mar. 1, 1899, ch. 324, 30 Stat. 924, 941; and then citing Arizona v. Navajo Nation, 143 S. Ct. 1804, 1813
(2023)). For the second alleged duty, the panel found the relevant statute did impose a duty to manage water
infrastructure under Mitchell II and White Mountain Apache:
5

The United States’ position here—that the 1906 Act establishes only a bare trust with respect to
water infrastructure—is inconsistent with both the text of the 1906 statute and the Supreme Court’s
decision in White Mountain Apache. The statute here expressly describes particular property—the
UIIP irrigation system—and there is express fiduciary language with an identified beneficiary—the
property is to be held “in trust for the Indians.” 34 Stat. 375. Moreover, the “held and operated”
language prescribes specific duties. Id. By identifying a corpus, a trustee, a beneficiary, an intent
to create a trust relationship, and duties with respect to the property, the 1906 Act bears the

- 29 -

Lastly, the government contends, even if there were a conventional trust relationship, the
duties would not extend to wildfire prevention and suppression. Instead, the government alleges
the duties would stop at timber harvesting. Tr. at 59:3–60:2. As the government described at
oral argument:
[THE COURT:] So with a conventional trust relationship with respect to timber
management and an annual sustained yield, what are the types of things that are
included?
[GOVERNMENT]: I think defining the scope of a cut so as not to overharvest.
THE COURT: [So only] [w]hat percentage of the timber is cut?
[GOVERNMENT]: Yeah. And what types of trees to cut, what ages to cut, that
sort of thing. I think that’s usually, if you’ll forgive the expression, grist for the
mill for a silviculturist who’s trying to exploit the financial value of a forest,
maintain it going forward, that sort of thing. . . . I think that’s the essence of
sustained yield. I think that’s what . . . is talked about in the context of sustained
yield, is not overcutting.
“hallmarks of a more conventional fiduciary relationship.” White Mountain Apache, 537 U.S. at
473. Thus, like the statute at issue in White Mountain Apache, the 1906 Act “goes beyond a bare
trust and permits a fair inference that the Government is subject to duties as a trustee” to protect and
preserve the property. Id. at 474–75.
The 1906 Act, by its plain text, establishes that the United States accepted a duty to “h[o]ld and
operate[]” the described irrigation systems “in trust for the Indians.” 34 Stat. 375. The Tribe also
pled a breach of this duty, namely that the United States has allowed the 1906 Act infrastructure to
fall into “a grave state of disrepair.” Complaint at 24. These allegations are sufficient to clear the
first step of the jurisdictional analysis in Navajo I with respect to the failure to maintain water
infrastructure. The Tribe has identified “a substantive source of law that establishes specific
fiduciary or other duties,” and that the complaint sufficiently “allege[d] that the Government has
failed faithfully to perform those duties,” as required for Indian Tucker Act jurisdiction. Navajo I,
537 U.S. at 506.
Id. at 1368. The Federal Circuit accordingly found the statute’s language requiring the government to “h[o]ld and
operate[]” the water infrastructure “in trust” for the Tribe to establish a duty to “protect and preserve the water
infrastructure.” Id. Based on the same White Mountain Apache language discussed in this Section supra, the panel
determined the statute established more than a “bare trust” and “[b]y identifying a corpus, a trustee, a beneficiary, an
intent to create a trust relationship, and duties with respect to the property, the [statute] bears the ‘hallmarks of a
more conventional fiduciary relationship.’” Id. (quoting White Mountain Apache, 537 U.S. at 473). For the third
alleged duty, the panel noted the statute was “less than clear” and remanded for further consideration by the lower
court. Id. at 1370. The panel’s opinion aligns with the Court’s analysis here to the extent the statutory language
supporting the second alleged duty identified a corpus, trustee, beneficiary, and intent to create a trust relationship.
Id. Here, NIFRMA, in combination with §§ 406, 407, and 5101, similarly identifies each of these trust elements and
accordingly establishes a trust duty to prevent and suppress wildfires under White Mountain Apache and Ute Indian.
See id. at 1365–68. Notably, this court found similarly in Colville, in which Judge Meyers noted: “NIFRMA clearly
recognizes the Federal Government’s trust relationship to Indian Forestlands”; “Similarly, in 25 U.S.C. § 406,
Congress recognizes the trust relationship and the corpus . . . .”; “Section 406 further confirms the trust relationship
and the beneficiaries . . . .”; “Section 407 similarly recognizes this trust relationship.” Confederated Tribes of the
Colville Rsrv. v. United States, No. 21-1664, slip op. at 6 (Fed. Cl. May 30, 2024).

- 30 -

Id. The government’s framing of a conventional trust relationship, however, does not consider
the “common-law trust principles,” and “infer[ence] of duties” relevant to the unique
circumstances of a “conventional trust relationship.” See Navajo III, 143 S. Ct. at 1814;
Jicarilla, 564 U.S. at 178. As Judge Wheeler indicated in Blackfeet:
When the statutory structure creates such a comprehensive set of responsibilities,
the duties Plaintiff ascribes to the Government in its complaint are either explicitly
stated or can be fairly inferred from the language of the statutes. There is no basis
to the Government’s contention that every detail of the duties owed to the Tribe
must be expressly stated in the statutes.
Blackfeet Tribe of the Blackfeet Indian Rsrv v. United States, No. 12-429, slip op. at 3 (Fed. Cl.
Aug. 21, 2015) (emphasis added). Where there is a “conventional trust relationship” and a
“comprehensive set of responsibilities” with respect to Indian forestland, duties inferred from
specific statutory provisions can provide money-mandating obligations on the government.
Navajo III, 143 S. Ct. at 1814 (“[U]nless Congress has created a conventional trust relationship
with a tribe as to a particular trust asset, this Court will not ‘apply common-law trust principles’
to infer duties not found in the text of a treaty, statute, or regulation.’” (citing Jicarilla, 564 U.S.
at 178)). Contra Tr. at 22:19–23:10 (“[GOVERNMENT:] [Blackfeet], I think, is wrong. And I
think that . . . is demonstrated in Navajo III and Jicarilla, that you can’t imply obligations. I
think that’s . . . the crux of the Supreme Court’s decisions in Navajo II, Navajo III, and Jicarilla.
You can’t imply obligations. They have . . . to be expressly stated and specifically stated.”); but
cf. Tr. at 84:8–14 (“THE COURT: Specifically, you agree that the dicta says, if there is a
conventional trust relationship, then a court can infer duties not found in the text[?]
[GOVERNMENT]: That’s the negative implication of what [the Supreme Court] is saying.
That’s the negative implication of the sentence in [Navajo III]. Yes, sir.”). Navajo III
accordingly permits the inference of duties with respect to a “particular trust asset” if there exists
a “conventional trust relationship.” Navajo III, 144 S. Ct. at 1814. Although the Court does not
determine whether the Yakama Forest itself is a trust asset within this definition, see supra, the
Court’s determination §§ 406, 407, 5101, as clarified by NIFRMA, mandate a duty to wildfire
prevention and suppression further reinforces the existence of a conventional trust relationship
within Indian forestland in general, plausibly encompassing the Yakama Forest. Notably, the
extent of the specific duties required with respect to wildfire prevention and suppression within
this “conventional trust relationship”—and the question of whether the government has breached
these obligations—is a question of fact not necessary for the Court to decide at this stage. See
Cheyenne River Sioux, 168 Fed. Cl. at 477. Instead, the Court finds where there is a
“conventional trust relationship,” as plaintiffs plausibly plead in this case, there necessarily exists
money-mandating duties to prevent and suppress wildfires. See supra Section V–VII; Mitchell
II, 463 U.S. at 226; Yakama I, 153 Fed. Cl. at 701–03; White Mountain Apache, 537 U.S. at 480
(Ginsburg, J., concurring); Cheyenne River Sioux, 168 Fed. Cl. 465, 475 (2023) (“Unlike the
Navajo Nation treaty’s silence on the issue of water rights, here the Treaty expressly includes
‘rights-creating or duty-imposing’ language that directly addresses the status of the building.”
(quoting Navajo III, 144 S. Ct. at 1815)).

