Gros Ventre Tribe v. United States , 469 F.3d 801 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GROS VENTRE TRIBE; ASSINIBOINE 
TRIBE; THE FORT BELKNAP INDIAN
COMMUNITY COUNCIL OF THE FORT
BELKNAP INDIAN RESERVATION,
Plaintiffs-Appellants,
v.
No. 04-36167
UNITED STATES OF AMERICA; UNITED
STATES BUREAU OF LAND  D.C. No.
CV-00-00069-DWM
MANAGEMENT, an agency of the
U.S. Dept’ of Interior; BUREAU OF OPINION
INDIAN AFFAIRS, an agency of the
U.S. Dept’ of Interior; and INDIAN
HEALTH SERVICE, an agency of the
U.S. Dept’ of Health and Human
Services,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, Chief District Judge, Presiding
Argued and Submitted
June 6, 2006—Seattle, Washington
Filed November 13, 2006
Before: Richard C. Tallman and Jay S. Bybee,
Circuit Judges, and Marilyn L. Huff,* District Judge.
*The Honorable Marilyn L. Huff, United States District Judge for the
Southern District of California, sitting by designation.
18467
18468 GROS VENTRE TRIBE v. UNITED STATES
Opinion by Judge Tallman
GROS VENTRE TRIBE v. UNITED STATES 18471
COUNSEL
Michael D. Axline, Western Environmental Law Center, Sac-
ramento, California, for the plaintiffs-appellants.
John E. Arbab, Trial Attorney, Department of Justice, Envi-
ronment and Natural Resources Division, Washington, D.C.,
for the defendants-appellees.
OPINION
TALLMAN, Circuit Judge:
Appellants Gros Ventre Tribe, Assiniboine Tribe, and the
Fort Belknap Indian Community Council (collectively “the
Tribes”) appeal the district court’s order granting summary
judgment for the United States. The Tribes filed suit in the
District of Montana against the United States, its Bureau of
Land Management (“BLM”), the Bureau of Indian Affairs,
and the Indian Health Service (collectively “the govern-
ment”), alleging that the government had violated specific and
general trust obligations to protect tribal trust resources (pri-
marily water rights) by authorizing and planning to expand
two cyanide heap-leach gold mines located upriver from the
Tribes’ reservation. We affirm.
The Tribes urge a theory of liability conflating general trust
law principles with an attack on agency inaction under the
Administrative Procedure Act (“APA”). See 5 U.S.C.
§ 706(1). But none of the treaties cited by the Tribes impose
a specific duty on the United States to regulate third parties
or non-tribal resources for the benefit of the Tribes. Because
18472 GROS VENTRE TRIBE v. UNITED STATES
the government’s general trust obligations must be analyzed
within the confines of generally applicable statutes and regu-
lations, we reject the suggestion to create by judicial fiat a
right of action Congress has not recognized by treaty or stat-
ute. Therefore, because the Tribes do not have a cognizable
non-APA claim, we agree with the district court that the
Tribes are required to comply with the APA’s “final agency
action” requirement. See id. § 704. We also hold that after
bifurcating the trial into a liability and remedy phase, the dis-
trict court did not abuse its discretion by granting the govern-
ment’s motion for summary judgment upon conclusion of the
liability phase.
I
A
The Gros Ventre and Assiniboine Tribes reside on the Fort
Belknap Indian Reservation (“Reservation”) located in north-
central Montana. Pertinent to this appeal is the fact that in
1851 seven different Indian nations, including the two Tribes,
signed the Treaty of Fort Laramie. The Indian nations had
“assembled for the purpose of establishing and confirming
peaceful relations amongst themselves,” and, by signing the
treaty, they “agree[d] to abstain in future from all hostilities
whatever against each other, to maintain good faith and
friendship in all their mutual intercourse, and to make an
effective and lasting peace.” Treaty of Fort Laramie art. 1,
Sept. 17, 1851, 11 Stat. 749. The Tribes also formally recog-
nized “the right of the United States Government to establish
roads, military and other posts, within their respective territo-
ries.” Id. at art. 2. In return, the United States agreed to “pro-
tect the . . . Indian nations against the commission of all
depredations by the people of the said United States.” Id. at
art. 3. The Treaty of Fort Laramie did not convey any land to
the Indians “but instead chiefly represented a covenant among
several tribes which recognized specific boundaries for their
GROS VENTRE TRIBE v. UNITED STATES 18473
respective territories.” Montana v. United States, 450 U.S.
