Case: 21-1366 Document: 98 Page: 1 Filed: 06/18/2024

United States Court of Appeals for the Federal Circuit ______________________

CHEMEHUEVI INDIAN TRIBE, Plaintiff-Appellant

v.

UNITED STATES, Defendant-Appellee ______________________

2021-1366 ______________________

Appeal from the United States Court of Federal Claims in No. 1:16-cv-00492-MHS, Judge Matthew H. Solomson. ______________________

Decided: June 18, 2024 ______________________

MARIO GONZALEZ, Gonzalez Law Office, Prof. LLC, Rapid City, SD, argued for plaintiff-appellant.

TAMARA N. ROUNTREE, Appellate Section, Environment and Natural Resources Division, United States Depart- ment of Justice, Washington, DC, argued for defendant-ap- pellee. Also represented by TODD KIM. ______________________

Before MOORE, Chief Judge, HUGHES and CUNNINGHAM, Circuit Judges. Case: 21-1366 Document: 98 Page: 2 Filed: 06/18/2024

2 CHEMEHUEVI INDIAN TRIBE v. US

HUGHES, Circuit Judge. The Chemehuevi Indian Tribe appeals the United States Court of Federal Claims’ dismissal of each Count of its second amended complaint. For the reasons that follow, we affirm the trial court’s dismissal of all Counts for lack of subject-matter jurisdiction but vacate the trial court’s dismissal of Count III for failure to state a claim. I The Tribe filed its first complaint against the United States on April 20, 2016, which the Government moved to dismiss under Rule 12(b)(1) of the Rules of the Court of Federal Claims (RCFC) for lack of subject-matter jurisdic- tion. The trial court denied the Government’s motion, in- stead permitting limited jurisdictional discovery and ordering the Tribe to file an amended complaint with more specific claims. The Tribe thereafter filed its first amended complaint in 2017, and jurisdictional discovery ensued. On April 15, 2019, the Tribe filed its second amended complaint (hereinafter, complaint), which is operative, ar- ticulating five Counts and seeking money damages against the United States under the Tucker Act (codified at 28 U.S.C. § 1491) and the Indian Tucker Act (codified at 28 U.S.C. § 1505). J.A. 198 (Compl. ¶ 5). The Tribe invokes the “investment statutes” of 25 U.S.C. §§ 161, 161a, 162(a), 4011, and 4044 as giving rise to its money-mandating Tucker Act claims. J.A. 199 (Compl. ¶ 6). Once more, the Government moved to dismiss the Tribe’s complaint for lack of subject-matter jurisdiction un- der RCFC 12(b)(1) (Counts I–V) and for failure to state a claim upon which relief can be granted under RCFC 12(b)(6) (Counts II–IV). The trial court granted these mo- tions. Chemehuevi Indian Tribe v. United States, 150 Fed. Cl. 181, 220 (2020) (Decision). Case: 21-1366 Document: 98 Page: 3 Filed: 06/18/2024

CHEMEHUEVI INDIAN TRIBE v. US 3

The Tribe’s uncontested factual allegations for each Count are recited below. A Count I of the Tribe’s complaint relates to funds the Tribe was awarded for a taking of its land on which the Parker Dam and its reservoir, Lake Havasu, reside. The Chemehuevi Indian Tribe has long “used and occupied the Mojave Desert’s mountains and canyons and the Colorado River shoreline.” J.A. 199 (Compl. ¶ 7). In 1907, the Secre- tary of the Interior established the Chemehuevi Indian Reservation, setting aside 36,000 acres for the Tribe. J.A. 200 (Compl. ¶ 11). Much of this land “consisted of high mesa desert that was not suitable for farming, cattle graz- ing, or any other form of development.” J.A. 200 (Compl. ¶ 12). A “far smaller” portion of the Chemehuevi Reserva- tion included “a steep valley leading down to the Colorado River,” the base of which was “suitable for both agriculture and human habitation.” J.A. 200 (Compl. ¶ 12). In the 1930s, “the Department of the Interior’s Bureau of Reclamation contracted with [the Metropolitan Water District of Southern California or] MWD for the coopera- tive construction and operation” of a dam “to provide a res- ervoir of clear water from which the MWD could pump a maximum supply of 1,500 cubic feet per second (cfs) of Col- orado River water.” J.A. 201 (Compl. ¶ 14). The resulting Parker Dam and its associated reservoir, Lake Havasu, would be located along the Colorado River and at least par- tially built on Chemehuevi tribal lands. J.A. 200–02 (Compl. ¶¶ 13, 16). Lake Havasu was expected to flood por- tions of Chemehuevi tribal lands. J.A. 203 (Compl. ¶ 21). In 1939, the Solicitor of the Department of the Interior concluded that the MWD must compensate the Tribe for the “damages to certain lands . . . which will be flooded by the Parker Dam.” J.A. 203 (Compl. ¶ 21). The following year, Congress passed a law authorizing the taking “in aid of the construction of the Parker Dam project” and directed Case: 21-1366 Document: 98 Page: 4 Filed: 06/18/2024

