Case: 21-1880 Document: 54 Page: 1 Filed: 04/25/2024

United States Court of Appeals for the Federal Circuit ______________________

UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN RESERVATION, Plaintiff-Appellant

v.

UNITED STATES, Defendant-Appellee ______________________

2021-1880 ______________________

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

Decided: April 25, 2024 ______________________

MICHAEL W. HOLDITCH, Patterson Earnhart Real Bird & Wilson LLP, Louisville, CO, argued for plaintiff-appel- lant. Also represented by FRANCES C. BASSETT.

ANDREW MARSHALL BERNIE, Appellate Section, Envi- ronment and Natural Resources Division, United States Department of Justice, Washington, DC, argued for de- fendant-appellee. Also represented by TODD KIM. ______________________

Before DYK, REYNA, and STARK, Circuit Judges. Case: 21-1880 Document: 54 Page: 2 Filed: 04/25/2024

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Opinion for the court filed by Circuit Judge DYK. Opinion concurring-in-part and dissenting-in-part filed by Circuit Judge REYNA. DYK, Circuit Judge. Plaintiff Ute Indian Tribe of the Uintah and Ouray In- dian Reservation (“Tribe”) brought suit against the United States in the Court of Federal Claims (“Claims Court”) as- serting various claims concerning water rights and water- related infrastructure. The First Amended Complaint (“Complaint”) alleged that the United States breached du- ties of trust by mismanaging water rights and mismanag- ing water infrastructure held by the United States and operated for the Tribe, breached contracts with the Tribe, and effected unconstitutional takings of the Tribe’s prop- erty. The Claims Court held that the Tribe had not identi- fied a trust-creating source of law and dismissed all the breach of trust claims, held that one breach of contract claim was barred by a 2012 settlement agreement, and found the remaining breach of contract and takings claims time barred. We hold that the Winters doctrine and the 1899 Act do not sufficiently establish trust duties to support Indian Tucker Act jurisdiction with respect to the Tribe’s claims that the United States has a duty to construct new infra- structure and secure new water for the Tribe, but that the 1906 Act imposes trust duties on the United States suffi- cient to support a claim at least with respect to manage- ment of existing water infrastructure. Thus, as to the trust claims, we affirm in part and vacate and remand in part. With respect to one breach of contract claim, we affirm in part and vacate and remand in part. With respect to the takings claims and the other breach of contract claim, we affirm the dismissal. Case: 21-1880 Document: 54 Page: 3 Filed: 04/25/2024

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BACKGROUND I. Historical Background The Tribe is a federally recognized and sovereign In- dian Tribe that was organized into its present form under the Indian Reorganization Act of 1934. 25 U.S.C. § 5101 et seq. The Tribe occupies the Uintah and Ouray Indian Res- ervation (“Reservation”), which encompasses about four million acres in the Green River Basin of northeastern Utah and lies within the drainage of the Colorado River Basin. Approximately half of the Reservation was estab- lished by an 1861 Executive Order that was confirmed by an Act of Congress instructing the superintendent of In- dian affairs for the territory of Utah to “collect and settle all or so many of the Indians of said territory as may be found practicable in the Uinta valley.” Act of 1864, 38 Cong. Ch. 77, 13 Stat. 63. The other half was established by Congress in 1880. Act of 1880, 46 Cong. Ch. 223, 21 Stat. 199. Among “[t]he purposes of [the Act of 1880 was] to destroy the tribal structure and to change the nomadic ways of the Utes by forcibly converting them from a pasto- ral to an agricultural people.” United States v. S. Ute Tribe or Band of Indians, 402 U.S. 159, 163 (1971) (citing 10 Cong. Rec. 2059, 2066 (1880)). Because the Reservation is exceptionally arid, year-round water supply depends upon water storage infrastructure and irrigation systems to cap- ture and distribute winter snowmelt in the rivers running through the Reservation. In 1905, the Commissioner of In- dian Affairs remarked that the Tribe’s future “depends upon a successful irrigation scheme, for without water their lands are valueless, and starvation or extermination will be their fate.” Complaint at 6 (quoting Rep. of the Comm. of Ind. Affs., 1906). The history of the relationship between the Tribe and the United States with respect to water rights is long and complicated. Several events essential to the Tribe’s claims here are the following: Case: 21-1880 Document: 54 Page: 4 Filed: 04/25/2024

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The 1899 Act • In 1899, Congress enacted an appropriations stat- ute with a provision permitting the Secretary of the Inte- rior to grant rights of way on or through the Uintah Indian Reservation for the construction and maintenance of dams, ditches, and canals, provided that “it shall be the duty of the Secretary of the Interior to prescribe such rules and regulations as he may deem necessary to secure to the In- dians the quantity of water needed for their present and prospective wants.” Act of March 1, 1899, 55 Cong. Ch. 324, 30 Stat. 924, 941 (“1899 Act”). The Tribe maintains that this statute created a trust obligation to secure future water rights for the Tribe. The 1906 Act and the Uintah Indian Irrigation Project • In 1906, Congress enacted another appropriations statute that funded the construction of “irrigation systems to irrigate the allotted lands of the Uncompahgre, Uintah, and White River Utes in Utah.” Act of June 21, 1906, 59 Cong. Ch. 3504, 34 Stat. 325, 375 (“1906 Act”). • These irrigation works were to be “held and oper- ated, and water therefor appropriated under the laws of the State of Utah, and the title thereto . . . shall be in the Sec- retary of the Interior in trust for the Indians.” Id. • By about 1922, the irrigation system constructed pursuant to the 1906 Act, now known as the Uintah Indian Irrigation Project (“UIIP”), was essentially completed. • The Tribe alleges that the infrastructure con- structed under the 1906 Act today comprises several hun- dred miles of waterways and canals. The Tribe maintains that the 1906 statute created a trust obligation with re- spect to water rights and water infrastructure. Case: 21-1880 Document: 54 Page: 5 Filed: 04/25/2024

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The Central Utah Project • In 1956 Congress authorized the Central Utah Pro- ject, a major infrastructure project to transport water from the Colorado River system to lands within Utah. • The initial phase included the Bonneville unit, which transports water from the Reservation to the Salt Lake City metropolitan region. This initial phase de- pended on diverting water subject to the Tribe’s water rights, water which was not then being used to irrigate lands on the Reservation. The project could not proceed without the Tribe’s agreement to delay the use of this wa- ter. The 1960 Decker Report • In order to quantify its claims to water rights in connection with the proposed Central Utah Project, in 1960 the Tribe employed E.L. Decker, a former employee of the Bureau of Reclamation, to prepare a report surveying pre- sent, historic, and future practicably irrigable lands within the Reservation (the “Decker Report”). • The Decker Report organized irrigable Reservation lands into seven different categories, which included four groups particularly relevant to the Tribe’s claims here: Group 1, consisting of lands irrigated through the 1906 Act infrastructure with federally decreed water rights; Group 2, consisting of lands irrigated through the 1906 Act infra- structure with state-certified water rights; Group 3, con- sisting of lands designated as irrigable that were or could be served through 1906 Act infrastructure facilities, with some lands having a supplemental state-certified water right and other lands lacking a water right certificate; and Group 5, consisting of certain lands that were found eco- nomically feasible to irrigate but not yet irrigated. Case: 21-1880 Document: 54 Page: 6 Filed: 04/25/2024