544, 553 (1981).
The United States made a similar promise to protect the
Tribes and their territory in the 1856 Treaty with the Black-
feet. The Tribes “agree[d] that citizens of the United States
may live in and pass unmolested through the countries respec-
tively occupied and claimed by them.” Treaty with the Black-
feet art. 7, Oct. 17, 1855, 11 Stat. 657. The United States
agreed to be “bound to protect said Indians against depreda-
tions and other unlawful acts which white men residing in or
passing through their country may commit.” Id.
In 1888, Congress ratified an agreement to reduce the terri-
tory of the Gros Ventre, Piegan, Blood, Blackfeet, and River
Crow Indian Tribes. See An Act to Ratify and Confirm an
Agreement with the Gros Ventre, ch. 213, May 1, 1888, 25
Stat. 113. In return, Congress created the original Fort Bel-
knap Indian Reservation, an area of land specifically set aside
for the use and enjoyment of the Indian tribes. Although a
reduction of their former territory, the original Fort Belknap
Indian Reservation included the Little Rocky Mountains of
Montana, a location long used by the Tribes for subsistence,
social, and religious purposes.
In the early 1880s, prior to the formation of the original
Fort Belknap Indian Reservation, gold was discovered on the
southern slopes of the Little Rocky Mountains. Congress soon
realized that the larger part of the mineral-bearing country
was located within the boundaries of the newly delineated
Fort Belknap Indian Reservation. In 1896, Congress ratified
what later became known as the “Grinnell Agreement,”
wherein the Tribes agreed to relinquish all right, title, and
interest to the mineral-bearing portion of the Little Rocky
Mountains in return for certain monetary considerations.
Agreement with the Indians of the Fort Belknap Indian Reser-
vation in Montana, ch. 398, 29 Stat. 350 (1895). While not
articulated in the agreement ratified by Congress, it was
18474 GROS VENTRE TRIBE v. UNITED STATES
reported to the Senate that the commission authorized to
negotiate with the Fort Belknap Indian tribes had assured the
tribes that they “would not be giving up any of their timber
or grasslands . . . and that they would have ample water for
all their needs.” S. Doc. No. 54-117, at 3-4 (1896). Within the
next ten years, the Little Rocky Mountains mining district
became Montana’s largest gold producer.
The advent of cyanide heap-leach technology,1 in conjunc-
tion with a sharp rise in gold prices, prompted the develop-
ment of open pit mining operations beginning in the late
1970s. In 1979, the Montana Department of State Lands
issued permits to Zortman Mining, Inc. (“ZMI”), a wholly
owned subsidiary of Pegasus Gold, Inc. (“Pegasus”), authoriz-
ing the Zortman and Landusky cyanide heap-leach mines.
Both mines are located near the southern boundary of the Res-
ervation. The BLM did not establish federal regulations con-
trolling the operation of mines on public lands until 1981. At
that time, the BLM approved the Zortman and Landusky
mines as pre-existing authorizations under its newly promul-
gated regulations. The BLM issued a Plan of Operation for
each mine, and both plans were amended numerous times
between 1979 and 1991.