4 CHEMEHUEVI INDIAN TRIBE v. US

the Secretary to “determine the amount of money to be paid to the [Tribe] as just and equitable compensation” for those lands. Act of July 8, 1940, ch. 552, §§ 1–2, 54 Stat. 744; see also J.A. 203–04 (Compl. ¶ 23). That same Act provided that MWD would deposit the funds with the Secretary of the Interior pursuant to the Act of May 17, 1926 (44 Stat. 560). Act of July 8, 1940, ch. 552, § 2; see also J.A. 203–04 (Compl. ¶ 23). In 1940, the Tribe was awarded $108,104.95 (the Par- ker Dam compensation funds) for the 7,776.14 acres of res- ervation land taken. J.A. 205–08 (Compl. ¶¶ 26–27, 30). “[F]ollowing the taking, the remaining area of the Cheme- huevi Reservation consisted of 28,223.87 acres of mesa land or hillside desert land worth no more than about $2.00 per acre.” J.A. 206 (Compl. ¶ 28) (cleaned up and citation omitted). The Government placed a portion of the Parker Dam compensation funds “in a Treasury Account from 1940 un- til at least June 5, 1970.” J.A. 207–08 (Compl. ¶¶ 30, 32). The Tribe received a memorandum dated June 16, 1959 “from the Research and Reporting Section to the Chief, Branch of Tribal Programs of the [Bureau of Indian Af- fairs]” stating that $85,193.11 was in an account (Account Number 14X7344) and that $55,166.87 of accrued interest was in a separate account (Account Number 14X7844). J.A. 208–10 (Compl. ¶ 33). Years later, another memoran- dum dated June 9, 1970 showed that Account Number 14X7344 contained $127,393.98 and that Account Number 14X7844 contained $89,062.70. J.A. 211 (Compl. ¶ 36). As of the date of the Tribe’s filing of its operative complaint, the Tribe is unsure if it ever received any portion of the Parker Dam compensation funds. J.A. 211 (Compl. ¶ 37). In Count I of its complaint, the Tribe contends that no complete accounting of the Parker Dam compensation monies has been received from 1940 until the date of filing of their second amended complaint. J.A. 228–29 (Compl. Case: 21-1366 Document: 98 Page: 5 Filed: 06/18/2024

CHEMEHUEVI INDIAN TRIBE v. US 5

¶¶ 84, 86). The Tribe is suing for breach of trust 1 and seeks an accounting and damages for the Government’s alleged mismanagement of Parker Dam compensation funds from 1940 to now. J.A. 229–31 (Compl. ¶¶ 87–91). B In Count II, the Tribe brings an unrelated land-based claim that stems from two petitions filed with the Indian Claims Commission (ICC) in the early 1950s. J.A. 211–12 (Compl. ¶¶ 38–40); see also J.A. 231 (Compl. ¶ 93). One pe- tition “was withdrawn and dismissed by the ICC by mutual agreement of the Chemehuevi parties.” J.A. 212 (Compl. ¶ 42). The other petition was split into two claims: “Docket No. 351, . . . a claim for a taking of Chemehuevi aboriginal title land in the present states of California, Arizona and Nevada” and “Docket No. 351-A, . . . a claim for the ac- counting and other relief.” J.A. 212 (Compl. ¶ 41). The claims were later settled, with the Tribe receiving a judg- ment for $996,834.81 (the ICC Judgment funds). J.A. 213–14 (Compl. ¶¶ 45, 47). In 1965, Congress appropriated funds to pay the ICC judgment (see, e.g., J.A. 214 (Compl. ¶ 48)) and five years later, Congress passed a law providing that the funds be “distributed by the Secretary of the Interior . . . in equal shares” to eligible persons. Act of September 25, 1970, Pub.

1 In its complaint, the Tribe alleges the Government has breached its fiduciary duties. See, e.g., J.A. 229–30 (Compl. ¶ 88). In its briefing on appeal, the Tribe refers to its “breach-of-trust claims.” See, e.g., Appellant’s Br. 3. For consistency with the claims as identified before the trial court, we refer to the Tribe’s claims as breach-of-trust claims. See Chemehuevi Indian Tribe v. United States, No. 16-492 (Fed. Cl. April 1, 2020), ECF No. 79 Ex. A (claim table jointly submitted to the trial court summarizing Tribe’s causes of action alleged in complaint). Case: 21-1366 Document: 98 Page: 6 Filed: 06/18/2024