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The 1965 Deferral Agreement • In 1965, after the Decker Report was completed, the Bureau of Indian Affairs (“BIA”), the Bureau of Recla- mation, the Central Utah Water Conservancy District (a political subdivision of the State of Utah), and the Tribe entered into the “1965 Deferral Agreement,” which pro- vided that the Bonneville unit “may proceed without objec- tion, interference or claim adverse to the water requirements for such unit” and that the Tribe would defer the use of water designated to irrigate Decker Report Group 5 lands until “the ultimate phase of the Central Utah project.” J.A. 255–56. • In exchange, the Tribe was granted “full and com- plete recognition of the water rights of said tribe, with a priority date of 1861 in groups (1), (2), (3), (4) and (5) as described in the book of claims filed with the State Engi- neer, State of Utah, by the Ute Indian Tribe [i.e., as de- scribed in the Decker Report], without resort to litigation.” J.A. 256. • The 1965 Deferral Agreement also required the United States to construct specific additional infrastruc- ture units to increase the quantity of water available to the Tribe, including the Upalco unit and the Uintah unit, which were “to supply said Indian water rights by the 1st day of January, 2005,” and “provide storage of the runoff waters of the Uintah River and its tributaries.” J.A. 257, 258. • These additional infrastructure units were never constructed. The Tribe alleges that the United States breached the 1965 Deferral Agreement. The 1967 Midview Exchange Agreement • In 1967, the Tribe, the United States, and an or- ganization of secondary water rights users entered into the “Midview Exchange Agreement” to exchange particular water rights and irrigation facilities. Case: 21-1880 Document: 54 Page: 7 Filed: 04/25/2024

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• As part of the exchange, title to “the Midview Dam and Reservoir, Duchesne Diversion Dam, Duchesne Feeder Canal, and Midview Lateral together with all facilities and property appurtenant thereto” (hereinafter the “Midview Property”) was to be transferred to BIA to “become part of the project works of the Uintah Project,” and BIA was to “operate and maintain” the same “as part of the Uintah Project [UIIP].” J.A. 263. • The Tribe contends that because the Uintah Pro- ject (UIIP) infrastructure was to be held in trust for the Tribe pursuant to the 1906 Act, the Midview Property was also meant to be held in trust, but that the United States has not transferred the property to BIA and is “using water from the Midview Reservoir to irrigate lands other than those designated for irrigation under the Midview Ex- change” in violation of the agreement. Complaint at 35. It alleges that the United States failed to comply with the agreement in other respects as well. The Central Utah Project Completion Act (“CUPCA”) of 1992 • In 1990, the United States, the State of Utah, and the Tribe attempted to negotiate a “Revised Ute Water Compact,” which was intended to quantify the Tribe’s wa- ter rights. 1 Congress ratified the 1990 Revised Ute Water Compact, subject to ratification by the State of Utah and the Tribe. The Tribe never ratified the 1990 Revised Ute Water Compact. • In 1992, Congress passed the Central Utah Project Completion Act (“CUPCA”), Pub. L. No. 102-575, 106 Stat. 4600.

1 The State of Utah and the Tribe had agreed to an earlier 1980 compact, but the United States Congress did not ratify it. Case: 21-1880 Document: 54 Page: 8 Filed: 04/25/2024

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• Title V of CUPCA, which concerned “Ute Indian Rights Settlement,” noted that there were “unresolved Tribal claims arising out of [the 1965 Deferral Agree- ment],” that “construction of the Upalco and Uintah Units [required by the 1965 Deferral Agreement] has not been undertaken,” and that “there is no present intent to pro- ceed with Ultimate Phase construction.” Id. § 501(a)(2)– (3). One of the purposes of Title V was to “put the Tribe in the same economic position it would have enjoyed had the features contemplated by the [1965 Deferral Agreement] been constructed.” Id. § 501(b)(3). The House Committee Report further stated that the “purpose of Title V is to au- thorize the [Tribe] to quantify by compact its reserved wa- ter rights vis-a-vis the State of Utah and to settle long- outstanding claims against the United States arising out of the construction of the Central Utah Project.” H.R. Rep. No. 102-114, pt. 1, at 69 (1991). • CUPCA provided for economic benefits to the Tribe, which have totaled several hundred million dollars to date. One provision, section 502(a), provided that “the Tribe shall receive from the United States 26 percent of the annual Bonneville Unit municipal and industrial capital repayment obligation . . . which represents a portion of the Tribe’s water rights that were to be supplied by storage from the Central Utah Project, but will not be supplied be- cause the Upalco and Uintah units are not to be con- structed.” The Tribe currently receives approximately $2 million per year under this provision. • In addition, sections 504, 505, and 506 provided $198.5 million for economic development, farming opera- tions, and improvements to existing reservoirs, streams, and municipal water facilities. • Receipt of these funds was conditioned on a “waiver” of “any and all claims relating to [the Tribe’s] wa- ter rights covered under the [1965 Deferral Agreement].” CUPCA § 507(b). The purpose of this section was to Case: 21-1880 Document: 54 Page: 9 Filed: 04/25/2024

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accomplish “a waiver of all historical claims which the tribe may have, including all claims arising out of the [1965 De- ferral Agreement].” H.R. Rep. No. 102-114, pt. 1, at 127. But the waiver did not include, “and indeed preserved . . . rights which the Tribe may have under the Ute Indian Compact and under Title V itself.” Id. at 127–28. Section 507 is ambiguous as to whether the waiver of contractual claims was imposed on the Tribe—unilaterally eliminating the contractual rights by statute—or whether the claims would be waived only if the Tribe accepted the settlement funds and agreed to the revised compact. See CUPCA §§ 503(a); 507. • In its complaint, the Tribe alleges that the latter construction is correct, that the Tribe has not yet received the full amount of funds provided by these sections of CUPCA, and that the proposed 1990 Revised Ute Water Compact was never ratified. Therefore, the Tribe alleges, there was no effective settlement or waiver of the Tribe’s claims under the 1965 Deferral Agreement. The 2012 Settlement Agreement • In 2006, the Tribe filed a lawsuit at the Claims Court concerning the United States’ alleged breach of trust in its management of CUPCA funds. This lawsuit was set- tled in 2012. In exchange for $125 million, the Tribe agreed to waive: [A]ny 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 execution of this Settlement Agree- ment by both Parties and that relate to the United States’ management or accounting of Plaintiff’s trust funds or Plaintiff’s non-monetary trust assets or resources. Case: 21-1880 Document: 54 Page: 10 Filed: 04/25/2024

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J.A. 273 (emphasis added). The waiver contained an ex- ception for claims based on the Tribe’s “water rights, whether adjudicated or unadjudicated; [the Tribe’s] au- thority to use and protect such water rights; and [the Tribe’s] claims for damages for loss of water resources al- legedly caused by [the United States’] failure to establish, acquire, enforce or protect such water rights.” J.A. 277. II. The Present Lawsuit The Tribe filed the present case on March 7, 2018, seek- ing damages for breaches of trust, breaches of contract, and unconstitutional takings. 2 After the Tribe amended its

2 The next day, the Tribe also filed a case in the United States District Court for the District of Columbia. Ute Indian Tribe of Uintah & Ouray Reservation v. United States Dep’t of Interior, 18-cv-547, ECF 1 (D.D.C. March 8, 2018). The complaint in that case raised similar allega- tions concerning the United States’ fiduciary duties (in- cluding based on the 1899 and 1906 Acts), the 1965 Deferral Agreement, and the Midview Exchange Agree- ment, and sought declaratory and injunctive relief. Id., ECF 57, at 68–82. Following the government’s motion to dismiss, the district court determined that neither the 1899 nor the 1906 Act created enforceable trust duties and that the claims related to both the Midview Exchange Agree- ment and the 1965 Deferral Agreement were time barred. 560 F. Supp. 3d 247, 258, 261–63 (D.D.C. 2021). This deci- sion was dated September 15, 2021. The remaining claims were transferred to the District of Utah. Id. at 268. In the District of Utah, the court granted the Tribe leave to amend its complaint. No. 21-cv-573, 2023 WL 6276594, at *2 (D. Utah Sept. 26, 2023). Following another motion to dismiss, the district court dismissed most claims with prejudice, agreeing with the District Court for the Dis- trict of Columbia that the Tribe failed to establish common- Case: 21-1880 Document: 54 Page: 11 Filed: 04/25/2024