In 1992, ZMI proposed to expand the Zortman mine. In the
course of reviewing the proposed Zortman expansion, the
1
Cyanide heap leaching is a process used to recover microscopic gold
particles typically found in low-grade ore deposits. The process includes
drilling, blasting and crushing low-grade ore. The ore is then transferred
to a leach pad, a carefully constructed series of flat-topped heaps that is
lined with plastic and/or clay to try and prevent the loss of solution. The
leach pad is also constructed in lifts, which are sequentially sprayed with
a cyanide solution. Once processed, a “pregnant solution” containing the
gold particles is collected, processed in tanks or treatment cells, and
heated in a furnace to form impure gold/silver ore bars for further refine-
ment. U.S. DEP’T OF INTERIOR, BUREAU OF LAND MGMT. & MONT. DEP’T OF
ENVTL QUALITY, FINAL ENVTL. IMPACT STATEMENT, ZORTMAN AND LANDUSKY
MINES, RECLAMATION PLAN MODIFICATIONS AND MINE LIFE EXTENSIONS 1-10
(1996) [hereinafter 1996 FEIS].
GROS VENTRE TRIBE v. UNITED STATES 18475
BLM and the Montana Department of State Lands determined
that acid rock drainage (“ARD”)2 had become a widespread
problem at both the Zortman and Landusky mines. Despite
these findings, in 1996, the BLM and the Montana Depart-
ment of Environmental Quality3 issued an Environmental
Impact Statement (“EIS”) and Record of Decision (“ROD”)
approving a proposed expansion of mining operations at both
locations. In late 1996, the Tribes appealed that decision to
the Interior Board of Land Appeals (“IBLA”). In 1998, before
the IBLA issued a decision on the merits, Pegasus and ZMI
filed for bankruptcy. Consequently, the companies abandoned
their plans to expand and announced that they would reclaim
and close the mines. Ultimately, the IBLA found that the 1996
ROD did not comply with the National Environmental Policy
Act (“NEPA”), the Federal Land Policy and Management Act
(“FLPMA”), or the government’s trust obligations to the
Tribes. See Island Mountain Protectors, 144 IBLA 168 (May
29, 1998).
On June 1, 1998, the BLM issued a second ROD requiring
reclamation of existing disturbances using agency-developed
mitigation tactics. In doing so, it rescinded the 1996 ROD
authorizing mine expansion. Because the BLM relied on the
1996 EIS in preparing the 1998 ROD, the IBLA denied the
BLM’s motion for reconsideration and vacated the 1998 ROD
on the same grounds it had cited to vacate the earlier deci-
sions. In response to the IBLA’s decision, the BLM and the
State of Montana engaged in consultation with the Tribes. The
agency issued a Final Supplemental Environmental Impact
Statement (“SEIS”) in 2001 and signed a new ROD in May
2002.
2
ARD occurs when rock containing sulfides is exposed to air and water
during mining operations. The water becomes acidic, sometimes contain-
ing metals such as lead, arsenic, zinc, copper, and silver. Bacteria present
in mine water can accelerate the rate of acid generation because of their
ability to oxidize sulfide-bearing materials. 1996 FEIS, 1-9.
3
The Montana Department of Environmental Quality is the successor
agency to the Montana Department of State Lands.
18476 GROS VENTRE TRIBE v. UNITED STATES
B
In April 2000, the Tribes filed suit claiming that the gov-
ernment breached its trust responsibility to the Tribes by
approving, permitting, and failing to reclaim the Zortman and
Landusky mines, the operation of which had diminished and
continues to diminish the quality and quantity of water
resources available to the Tribes. The Tribes further alleged
that the government failed to consult with the Tribes, and con-
sider their spiritual, cultural, and religious interests in the Lit-
tle Rocky Mountains. According to the Tribes, the
government breached its common law trust obligations by
failing to take action that it was legally required to take, or by
acting in a fashion that was arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law. See
5 U.S.C. § 706. The Tribes filed an equitable action, asking
the district court to (1) declare that the government violated
its fiduciary duty to protect tribal trust resources, (2) find that
the government’s failure to comply with the NEPA and other
statutory mandates constituted an unnecessary and undue deg-
radation in violation of the FLPMA, (3) issue a writ of man-
damus compelling the government to comply with its trust
responsibilities, and (4) enjoin the government from further
destruction of tribal trust resources.