6 CHEMEHUEVI INDIAN TRIBE v. US

L. No. 91-417, 84 Stat. 868. The ICC then awarded the Tribe attorneys fees and expenses. J.A. 214 (Compl. ¶ 49). “The ICC judgment award constitutes ‘trust funds’ under 31 U.S.C. § 1321(67).” J.A. 214 (Compl. ¶ 49). The Tribe notes that the Government is the trustee of any unclaimed per capita payments. See J.A. 214–15 (Compl. ¶ 51). In Count II of its complaint, the Tribe similarly alleges that no complete accounting has been provided to the Tribe “from June 1965 until at least September 1970, and/or the ultimate disbursement or disposition of the ICC Judgment Funds.” J.A. 231 (Compl. ¶ 94). The Tribe is suing for breach of trust and seeks an accounting and damages for the ICC Judgment funds for Dockets 351 and 351-A. J.A. 231 (Compl. ¶¶ 92–97). C Count III relates to the Tribe’s water rights. The Chemehuevi Reservation exists on “the California side of the Colorado River with the Colorado River as the eastern boundary.” J.A. 200 (Compl. ¶ 11). The Tribe has vested Winters water rights in the Colorado River. See Arizona v. California, 373 U.S. 546, 600 (1963) (Arizona I) (explaining that in Winters v. United States, 207 U.S. 564 (1908), the Supreme Court held that by creating a reservation, Con- gress impliedly reserved “waters without which their lands would have been useless”); see also J.A. 233–34 (Compl. ¶¶ 99–101). The Chemehuevi Tribe has the right to use Colorado River water “in annual quantities not to exceed (i) 11,340 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 1,900 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of February 2, 1907.” Ari- zona v. California, 376 U.S. 340, 344 (1964). The Tribe “has used or consumed on the Chemehuevi Reservation only a small portion of the Tribe’s annual allo- cation of water from the Colorado River.” J.A. 236 (Compl. Case: 21-1366 Document: 98 Page: 7 Filed: 06/18/2024

CHEMEHUEVI INDIAN TRIBE v. US 7

¶ 107); see also J.A. 238 (Compl. ¶ 110). As explained by the Government, “[a]ny amount of the annual water allo- cation that Chemehuevi does not divert remains in the Col- orado River water [s]ystem . . . .” Appellee’s Br. 31 n.10. Historically, junior users have been permitted by the De- partment of the Interior to use the undiverted water in the Colorado River. See J.A. 236–37 (Compl. ¶ 108); J.A. 238 (Compl. ¶ 110); see also Appellee’s Br. 31 n.10. 2 In the late 1990s, the Tribe “proposed [a] 25-year lease of 5,000 acre feet per year of its quantified water rights.” J.A. 237–38 (Compl. ¶ 109). By leasing its water rights, the Tribe hoped “to reduce poverty and provide funds for eco- nomic development in the areas of education, employment, health and agriculture.” J.A. 238 (Compl. ¶ 109). The Tribe’s proposed lease was never approved or denied. See J.A. 238–39 (Compl. ¶ 112). In Count III of its complaint, the Tribe asserts that the Government’s failure to approve the Tribe’s proposed long- term lease, and allowance of junior users to use the “Chemehuevi Tribe’s ‘surplus’ quantified water rights” without payment, constituted a Fifth Amendment taking

2 The parties dispute whether this undiverted water is “excess water” (see Appellee’s Br. 28 n.8) or “surplus wa- ter” (see Reply Br. 12 n.5). In Arizona v. California, 547 U.S. 150, 155 (2006), the Supreme Court described addi- tional water available above what was necessary “to satisfy annual consumptive use” as “surplus.” On the other hand, there is authority that stream waters “which are over and above those used to satisfy Winters rights” are “excess” wa- ters. Holly v. Confederated Tribes & Bands of Yakima In- dian Nation, 655 F. Supp. 557, 558 (E.D. Wash. 1985) (citing Colville Confederated Tribes v. Walton, 647 F.2d 42, 47 (9th Cir. 1981)). To resolve this case, we need not decide whether the water allocated to junior users is “excess” or “surplus.” Case: 21-1366 Document: 98 Page: 8 Filed: 06/18/2024

8 CHEMEHUEVI INDIAN TRIBE v. US

and a breach of fiduciary duty to ensure the trust property was productive, and the Tribe seeks an audit and account- ing as well as compensation and damages. J.A. 239–45 (Compl. ¶¶ 113–18, 122–23). 3 D Count IV is related to Count I. After constructing the Parker Dam, twenty-one miles of the land taken in connec- tion with the project became shoreline property on Lake Havasu. J.A. 245–46 (Compl. ¶ 125). In 1974, long after the Parker Dam was constructed, the then-Secretary of the Interior “correct[ed] the designa- tion by [former] Secretary Ickes of November 25, 1941, that certain lands of the Chemehuevi Indian Reservation should be taken for use in the construction of Parker Dam pursuant to the Act of July 8, 1940, 54 Stat. 744.” J.A. 313 (Secretarial Order of November 1, 1974); J.A. 245–46 (Compl. ¶¶ 125–26). At that time, the Tribe was awarded “full equitable title to all those lands within the Cheme- huevi Indian Reservation designated to be taken by Secre- tary Ickes in 1941 between the operating pool level of Lake Havasu on the east (elevation 450 feet m.s.l. [mean sea level])” with specified north and south boundaries. J.A. 313; J.A. 245–46 (Compl. ¶¶ 125–26). Therefore, the Tribe regained title to the twenty-one miles of shoreline land on Lake Havasu. Since the 1974 correction, the Tribe has received an- nual income in the form of “(1) income from rents and leases and (2) income in the form of audited net profit dis- tributions from the Havasu Landing Resort.” J.A. 247–48 (Compl. ¶ 131). Some payments from rents and leases “are made directly to the Chemehuevi Tribe, and the remainder

3 The Tribe also pleaded disparate treatment, J.A. 243–44 (Compl. ¶¶ 119–21), but this claim is not raised on appeal. Case: 21-1366 Document: 98 Page: 9 Filed: 06/18/2024