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initial complaint, the United States moved to dismiss un- der Federal Rule of Civil Procedure 12(b)(1) and (6). A. Breach of Trust Claims The complaint pled several breach of trust claims, al- leging that the “United States holds legal title as trustee to the Tribe’s trust lands, waters, water works, and trust funds relating to these assets.” Complaint at 2. The com- plaint presented two basic theories of the United States’ trust duties. First, the Tribe alleged that the United States has a duty to procure new water for the Tribe, including by constructing new water storage infrastructure. The Tribe primarily based this theory on the “Winters doctrine,” un- der which the “Federal Government’s reservation of land for an Indian tribe also implicitly reserves the right to use needed water from various sources,” Arizona v. Navajo Na- tion, 599 U.S. 555, 561 (2023) (citing Winters v. United States, 207 U.S. 564, 576–77 (1908)), and on the 1899 Act. 3 Second, the Tribe alleged that the United States has failed to maintain the 1906 Act irrigation infrastructure and to preserve related water rights, which are held in trust by the United States for the benefit of the Tribe pursuant to the 1906 Act.

law trust obligations on the federal government and that claims related to the 1965 Deferral Agreement and the Midview Exchange Agreement were time barred. Id. at *5, *11, *17, *24. The Tribe was permitted to re-plead two claims related to a 2019 contract between the Bureau of Reclamation and the State of Utah. Id. at *19, *24. That case is still pending in the District of Utah. 3 The “various sources” implicated by the Winters doctrine include “groundwater, rivers, streams, lakes, and springs—that arise on, border, cross, underlie, or are en- compassed within the reservation.” Arizona v. Navajo Na- tion, 599 U.S. at 561 (citing Winters, 207 U.S. at 576–77). Case: 21-1880 Document: 54 Page: 12 Filed: 04/25/2024

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The Claims Court dismissed all seventeen of the breach of trust claims, holding that neither the 1899 Act nor the 1906 Act expressly created specific trust duties and that the Claims Court therefore lacked jurisdiction under the Indian Tucker Act, 28 U.S.C. § 1505. 4 Ute Indian Tribe of Unitah and Ouray Indian Reservation v. United States, No. 18-359 L, 2021 WL 1602876, at *4–5, *9 (Fed. Cl. Feb. 12, 2021) (“Decision”). B. 1965 Deferral Agreement Claims The Tribe also pled two claims related to the 1965 De- ferral Agreement. First, the Tribe alleged in claim 14 that the United States breached the agreement by failing to “implement systems and facilities for the development of all Tribal Reserved Water Rights.” Complaint at 76–77. The Claims Court held that this claim was time barred be- cause CUPCA made clear in 1992 that the infrastructure would not be completed. Second, in the alternative and as- suming that the breach of contract claims were extin- guished, the Tribe alleged in claim 15 that CUPCA effected an unconstitutional taking of the Tribe’s 1965 Deferral Agreement contractual rights because CUPCA purported to extinguish the Tribe’s contract rights without just com- pensation. The Claims Court also found this claim to be time barred because the alleged taking was a discrete event—the enactment of CUPCA—and therefore “the Tribe had knowledge of the facts forming the basis of its claim in 1992.” Decision, at *8.

4 The breach of trust claims are claims 1–9, 12, 13, 16–20, and parts of claim 21. The Tribe also relied on var- ious other treaties and statutes as creating a trust obliga- tion. We do not read the language of those provisions to create a specific trust obligation. Nor do we see any signif- icance in the supposed judicial admissions by the United States in prior litigation. Case: 21-1880 Document: 54 Page: 13 Filed: 04/25/2024

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C. Midview Exchange Agreement Claims The Tribe pled two claims related to the Midview Ex- change Agreement. First, the Tribe alleged in claim 11 that the United States breached the agreement by “failing to effectuate a transfer of the Midview Property in trust for the benefit of the UIIP” and operate it for the Tribe’s bene- fit, which has resulted in damages because the United States diverts water from the Midview Property to irrigate other lands, reducing the amount of stored water available to the Tribe. Complaint at 73. The Claims Court held that this claim was barred by the 2012 settlement agreement, which “waived and re- leased the United States from claims, known and un- known, for ‘improper[ ] or inappropriate[ ]’ transfer of non- monetary trust assets or resources and ‘fail[ure] to under- take prudent transactions for the sale, lease, use, or dis- posal of [the Tribe]’s non-monetary trust assets or resources.’” Decision, at *8 (alterations in original) (quot- ing J.A. 275). Second, the Tribe alleged that the United States physically took tribal property without just compen- sation through the Midview Exchange because the Tribe was compelled to give up “a portion of the Tribe’s senior- priority Winters Reserved Water Rights” in exchange for “state-based water rights, with a priority date inferior to the Tribe’s Winters Reserved Rights.” Complaint at 72. The Claims Court found this claim to be time barred be- cause “the source of the claim is the execution of the [Midview Exchange] Agreement,” which occurred in 1967. Decision, at *8. D. Claims Court Judgment The Claims Court entered judgment on February 16, 2021, dismissing all of the Tribe’s claims. The Tribe timely appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(3). Case: 21-1880 Document: 54 Page: 14 Filed: 04/25/2024

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DISCUSSION We review de novo dismissals by the Claims Court for lack of subject matter jurisdiction, Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011), and dismissals for failure to state a claim, Bd. of Supervisors of Issaquena Cnty., Mississippi v. United States, 84 F.4th 1359, 1364 (Fed. Cir. 2023). We generally presume that the facts alleged in the complaint are true and draw all rea- sonable inferences in favor of the plaintiff. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988); Issaquena, 84 F.4th at 1364. We “may also look to matters incorporated by reference or integral to the claim, items subject to judicial notice, and matters of public rec- ord.” A & D Auto Sales, Inc. v. United States, 748 F.3d 1142, 1147 (Fed. Cir. 2014) (internal quotation marks, al- terations, and citation omitted). Generally, we do not address issues not presented to the trial court or not pressed on appeal. See In re Google Tech. Holdings LLC, 980 F.3d 858, 863 (Fed. Cir. 2020). “An issue that is merely alluded to and not developed as an argument in a party’s brief is deemed” forfeited. Rodriguez v. Dep’t of Veterans Affs., 8 F.4th 1290, 1305 (Fed. Cir. 2021). We will exercise our discretion to review forfeited issues when, among other reasons, “there is a change in the jurisprudence of the reviewing court or the Supreme Court after consideration of the case by the lower court” or an is- sue was not presented to the court we are reviewing but nonetheless “an issue is properly before the court.” Golden Bridge Tech., Inc. v. Nokia, Inc., 527 F.3d 1318, 1323 (Fed. Cir. 2008) (quoting Forshey v. Principi, 284 F.3d 1335, 1356 (Fed. Cir. 2002)). I. The Breach of Trust Claims We first address the Tribe’s breach of trust claims. While the United States has a “general trust relationship . . . [with] the Indian people,” to establish jurisdiction over a breach of trust claim under the Indian Tucker Act a Tribe Case: 21-1880 Document: 54 Page: 15 Filed: 04/25/2024