On January 29, 2001, the district court denied the govern-
ment’s motion to dismiss for lack of subject matter jurisdic-
tion or failure to state a claim. The government had argued
that the Tribes’ claims were subject to all of the requirements
of the APA. Consequently, the government asserted that the
district court lacked jurisdiction to consider any claim that did
not involve a “final agency action” and that the “final agency
actions” that had occurred prior to 1994 were barred by the
six-year statute of limitation.
The Tribes countered by arguing that the APA’s waiver of
sovereign immunity applies to non-APA claims, as well as
APA claims. They contended that their common law trust
GROS VENTRE TRIBE v. UNITED STATES 18477
claim could be raised independent of the APA and other stat-
utes and, therefore, they were not limited to challenging only
final agency actions.
The district court initially agreed with the Tribes and
denied the government’s motion to dismiss. Reading the com-
plaint in the light most favorable to the Tribes, the district
court found that the Tribes’ common law claims were more
like private nuisance claims—rather than an action stemming
directly from administrative proceedings—and it agreed that
“the trust relationship between the Tribes and the federal gov-
ernment provide[d an] independent basis to proceed.” There-
fore, because the district court concluded that the APA’s
waiver of sovereign immunity applied to non-APA claims, as
well as APA claims, the Tribes were not constrained by the
final agency action requirement.
On November 30, 2001, the district court issued an order
bifurcating the trial into a liability phase and a remedy phase.
In December 2002, the parties filed cross-motions for sum-
mary judgment, and upon the district court’s order they
renewed those motions in 2003.
On June 28, 2004, the district court granted the govern-
ment’s motion for summary judgment. Recognizing that
“[t]he Tribes are not challenging the 2002 [sic] SEIS and
ROD,” the district court determined that the Tribes failed to
challenge any “final agency action” as required by the APA.4
Moreover, it reasoned that “although damages have been
bifurcated from liability, the lack of an effective remedy for
any wrongs committed on the Tribes render[ed] the exercise
of judicial power superfluous, and the case moot.” The BLM
withdrew the plan to expand the mines, and, therefore “the
actions of which the Tribes complain either cannot be undone
or have already been undone.” Consequently, “the [district
4
While this appeal was pending, the IBLA dismissed the Tribes’ chal-
lenge to the 2001 SEIS and 2002 ROD as moot.
18478 GROS VENTRE TRIBE v. UNITED STATES
court] siting in equity ha[d] little to offer the Tribes until and
unless they seek judicial review of the 2002 [sic] SEIS and
ROD.”
Subsequently, the Tribes filed a Motion to Amend Judg-
ment. On October 22, 2004, the district court denied the
Tribes’ motion in a published order but clarified its reasoning.
See Gros Ventre Tribe v. United States, 344 F. Supp. 2d 1221
(D. Mont. 2004). The district court stated that it had reconsid-
ered its prior order denying the government’s motion to dis-
miss sua sponte. Id. at 1223. It now believed that the Tribes’
claims were subject to all APA provisions, including the
“final agency action” requirement.5 Id. at 1226. Moreover, as
an alternative holding, the district court concluded that the
Tribes’ common law claims must fail because the Tribes
could not state a cognizable claim that the government had
failed to satisfy any other statutory obligations, whether
directed at protecting the Tribes or the environment in gen-
eral. As the district court stated, “In the absence of a specific
duty, or specific control over tribal property, the government
fulfills its obligations as a trustee for the Tribes if it complies
with applicable statutes.” Id. “[T]he trust obligation is not ele-
vated to an independent source of law,” and, because it deter-
mined that the Tribes’ failure to act claims under FLPMA
were not reviewable, the district court concluded that the
Tribes’ common law rights were not independently enforce-
able under the APA. Id. at 1227.