CHEMEHUEVI INDIAN TRIBE v. US 9

are made to the [Bureau of Indian Affairs or] BIA for de- posit to the Tribe’s BIA ‘suspense accounts,’ sometimes re- ferred to as ‘special deposit accounts.’” J.A. 248 (Compl. ¶ 133). By contrast, “income distributions from the Resort have been distributed directly from the Resort to the Chemehuevi Tribal Government.” J.A. 248 (Compl. ¶ 132). In Count IV of its complaint, the Tribe alleges that the Government unconstitutionally took the twenty-one miles of shoreline land and breached its fiduciary duties regard- ing this land while the Government possessed it, and the Tribe seeks an accounting and damages. J.A. 245–47 (Compl. ¶¶ 128–30). In addition, the Tribe alleges that the Government is liable for breach of trust regarding its man- agement of the suspense accounts, which the Tribe con- tends have never been audited. J.A. 249 (Compl. ¶¶ 136–37). E Count V deals with the sufficiency of the Tribe’s Arthur Andersen report. In 1987, Congress directed the federal government to “audit[] and reconcile[]” the tribal funds held in trust and provide an accounting of those funds for all Tribes. Act of Dec. 22, 1987, Pub. L. No. 100-202, 101 Stat. 1329, 1329-229. This directive was subsequently re- affirmed. Act of Oct. 23, 1989, Pub. L. No. 101-121, 103 Stat. 701, 714; Act of Nov. 5, 1990, Pub. L. No. 101-512, 104 Stat. 1915, 1929–30; Act of Nov. 13, 1991, Pub. L. No. 102- 154, 105 Stat. 990, 1004. In 1994, Congress required the Secretary of the Interior to provide, “by May 31, 1996, a report identifying for each tribal trust fund account for which the Secretary is responsible a balance reconciled as of September 30, 1995.” 25 U.S.C. § 4044. In 2000, 4 the

4 The parties differ in their representations regard- ing when the Tribe received the Arthur Andersen report. Case: 21-1366 Document: 98 Page: 10 Filed: 06/18/2024

10 CHEMEHUEVI INDIAN TRIBE v. US

Tribe received a report from Arthur Andersen LLP (the Ar- thur Andersen report), which purported to audit and rec- oncile the Tribe’s trust accounts from 1972 to 1992. See J.A. 211 (Compl. ¶ 37). In Count V of its complaint, the Tribe alleges that the Government has never provided an accounting sufficient to allow the Tribe to “determine the full extent of its losses as a result of the Federal Government’s breaches of its fiduci- ary duties” and seeks a declaration that the Arthur Ander- sen report did not comply with the 1987 Act. J.A. 250–51 (Compl. ¶¶ 143, 145). The Tribe also seeks “a full and com- plete accounting of the Tribe’s tribal accounts that meets the requirements of the Act of December 22, 1987, Pub. L. 100-202, 101 Stat. 1329 and of the subsequent federal statutes reaffirming those requirements.” J.A. 251 (Compl. ¶ 145). The Tribe also requests damages for any

The Tribe refers to the report as the “1992 Arthur Ander- sen Report” throughout its complaint. See, e.g., J.A. 249 (“1992 Arthur Andersen Report Failed to Meet The Gov- ernment’s Statutory Obligation to Provide The Cheme- huevi Tribe With An Accounting Of The Tribe’s Trust Funds.”). In its reply brief, the Tribe refers to the same re- port as the 1996 Andersen Report. See, e.g., Reply Br. 8. The trial court refers to the same report as the 1996 Arthur Andersen Report because it was received by the Tribe in 1996. Decision at 189, 210–11. As the trial court noted (Decision at 211), by statute, the Arthur Andersen report was deemed received by the Tribe on December 31, 2000. Settlement of Tribal Claims – Amendment, Pub. L. No. 109-158, § 1, 119 Stat. 2954 (Dec. 30, 2005). For purposes of our analysis, it does not matter whether the Arthur Andersen report was received in 1996 or 2000, but we consider the report received on December 31, 2000. Case: 21-1366 Document: 98 Page: 11 Filed: 06/18/2024

CHEMEHUEVI INDIAN TRIBE v. US 11

“additional monetary claims against the United States” to which it is entitled. J.A. 251 (Compl. ¶¶ 144–45). II In a thorough decision rendered after more than two years of jurisdictional discovery, the trial court granted the Government’s motion to dismiss all Counts under RCFC 12(b)(1) and alternatively, Counts II–IV under RCFC 12(b)(6). Decision at 220. Noting that the Government’s motion “challenge[d] the factual basis for the [trial court’s] subject-matter jurisdiction (i.e., regarding the statute of limitations),” the trial court recognized that the Tribe’s al- legations in the complaint were not controlling, assumed only uncontroverted factual allegations were true, and re- solved controverted jurisdictional factual allegations. Deci- sion at 187 n.5 (citing Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583–84 (Fed. Cir. 1993)). The trial court dismissed the Tribe’s accounting claims for lack of jurisdiction because the Tribe sought the ac- counting to determine whether it “has any claim at all” against the United States. Decision at 203–05. The trial court also dismissed Counts I–V for lack of jurisdiction be- cause, assuming the Tribe’s claims had accrued, they ac- crued more than six years prior to the Tribe’s filing of its initial complaint in April 2016 and were therefore barred by the statute of limitations. Decision at 201–02, 205–06. Finally, the trial court alternatively dismissed Counts II, III, and IV for failure to state a claim upon which relief can be granted. Decision at 215–20. The Tribe timely appealed. We have jurisdiction over the trial court’s final decision under 28 U.S.C. § 1295(a)(3). III Whether the Court of Federal Claims properly dis- missed a plaintiff’s complaint for lack of subject-matter ju- risdiction under RCFC 12(b)(1) is a question of law reviewed de novo on appeal. Folden v. United States, 379 Case: 21-1366 Document: 98 Page: 12 Filed: 06/18/2024