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first “must identify a substantive source of law that estab- lishes specific fiduciary or other duties.” United States v. Navajo Nation, 537 U.S. 488, 506 (2003) (“Navajo I”) (in- ternal quotation omitted). “[T]he analysis must train on specific rights-creating or duty-imposing statutory or regu- latory prescriptions.” Id. If the Tribe identifies such a stat- ute at step one of the Navajo I analysis, at the second step “the court must then determine whether the relevant source of substantive law ‘can fairly be interpreted as man- dating compensation for damages sustained as a result of a breach of the duties [the governing law] impose[s].’” Id. (alteration in original) (quoting United States v. Mitchell, 463 U.S. 206, 219 (1983) (“Mitchell II”)). The Claims Court dismissed all of the Tribe’s breach of trust claims because the Tribe failed at step one to “estab- lish that the United States has a specific trust obligation to ensure adequate water delivery or storage on the Tribe’s Reservation.” Decision, at *6. The Tribe’s breach of trust claims fit into two broad categories. We consider each of these categories in turn. A In the first category of claims, the Tribe alleged that the United States has duties in trust to secure new water for the Tribe, including by constructing new water storage infrastructure. According to the Tribe, the Winters doc- trine and the 1899 Act impose upon the United States a “fiduciary duty to [] secure the amount [of] water to satisfy the Tribe’s present and prospective wants.” Complaint at 8. The Tribe also argues that the United States has “a money-mandating fiduciary duty to provide storage facili- ties and other infrastructure necessary . . . to prevent un- necessary loss or waste of Tribal water.” Complaint at 60. We agree with the Claims Court that Winters and the 1899 Act do not impose these trust duties and conclude that the Claims Court properly dismissed these claims. Case: 21-1880 Document: 54 Page: 16 Filed: 04/25/2024

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The recent Supreme Court decision in Arizona v. Nav- ajo Nation dealt directly with these issues. There, the Nav- ajo Nation alleged that the treaty establishing the Navajo Reservation created affirmative duties to supply water un- der the Winters doctrine. 599 U.S. at 558–59. The Su- preme Court noted that the Winters doctrine, without a duty-imposing treaty, statute, or regulation, does not “re- quire the United States to take affirmative steps to secure water for [Indian] Tribe[s].” 599 U.S. at 569–70. “[T]he treaty said nothing about any affirmative duty for the United States to secure water,” id. at 565, and “contained no ‘rights-creating or duty-imposing’ language.” Id. at 564 (quoting Navajo I, 537 U.S. at 506). Because the United States “owes judicially enforceable duties to a tribe ‘only to the extent it expressly accepts those responsibilities,’” the Supreme Court found that Navajo Nation could not sustain its breach of trust claim. Id. at 564 (quoting United States v. Jicarilla Apache Nation, 564 U.S. 162, 177 (2011)). Here, the Tribe primarily argues that the 1899 Act pro- vides the rights-creating duties found necessary in the Navajo I case. The 1899 Act appropriated funds “for the purpose of paying the current and contingent expenses of the Indian Department.” 30 Stat. 924. It further provided: That the Secretary of the Interior be . . . authorized, in his discretion, to grant rights of way for the con- struction and maintenance of dams, ditches, and canals, on or through the Uintah Indian Reserva- tion in Utah, for the purpose of diverting and ap- propriating the waters of the streams in said reservation for useful purposes: Provided, That all such grants shall be subject at all times to the paramount rights of the Indians on said reservation to so much of said waters as may have been appropriated, or may hereafter be appro- priated or needed by them for agricultural and do- mestic purposes; and it shall be the duty of the Case: 21-1880 Document: 54 Page: 17 Filed: 04/25/2024

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Secretary of the Interior to prescribe such rules and regulations as he may deem necessary to secure to the Indians the quantity of water needed for their present and prospective wants, and to otherwise protect the rights and interests of the Indians and the Indian service. Id. at 941. In other words, the 1899 Act allowed the Secretary to authorize rights of way for construction of facilities to di- vert water away from the Reservation, but in doing so the Secretary could not interfere with the Tribe’s “paramount rights” to water. This is essentially an acknowledgment of a Winters obligation—the Secretary could not permit con- struction that would interfere with the Tribe’s right to ap- propriate water from the streams of the reservation for domestic or agricultural purposes. Although the Secretary had a “duty . . . to prescribe such rules and regulations as he may deem necessary to secure to the Indians the quan- tity of water needed,” this language falls short of creating a trust duty with respect to particular property. Id. The Secretary’s duty is to establish rules and regulations. The United States has not “expressly accept[ed]” a duty to se- cure new water for the Tribe by construction of new infra- structure or other means. Navajo Nation, 599 U.S. at 564. The complaint never alleges that the Secretary breached a fiduciary duty by failing to establish the regu- lations contemplated by the 1899 Act. And this duty to pre- scribe regulations is explicitly subject to the Secretary’s discretion—he must only prescribe such regulations “as he may deem necessary”—which further demonstrates that the 1899 Act does not create a mandatory duty. 30 Stat. at 941. Finally, the language referring to a duty “to otherwise protect the rights and interests of the Indians and the In- dian service” is not specific enough to create trust duties. Id.; see Hopi Tribe v. United States, 782 F.3d 622, 667 (Fed. Cir. 2015) (“[A] statute or regulation that recites a general Case: 21-1880 Document: 54 Page: 18 Filed: 04/25/2024

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trust relationship between the United States and the In- dian People is not enough to establish any particular trust duty.”). The 1899 Act does not contain any “in trust” lan- guage, nor does it establish a corpus of particular assets or any duties with respect to them. It simply recognizes a prevailing Winters obligation not to interfere with the Tribe’s existing rights and to prescribe regulations as may be “deem[ed] necessary” by the Secretary to protect them, which is not sufficient to create a trust obligation. 30 Stat. at 941. Claims 2, 3, 4, 16, 17, and 18 are all premised on a pur- ported duty of the United States to construct new infra- structure or affirmatively secure new water for the Tribe. The 1899 Act neither expressly nor implicitly imposes such duties on the United States. Therefore, we affirm the Claims Court’s dismissal of claims 2, 3, 4, 16, 17, and 18 for lack of jurisdiction under the Indian Tucker Act. B We reach a different conclusion as to the second cate- gory of the Tribe’s breach of trust claims, at least as to wa- ter infrastructure. 5 In the second category, the Tribe alleges that the United States has mismanaged particular infrastructure and specific water rights previously appro- priated to the Tribe and held in trust for the Tribe’s benefit. The Tribe relies on the 1906 Act as a duty-creating source of law. The 1906 Act appropriated funds: For constructing irrigation systems to irrigate the allotted lands of the Uncompahgre, Uintah, and White River Utes in Utah . . . the cost of said entire

5 Whether the Tribe may also prevail on a claim that a trust relationship was created with respect to water rights by the 1906 Act is a question we do not decide but remand to the Claims Court, as we explain later in this opinion. Case: 21-1880 Document: 54 Page: 19 Filed: 04/25/2024

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work to be reimbursed from the proceeds of the sale of the lands within the former Uintah Reservation: Provided, That such irrigation systems shall be constructed and completed and held and operated, and water therefor appropriated under the laws of the State of Utah, and the title thereto until other- wise provided by law shall be in the Secretary of the Interior in trust for the Indians, and he may sue and be sued in matters relating thereto: And provided further, That the ditches and canals of such irrigation systems may be used, extended, or enlarged for the purpose of conveying water by any person, association, or corporation under and upon compliance with the provisions of the laws of the State of Utah: And provided further, That when said irrigation systems are in successful operation the cost of op- erating same shall be equitably apportioned upon the lands irrigated, and, when the Indians have be- come self-supporting, to the annual charge shall be added an amount sufficient to pay back into the Treasury the cost of the work done, in their behalf, within thirty years, suitable deduction being made for the amounts received from disposal of the lands within the former Uintah Reservation. 34 Stat. at 375. 1 As to water-related infrastructure, the Tribe alleged that the irrigation systems constructed under the 1906 Act (today known as the UIIP) comprise at least several hun- dred miles of waterways and canals designed to irrigate 88,000 acres of land. The Tribe alleged that the United States had allowed the infrastructure to fall into “a grave state of disrepair” resulting in only 61,000 acres of land re- ceiving water as of 2016. Complaint at 24. Case: 21-1880 Document: 54 Page: 20 Filed: 04/25/2024