- 31 -

VIII. Whether Plaintiffs Plausibly Allege the Government Breached Its Trust Duties with
the Yakama Tribe
In summary, the Court finds plaintiffs have alleged a specific, money-mandating duty in
NIFRMA, its implementing regulations, and the statutes at issue in Mitchell II. See
supra Sections V. These duties are also money-mandating for analogous reasons as in Mitchell
II and Yakama I. See supra Section V; Mitchell II, 463 U.S. at 226; Yakama I, 153 Fed. Cl. at
701–03; Confederated Tribes of the Colville Rsrv. v. United States, No. 21-1664, slip op. at 27–
28 (Fed. Cl. May 30, 2024). To the extent Navajo III affected the Navajo test at all, the case
further supports the Court’s finding, as the Yakama Forest falls within what the Supreme Court
described as “conventional trust relationship,” permitting the Court to consider “common-law
trust principles” to determine the duties inherent in the specific forest management duties
stemming from NIFRMA and the statutes at issue in Mitchell II, including § 406 and § 407. See
supra Section VII; Navajo III, 143 S. Ct. at 1814. The Court accordingly finds plaintiffs have
plausibly alleged a breach of trust and denies the government’s motion to dismiss plaintiffs’
breach of trust claim. See supra Sections V–VII.
IX.

Whether Plaintiffs Plausibly Allege the Government’s Actions and Inactions
Resulted in a Taking of the Yakama Forest

The government argues plaintiffs fail to plausibly state a takings claim because the
government’s alleged actions and inactions are insufficient to meet the standard for an inverse
condemnation claim. Gov’t’s Renewed MTD at 10. The government contends plaintiffs’ claim
fails because “in order to prevail on an inverse condemnation claim, a plaintiff must prove, inter
alia, that there was ‘an intent on the part of the defendant to take plaintiff’s property or an
intention to do an act the natural consequence of which was to take its property.’” Id. at 14
(quoting Columbia Basin Orchard v. United States, 132 F. Supp. 707, 709 (1955)). Plaintiffs
argue they must show “the burning of [the] forest lands by the Cougar Creek Fire across more
acres and at a higher severity was the ‘likely, foreseeable result’ of the United States’ action and
inaction.” Pls.’ Resp. at 35–36 (quoting Cary v. United States, 552 F.3d 1373, 1377 (Fed. Cir.
2009)). The parties agree the appropriate test in this instance is the two-part Ridge Line test.
Gov’t’s Renewed MTD at 10; Pls.’ Resp. at 35 Ridge Line defines the first prong, “causation,”
as requiring:
First . . . the government [must] intend[] to invade a protected property interest or
the asserted invasion [must be] the “direct, natural, or probable result of an
authorized activity and not the incidental or consequential injury inflicted by the
action.”
Ridge Line, Inc. v. United States, 346 F.3d 1346, 1355 (Fed. Cir. 2003) (quoting Columbia Basin
Orchard, 132 F. Supp. at 709). The second prong, “appropriation,” requires:
Second, the nature and magnitude of the government action must be considered.
Even where the effects of the government action are predictable, to constitute a
taking, an invasion must appropriate a benefit to the government at the expense of
the property owner, or at least preempt the owners right to enjoy his property for
- 32 -

an extended period of time, rather than merely inflict an injury that reduces its
value.
Id. at 1356. This test tracks a takings analysis for an “inverse condemnation.” Cary, 552 F.3d at
1377–80. An inverse condemnation occurs when “the government conducted no formal exercise
of eminent domain.” Id. at 1376 (citing Moden v. United States, 404 F.3d 1335, 1342 (Fed. Cir.
2005)). In order to plausibly allege a taking under the Ridge Line standard, plaintiffs’ claims
must satisfy both prongs of the test. Ridge Line, 346 F.3d at 1355–56.
A.

Ridge Line Prong 1: Whether Plaintiffs Plausibly Allege the Government’s
Actions and Omissions Caused an Invasion of the Tribe’s Property Interest

Turning to the first prong of the Ridge Line test, the parties disagree whether the
government’s actions in the Yakama Forest were “intended to invade a protected property
interest” or were the “direct, natural, or probable result” of the government’s actions. Gov’t’s
Renewed MTD at 14–15; Pls.’ Resp. at 35–41. The parties agree the most recent controlling
opinion on causation is Cary v. United States, 552 F.3d 1373 (Fed. Cir. 2009). Tr. at 112:24–
113:1; 113:9–12. In Cary, landowners in the Cleveland National Forest sued the government
after a lost hunter’s signal fire spread and destroyed their land. Cary, 552 F.3d at 1375. The
plaintiffs in Cary, similar to the present case, alleged the Forest Service took a “known
calculated risk that its land management policies in the [forest] would result in a taking of the
landowners’ property in the event of a fire.” Cary, 552 F.3d at 1375. Assessing the plaintiffs’
complaint under the Ridge Line standard, the Federal Circuit determined the plaintiffs failed to
prove causation because they “[did] not plead[] that the loss of property would be the likely,
foreseeable result of a policy of fire suppression and recreational use, but merely that the
government knew of or increased a risk.” Id. at 1378. The Federal Circuit indicated “Moden
clarified the meaning of ‘direct, natural, or probable result’ to mean that the injury must be the
likely result of the act, not that the act was the likely cause of the injury, the latter allowing for
incidental injuries resulting from a true cause-in-fact to be considered a taking.” Id. at 1377
(citing Moden, 404 F.3d at 1343).
In considering whether the hunter’s signal fire was an intervening cause, the Cary court
provided a hypothetical illustration, explaining:
[The] government may [not] escape liability per se by finding an incidental
intervening or contributing cause between their authorized action and the alleged
injury. Wherever there is an authorized action, the causation prong is satisfied for
any injury which is the direct, natural, and probable result of that action. For
instance, had the government action been to accumulate fuel loads in the [Cleveland
National Forest], even without knowledge that such fuel loads would become a
large conflagration upon any ignition, then any ignition, even one negligently
started by unauthorized human hands, would be adequate for that government act
to satisfy the causation prong. This is because an ignition is the direct, natural and
probable result of the government intentionally allowing fuel loads to accumulate
in a fire zone, and a conflagration is the direct, natural, and probable result of this
ignition in a forest with high fuel loads. . . . Only by an intervening cause was the
- 33 -

authorized action converted into a damaging event. The landowners would be
correct that the government did not need to light the match to be liable, but to be a
taking, it must have at least authorized supplying the fuel.
Id. at 1379 (the “Cary hypothetical”). The Federal Circuit accordingly indicated if the
government permitted “accumulat[ion of] fuel loads” in a forest, this would satisfy the chain of
causation. Id. (“[A]n ignition is the direct, natural and probable result of the government
intentionally allowing fuel loads to accumulate in a fire zone, and a conflagration is the direct,
natural, and probable result of this ignition in a forest with high fuel loads.”). Unlike the Cary
hypothetical supra, the Federal Circuit determined “[t]he only relevant direct, natural, or
probable result of the Forest Service policies pleaded by the landowners was a heightened risk,
not a wildfire that would spread to neighboring properties” and described the hunter’s fire as a
“hole in the causal chain.” Id. at 1378. The Federal Circuit accordingly indicated a heightened
risk alone cannot establish causation, in contrast to a “direct, natural or probable result” of
governmental action. Id.
Plaintiffs here contend they have pled a plausible takings claim because the government
has performed affirmative actions for which burning of forest lands was the “likely foreseeable
result.” Pls.’ Resp. at 35–36. When asked at oral argument to describe the government’s
affirmative actions alleged in their Complaint, plaintiffs identified three: (1) entering into timber
sales resulting in slash piles building up across the forest for decades; (2) failing to carry out
forest management duties; and (3) withdrawing “hundreds of firefighters . . . off of this fire so
that they could fight fires elsewhere in the region.” Tr. 124:7–125:23. Each of these, plaintiffs
allege, are affirmative actions which “resulted in the injury that [plaintiffs] sustained.” Tr. at
125:21–23. The Court accordingly assesses whether, assuming these three allegations are true, a
wildfire is the “direct, natural, or probable result” of the government’s actions as in the Cary
hypothetical or whether the actions merely created a “heightened risk” of conflagration akin to
the Cary facts. See Cary, 552 F.3d at 1378.
1.