5
Specifically, the district court stated the following:
[B]ecause the APA waives the government’s sovereign immu-
nity, the APA establishes the necessary prerequisites to the
court’s jurisdiction. “[T]he terms of [the government’s] consent
to be sued in any court define that court’s jurisdiction to entertain
the suit.” United States v. Sherwood, 312 U.S. 584, 586 (1941).
Judicial review under § 702 is expressly conditioned, under
§ 704, on the existence of a ‘final’ agency action.
Gros Ventre Tribe, 344 F. Supp. 2d at 1226 (second and third alterations
in original).
GROS VENTRE TRIBE v. UNITED STATES 18479
Consequently, because the statute of limitation for any civil
claim against the government is six years, the Tribes’ claims
were limited to final agency actions taken after April 12, 1994.6
Id. at 1229. Although the 1996 ROD was a “final agency
action” and occurred within the six-year statute of limitation,
that ROD was later superseded by another “final agency
action,” which the Tribes did not challenge. Id. Therefore, the
district court concluded that because the Tribes “[l]ack[ed] an
injury flowing from the 1996 decision, [they did] not have
standing to challenge the 1996 decision.” Id. The district court
went on to hold that the controversy over the BLM’s approval
of the entire mine operation is now moot because the mines
have closed, and there is no indication that they will reopen.
Id. at 1230. The Tribes timely appealed.
II
A district court’s decision to grant summary judgment is
reviewed de novo. Buono v. Norton, 371 F.3d 543, 545 (9th
Cir. 2004). Its decision regarding the management of litiga-
tion is reviewed for an abuse of discretion. Muckleshoot Tribe
v. Lummi Indian Tribe, 141 F.3d 1355, 1358 (9th Cir. 1998).
III
A
The parties go to great pains to argue the issue whether the
APA’s waiver of sovereign immunity under 5 U.S.C. § 702
for non-monetary actions against the government is condi-
tioned upon the party’s challenging a “final agency action” as
set forth in 5 U.S.C. § 704. We now recognize that there is a
conflict in our caselaw regarding this issue; however, we need
6
The government raised the statute of limitation defense in its original
motion to dismiss.
18480 GROS VENTRE TRIBE v. UNITED STATES
not resolve it as we affirm the district court on its alternative
holding.7
The government argues that this case is controlled by the
Ninth Circuit’s decision in Gallo Cattle Co. v. U.S. Depart-
ment of Agriculture, 159 F.3d 1194 (9th Cir. 1998). There, we
specifically stated that “the APA’s waiver of sovereign immu-
nity contains several limitations,” including § 704’s “final
agency action” requirement. Id. at 1198. Because the appel-
lants in Gallo Cattle failed to challenge a “final agency
action,” the express waiver of sovereign immunity did not
apply, and 28 U.S.C. § 1331 could not vest the district court
with jurisdiction. Id. at 1199.
The Tribes attempt to distinguish Gallo Cattle on the
ground that it involved a request for judicial review of agency
action and not common law claims seeking equitable relief for
agency violations of common law duties. They argue that
§ 702 waives sovereign immunity in non-statutory review
actions for non-monetary relief brought under 28 U.S.C.
§ 1331. See Assiniboine & Sioux Tribes of the Fort Peck
Indian Reservation v. Bd. of Oil & Gas Conservation, 792
F.2d 782, 793 (9th Cir. 1986) (“This Court has held that sec-
tion 702 does waive sovereign immunity in non-statutory
review actions for non-monetary relief brought under 28
U.S.C. § 1331.”). Therefore, they contend that § 702’s waiver
7
Although we refer to this as an “alternative holding” we do not agree
with the parties that this was dicta by the district court. The court was
troubled by whether the Tribes—independent of any applicable statute—
had a substantive right to enforce. See Gros Ventre Tribe, 344 F. Supp. 2d
at 1227 (“Nowhere do I find judicial support for the notion that the trust
obligation can be enforced independently of some other source of law.”);
id. (“Even if the Court assumes the truth of Plaintiffs’ allegation that those
non-reservation activities have affected tribal property, the trust obligation
is not elevated to an independent source of law.”). Because the trust obli-
gation cannot be independently enforced, the Tribes need to rely on stat-
utes as the source of their substantive rights. In this case, their statutorily
based claims can only be brought under the APA, as the statutes contain
no private right of action. See infra § III.C.