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The United States argues that the language in the 1906 Act merely declares a limited trust without specific, enforceable duties, relying on United States v. Mitchell, 445 U.S. 535 (1980) (“Mitchell I”). In Mitchell I, plaintiffs sought damages “for alleged mismanagement of forests lo- cated on lands allotted to Indians under [the Indian Gen- eral Allotment Act of 1887].” 445 U.S. at 536. The statute at issue there was apparently silent as to timber manage- ment, but provided: [T]he United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made . . . . Id. at 541 (quoting 24 Stat. 389, as amended, 25 U.S.C. § 348). The Supreme Court explained that the statute “does not unambiguously provide that the United States has undertaken full fiduciary responsibilities as to the management of allotted lands,” id. at 542, and noted that other sections of the statute established that “the [Indian] allottee, and not the United States, was to manage the land,” id. at 543; see also 24 Stat. 388 (“[A]ll allotments set apart under the provisions of this act shall be selected by the Indians . . . in such manner as to embrace the improve- ments of the Indians making the selection.”). Thus, the “in trust” language “created only a limited trust relationship . . . that does not impose any duty upon the Government to manage timber resources.” Mitchell I, 445 U.S. at 542. By contrast, several years later in Mitchell II the Court considered statutes and regulations requiring the Secre- tary of the Interior to “manag[e] the Indian forests so as to obtain the greatest revenue for the Indians consistent with a proper protection and improvement of the forests,” to “manage Indian forest resources on the principle of sus- tained-yield management,” and to “preserv[e] Indian forest lands in a perpetually productive state.” Mitchell II, 463 U.S. at 220–21 (citations and internal quotations omitted). Case: 21-1880 Document: 54 Page: 21 Filed: 04/25/2024

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These statutes and regulations, the Supreme Court held, sufficiently “establish[ed] a fiduciary relationship and de- fine[d] the contours of the United States’ fiduciary respon- sibilities” to support Indian Tucker Act jurisdiction. Id. at 224. More recently, in United States v. White Mountain Apache Tribe, the Supreme Court considered the applica- tion of Mitchell I and Mitchell II to another statute similar to the 1906 Act at issue here. 537 U.S. 465 (2003). In White Mountain Apache, the statute provided that the “‘former Fort Apache Military Reservation’ would be ‘held by the United States in trust for the White Mountain Apache Tribe, subject to the right of the Secretary of the Interior to use any part of the land and improvements for administra- tive or school purposes.’” Id. at 469 (quoting Pub. L. 86– 392, 74 Stat. 8). The White Mountain Apache Tribe sought damages for the United States’ failure to maintain the trust property. Id. The Supreme Court noted that the stat- utory language expressly defined a fiduciary relationship and that the United States enjoyed occupation of the trust property, which was sufficient for Indian Tucker Act juris- diction even though the statute did not “expressly subject the Government to duties of management and conserva- tion.” Id. at 474–75. The United States’ position here—that the 1906 Act es- tablishes only a bare trust with respect to water infrastruc- ture—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 ex- press 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 pre- scribes specific duties. Id. By identifying a corpus, a trus- tee, 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 Case: 21-1880 Document: 54 Page: 22 Filed: 04/25/2024

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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 infrastruc- ture 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 spe- cific fiduciary or other duties,” and that the complaint suf- ficiently “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. 6

6 The United States argued on appeal that it does not exercise “exclusive authority to use and occupy th[e] prop- erty,” contending that the lack of exclusive control distin- guishes White Mountain Apache. Oral Arg. at 27:00–28:25. The Tribe’s complaint alleged that the United States, through the BIA, exercises “pervasive and comprehensive control of the UIIP,” including through assessing operation fees, performing maintenance and rehabilitation, regulat- ing project structures, and executing carriage agreements with other water users. Complaint at 22–25. The United States did not challenge any of the factual allegations re- lating 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. Reynolds, 846 F.2d at Case: 21-1880 Document: 54 Page: 23 Filed: 04/25/2024

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We next turn to the second step of the Navajo I juris- dictional analysis, “whether the relevant source of substan- tive law ‘can fairly be interpreted as mandating compensation for damages sustained as a result of a breach of the duties.’” 537 U.S. at 506 (quoting Mitchell II, 463 U.S. at 219). “This ‘fair interpretation’ rule demands a showing demonstrably lower than the standard for the ini- tial waiver of sovereign immunity.” White Mountain Apache, 537 U.S. at 472. A statute need only “be reasona- bly amenable to the reading that it mandates a right of re- covery in damages . . . a fair inference will do.” Id. at 473. In addition, “[a]t the second step of the jurisdictional anal- ysis . . . common-law trust principles come into play.” Hopi Tribe, 782 F.3d at 668. We again find White Mountain Apache instructive. There, as here, “the fact that the property occupied by the United States is expressly subject to a trust supports a fair inference that an obligation to preserve the property im- provements was incumbent on the United States as trus- tee” because “a fiduciary actually administering trust property may not allow it to fall into ruin on his watch.” White Mountain Apache, 537 U.S. at 475 (citing, inter alia, Restatement (Second) of Trusts § 176 (1957)); see also Re- statement (Third) of Trusts § 76 (2007). Here, as in White Mountain Apache, “it naturally follows that the Govern- ment should be liable in damages for the breach of its fidu- ciary duties.” 537 U.S. at 476 (quoting Mitchell II, 463 U.S. at 226). We find that the duties prescribed by the 1906 Act can be fairly interpreted as money-mandating, and, there- fore, that the second element of the Navajo I jurisdictional analysis is satisfied as to the water infrastructure claims.

747. Therefore, given that the complaint alleged exclusive control, we do not decide whether such a showing of exclu- sive control is required by White Mountain Apache as ar- gued by the United States. Case: 21-1880 Document: 54 Page: 24 Filed: 04/25/2024

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The United States argues that the 1906 Act cannot cre- ate trust duties because the Department of Interior’s “man- date” is “to manage the Project for the benefit of both Indians and non-Indians,” which is “incompatible with the notion that it imposes enforceable fiduciary duties owed specifically to Plaintiff.” Appellee’s Br. 21. The 1906 Act contains no such mandate. While the “ditches and canals of such irrigation systems may be used, extended, or en- larged for the purpose of conveying water by any person, association, or corporation,” 34 Stat. 375, this does not, as the United States contends, require the Secretary to con- sider the benefits to those non-trustee users. Moreover, allowing the United States to use the infra- structure for the benefit of non-Indians is not inconsistent with the existence of a trust obligation. The Supreme Court’s decision in Jicarilla is instructive. There, the Court considered whether the United States, acting as a trustee, could assert attorney-client privilege and withhold communications from an Indian Tribe beneficiary. Jicarilla, 564 U.S. at 165–66. The common law’s fiduciary exception barred any such claim of attorney-client privi- lege, but the Supreme Court held that the United States could choose to structure the trust relationship to avoid such a principle, noting that the United States “is not a pri- vate trustee,” and Congress may choose “to structure the Indian trust relationship in different ways.” Id. at 173, 178. Likewise, the trust obligations created by the 1906 Act’s express duties to hold and operate the infrastructure for the Tribe’s benefit are not defeated by a provision al- lowing the Secretary to provide for third-party use. We hold that claims 1 (to the extent it concerns maintenance of 1906 Act infrastructure and not further construction), 5, 6, 7, 8, 9, 12, 13, 19, 20, and 21 (to the extent it concerns operation of 1906 Act infrastructure but not in other re- spects), plead a breach of trust premised on the alleged fail- ure of the United States to maintain and operate the 1906 Act infrastructure for the benefit of the Tribe. Because the Case: 21-1880 Document: 54 Page: 25 Filed: 04/25/2024