Whether the Alleged Buildup of Slash Piles Satisfies the
Cary Causation Prong

Plaintiffs allege “[t]he facts here are analogous to the Cary Court’s hypothetical [because
the government] . . . failed to . . . remove timber slash piles, thereby directly supplying the fuel
for the Cougar Creek Fire.” Pls.’ Resp. at 38. At oral argument, the government described the
Cary hypothetical as “very confusing,” finding it hard to square with the case’s holding, where
the court found an “increased risk” of fire was insufficient to establish causation alone. Tr. at
119:1–12. The only way the government distinguishes Cary’s hypothetical from its holding is
by arguing the opinion requires the government action to be “intentional[].” Cary, 552 F.3d at
1379 (explaining “ignition is the direct, natural and probable result of the government
intentionally allowing fuel loads to accumulate in a fire zone”). The government contends
plaintiffs are alleging actions which were not “intentional[]” but instead “sloppy.” Tr. 122:13–
17 (“[GOVERNMENT:] But, again, the language that I think explains the hypothetical is the
language ‘intentionally allowing fuel loads to accumulate.’ . . . [T]he allegation in our case is
not that the government intentionally did that. The allegation is that we were sloppy.”). In
focusing exclusively on the word “intentionally,” however, the government reads out an earlier
- 34 -

line in the hypothetical: “[H]ad the government action been to accumulate fuel loads . . ., even
without knowledge that such fuel loads would become a large conflagration . . . [this] would be
adequate for that government act to satisfy the causation prong.” Cary, 552 F.3d at 1379
(emphasis added). If the government can accumulate fuel loads “without knowledge that such
fuel loads would become a large conflagration,” this indicates the government only need to
“inten[d]” to perform the action itself (i.e., accumulating fuel loads), not intend the result of
conflagration. Id. Even if plaintiffs were arguing the government was “[being] sloppy,” they are
still alleging the fuel loads occurred purely through governmental action—i.e., the government
still had an intent to perform alleged actions which directly resulted in accumulation of fuel
loads. Plaintiffs’ Second Amended Complaint alleges the government “failed to adequately
address the substantial fire hazard . . . [and] dispose of slash piles from past timber sales.”
Second Am. Compl. ¶ 15. This allegation is parallel to the Cary hypothetical of “accumulate[d]
fuel loads” and is accordingly sufficient to meet the facts of the Cary hypothetical and establish
causation. See Cary, 552 F.3d at 1379.
Although the Court generally agrees there is tension between Cary’s hypothetical and its
holding, the Federal Circuit’s hypothetical indicates some anticipated outer boundary where
authorized government action can have a direct, natural, and probable consequence without
explicit intent to cause the probable injury. See id. (“This is not to say that the government may
escape liability per se by finding an incidental intervening or contributing cause between their
authorized action and the alleged injury.”). As Cary establishes in its hypothetical, allowing fuel
loads to accumulate, even without knowledge the fuel loads would necessarily catch fire, is
within the boundary of causation. Id. Based on the hypothetical, the Court accordingly finds
plaintiffs have plausibly alleged a conflagration was the “direct, natural, and probable result” of
the “accumulation of fuel loads”—the growth of the slash piles—despite the potentially
intervening cause of a lightning strike. See id. (“[H]ad the government action been to
accumulate fuel loads in the [Cleveland National Forest], even without knowledge that such fuel
loads would become a large conflagration upon any ignition, then any ignition, even one
negligently started by unauthorized human hands, would be adequate for that government act to
satisfy the causation prong.”); Tr. 122:3–17 (“[THE COURT:] [Cary says,] ‘had the government
action been to accumulate fuel loads . . . even without knowledge that such fuel loads would
become a large conflagration upon any ignition . . . .’ Is that not slash piles?
[GOVERNMENT]: It is slash piles, Your Honor.”). Notably, the Court does not reach a
conclusion on whether governmental action did, in fact, result in slash pile buildup nor the extent
to which those slash piles caused or exacerbated the fire damages. Cf., e.g., Tr. at 122:18–22
(“[GOVERNMENT:] [W]ere we to get to a trial on this case, it would be interesting to find out
who actually was responsible for cleaning up the slash, because it’s not the federal government.
But that’s . . . a whole different kettle of fish.”). The Court’s finding is only plaintiffs have
alleged, in conformance with Cary, a plausible authorized government action of which fire is

- 35 -

“the direct, natural, or probable result . . . and not the incidental or consequential injury.” 6, 7
Cary, 552 F.3d at 1377 (quoting Ridge Line, 356 F.3d at 1355).
2.

Whether the Allegations of General Forest Mismanagement and
Reallocation of Firefighting Resources Satisfy the Cary Causation
Prong

The Court next turns to plaintiffs’ allegations the government’s general forest
mismanagement and its reallocation of firefighting resources both caused a taking. Plaintiffs
allege “[t]he United States failed to properly maintain the Yakama Forest,” Pls.’ Resp. at 38, and
the government’s “actions and omissions . . . accomplished an unconstitutional taking.” Second
Am. Compl. ¶ 23–25. The government contends plaintiffs’ alleged actions are omissions, rather
than affirmative actions, and are therefore not compensable. Gov’t’s Renewed MTD at 16–17.
The government cites the Federal Circuit case St. Bernard, contending “only deliberate—as
opposed to negligent—acts can give rise to a taking.” 8 Gov’t’s Renewed MTD at 16 (citing St.
Bernard Parish Gov’t v. United States, 887 F.3d 1354, 1354 (Fed. Cir. 2018)). In St. Bernard,
the Federal Circuit reversed the Court of Federal Claims’ finding a taking occurred during
Hurricane Katrina when the government’s “failure to properly maintain or modify [a dam]
In Cary, the Federal Circuit noted “[f]oreseeability and causation are separate elements that must both be shown
(when intent is not alleged).” Cary v. United States, 552 F.3d 1373, 1379 (Fed. Cir. 2009) (citing Moden v. United
States, 404 F.3d 1335, 1343 (Fed. Cir. 2005)). The court noted “destruction of property [being] foreseeable” must
be accepted at the motion to dismiss stage. Id. at 1380. At oral argument, the government agreed with the Court the
foreseeability of damages here must be accepted as true to the extent “those allegations are plausible.” Tr. at 130:1–
6. Based on the Cary hypothetical, plaintiffs plausibly allege conflagration was the “direct, natural, or probable
result” of the government’s authorized actions resulting in a buildup of slash piles, and the fire was “the likely result
of the act.” Cary, 552 F.3d at 1377 (citing Moden 404 F.3d at 1343)).
7
The government also cites Teegarden v. United States, 42 Fed. Cl. 252 (1998), as instructing the failure to suppress
wildfires cannot give rise to a takings claim. Gov’t’s Renewed MTD at 17–18. In Teegarden, a large wildfire broke
out in Utah, prompting the government to assemble a team to suppress the fire. Teegarden, 42 Fed. Cl. at 253. The
plaintiffs there alleged the government “deliberately and intentionally concentrated fire suppression manpower” on
areas other than the plaintiffs’ land. Id. at 256. The Court of Federal Claims granted the government’s Motion for
Summary Judgment, finding the government’s decision to focus on areas other than plaintiffs’ property did not
amount to a taking because there was no intent to take the property. Id. (“Although little doubt exists that the
execution of the fire suppression plan according to established priorities was an exercise of proper authority by
government officials, plaintiffs have not identified any decision or action by the Forest Service indicating an intent
to take plaintiff's property”). The court also found a failure to prove causation because “the Uinta Flat Fire, not the
Forest Service, caused the destruction of plaintiffs’ property.” Id. at 257. As the government acknowledged at oral
argument, however, this Court of Federal Claims case was decided before Ridge Line and accordingly before the
Federal Circuit’s Cary hypothetical. Tr. at 169:9–13 (“Now, Teegarden is pre Ridge Line . . . [b]ut I think that
the . . . logic is sound . . . .”). To the extent the government relies on Teegarden as an example of the need for
intentionality or to allege the lightning strike here was an intervening cause, the Court finds plaintiffs plausibly
allege intentionality and causation based on the Cary hypothetical: i.e., the government had the alleged intent to
accumulate slash piles, of which conflagration was the direct, natural, and probable consequence. See supra; Cary,
552 F.3d at 1379 (“[T]he government did not need to light the match to be liable, but to be a taking, it must have at
least authorized supplying the fuel.”).
8
The government cites St. Bernard in its Ridge Line Prong 2 arguments. Gov’t’s Renewed MTD at 16–19 (“An
important component of the appropriation for a public purpose requirement is that only deliberate—as opposed to
negligent—acts are covered.”). St. Bernard, however, was a causation case. St. Bernard Parish Gov’t v. United
States, 887 F.3d 1354, 1368 (Fed. Cir. 2018) (“Thus, there was a failure of proof on the key issue of causation.”);
see also Johnson v. United States, No. 22-584, 2023 WL1428603, at *8 (Fed. Cl. Jan. 31, 2023) (treating affirmative
governmental action under St. Bernard as a precondition to causation).
6