12 CHEMEHUEVI INDIAN TRIBE v. US

F.3d 1344, 1354 (Fed. Cir. 2004). Where a RCFC 12(b)(1) motion “challenges the truth of jurisdictional facts alleged in the complaint, ‘the court accepts as true all uncontro- verted factual allegations in the complaint, and construes them in the light most favorable to the plaintiff.’” Creative Mgmt. Servs., LLC v. United States, 989 F.3d 955, 961 n.4 (Fed. Cir. 2021) (quoting Stevens v. United States, 884 F.3d 1151, 1155 (Fed. Cir. 2018)). Where a RCFC 12(b)(1) mo- tion “simply challenges the court’s subject matter jurisdic- tion based on the sufficiency of the pleading’s allegations—that is, the movant presents a ‘facial’ attack on the pleading—then those allegations are taken as true and construed in a light most favorable to the complain- ant.” Cedars-Sinai Med. Ctr., 11 F.3d at 1583. To the extent our analysis does not rely on any controverted facts, this distinction is immaterial. See Creative Mgmt. Servs., 989 F.3d at 961 n.4. Under the Tucker Act, if the Court of Federal Claims has jurisdiction to render a judgment, it also has the au- thority to award “an entire remedy” that is “an incident of and collateral to” its judgment. 28 U.S.C. § 1491(a)(2). “For jurisdiction to lie under the Tucker Act, ‘the allegation must be that the particular provision of law relied upon grants the claimant, expressly or by implication, a right to be paid a certain sum.’” Doe v. United States, 100 F.3d 1576, 1579 (Fed. Cir. 1996) (quoting Eastport Steamship Corp. v. United States, 178 Ct. Cl. 599, 605 (1967)). In this vein, where a plaintiff can show they are entitled to money damages, the Court of Federal Claims “in the exercise of its jurisdiction may order the Government, if needed, to ren- der an accounting . . . .” Doe, 100 F.3d at 1584; see also Con- fidential Informant 59-05071 v. United States, 134 Fed. Cl. 698, 720 (2017) (“The Court [of Federal Claims] has power to require an accounting in connection with its jurisdiction over a money claim under the Tucker Act.”), aff’d, 745 F. Case: 21-1366 Document: 98 Page: 13 Filed: 06/18/2024

CHEMEHUEVI INDIAN TRIBE v. US 13

App’x 166 (Fed. Cir. 2018) (nonprecedential Rule 36 affir- mance). The Court of Federal Claims lacks the authority to or- der an accounting, which is equitable relief, unless the plaintiff has established it is entitled to money damages. See, e.g., Klamath & Modoc Tribes & Yahooskin Band of Snake Indians v. United States, 174 Ct. Cl. 483, 487–88 (1966). Instead, plaintiffs must go to a court of equity, such as a district court, to obtain the desired equitable relief. The Court of Federal Claims does not have jurisdiction “unless the petition thereon is filed within six years after such claim first accrues.” 28 U.S.C. § 2501. “The 6-year statute of limitations on actions against the United States is a jurisdictional requirement attached by Congress as a condition of the government’s waiver of sovereign immun- ity and, as such, must be strictly construed.” Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1576–77 (Fed. Cir. 1988). Whether a claim brought under the Tucker Act (28 U.S.C. § 1491) is barred by the statute of limitations is a question of law that may be based on underlying fact find- ings. Katzin v. United States, 908 F.3d 1350, 1358 (Fed. Cir. 2018). We review the Court of Federal Claims’ factual findings for clear error. Id. IV Construing all facts in the light most favorable to the Tribe, we conclude that the trial court correctly dismissed Counts I, II, IV, and V of its complaint for lack of subject- matter jurisdiction under RCFC 12(b)(1) because funda- mentally the Tribe seeks an accounting to discover what claims it has against the Government but has not estab- lished any entitlement to money damages. The Court of Federal Claims does not have authority to order such an accounting, and we therefore affirm its dismissal for lack of subject-matter jurisdiction. Case: 21-1366 Document: 98 Page: 14 Filed: 06/18/2024