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1906 Act sufficiently sets forth a source of law to establish these duties at the pleading stage, we vacate the Claims Court’s dismissal of these infrastructure claims and re- mand. Relatedly, the Tribe contends that the United States has a trust obligation not to allow use of the infrastructure by third parties without the Tribe’s approval and sufficient compensation to the Tribe. The Tribe alleged that the United States had mismanaged the infrastructure by en- tering “informal agreements allowing non-Indian irriga- tion companies and other non-Indian irrigators to utilize . . . [the] infrastructure for their own benefit.” Complaint at 37. The Tribe has not presented further argument on this point, nor did the Claims Court address it in any de- tail. At this stage of the proceeding, we think it premature to address the question of whether allowing third-party use is a breach of the United States’ fiduciary duties (except to the extent that we hold that such third-party use is not in- consistent with the obligation to protect and preserve the property). 2 We finally address the Tribe’s breach of trust claims concerning water rights based on the 1906 Act. Although we have concluded that the 1906 Act can fairly be read as creating a trust relationship obligating the United States to protect and preserve the water infrastructure, the Tribe contends that the United States’ trust duties include a gen- eral obligation to protect and preserve water rights. The language of the 1906 Act is less than clear on this point, but the Tribe alleges here, inter alia, that the United States violated this duty by effecting “transfers of the Tribe’s wa- ter rights . . . from Indian lands to non-Indian lands under the UIIP and from Indian lands on the Reservation to non- Indian lands outside of the UIIP.” Complaint at 30. Spe- cifically, the Tribe alleged that the Decker Report—which the Tribe commissioned in 1960 to quantify its claims to Case: 21-1880 Document: 54 Page: 26 Filed: 04/25/2024

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water rights, and upon which the Tribe relied to define its claims here—identified three groups of lands served by 1906 Act facilities with recognized appurtenant water rights (Groups 1, 2, and 3). Claim 7 of the Complaint al- leged that transfers of these water rights by the govern- ment were improper. The Tribe also alleged in claim 9 that the United States’ execution of the Midview Exchange Agreement somehow constituted mismanagement of the Tribe’s water rights. Similarly, the Tribe alleged in claim 19 that the transfer of Decker Report Group 2 water rights to the Duchesne Townsite, which was accomplished through an act of Congress, Pub. L. No. 106-370 (2000), breached the United States’ trust obligations under the 1906 Act. Claims 9 and 19 asserted that damages are owed because the United States failed to ensure that the Tribe received access to replacement water and adequate com- pensation for the transfers. The Claims Court did not specifically address these claims, likely because the government did not present the issue to the court separately from the Winters arguments. Nor do the parties brief these issues on appeal in any de- tail, focusing instead on the infrastructure issue. Nonethe- less, other breach of trust claims relating to the 1906 Act will go forward in the Claims Court, and we believe “injus- tice might otherwise result” were we not to remand for an opportunity for the Claims Court to consider these claims. Forshey, 284 F.3d at 1353 (quoting Hormel v. Helvering, 312 U.S. 552, 557 (1941)). We also perceive a predicate, jurisdictional issue which has received little attention from the parties—whether claims 7, 9, or 19 as for water rights would survive the time bar, since the transfers at issue oc- curred in the 1940s, in the year 1967, and in the year 2001, respectively. The Tribe also contends that the United States under the 1906 Act had an obligation to secure additional water for the Tribe. For the same reasons that we found no such trust obligation in the 1899 Act, we find no such obligation Case: 21-1880 Document: 54 Page: 27 Filed: 04/25/2024

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in the 1906 Act. The Tribe also contends that the United States had a trust obligation to expand the 1906 Act infra- structure at the government’s expense. While the 1906 Act obligated the United States to “construct[] and complete[]” the “irrigation systems,” we do not read the 1906 Act as imposing any such obligation on the government as trus- tee. 34 Stat. at 375. Even under the common law of trusts, there is no duty to expand the trust corpus at the trustee’s own expense. See Restatement (Third) of Trusts § 88 cmt. a (2007) (recognizing a right of reimbursement for ex- penses properly incurred). The 1906 Act does not itself cre- ate a trust duty to construct the full scope of the project initially contemplated in the statute. See Hopi Tribe, 782 F.3d at 669 (declining to find that holding reserved water rights in trust implicitly imposes a duty to provide water infrastructure). Rather, under the 1906 Act it is the title to the facilities actually built that shall be held in trust. To the extent claim 1 or any others plead for relief from the United States’ failure as trustee to construct the full scope of the project initially contemplated, the 1906 Act does not support Indian Tucker Act jurisdiction. We note that the Tribe relies on a provision allowing the Secretary to “sue and be sued in matters relating” to the 1906 Act. 34 Stat. at 375. We do not read that provi- sion as itself creating a cause of action for breach of trust. II. The 1965 Deferral Agreement Claims A We turn next to the Tribe’s claims that the United States has breached the 1965 Deferral Agreement. First, in claim 14, the Tribe alleged “the United States has bla- tantly foregone any effort to satisfy Tribal Reserved Water Rights as promised in the 1965 Deferral Agreement” through the construction of promised infrastructure. Com- plaint at 76. The 1965 Deferral Agreement provides: Case: 21-1880 Document: 54 Page: 28 Filed: 04/25/2024

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If the ultimate phase of the Central Utah project is not completed sufficiently to supply said Indian water rights by the 1st day of January, 2005, equi- table adjustment will be made in accordance with said reserved and perfected water rights of the tribe to permit the immediate Indian use of the wa- ter so reserved. It is agreed that the first day of January, 2005, shall be mutually considered as the maximum date of deferment and that all phases of the Central Utah project will in good faith be dili- gently pursued to satisfy all Indian water rights at the earliest possible date. J.A. 257 (emphasis omitted). The Claims Court dismissed claim 14 as time barred because “the Tribe knew as early as 1980 that the Uintah and Ute Indian Units contem- plated by the 1965 Deferral Agreement would not be con- structed.” Decision, at *9. On appeal, the Tribe contends that the 1965 Deferral Agreement gave a commencement date of January 1, 2005, for projects to supply Indian water rights, which allows for completion within a reasonable amount of time, and that construction of irrigation and storage projects has been ongoing to the present day. We disagree with the Tribe’s reading of the 1965 Deferral Agreement. On its face, the agreement provides that the project must be “completed sufficiently to supply said Indian water rights by the 1st day of January, 2005,” or else “equitable adjustment will be made.” J.A. 257 (emphasis added). Thus, on the facts alleged in the complaint, January 1, 2005, is the latest date on which the construction-related aspects of the claim accrued; the equitable adjustment lan- guage cannot be read to support that construction would begin in 2005. We agree with the Claims Court’s dismissal of the construction-related aspects of claim 14 under 28 U.S.C. § 2501. We have no occasion to determine what ob- ligations would be imposed on the United States with re- spect to the “equitable adjustment” language since the Case: 21-1880 Document: 54 Page: 29 Filed: 04/25/2024

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Tribe has not at this point coherently alleged a breach of this obligation. Even if 2005 were not the latest date for construction, we think that the Claims Court was correct in its conclusion that, as early as 1980, the Tribe knew that the construction was not going to occur and that the claim accrued decades ago. Therefore, we affirm the Claims Court’s determination that claim 14 is time barred. B While the Tribe’s primary theory is that the 1965 De- ferral Agreement claims survived the 1992 CUPCA stat- ute, 7 claim 15 pled in the alternative that, if section 507 of CUPCA extinguished the Tribe’s property interest in “con- tractual rights and legal claims arising under the 1965 De- ferral Agreement,” then CUPCA constituted a taking. Complaint at 77. The Tribe contends that the compensa- tion provided by CUPCA included both the funds and pro- jects defined in Title V (titled “Ute Indian Rights Settlement”) and also the funds and projects defined in Ti- tle II, Section 203 (titled “Uinta Basin Replacement Pro- ject”), and that this did not constitute adequate compensation for the taking of the defined contract rights. The Claims Court dismissed claim 15 as time barred be- cause the compensation scheme in CUPCA was fixed in 1992. Decision, at *8. The Tribe argues that the stabiliza- tion doctrine saves the claim because “the Tribe was enti- tled to [defer filing suit until it could] first see whether the United States would fulfill its promise to mitigate the im- pacts of the purported ‘waiver’ of the 1965 Deferral Agree- ment through the construction of the Uintah Basin Replacement Projects.” Appellant’s Br. 47. The Tribe al- leged that these projects are ongoing through the present