- 36 -

constituted a taking by causing flooding damage to [the plaintiffs’] properties.” St. Bernard, 887
F.3d at 1358. The Federal Circuit separated the allegations of governmental inaction from those
of affirmative action. Id. at 1360. As for inaction, the court indicated, “[w]hile the theory that
the government failed to maintain or modify a government-constructed project may state a tort
claim, it does not state a takings claim. . . . On a takings theory, the government cannot be liable
for failure to act, but only for affirmative acts by the government.” Id. This court recently
addressed government inaction in the fire-suppression context in Johnson, a case argued by pro
se plaintiffs and addressed substantively by Judge Solomson. Johnson v. United States, No. 22584, 2023 WL 1428603 (Fed. Cl. Jan. 31, 2023). There, the court indicated “[t]o the extent that
Plaintiffs reference tactical burns as part of their overall critique of the government’s fire control
strategy, the government’s failure to engage in alternative or additional fire control measures
does not amount to an affirmative act sufficient to satisfy St. Bernard.” Id. at *8. Judge
Solomson accordingly found no takings liability for a shift in firefighting resources. See id.
Plaintiffs here contend their case is distinguishable from St. Bernard and Johnson
because the government in those cases was not under a duty to act. 9 Pls.’ Resp. at 41. Tr. at
126:10–25 (“[PLAINTIFFS:] [T]he kicker in St. Bernard is ‘inaction absent a duty.’ And that
language did not carry through to the Johnson opinion. Because there was no duty. There was
no reason in Johnson for the court to be looking at whether the federal government owed a duty
to fire suppression on private property within that national forest. THE COURT: So the focus is
different here because the government has a broad duty to look after the timber[?]
[PLAINTIFFS]: Yes, Your Honor.”). The line plaintiffs cite in St. Bernard, however, does not
include any direct discussion of a “duty to act”; the Circuit was instead describing the Court of
Claims’ decision in Georgia Power Co. v. United States, 633 F.2d 554 (Ct. Cl. 1980). See St.
Bernard, 887 F.3d at 1362 (“Finding no takings liability for failure to regulate sailboat mast
heights, the Court of Claims explained [in Georgia Power] that ‘issuance of such regulations is
merely a discretionary act, and a taking may not result from this discretionary inaction’ absent a
duty to act.” (quoting Georgia Power, 633 F.3d at 527)). The only time the term “duty” appears
in St. Bernard is in reference to Georgia Power. In Georgia Power, the three-judge panel noted
the lack of “affirmative duty imposed on [the government],” and the panel provided no
discussion of when a breach of duty and a lack of “reasonable actions to discharge [the
government’s] responsibilit[ies]” can give rise to a takings claim. See id. at 527. The panel’s
holding “a taking may not result from . . . discretionary inaction,” however, does not establish
the inverse, i.e., a taking must occur from a breach of duty. See id.
The weight of authority indicates government inaction cannot give rise to a takings claim.
See, e.g., St. Bernard, 887 F.3d at 1362 (“Takings liability must be premised on affirmative
government acts.”); Johnson, 2023 WL 1428603, at *6 (“[P]laintiffs must allege facts that
constitute an affirmative government act . . . .”); see also Teegarden v. United States, 42 Fed. Cl.
252, 257 (1998) (“In the context of a claim for inverse condemnation, damages resulting from
Plaintiffs also cite TrinCo Investment Co. v. United States as an example of a case where a “federal fire-fighting
agency’s suppression tactics create a triable issue of fact for an inverse condemnation claim.” Pls.’ Resp. at 38
(citing Trinco Inv. Co. v. United States, 722 F.3d 1375 (Fed. Cir. 2013)). As plaintiffs acknowledged at oral
argument, however, “the discussion in [TrinCo] is the necessity defense.” Tr. at 162:9–10. Although TrinCo is an
example of a case where the Federal Circuit reversed the Court of Federal Claims’ dismissal of a wildfire takings
claim, TrinCo does not provide any assistance in the analysis here, as the necessity defense is not at issue.
See Trinco, 722 F.3d at 1380.

9

- 37 -

‘“a random event induced more by an extraordinary natural phenomenon than by Government
interference”’ cannot rise to the level of a compensable taking, ‘even if there is permanent
damage to property partially attributable to Government activity.’” (quoting Berenholz v. United
States, 1 Cl. Ct. 620, 626 (1982))) . Plaintiffs agree affirmative acts are typically required in
inverse condemnation cases. Tr. at 163:1–2 (“[PLAINTIFFS]: I agree that inaction, absent a
duty to act, cannot give rise to a taking.”). Although, as discussed supra, actions such as leaving
slash piles, may give rise to a plausible takings claim due to conflagration being a direct, natural,
and probable consequence of the action, plaintiffs present no cases affirmatively supporting
liability stemming from a breach of duty to act alone. Generally failing to manage the forest
(e.g., “failing to act even when its own experts identified the Forest’s perilous condition,”
Second Am. Compl. ¶ 25) and “allocat[ing] . . . federal [firefighting] resources to other federal
priorities” both fall within the category of omissions the Court has found cannot rise to the level
of a taking, Pls.’ Resp. at 2. St. Bernard, 887 F.3d at 1360–62; Johnson, 2023 WL 1428603, at
*6, *8. To the extent plaintiffs’ Complaint relies on the general mismanagement of the forest or
the reallocation of firefighting resources, these allegations are insufficient to support a takings
claim, and the Court grants in part the government’s Motion to Dismiss. Cary, 552 F.3d at 1377;
St. Bernard, 887 F.3d at 1360–62; Johnson, 2023 WL 1428603, at *6, *8; see also Teegarden v.
United States, 42 Fed. Cl. at 257.
B.

Ridge Line Prong 2: Whether Plaintiffs Plausibly Allege the Government’s
Failure to Remove Slash Piles Appropriated a Benefit to the Government

Under the second prong of the Ridge Line test, plaintiffs must show the government’s
actions “appropriate[d] a benefit to the government at the expense of the property owner, or at
least preempt[ed] the owner[’]s right to enjoy his property for an extended period of time, rather
than merely inflict an injury that reduces its value.” Ridge Line, 346 F.3d at 1356. This test is
phrased in the alternative, requiring plaintiffs to satisfy either of the disjunctive inquiries:
benefit to the government or preemption of the right to enjoy property for an extended period of
time. Id.; see also Tr. at 153:25–154:8 (“[GOVERNMENT]: As properly construed, Your
Honor, it is a twofold test. That’s correct.”). The government alleges plaintiffs fail to meet
either burden because “the prioritization of federal funds and resources cannot constitute a
taking.” Gov’t’s Renewed MTD at 17 (citing Teegarden, 42 Fed. Cl. 252 ). Plaintiffs allege the
first inquiry is met when the government benefitted from “not allocat[ing] funding, equipment,
or staffing” to fight the Cougar Creek Fire and “re-allocat[ing] resources from” fighting the fire.
Pls.’ Resp. at 40. As the test is disjunctive, plaintiffs may establish a plausible takings claim by
satisfying either inquiry.
The Court starts by assessing whether the government’s actions were so substantial so as
to “preempt [plaintiffs’] right to enjoy [their] property for an extended period time.” Ridge Line,
346 F.3d at 1355. At oral argument, plaintiffs cited two cases as instances where a takings claim
passed this inquiry, Arkansas Game & Fish and Rancho de Dias Alegres. Tr. at 163:8–13. In
Aransas Game & Fish, the Supreme Court considered an appeal from the Federal Circuit, where
the Circuit had found the government not liable under a takings theory for approving controlled
flooding outside of the planned seasonal rates. Ark. Game & Fish Comm’n v. United States, 568
U.S. 23, 27–28 (2012). The government had set seasonal rates for releasing water from a dam
over a period of several years but deviated the rate of flow at the request of downstream farmers.
- 38 -