14 CHEMEHUEVI INDIAN TRIBE v. US

A The Tribe’s complaint is devoid of any specific allega- tions of mishandling regarding the Parker Dam compensa- tion funds, ICC Judgment funds, and suspense accounts, likely because it has not received an accounting that would allow the Tribe to discover any wrongdoing. Instead, as ex- plained below, in Counts I, II, IV, and V of its complaint, the Tribe seeks an accounting to discover what claims it may have. 1 In Count I, the Tribe seeks “an accounting and dam- ages for mismanagement of Parker Dam Compensation monies” between 1940 and 1970 and between 1970 to 2019. See J.A. 226 (Compl. ¶ 75). But in Count I, the Tribe notes that the Government “has produced no documentation in its response to the Tribe’s jurisdictional discovery requests that an accounting was ever made for the Parker Dam Compensation funds between 1940 and 1970, or that the Federal Government ever repudiated its trust responsibil- ity regarding such funds.” J.A. 228–29 (Compl. ¶ 84). The Tribe similarly recites its claims for damages from 1970–2019. See, e.g., J.A. 229 (Compl. ¶ 86) (“The Federal Government has never provided the Tribe with a complete accounting of the Parker Dam Compensation monies from 1970 up to the time this Second Amended Complaint was filed.”). The Tribe is unable to pinpoint any examples of mismanagement. After noting the Government’s failure to provide the Tribe with an accounting or any documentation regarding its handling of the Parker Dam compensation funds (J.A. 228–29 (Compl. ¶¶ 83–86)), the Tribe nevertheless al- leges that the Government “breached its fiduciary duties” with regards to the Parker Dam compensation funds (J.A. 229–30 (Compl. ¶ 88–89)). But the Tribe does not pro- vide any facts supporting its claims for breach of trust and instead seeks “damages for any and all mismanagement by Case: 21-1366 Document: 98 Page: 15 Filed: 06/18/2024

CHEMEHUEVI INDIAN TRIBE v. US 15

the Federal Government of the Parker Dam Compensation Monies occurring on or after 1946, including any and all such mismanagement disclosed by any accounting ordered by the Court . . . .” J.A. 230–31 (Compl. ¶ 91) (emphasis added); see also J.A. 230 (Compl. ¶ 90). Even in the Tribe’s briefing before this court, it con- tends that the statute of limitations on Count I’s request for an accounting is “tolled until the Government ma[kes] a complete and meaningful accounting of the Tribe’s trust funds and openly repudiate[s] the trust.” Appellant’s Br. 1; see also, e.g., Appellant’s Br. 22. Considering the facts in the light most favorable to the Tribe, and excluding from consideration the Tribe’s legal conclusions (see, e.g., Papa- san v. Allain, 478 U.S. 265, 286 (1986) (explaining “we are not bound to accept as true a legal conclusion” in reviewing a motion to dismiss)), the Tribe seeks an accounting and to recover from any improprieties exposed by that accounting. 2 Turning to Count II, the Tribe’s allegations are similar. The Tribe asserts that the Government breached its fiduci- ary duties by failing to provide an accounting of the ICC Judgment funds or otherwise mismanaging the funds. J.A. 231–32 (Compl. ¶¶ 94–95). Once more, the Tribe ar- gues it “is entitled to a full accounting from the Govern- ment of the retention and ultimate disbursement or disposition of the ICC Judgment Funds,” and seeks to “re- cover damages for any and all mismanagement by the Fed- eral Government of the ICC Judgment Funds, including any and all such mismanagement disclosed by an account- ing . . . .” J.A. 232–33 (Compl. ¶¶ 96–97) (emphasis added). Here too, the Tribe is unable to point to any evidence of mismanagement, instead reiterating its request for an accounting. See, e.g., Appellant’s Br. 6–7 (“No accounting has ever been made by the Government . . . .”); Appellant’s Br. 14 (arguing its claim is timely based on tolling of the statute of limitations on Count II until “the Government Case: 21-1366 Document: 98 Page: 16 Filed: 06/18/2024

16 CHEMEHUEVI INDIAN TRIBE v. US

made a complete and meaningful accounting of these trust funds”). Taking the uncontested facts in the light most fa- vorable to the Tribe, the Tribe is asking the court for an accounting. 3 The Tribe, in Count IV, 5 requests an accounting of, and any associated damages for, mismanagement of the sus- pense accounts. J.A. 248–49 (Compl. ¶¶ 135–37). In its ap- pellate briefing, the Tribe notes, as it does for the other Counts, that “[n]o accounting has ever been rendered to the Tribe regarding [the] fees, charges, rents, and other mon- ies.” Appellant’s Br. 51. But as is the case with the other Counts, taking the facts in the light most favorable to the Tribe, the Tribe seeks an accounting. 4 Finally, in Count V, 6 the Tribe contends that “[t]he de- ficiencies and gaps endemic to the Federal Government’s

5 The Tribe also alleges that the Government com- mitted a Fifth Amendment taking of the twenty-one miles of Lake Havasu shoreline between 1941 and 1974 and breached its fiduciary duties regarding that land, seeking an audit and an accounting. J.A. 246–47 (Compl. ¶¶ 127–30). Viewing the facts in the light most favorable to the Tribe, the trial court correctly dismissed this portion of Count IV for lack of subject-matter jurisdiction under the Tucker Act’s six-year statute of limitations because any claim the Tribe may have had based on this alleged taking, see Hopland Band of Pomo Indians, 855 F.2d at 1577, ac- crued long before April 20, 2010. 6 In Count V, the Tribe also seeks “a declaration that the 1992 Arthur Andersen Report does not meet the Fed- eral Government’s obligations under the Act of December 22, 1987, Pub. L. 100-202, 101 Stat. 1329 and of the Case: 21-1366 Document: 98 Page: 17 Filed: 06/18/2024