7 This theory only has relevance with respect to the non-construction claims based on the 1965 Deferral Agree- ment because we have held that the construction claims are time barred. Case: 21-1880 Document: 54 Page: 30 Filed: 04/25/2024

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day. We assume, without deciding, that the stabilization doctrine applies here, in the context of a regulatory taking. However, even on this assumption, we agree with the Claims Court. Our cases have “‘soundly rejected’ the notion ‘that the filing of a lawsuit can be postponed until the full extent of the damage is known.’” San Carlos Apache Tribe v. United States, 639 F.3d 1346, 1354 (Fed. Cir. 2011) (quoting Bol- ing v. United States, 220 F.3d 1365, 1371 (Fed. Cir. 2000)). Rather, stabilization occurs when “the permanent nature of the taking is evident and the extent of the damage is reasonably foreseeable.” Boling, 220 F.3d at 1371. In a case involving a statute, “it is fundamental jurisprudence that the [a]ct’s objective meaning and effect were fixed when the [a]ct was adopted.” Catawba Indian Tribe of S.C. v. United States, 982 F.2d 1564, 1570 (Fed. Cir. 1993). Here, the effect of the Uinta Basin Replacement Project provision in Title II of CUPCA was apparent as of CUPCA’s adoption in 1992. Pub. L. No. 102-575, § 203(a)–(b). Sec- tion 203 provided that the projects were discretionary and contingent on feasibility and environmental studies. The Tribe’s theory is that what the government constructed un- der these discretionary provisions turned out to be insuffi- cient compensation. That is not adequate to invoke the stabilization doctrine (assuming it applies); the Tribe could have argued in 1992 that the discretionary nature of the projects rendered them inadequate compensation. There- fore, we affirm the Claims Court’s determination that claim 15 is time barred. III. The 1967 Midview Exchange Agreement Claims A In addition to the breach claim with respect to the 1965 Deferral Agreement, the Tribe also alleged a second breach of contract, claim 11, concerning the 1967 Midview Ex- change Agreement, which provided that the Midview Prop- erty (i.e., water infrastructure covered by the agreement) Case: 21-1880 Document: 54 Page: 31 Filed: 04/25/2024

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would be “transfer[red] to Indian Affairs” and “become part of the project works of the Uintah Project.” J.A. 263. Claim 11 alleged that the United States breached the Midview Exchange Agreement by “failing to effectuate a transfer of the Midview Property in trust for the benefit of the UIIP,” which the Tribe further characterized as a failure to “com- plete[] the underlying paperwork to formally transfer the Midview Property from [the Bureau of Reclamation] to BIA.” Complaint at 34, 73. While stated as a breach of contract claim, the claimed damages are alleged to be those that would be received on a breach of trust theory if the property had been transferred to the trust. 8 The Claims Court held that claim 11, insofar as it con- cerns water infrastructure, is barred by the 2012 settle- ment agreement because it “relate[s] to the United States’ management or accounting of . . . Plaintiff’s non-monetary trust assets or resources.” J.A. 273; see Decision, at *8. On appeal, the Tribe argues that claim 11 does not im- plicate the 2012 settlement agreement in this respect be- cause the Midview Property never became a trust asset. We reject the Tribe’s theory. We read the settlement agree- ment as covering both assets that were in trust and assets that should have been transferred in trust. To the extent that claim 11 concerned infrastructure, we think that a claim that such infrastructure was mismanaged is a claim that “relate[s] to the United States’ management” of that purported trust asset (i.e., a non-monetary trust asset), and claims “based on harms or violations occurring before the date of the execution of [the 2012] Settlement Agreement,”

8 Claim 8 directly alleged a breach of trust with re- spect to the Midview Property. It is unclear whether this claim has independent significance given the breach of con- tract theory, and also unclear whether a breach of trust claim can be stated for failure to transfer assets into trust. We leave these issues to be addressed on remand. Case: 21-1880 Document: 54 Page: 32 Filed: 04/25/2024

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which was March 8, 2012, are barred. J.A. 273. We affirm the dismissal of claim 11 insofar as it concerned infrastruc- ture. The Tribe also alleged that it received particular water rights under the Midview Exchange Agreement, and that the federal government has improperly diverted water owned by the Tribe to other users in violation of the agree- ment. The 2012 agreement expressly excluded from waiver claims concerning: Plaintiff’s water rights, whether adjudicated or un- adjudicated; Plaintiff’s authority to use and protect such water rights; and Plaintiff’s claims for dam- ages for loss of water resources allegedly caused by Defendants’ failure to establish, acquire, enforce or protect such water rights. J.A. 277. The question of whether the Midview Exchange includes water rights was not a focus of the parties or the court below. Given the explicit exceptions in the 2012 set- tlement that the Claims Court relied upon, three questions remain: (1) whether there are water rights under the Midview Exchange Agreement, (2) whether the complaint adequately pled a breach of contract with respect to water rights, and (3) whether the exception in the 2012 settle- ment applies. We vacate the Claims Court’s dismissal of claim 11 and remand for consideration of these issues. B Claim 10 alleged that the Midview Exchange Agree- ment in other respects constituted a “per se physical tak- ing” because the Tribe was deprived of a portion of its “senior-priority” water rights, which were originally Case: 21-1880 Document: 54 Page: 33 Filed: 04/25/2024

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recognized in a 1923 District of Utah decree. 9 Complaint at 72. While the exchange agreement provided for a trans- fer of those rights, the Tribe alleged it received inadequate compensation in the form of “state-based water rights, with a priority date inferior to the Tribe’s Winters Reserved Rights and with the prospect of forfeiture through non- use.” Id. The Tribe’s theory appears to be that the property the Tribe received in the exchange was inadequate, and therefore the Tribe did not receive just compensation for the property given up in the exchange. The Claims Court found that claim 10 is barred by the statute of limitations because “the source of the claim is the execution of the [Midview Exchange] Agreement,” and thus any takings claim accrued in 1967. Decision, at *8. On appeal, the Tribe contends that the stabilization doctrine saves the claim because “subsequent acts and omissions by the United States [have] gradually increased the disparities between the value of the senior-priority wa- ter rights . . . and what the Tribe received in exchange,” in- cluding the United States “(1) failing to transfer the Midview Property into trust for the Tribe” and “(2) clas- sif[ying] [] Indian lands that would otherwise receive irri- gation water from Duchesne River pursuant to the Midview Exchange as temporarily or permanently non-as- sessable [i.e., not eligible to receive irrigation water], with- out fulfilling its responsibility to render such lands assessable again.” Appellant’s Br. at 41–42. We disagree with the Tribe that these allegations were improperly dis- missed. Unlike the takings claim with respect to the 1965 De- ferral Agreement, the claim with respect to the Midview

9 The Tribe cited United States v. Cedarview Irriga- tion Co., No. 4427 (D. Utah 1923) and United States v. Dry Gulch Irrigation Co., No. 4418 (D. Utah 1923) as the cases resulting in this decree. Case: 21-1880 Document: 54 Page: 34 Filed: 04/25/2024

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Exchange Agreement does not rest on alleged legislative abrogation of preexisting contract claims. Rather, the claim is that the bargained-for consideration either was not provided or had less value than was anticipated. We do not see how inadequacy of a bargained-for exchange, whether a party is dissatisfied at the time of the bargain or after- wards, could result in a taking. “We have held that when the government itself breaches a contract, a party must seek compensation from the government in contract rather than under a takings claim.” Piszel v. United States, 833 F.3d 1366, 1376 (Fed. Cir. 2016) (citing Hughes Commc’ns Galaxy, Inc. v. United States, 271 F.3d 1060, 1070 (Fed. Cir. 2001)). Although we have vacated the Claims Court’s dismissal of the Tribe’s breach of contract claim concerning the Midview Exchange Agreement, this breach allegation cannot sustain the Tribe’s takings claim, which was properly dismissed. Finally, the Tribe alleges that a taking occurred be- cause the Midview Exchange Agreement violated 25 U.S.C. § 177, the Indian Non-Intercourse Act. 10 The Tribe’s the- ory on this point appears to be that there was a taking be- cause the BIA transferred away the Tribe’s federally- decreed water rights illegally. Even assuming, without de- ciding, that a violation of the Indian Non-Intercourse Act could give rise to a claim for money damages, a violation of the Indian Non-Intercourse Act cannot be the basis of a takings claim. Rith Energy, Inc. v. United States, 247 F.3d 1355, 1366 (Fed. Cir. 2001) (“[T]o the extent that the plain- tiff claims it is entitled to prevail because the agency acted in violation of statute or regulation, Del-Rio does not give