Id. This change in flow rate resulted in more flooding behind the dam and affected the plaintiffs’
ability to grow and harvest trees in their wildlife management area. Id. at 28. The Supreme
Court held “simply and only, that government-induced flooding temporary in duration gains no
automatic exemption from Takings Clause inspection.” Id. at 38. In reaching this decision, the
Court noted “[f]looding cases, like other takings cases, should be assessed with reference to the
‘particular circumstances of each case,’ and not by resorting to blanket exclusionary rules.”
Id. at 37 (quoting United States v. Central Eureka Min. Co., 357 U.S. 155, 168 (1958)). In
Rancho de Dias Alegres, Judge Dietz recently denied the government’s motion to dismiss in a
case involving a controlled burn which “grew out of control” and damaged the plaintiffs’
ranches. Rancho de Dias Alegres LLC v. United States, 168 Fed. Cl. 139, 142–43 (2023). In
discussing appropriation, the court similarly noted “discovery is necessary to determine whether
plaintiffs’ allegations demonstrate a taking, and, therefore, plaintiffs should be given the
opportunity to develop facts in support of their claims.” Id. at 147 (quoting Orr v. United States,
145 Fed. Cl. 140, 158 (2019)). The court concluded “Rancho has plausibly alleged that the
government [action satisfies prong two of the Ridge Line test].” Id. (citing Ridge Line, 346 F.3d
at 1356).
At oral argument in this case, plaintiffs alleged the inquiry here, as in Arkansas Game &
Fish and Rancho de Dias Alegres is a factual one: “[I]t is a very fact-specific inquiry. And you
have to look at whether there is sufficient invasion of that property right over a period of time to
satisfy that prong, which is a very facts-intensive inquiry.” Tr. at 164:6–10. Plaintiffs point to
the injury being a loss of timber, which plaintiffs contend is pervasive enough to satisfy the
appropriation prong: “[W]hen we’re talking about the duration of this appropriation, the injury
was the loss of timber. The duration of that loss is going to be for many decades, for
generations.” Tr. at 165:1–4; see also Tr. 175:2–17 (“[PLAINTIFFS]: [I]n Cary . . . [t]hey were
talking about the difference between structures and timber. And they were saying that if . . . your
house burns down, you can rebuild your house. You can have another house up on that property
within a year. I think here they say five years. You can’t regrow a commercially valuable-sized
tree in five years. You can’t do it in 10 years. You can’t do it in 20 years. It takes a generation
in order to regrow, to regenerate the value.”). The takings inquiry here, as in the cases plaintiffs
cite, is fact specific because it hinges on the disputed effect of the government’s alleged actions
and the effect of these alleged actions on the Cougar Creek Fire. Plaintiffs clarified their
position on the fact-specific inquiry at oral argument:
[THE COURT:] Is it [plaintiffs’ allegation] that the Court must assume lightning
will strike and that fires will start, but . . . add to that slash piles that cause [a] large
fire in order to wipe out the forest and destroy the full canopy . . . ?
[PLAINTIFFS]: Yes, Your Honor.
Tr. at 117:22–118:7. The government indicated this “might be” a fact-specific inquiry:
[THE COURT:] [F]or purposes of this stage, you agree that we must accept as true
that the government’s actions and policies accrued significant resource benefits?
....
The pleadings indicate, I guess, less government land was burned perhaps.
- 39 -

[GOVERNMENT]: Perhaps.
....
[THE COURT:] [I]f plaintiffs’ pleadings indicate that more government land
would have burned had the government not devoted more resources to the Yakama
land, is that not enough?
[THE GOVERNMENT]: It might be. But that’s not the allegation. They just
alleged that we should have spent all of our money protecting their forest and
ignoring our forest.
Tr. at 166:10–167:19; see also Tr. at 219:22–220:3 (“[PLAINTIFFS]: I think [it] is a question of
fact as to the motives as to why the United States was leaving slash piles across the forest.
[GOVERNMENT]: Or why the tribe was leaving slash piles, as the case may be. The
assumption here is that it was the United States’ responsibility, and that’s . . . just an
allegation.”). Under the second half of the Ridge Line test, plaintiffs must show “the
government’s interference with any property rights . . . was substantial and frequent enough to
rise to the level of a taking.” Ridge Line, 346 F.3d at 1357. In Cary, the Federal Circuit
indicated “many a city has rebuilt after a devastating fire, so we cannot infer from the complaint
that the fire prevented the rebuilding of infrastructure that would allow the landowners to
reoccupy their property.” Cary, 552 F.3d at 1381. In this case, like the fire in Rancho de Dias
Alegres, there are sufficient factual issues—such as the effect of slash piles on exacerbating the
Cougar Creek Fire—which prevent the Court from reaching a decision as a matter of law on
whether the government’s actions were so substantial so as to “preempt [plaintiffs’] right to
enjoy [their] property for an extended period time.” See Ridge Line, 346 F.3d at 1355; Rancho
de Dias Alegres, 168 Fed. Cl. at 147. Construing facts in the light most favorable to plaintiffs
and making all reasonable inferences from the plaintiffs’ pleadings, however, plaintiffs’ Second
Amended Complaint plausibly alleges the government “preempt[ed] [plaintiffs’] right to enjoy
[their] property for an extended period of time, rather than merely inflict[ed] an injury that
reduces its value.” 10 Ridge Line, 346 F.3d at 1355; Ark. Game & Fish, 568 U.S. at 37–38;
Rancho de Dias Alegres, 168 Fed. Cl. at 147. As a question of fact exists over whether the
government’s actions were so substantial as to “preempt [plaintiffs’] right to enjoy [their]
property for an extended period time,” the Court need not determine whether the allocation of
firefighting resources also appropriated a benefit to the government. Ridge Line, 346 F.3d at
1355. The Court accordingly denies in part the government’s Motion To Dismiss to the extent
plaintiffs’ claim is based on the government’s actions resulting in the accumulation of slash piles
in the Yakama Forest and grants in part to the extent plaintiffs’ Complaint relies on the general
mismanagement of the forest or the reallocation of firefighting resources. Ridge Line, 346 F.3d
at 1355; Cary, 552 F.3d at 1377; St. Bernard, 887 F.3d at 1360–62; Johnson, 2023 WL 1428603,

10
At oral argument, plaintiffs raised a new argument, contending the Federal Circuit in Moden indicated jurisdiction
is proper for any claim under the Takings Clause, so long as the claim is not “frivolous . . . [i]nsignificant,
insubstantial, [or] contrary to precedent.” Tr. at 233:6–8. As plaintiffs recognize, however, Ridge Line was based
on “the 12(b)(6) standard.” Tr. at 233:11–12. The Court, however, grants the government’s motion to dismiss in
part under RCFC 12(b)(6) pursuant to the Federal Circuit’s application of the Ridge Line standard in St. Bernard
Parish. Plaintiffs’ argument under RCFC 12(b)(1) is therefore inapplicable here.

- 40 -

at *6, *8; Ark. Game & Fish, 568 U.S. at 37–38; Rancho de Dias Alegres, 168 Fed. Cl. at 147;
see supra Section IX.A.
X.

Whether the Plaintiffs’ Claims are Timely Under the Statute of Limitations or,
Alternatively, Whether Plaintiffs Waived Their Claims

The government contends plaintiffs’ claims of forest mismanagement occurring prior to
June 2015 are barred by the statute of limitations. Gov’t’s Renewed MTD at 31–40. To the
extent any claims are not time barred, the government contends plaintiffs signed a settlement
agreement waiving any claims accruing prior to 2013. Id. at 41–42.
A.

Whether Plaintiffs’ Claims Arose at the Time the Cougar Creek Fire Started

The government contends most of plaintiffs’ claims are barred by the statute of
limitations because “[e]ight of the ten allegations that Plaintiffs advance in the Complaint are for
alleged mismanagement antedating the Cougar Creek Fire.” Gov’t’s Renewed MTD at 32.
Plaintiffs contend, even though the alleged breach of duty began as early as 2000, their claim did
not accrue until the time of the Cougar Creek Fire in 2015. Pls.’ Resp at 22–23. The
government alleges “[a] cause of action accrues when all events which fix the Federal
Government’s alleged liability have occurred and the plaintiff was or should have been aware of
their existence.” Gov’t’s Renewed MTD at 32 (first citing Hopland Band of Pomo Indians v.
United States, 855 F.2d 1573, 1577 (Fed. Cir. 1988); and then citing Ingram v. United States,
560 F.3d 1311, 1314 (Fed. Cir. 2009)). As the Federal Circuit indicated in Menominee, “[t]he
statute of limitations accrues when the plaintiff was ‘capable enough to seek advice, launch an
inquiry, and discover through their agents the facts underlying their current claim,’” the
government accordingly alleges all claims of mismanagement prior to 30 June 2015—six years
before plaintiffs filed their complaint—are time barred. Id. at 32–33 (quoting Menominee Tribe
of Indians v. United States, 726 F.2d 718, 721 (Fed. Cir. 1984)). In response, plaintiffs argue
their claim “is a single claim” for breach of trust, accruing at the time of the fire on 10 August
2015, where “[t]he harm caused [by the] Cougar Creek Fire is an essential element.” Pls.’ Resp.
at 23–24. According to plaintiffs, “in order for a claim to accrue, the plaintiff must have suffered
damages.” Id. at 22 (citing Rosebud Sioux Tribe v. United States, 75 Fed. Cl. 15, 24 (2007)).
Without these damages, plaintiffs contend their “alleged claim would not be ‘ripe,’ because it
would rest on ‘contingent future events that may not occur as anticipated, or indeed may not
occur at all.’” Id. (quoting Texas v. United States, 523 U.S. 296, 300 (1998)). At this stage of
the case, before a full record has developed, the Court need not decide whether plaintiffs’ claim
accrued in 2015 if the claim is potentially continuing. See Rosebud Sioux Tribe, 75 Fed. Cl. at
25 (“It cannot be said at this early stage of the litigation that the Complaint does not, or could
not, encompass claims that are not barred by the statute of limitations.”); see also Confederated
Tribes of the Colville Rsrv. v. United States, No. 21-1664, slip op. at 33 (Fed. Cl. May 30, 2024)
(“Nor is there enough in the record at this point to conclude that the Plaintiff was so involved in
the management of the forest that it knew of the Government’s prior breaches alleged in this
case.”). The Court accordingly assesses whether plaintiffs’ breach of trust claim falls within the
continuing claim doctrine.