CHEMEHUEVI INDIAN TRIBE v. US 17

accounting system severely limited the Chemehuevi Tribe’s ability to determine the full extent of its losses . . . .” J.A. 250–51 (Compl. ¶ 143). The Tribe notes that the Gov- ernment “has failed up to the filing date of this Second Amended Complaint to render any bonafide reconciliation and accounting of the Chemehuevi Tribe’s trust funds and assets . . . .” J.A. 251 (Compl. ¶ 144). The Tribe requests “a full and complete accounting of the Tribe’s tribal accounts” and damages on any claims that are “reveal[ed]” as the re- sult of an accounting. J.A. 251 (Compl. ¶¶ 144–45) (empha- sis added). On appeal, the Tribe invokes the Court of Federal Claims’ authority to award an accounting “in aid of its ju- risdiction to render a money judgment” on a claim. Appel- lant’s Br. 54 (quoting Klamath, 174 Ct. Cl. at 490). But once more, even considering the facts in the light most favorable to the Tribe, the Tribe has not shown any evidence of mis- management, and the Tribe seeks an accounting (see Ap- pellant’s Br. 55). B Ultimately, the Tribe seeks an accounting to discover what claims it may have, rather than an “accounting in aid of [the trial court’s] jurisdiction to render a money judg- ment on that claim.” Klamath, 174 Ct. Cl. at 490.

subsequent federal statutes reaffirming those obligations.” J.A. 251 (Compl. ¶ 145). Considering the facts in the light most favorable to the Tribe, the trial court did not err in dismissing for lack of subject-matter jurisdiction because the Arthur Andersen report was received, and the Tribe could have ascertained whether it complied with the stat- ute (see Hopland Band of Pomo Indians, 855 F.2d at 1577) no later than 2000. Thus, the Tribe’s claim accrued well outside the Tucker Act’s six-year statute of limitations. Case: 21-1366 Document: 98 Page: 18 Filed: 06/18/2024

18 CHEMEHUEVI INDIAN TRIBE v. US

Therefore, the trial court properly dismissed Counts I, II, IV, and V for lack of subject-matter jurisdiction. V Construing all facts in the light most favorable to the Tribe, we also affirm the trial court’s dismissal of Count III for lack of subject-matter jurisdiction under RCFC 12(b)(1). The Tribe’s claim, deriving from the Secretary of the Inte- rior’s inaction in the late 1990s, accrued outside the six- year statute of limitations, and thus the Court of Federal Claims lacked jurisdiction to consider it. We also vacate the trial court’s dismissal of Count III under RCFC 12(b)(6) be- cause the Tribe stated a claim when it challenged the Sec- retary’s failure to approve the 1998 proposed lease of the Tribe’s Winters rights, but that claim is untimely. A In Arizona I, the amount of water reserved to tribes un- der Winters was described as “water . . . intended to satisfy the future as well as the present needs of the Indian Res- ervations” and “enough water . . . to irrigate all the practi- cably irrigable acreage on the reservations.” 373 U.S. at 600. In Cappaert v. United States, the Supreme Court de- scribed this as “reserv[ing] only that amount of water nec- essary to fulfill the purpose of the reservation, no more.” 426 U.S. 128, 141 (1976). Winters water rights are usufructuary, meaning “the property right consists not so much of the fluid itself as the advantage of its use.” Crow Creek Sioux Tribe v. United States, 900 F.3d 1350, 1357 (Fed. Cir. 2018) (cleaned up). We have explained that, as a result, “the Tribe has no right to any particular molecules of water, either on the Reser- vation or up- or downstream, that may have been used or diverted by the government.” Id. (cleaned up). Therefore “[t]he Tribe’s Winters rights, which give the Tribe the right to use sufficient water to fulfill the purposes of the Reser- vation, simply cannot be injured by government action that Case: 21-1366 Document: 98 Page: 19 Filed: 06/18/2024

CHEMEHUEVI INDIAN TRIBE v. US 19

does not affect the Tribe’s ability to use sufficient water to fulfill the purposes of the Reservation.” Id. B The Tribe alleges that the Secretary of the Interior’s failure to approve the Tribe’s proposed 25-year lease of 5,000 acre-feet of its Winters water rights was a Fifth Amendment taking and constituted a breach of trust. J.A. 238–43 (Compl. ¶¶ 112–18). The Tribe contends that other Tribes have been permitted to “market[], sell[], and/or leas[e] their water rights for off-reservation use” and the Secretary of the Interior’s failure to approve their lease constituted disparate treatment in violation of 25 U.S.C. § 5123. J.A. 243–44 (Compl. ¶¶ 119–21). The Tribe seeks compensation and damages for all takings, misman- agement, and disparate treatment. J.A. 245 (Compl. ¶ 123). The proposed lease agreement is dated January 31, 1998. J.A. 292 (Exhibit “I” to the complaint). The lease was submitted to the Secretary for approval. See Notice of Pub- lic Comment Period on Proposed Agreement for Leasing of Colorado River Water and Non-Irrigation of Lands on Chemehuevi Indian Reservation, 63 Fed. Reg. 33,945 (June 22, 1998); Notice of Public Comment Period on Proposed Agreement for Leasing of Colorado River Water and Non- Irrigation of Lands on Chemehuevi Indian Reservation, 63 Fed. Reg. 51,367 (Sept. 25, 1998) (second comment period). The Secretary of the Interior never approved or denied the proposed lease. See Appellee’s Br. 39. C Considering the facts in the light most favorable to the Tribe, we conclude that the Tribe’s legal challenge to the Secretary’s inaction regarding the 1998 proposed lease was properly dismissed by the trial court for lack of jurisdiction, Case: 21-1366 Document: 98 Page: 20 Filed: 06/18/2024