10 “No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian na- tion or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution.” Case: 21-1880 Document: 54 Page: 35 Filed: 04/25/2024

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the plaintiff a right to litigate that issue in a takings action rather than in the congressionally mandated administra- tive review proceeding.” (discussing Del-Rio Drilling Pro- grams, Inc. v. United States, 146 F.3d 1358 (Fed. Cir. 1998))). Accordingly, we affirm the Claims Court’s dismissal of claim 10. IV. Alternative Grounds for Dismissal The United States argues that this court should con- sider specific alternative grounds to affirm the dismissal of any claims for which we vacate the Claims Court’s decision. For example, the United States contends that most of the surviving breach of trust claims are time barred, and that several of them are barred by the 2012 settlement agree- ment. While it is true that “we may affirm a judgment of the trial court on any ground supported by the record, . . . [t]he decision whether to do so . . . lies within our discre- tion.” El-Sheikh v. United States, 177 F.3d 1321, 1326 (Fed. Cir. 1999). We do not reach these alternative grounds on appeal. The United States also argues that all remaining claims should be barred by 28 U.S.C. § 1500, which pro- vides that the Claims Court “shall not have jurisdiction of any claim for or in respect to which the plaintiff . . . has pending in any other court any suit or process against the United States” or its agents. As the United States acknowl- edges, we held in Resource Investments, Inc. v. United States that “the § 1500 bar operates ‘only when the suit shall have been commenced in the other court before the claim was filed in [the Claims Court].’” 785 F.3d 660, 669 (Fed. Cir. 2015) (alteration in original) (quoting Tecon Eng’rs, Inc. v. United States, 343 F.2d 943, 949 (Ct. Cl. 1965)). Because the Claims Court action was filed before the District of Columbia action, see supra n.2, under our precedent section 1500 does not apply. Case: 21-1880 Document: 54 Page: 36 Filed: 04/25/2024

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V. Remand On remand, the Claims Court may order the Tribe to replead the surviving claims for purposes of clarity and may consider the United States’ alternative grounds for dismissal. The court also urges the parties to consider com- prehensive settlement of the remaining claims in light of what appears to be costly and protracted future litigation. CONCLUSION We affirm the Claims Courts’ dismissal of claims 2, 3, 4, 10, 14, 15, 16, 17, and 18. We affirm in part and vacate in part the dismissal of claims 1, 5, 6, 7, 8, 9, 11, 12, 13, 19, 20, and 21, and remand for further proceedings consistent with this opinion. AFFIRMED IN PART, VACATED AND REMANDED IN PART COSTS Costs to neither party. Case: 21-1880 Document: 54 Page: 37 Filed: 04/25/2024

United States Court of Appeals for the Federal Circuit ______________________

UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN RESERVATION, Plaintiff-Appellant

v.

UNITED STATES, Defendant-Appellee ______________________

2021-1880 ______________________

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

REYNA, Circuit Judge, concurring-in-part and dissenting- in-part. I am pleased to join my colleagues for most of the ma- jority opinion. But I depart that union in part because I believe the 1899 Act is a duty-imposing source of law suffi- cient to support Indian Tucker Act jurisdiction over the Tribe’s breach of trust claims. The 1899 Act is about tribal water. Act of March 1, 1899, 55 Cong. Ch. 324, 30 Stat. 924, 941. It gives the Sec- retary the discretion to grant rights of way to others for construction and maintenance of water infrastructure, sub- ject to the paramount rights of the Tribe. Id. And it ex- pressly places on the Secretary a “duty . . . to prescribe such Case: 21-1880 Document: 54 Page: 38 Filed: 04/25/2024

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rules and regulations as he may deem necessary to secure to the Indians the quantity of water needed for their pre- sent and prospective wants, and to otherwise protect the rights and interests of the Indians[.]” 1 Id. This case is unlike the treaty at issue in Arizona v. Navajo Nation, 599 U.S. 555 (2023) because, here, the 1899 Act imposes actionable fiduciary duties on the government.

1 The majority ascribes specific fiduciary duties to particular sources of law and, in turn, to particular claims in the Tribe’s first amended complaint. As a result, the majority leaves unaddressed important aspects of the acts. For example, the majority characterizes the 1899 Act as re- lating solely to “duties in trust to secure new water for the Tribe, including by constructing new water storage infra- structure.” Maj. Op. 15 (emphasis added). As a result, the majority considers the 1899 Act as isolated to new infra- structure and not about access to existing water. Each act should be individually interpreted and considered based on its language. Caminetti v. United States, 242 U.S. 470, 485 (1917) (“It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain . . . the sole function of the courts is to enforce it according to its terms.”). The Court of Federal Claims did not engage in an analysis separating the Tribe’s causes of action and ascrib- ing alleged fiduciary duties between the 1899 and 1906 Acts, and I fault the majority’s decision to do so. As con- cerns the Tribe’s breach of trust claims, I concur only in the majority’s conclusion that the 1906 Act creates actionable trust duties requiring vacatur and remand. I do not join the manner in which the majority allocates alleged fiduci- ary duties between the 1899 and 1906 Acts, nor its peculiar assignment of the Tribe’s breach of trust causes of action between the two acts. Case: 21-1880 Document: 54 Page: 39 Filed: 04/25/2024

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Although the Navajo Nation treaty set aside a reservation for the Navajo and thus implicitly created reserved water rights for the Tribe, it did not create “a duty on the United States to take affirmative steps to secure water for the Tribe.” Id. at 566. In comparison, the 1899 Act expressly relates to water. In granting the Secretary discretionary authority over building and maintaining water infrastruc- ture, it expressly places on the Secretary a “duty . . . to prescribe such rules and regulations as he may deem necessary to secure to the Indians the quantity of water needed for their present and prospective wants.” 30 Stat. at 941 (emphasis added). With such express language provided, there was no need for the 1899 Act to explicitly refer to water and water infrastructure as being held “in trust” for it to create ac- tionable fiduciary duties. Nor does it matter that the 1899 Act permits the Secretary to choose rules and regulations “as he may deem necessary.” Id. The specific rules and regulations created may be up to the Secretary, but there is nothing permissive in the 1899 Act about the Secretary’s ultimate duty to prescribe sufficient rules and regulations to secure for the Tribe “the quantity of water needed for their present and prospective wants.” Id. I am at a loss as to how the language of the 1899 Act can be understood to mean that the Secretary has the discretion to not secure water to the Tribe. The majority decision regarding the 1899 Act is an- other in a drip line of cases eroding promises that the United States clearly and objectively made to tribal na- tions. Those promises were from one sovereign state to an- other, couched in legal terms with all the trappings of legality. See Oklahoma v. Castro-Huerta, 597 U.S. 629, 667–68 (2022) (Gorsuch, J., dissenting) (“Tribes are not pri- vate organizations within state boundaries. Their reserva- tions are not glorified private campgrounds. Tribes are sovereigns.”). The plain language of the 1899 Act creates Case: 21-1880 Document: 54 Page: 40 Filed: 04/25/2024

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fiduciary obligations on the Secretary that are objectively clear and unambiguous. I thus respectfully dissent in part.