- 41 -

The government argues the claims here do not meet the standard for the continuing
claims doctrine, contending plaintiffs’ claims are not “‘inherently susceptible to being broken
down into a series of independent and distinct events or wrongs, each having its own associated
damages,’ [where] at least one of these events falls within the limitations period.” Gov’t’s Reply
at 17 (quoting Rosales v. United States, 89 Fed. Cl. 565, 579 (2009) (quoting Brown Park
Estates-Fairfield Dev. Co. v. United States, 127 F.3d 1449, 1456 (Fed. Cir. 1997)). Plaintiffs
disagree, stating the “continuing claim doctrine has been uniquely applied in the tribal forestry
context to preserve tribal claims that are based in the United States’ statutorily-prescribed
continuing duties,” particularly in the case of Mitchell v. United States (Mitchell IV). Pls.’ Resp.
at 25 (citing Mitchell IV, 10 Cl. Ct. 787, modifying 10 Cl. Ct. 63 (1986)). In 1997, the Federal
Circuit decided Brown Park and outlined factual situations where the continuing claims doctrine
may apply, distinguishing its facts from those in Mitchell IV. In Brown Park, “plaintiffs claimed
that the Secretary of the Interior, acting through the [BIA], had failed to properly discharge his
duties under federal statutes that assigned to him various responsibilities with respect to the
timber . . . [and] [t]he government moved to dismiss for lack of timeliness . . . [for] events
occurring more than six years prior to the commencement of the suit.” Brown Park, 127 F.3d at
1458 (citing Mitchell, 10 Cl. Ct. at 65). The Federal Circuit contrasted Mitchell IV, which
“involved individual actionable wrongs . . . [with] distinct breaches of statutory duties.” Id. at
1459. In Mitchell IV, the court explained, “the existence of a continuing duty to regenerate
mean[t] that on each day the BIA failed in its duty to regenerate a given [area], there arose a new
cause of action.” Id. at 1458 (alterations in original) (quoting Mitchell IV, 10 Cl. Ct. at 788). In
contrast, the Brown Park plaintiffs brought Section 8 claims alleging the government had “failed
to make the proper rent adjustments.” Id. at 1453. These claims were not continuing in nature,
the court found, because they were “not a case of recurring, individual actionable wrongs.” Id. at
1459. The Federal Circuit therefore indicated a claim involving “recurring, individual actionable
wrongs,” similar to the claims in Mitchell IV, may be within the jurisdiction of this court despite
beginning outside the six-year statute of limitations. Id. at 1459.
Under the continuing claims doctrine, to “sue with respect to” alleged breaches of duty
from “long ago” (i.e., outside the Court’s six-year statute of limitations), plaintiffs must plausibly
allege the government has committed “individual actionable wrongs” constituting breaches of a
“continuing duty.” Id. (citing Mitchell, 10 Cl. Ct. at 65); Mitchell IV, 10 Cl. Ct. 789. Plaintiffs
allege the damages here have occurred daily since the breach of trust began because “every day
that the [government does not] . . . prepare to suppress wildfires, every day that they are not
managing for fuel[] . . . in the Yakama forest . . . the Yakama Nation is accruing a new claim for
damages.” Tr. at 190:10–23 (“[PLAINTIFFS]: The failure of trust duties is continuing in
nature. So we have the settlement that the United States points to in June of 2013. And the day
after that settlement was entered as an order of the court, there was a claim for breach of trust for
the United States because they had not taken actions to manage wildfire risk on the forest. They
had not taken actions to prepare to suppress wildfires that occur within the forest. . . .”). At oral
argument, the government agreed plaintiffs must have suffered damages in order for their breach
of trust claim to accrue but disputed the timeline of when damages began. Tr. at 201:22–202:8
(“[THE COURT:] [Y]ou agree that claims accrue when damages have occurred, correct?
[GOVERNMENT]: Well, when all of the elements of a claim have occurred or are known or
reasonably knowable to the plaintiff[s]. THE COURT: But the claim must include damages.
[GOVERNMENT]: Yes. . . . And plaintiffs have just conceded that when the slash pile was left
- 42 -

there in 2005, there was damage.”). Notably, in Mitchell IV, the Claims Court found “[the] duty
to replant . . . [was] an ever-present one, rather than one tied to a fixed point in time.” Mitchell
IV, 10 Cl. Ct. at 789. The duty to replant was accordingly not a one-time obligation, but instead
a duty the government was required to continually perform to fulfil its obligations within the
forest. See id. In this case, the government’s repeated efforts to address fire hazards in the
Yakama Forest indicate its fire prevention and suppression duties, as clarified by NIFRMA, are
ongoing like those in Mitchell IV. See supra Sections V–VI. In 2005, for example, the BIA
issued a “Forest Management Plan,” which acknowledged an increased risk of fire in the
Yakama Forest and the need for management to address the hazard. Gov’t’s MTD Ex. A at 8,
33, ECF No. 41-1 (describing the “Yakama Reservation Fire Plan” which “specifies the
manpower and equipment needs for each national fire danger rating class.”). The government
produced similar reports in 2013 and 2014. Gov’t’s MTD Ex. G at 22–24, ECF No. 41-7 (Indian
Forest Management Assessment Team (IFMAT) Report 2013 Vol. I) (detailing government fire
hazard reduction efforts); Gov’t’s MTD Ex. H at 227–28, ECF No. 41-8 (IFMAT Report 2013
Vol. II) (detailing updates to the “Indian Affairs Handbooks for Forest and Fire”); Gov’t’s MTD
Ex. C at 65–66, ECF No. 41-3 (Yakama Forestry 2014 Program Review – Tiger Team Report)
(“[A]ll slash piles represent a threat to the Yakama forest in the form of excessive fuel loading in
the event of a wildfire. . . . Immediate action should be taken in ensuring that slash pile disposal
by burning occurs at a rate equal to the generation of new slash piles. This will ensure that the
existing problem does not continue to grow.”). These documents suggest, like the duty to replant
in Mitchell IV, the duties to prevent and suppress wildfires here are not one-time obligations but
are instead “ever-present.” Mitchell IV, 10 Cl. Ct. at 789; see also Colville, No. 21-1664, slip op.
at 32 (“Given that there is a regular cycle of assessments and reallocation of resources based on
changing conditions, it is not clear when the Plaintiff knew or should have known of this alleged
breach.”); id. at 33 (“But this court does not have enough before it to conclusively state that
Plaintiff is seeking to recover for the cumulative effect of prior breaches rather than new
breaches. . . . In short, if the evidence shows that the Plaintiff’s claims seek to recover for the
cumulative effects of old breaches (e.g., the breaches outlined in IFMAT I), then the court can
grant judgment accordingly. But the court cannot dismiss this action now based on the limited,
pre-discovery record.”). The government’s duties to prevent and suppress wildfires were
therefore not “tied to a fixed point in time” but instead were persistent obligations required by
statutes and regulations which the government recommitted to carrying out between 2005 and
2015. See supra Sections IV–V; Mitchell IV, 10 Cl. Ct. at 789; Colville, No. 21-1664, slip op. at
32 (“Given the frequent updates and changes that the Government makes in forest management,
it is unclear whether the supposed past mismanagement would put Plaintiff on sufficient notice
so that it ‘knew or should have known of the [Government’s] breach[es].’” (alterations in
original) (quoting Birdbear v. United States, 162 Fed. Cl. 225, 242 (2022)). Thus, even
assuming arguendo “[e]ight of the ten allegations that Plaintiffs advance in the Complaint are for
alleged mismanagement antedating the Cougar Creek Fire,” Gov’t’s Renewed MTD at 32, the
ongoing nature of these duties and plaintiffs’ plausible allegations of discrete instances of breach,
see Tr. at 190:10–23, permit “plaintiffs . . . [to] sue with respect to [alleged breaches from] long
ago.” Mitchell IV, 10 Cl. Ct. at 789; Brown Park, 127 F.3d at 1459; Menominee, 726 F.2d at
721; Rosebud Sioux, 75 Fed. Cl. at 25 (“It cannot be said at this early stage of the litigation that
the Complaint does not, or could not, encompass claims that are not barred by the statute of
limitations.”).