20 CHEMEHUEVI INDIAN TRIBE v. US

as its claim accrued more than six years before it filed its first complaint in this action on April 20, 2010. 7 A cause of action against the government first accrues, and the statute of limitations begins running, when “all the events which fix the government’s alleged liability have oc- curred and the plaintiff was or should have been aware of their existence.” Hopland Band of Pomo Indians, 855 F.2d at 1577. There is no dispute that any failure to act on the Secretary’s behalf occurred long before April 20, 2010, likely in 1998 or 1999, and that the Tribe was aware of this failure. See J.A. 238–39 (Compl. ¶ 112). Therefore, the Tribe’s claim accrued no later than 2000, and is plainly barred by the six-year statute of limitations. The Tribe relies on the continuing claims doctrine to support the timeliness of its claim. See Appellant’s Br. 25–26; Appellant’s Reply Br. 21–22. “In order for the continuing claim doctrine to apply, the plaintiff’s claim must be inherently susceptible to being broken down into a series of independent and distinct events or wrongs, each having its own associated damages.” Brown Park Estates- Fairfield Dev. Co. v. United States, 127 F.3d 1449, 1456 (Fed. Cir. 1997). By contrast, “a claim based upon a single distinct event, which may have continued ill effects later on, is not a continuing claim.” Id. Considering the facts in the light most favorable to the Tribe, we agree with the Government that the continuing claims doctrine does not apply: the Government’s one-time failure to approve a lease in 1998 or 1999 cannot be broken down into “a series of independent and distinct events or wrongs” but instead

7 To the extent the Tribe seeks an “audit and full ac- counting by the Government” in connection with Count III, J.A. 244 (Compl. ¶ 122), the Court of Federal Claims lacked jurisdiction to award this relief for the reasons identified in part IV, supra. Case: 21-1366 Document: 98 Page: 21 Filed: 06/18/2024

CHEMEHUEVI INDIAN TRIBE v. US 21

is a “single distinct event.” Therefore, the continuing claims doctrine cannot resurrect the Tribe’s claim. D While we affirm the trial court’s dismissal for lack of jurisdiction, we also conclude the trial court erred in dis- missing Count III for failure to state a takings claim. See Decision at 217–18. The trial court stated that “[t]he Tribe has not alleged that the United States has taken any action which has prevented the Tribe from obtaining 11,340 acre- feet of mainstream water or the quantity of mainstream water necessary for irrigation of 1,900 acres of reserva- tion land.” Decision at 218 (alteration in original); see also id. at 218 (stating “the Tribe solely possesses the right to use a certain amount of water ‘for irrigation.’” (quoting Ar- izona v. California, 376 U.S. at 344)). We agree with the Tribe (Appellant’s Br. 34–39) and the Government (Appel- lee’s Br. 31 n.9) that this is too narrow a reading of the Tribe’s Winters rights. The Tribe has the right to use the “amount of water necessary to fulfill the purpose of the reservation,” and alt- hough the court need not decide the issue today, the Tribe’s decision to lease the water off-reservation could “fulfill the purpose of the reservation.” Cappaert, 426 U.S. at 141. In- deed, the Tribe alleges that other Tribes, namely the San Carlos Apache Tribe and the Gila River Indian Commu- nity, have been permitted to lease their water rights for off- reservation use. J.A. 244 (Compl. ¶ 121). Therefore, the trial court’s dismissal of Count III under RCFC 12(b)(6) is vacated. Case: 21-1366 Document: 98 Page: 22 Filed: 06/18/2024

22 CHEMEHUEVI INDIAN TRIBE v. US

VI We have considered the Tribe’s and the Government’s additional arguments8 and find them unpersuasive. For the reasons provided, we affirm the trial court’s dismissal of Counts I–V of its complaint for lack of subject-matter ju- risdiction. AFFIRMED COSTS No costs.

8 We need not address the impact, if any, of the In- dian Trust Accounting Statute on the tolling of the statute of limitations for any of these claims as none of the claims we have affirmed the dismissal of as time barred are “claims for losses or mismanagement of Indian trust funds.” See, e.g., Wyandot Nation of Kansas v. United States, 858 F.3d 1392, 1396 (Fed. Cir. 2017) (“During the period from 1990 through 2014, the Department of Interior Appropriation Act riders provided that claims for losses or mismanagement of Indian trust funds do not accrue until the affected Indian tribe or individual Indian has been fur- nished with an accounting of such funds.”).