- 43 -

Plaintiffs’ concern over repeated litigation over the same breach of duty confirms the
Court’s finding. Plaintiffs reasonably question whether Tribes must be in a “constant state of
litigation over every possible future claim of damages.” Tr. at 201:11–17 (“[PLAINTIFFS:]
[A]re tribes supposed to be in a constant state of litigation over every possible future claim of
damages that might happen regardless of how speculative those are? I think the answer’s
absolutely not. And the way that we protect ourselves from going down that road is the
requirement that you must have damages in order to accrue a claim.”); cf. Portland Mint v.
United States, 160 Fed. Cl. 642, 662–63 (2022) (“[A] statutory construction that causes absurd
results is to be avoided if at all possible” (quoting Timex V.I., Inc. v. United States, 157 F.3d 870,
886 (Fed. Cir. 1998)), appeal argued, No. 2022-2154 (Fed. Cir. Mar. 5, 2024)). Additionally,
the existence of a continuing claim is further supported by the government’s admission at oral
argument “wrongs committed within [the] six-week period [between 30 June 2015 and the start
of the Cougar Creek Fire] are actionable.” Tr. at 196:5–6; Tr. at 196:7–10 (“[THE COURT:]
How about the fire? [GOVERNMENT]: To the extent the fire was . . . exacerbated by
actionable conduct occurring within that six-week period, that might be actionable.”). If a
breach of trust can exacerbate damages from a breach of trust, this weighs in favor of finding the
breach “an ever-present one” “not “tied to a fixed point in time.” See Mitchell IV, 10 Cl. Ct. at
789; see also Colville, No. 21-1664, slip op. at 32 (“[T]he fact that the Government may have
breached its duties prior to August 2015 does not necessarily preclude Plaintiff’s claims for
breaches in and after 2015.”). As the Court determined there was a plausibly alleged actionable
breach of trust, see supra Section IV–VI, the Court finds the duties alleged, like those alleged in
Mitchell IV, to be “ever present” and therefore subject to the continuing claims doctrine; further
development of the record is necessary, however, to determine when each duty arose and when
breach specifically occurred. Mitchell IV, 10 Cl. Ct. at 789; Brown Park, 127 F.3d at 1459;
Hopland Band of Pomo Indians, 855 F.2d at 1577.
B.

Whether Plaintiffs Waived the Alleged Claims in a 2013 Settlement
Agreement

The government argues, even if there is a continuing claim, plaintiffs have waived their
right to recover for any claim arising from actions prior to a 2013 settlement agreement. Gov’t’s
Renewed MTD at 41. The government explains, “[i]n 2013, the United States and Yakama
Nation executed a settlement agreement . . . resolving breach of trust claims relating to the
United States’ alleged mismanagement of the [Tribe’s] monetary and non-monetary trust assets
and resources.” Id. This settlement agreement, entered publicly on the corresponding docket of
the United States District Court for the District of Columbia and attached to the government’s
Motion, states in part:
4. Plaintiff hereby waives, releases, and covenants not to sue in any administrative
or judicial forum on any and all claims, causes of action, obligations, and/or
liabilities of any kind or nature whatsoever, known or unknown, regardless of legal
theory, for any damages or any equitable or specific relief, that are based on harms
or violations occurring before the date of the Court’s entry of this Joint Stipulation
of Settlement as an Order and that relate to Defendants’ management or accounting
of Plaintiff’s trust funds or Plaintiff’s non-monetary trust assets or resources. The
claims being settled include:
- 44 -

....
b. Defendants’ alleged mismanagement of Plaintiff’s non-monetary trust
assets or resources, including but not limited to any claim or allegation that:
....
(4) Defendants failed to preserve, protect, safeguard, or maintain
Plaintiff’s non-monetary trust assets or resources;
6. Exceptions to Plaintiff’s Release, Waiver, and Covenant Not to Sue.
....
k. Plaintiff’s claims, if any, that relate to Plaintiff’s non-monetary trust
resources and that arise under the takings clause of the Fifth Amendment of
the United States Constitution, provided however any claims that are
reserved in this subparagraph exclude those (1)(a) that relate to . . .
Defendants’ alleged mismanagement of Plaintiff’s timber resources
Joint Stip. of Settlement ¶¶ 4–6, Nez Perce Tribe v. Jewell, No. 06-cv-2239 (D.D.C. June 14,
2013), ECF No. 219. According to plaintiffs, this agreement “paid for the lack of timber yield
up to that date in 2013. . . . And that’s it.” 11 Tr. at 216:1–4. The government, on the other hand,
alleges the settlement agreement covered plaintiffs’ claims here. Tr. at 216:5–8 (“THE COURT:
And, [government], the argument is that . . . the settlement paid for more than that?
[GOVERNMENT]: Absolutely, Your Honor.”). At oral argument, the government cited to
paragraph 6(k) of the settlement agreement, alleging “claims relating to defendants’ alleged
mismanagement of plaintiffs’ timber resources are expressly and explicitly included in the
waiver.” Tr. at 216:24–217:2. Interpretation of “a settlement agreement is an issue of law.”
King v. Dep’t of Navy, 130 F.3d 1031, 1033 (Fed. Cir. 1997) (citing Mays v. USPS, 995 F.2d
1056, 1059 (Fed. Cir. 1993)). “In interpreting a written agreement, [the Court must] first
ascertain whether the written understanding is clearly stated and was clearly understood by the
parties.” Id. The Court accordingly turns to the language of the contract, giving the words of the
contract “their ordinary meaning, unless it is established that the parties mutually intended and
agreed to some alternative meaning.” Id. (citation omitted).
Plaintiffs contend they could not have waived a breach of trust claim for fire prevention
and suppression duties because their claim did not accrue until 2015. Pls.’ Resp. at 27. As
indicated supra, plaintiffs allege a plausible continuing claim which may extend to breaches of
duty up to a decade prior to 2015. See supra Section X.A. The 2013 agreement, however,
explicitly waives “all claims, causes of action, obligations, and/or liabilities of any kind or nature
whatsoever, known or unknown . . . for any damages or any equitable or specific relief, that are
based on harms or violations” for the government’s “alleged mismanagement of Plaintiff[s’]
non-monetary trust assets or resources.” Joint Stip. of Settlement ¶ 4. The plain language of the
agreement therefore indicates plaintiffs waived any claim accruing due to a breach of duty prior
to 14 June 2013, the date the court entered the agreement. According to plaintiffs, the settlement
Plaintiffs argue in their Response: “Plaintiff Yakama Forest Products was not a part to that settlement and is not
bound by its terms.” Pls.’ Resp. at 26–27. At oral argument, however, plaintiffs clarified “Yakama Forest Products
is certainly a wholly owned arm of the Yakama Nation government” and acknowledged the agreement is “binding
on the Yakama Nation.” Tr. at 210:3–19. There is nothing in the record to indicate plaintiffs are not “close enough
in privity” to both be bound by this settlement agreement.

11

- 45 -

paid for the “lack of timber yield up to that date in 2013 . . . [a]nd that’s it.” Tr. at 216:1–4.
Plaintiffs’ contention does not align with the plain reading of the agreement, however, which
indicates plaintiffs waived all claims resulting from the government’s mismanagement of the
forest. Joint Stip. of Settlement ¶ 4. By its plain terms, the agreement accordingly encompasses
waiver of any breach of trust claim accruing prior to 14 June 2013. Id. Furthermore, Yakama
Nation waived damages for “harms or violations” occurring before the settlement agreement.
Joint Stip. of Settlement ¶ 4. The waiver’s disjunctive language accordingly applies to any
violations in existence on 14 June 2013, regardless of whether there was harm. See Joint Stip. of
Settlement ¶ 4; see also Colville, No. 21-1664, slip op. at 34 (“Because [the settlement
agreement] is phrased in the disjunctive, it applies to any violation that had occurred whether
there was any harm at the time of the settlement. Therefore, the court agrees that any alleged
breaches of the Government’s trust obligations prior to [the effective date] that are covered by
the settlement agreement, are barred by the release regardless of whether there was any harm at
the time.”). Although plaintiffs’ breach of trust count is a continuing claim, see supra Section
X.A, the record is insufficient to establish precisely when plaintiffs’ claim accrued. 12 Due to the
Yakama Nation’s 2013 agreement, however, plaintiffs’ breach of trust claim must arise from a
breach of duty occurring no earlier than 14 June 2013, the date the agreement was entered. The
Court accordingly grants in part the government’s Motion to Dismiss to the extent plaintiffs’
claim relies on a breach of duty occurring prior to the 2013 settlement agreement. Joint Stip. of
Settlement ¶ 4; see also Colville, No. 21-1664, slip op. at 34 (“That said, at this stage of the
litigation the Court cannot determine how broad this release will turn out to be. . . . To the extent
that the parties dispute whether harms were caused by released trust management duties or
subsequent acts (or failures to act), that will require a fully developed factual record (and perhaps
expert testimony) that is not yet before the Court.”).
XI.

Whether the Doctrine of Claim Splitting Prevents the Yakama Tribe’s Claims

The parties disagree whether plaintiffs’ claims here are barred due to plaintiffs’ ongoing
case in Yakama I. Notably, the government is not arguing claim preclusion, the doctrine
preventing parties from relitigating cases involving the same parties and the same facts when a
case has reached final judgment. See Phillips/May Corp. v. United States, 524 F.3d 1264, 1267–
68 (Fed. Cir. 2008). Instead, the government contends any claim for breach of duty for wildfire
prevention and suppression are necessarily rooted in a sustained yield claim and must be litigated
in Yakama I. Gov’t’s Renewed MTD at 27–30. The government states, “it appears [p]laintiffs’
theory . . . is that the principle of management for sustained yield implicitly includes moneymandating, fiduciary duties for fire prevention and suppression. But—even assuming (without
conceding) that [p]laintiffs are correct on that point—any alleged breach of a fiduciary duty to
provide for sustained yield is already being litigated in [p]laintiffs’ forestry case.” Id. at 29–30.
Despite alleging the claims are “already being litigated,” however, the government requests no
specific relief in its Motion related to this contention. Plaintiffs, on the other hand, assert claim
A developed record may particularly clarify the timing of when alleged duties arose, when those duties were
breached, and to what extent actions before and after 2013 contributed to the wildfire. See Tr. at 220:20–221:7
(“[GOVERNMENT:] [The settlement agreement] only waives claims that accrued prior to [2013], and that would
extend to any . . . slash piles that were left prior to this, if it was the United States’ responsibility to clean those up in
the first place and if, indeed, they were left. . . . [THE COURT:] [C]ould it be that slash piles left after 2013 that
caused increased fire risk are part of those then? . . . [GOVERNMENT]: That’s theoretically possible, yes. . . .
[PLAINTIFFS]: That’s our allegation.”).
12

- 46 -

splitting and claim preclusion have identical standards, preventing any remedy from being
necessary here. Pls.’ Resp. at 19. Plaintiffs propose “[c]laim preclusion applies when ‘(1) the
parties are identical or in privity; (2) the first suit proceeded to a final judgment on the merits;
and (3) the second claim is based on the same set of transactional facts as the first.’” Id. at 19–20
(quoting Phillips/May Corp., 524 F.3d at 1267). The government notably suggests no test in its
briefing for claim splitting. When asked at oral argument for the government’s proposed
standard, the government stated, “I think it’s a flexible test because it’s entrusted to the trial
court’s discretion as to the best way to manage the case law in front of it[;] [b]ut I believe that if
you have the same transaction or occurrence, with the same parties, the claims should be . . . in
one case and not in two[,] [s]o that’s the test I propose.” Tr. at 177:22–178:3. The government
indicated the determination is at the discretion of the Court for “docket management” purposes.
Tr. at 180:2–5. Plaintiffs agreed “the entire analysis is about . . . what is the most helpful thing
for the Court’s docket and the Court exercising discretionary authority to manage its docket.”
Tr. at 179:23–180:1.
As the parties agree the question of claim splitting is at the Court’s discretion for docket
management purposes, the Court accordingly turns to the claims at issue to determine whether
the claims are similar enough to warrant permitting a second action to continue. See Lea v.
United States, 120 Fed. Cl. 440, 446–47 (2015) (“Plaintiff[s] [are] already pursuing his claim
that the United States breached the loan guarantee in his earlier-filed case. . . . Accordingly, to
promote judicial economy and conserve the parties' resources, the court dismisses the breach-ofcontract claims set forth in plaintiff’s second amended complaint without prejudice.”). Plaintiffs
allege “the series of transactions that underlie Yakama I are those transactions related to the
processing of timber sales . . . [w]hereas here, the operative facts are the Cougar Creek wildfire.”
Tr. at 181:12–22. Plaintiffs argue they are alleging breach of different statutory subsections here
than they are in Yakama I. Tr. 180:21–181:2 (“THE COURT: Well, . . . assuming claim
splitting applies, you’re alleging that the government has violated the same statutes and
regulations as in Yakama I? [PLAINTIFFS]: We are alleging different subsection. But if you’re
just looking at the . . . overarching statutes, there is overlap, yes.”). The government, in contrast,
contends “[i]f [] plaintiffs have a claim at all arising out of the Cougar Creek fire, it is that
the . . . government conduct before and during that fire caused an underharvest of trees,
reduc[ing] . . . the logging revenue that the tribe might have obtained.” Tr. at 183:17–21. In this
case, the Court finds the money-mandating duties arise under the same statutory and regulatory
scheme as in Yakama I, yet the duties and damages to wildfire prevention and suppression are
distinct from sustained yield alone. See supra Sections V–VIII. In Yakama I, the Court
determined there was a duty “to manage the [Yakama] [F]orest ‘in accordance with the
principles of sustained yield.’” Yakama I, 153 Fed. Cl. 676, 702 (2021) (quoting 25 U.S.C.
§ 407). In this case, the allegedly breached duties are distinct from an obligation to sustained
yield. See supra Section V. Plaintiffs acknowledge, “there is the potential for some overlap”
regarding the “building up of . . . fuels across the forest.” Tr. at 182:21–24. Although the parties
may wish to consolidate cases in the future, and although there may be overlap in calculation of
damages, there are sufficient factual differences between Yakama I and the immediate case. For
example, in contrast to damages from sustained yield, this case directly implicates the effect of
slash piles on the Cougar Creek Fire and the potential damages which resulted from the fire. See
supra Sections V–VIII. Both of these issues create sufficiently distinct analyses and potential

- 47 -

damages which do not necessitate dismissal or mandatory consolidation for purposes of “judicial
economy and conserv[ation] [of] the parties’ resources.” See Lea, 120 Fed. Cl. at 447. 13
XII.

Conclusion

For the foregoing reasons, the Court GRANTS in PART and DENIES in PART the
government’s Renewed Motion to Dismiss, ECF No. 41. On plaintiff’s breach of trust claim, the
Court denies in part, finding plaintiffs have pled a plausible and compensable breach of duty.
See supra Sections V–VIII. The Court grants in part to the extent plaintiffs’ claim relies on a
breach of duty occurring prior to a 2013 settlement agreement. See supra Section X.B. On
plaintiffs’ takings claim, the Court denies in part to the extent plaintiffs’ claim is based on the
government’s actions resulting in the accumulation of slash piles in the Yakama Forest. See
supra Section IX.A.1, B. The Court grants in part to the extent plaintiffs’ claim is based on
general forest mismanagement and the reallocation of firefighting resources. See supra Section
IX.A.2. On or before 3 July 2024 the parties shall file a joint status report including a proposed
schedule for further proceedings in this case.
IT IS SO ORDERED.
s/ Ryan T. Holte
RYAN T. HOLTE
Judge

At oral argument, the parties did not take clear positions on the necessity or desire to consolidate. Tr. at 179:19–
180:21 (“[PLAINTIFFS:] [I]f there’s a problem here, I think that it’s a problem that is easily remedied by
consolidation. . . . THE COURT: [Government,] you would agree, then, the discretion of the Court to consolidate
could be a remedy? [GOVERNMENT]: It could be. . . . I think the cases are so different that consolidation would
not provide any real benefits. But depending on how the pending motion to dismiss is resolved, that situation may
change.” ). To the extent one or both parties wish to consolidate the present case with Yakama I, the Court will
entertain those arguments upon consideration of a properly filed motion.
13

- 48 -