GROS VENTRE TRIBE v. UNITED STATES 18481
applies to more than “just judicial review cases under the
APA” and that there is “no common law ‘final agency action’
requirement.”8
The Tribes’ position is supported by The Presbyterian
Church (U.S.A.) v. United States, 870 F.2d 518 (9th Cir.
1989), where we rejected the Immigration & Naturalization
Service’s (“INS”) argument that § 702’s waiver of sovereign
immunity is limited to only “agency actions” as defined by
the APA. Id. at 526. In The Presbyterian Church, “[t]he
INS’[s] argument [wa]s premised on the first sentence of
§ 702, enacted in 1946, which reads: ‘A person suffering legal
wrong because of any agency action, or adversely affected or
aggrieved by such action within the meaning of any relevant
statute, shall be entitled to judicial review thereof.’ ” Id. at
524-25 (quoting 5 U.S.C. § 702). Therefore, because it
believed that the challenged actions in The Presbyterian
Church were not “agency actions,”9 the INS argued that
8
The out-of-circuit cases cited by the Tribes do not lend support to their
argument that the “APA provisions have no relevance to non-statutory
common law claims.” In Chamber of Commerce v. Reich, 74 F.3d 1322
(D.C. Cir. 1996), although the appellants argued that § 702 applied to their
non-APA cause of action, the court never reached that issue. Instead, cit-
ing the ultra vires doctrine set out by the Supreme Court in Larson v.
Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949), the D.C. Cir-
cuit held that “there [wa]s no sovereign immunity to waive [because] it
never attached in the first place.” Reich, 74 F.3d at 1329. The court
reached a similar holding in Clark v. Library of Congress, 750 F.2d 89,
102 (D.C. Cir. 1984) (determining that § 702 did not apply because the
Library of Congress is not an “agency” as defined by the APA but none-
theless concluding that sovereign immunity did not bar the suit because
“the challenged actions of the officials [we]re alleged to be unconstitu-
tional or beyond statutory authority”). But see Cobell v. Babbitt, 30 F.
Supp. 2d 24, 33-35 (D.D.C. 1998) (rejecting the argument that the plain-
tiffs must state a “final agency action” as defined by § 704 in order for the
waiver of sovereign immunity under § 702 to apply).
9
Because it concluded that § 702’s waiver of sovereign immunity is not
conditioned on challenging an “agency action,” the court never reached
the issue of whether the challenged actions were “agency actions” within
the meaning of 5 U.S.C. § 551(13). The Presbyterian Church, 870 F.2d at
525 n.8.
18482 GROS VENTRE TRIBE v. UNITED STATES
§ 702’s waiver of sovereign immunity did not apply. Id. at
525.
[1] We see no way to distinguish The Presbyterian Church
from Gallo Cattle. Under The Presbyterian Church, § 702’s
waiver is not conditioned on the APA’s “agency action”
requirement. Therefore, it follows that § 702’s waiver cannot
then be conditioned on the APA’s “final agency action”
requirement. See Reno v. Am.-Arab Anti-Discrimination
Comm., 525 U.S. 471, 510 n.4 (1999) (Souter, J., dissenting)
(“[The waiver of sovereign immunity found in 5 U.S.C.
§ 702] is not restricted by the requirement of final agency
action that applies to suits under the [APA].” (citing The
Presbyterian Church, 870 F.2d at 523 26)). But that is
directly contrary to the holding in Gallo Cattle where we
stated that “the APA’s waiver of sovereign immunity contains
several limitations,” including § 704’s final agency action
requirement. 159 F.3d at 1198.
[2] Nevertheless, we need not make a sua sponte en banc
call to resolve this conflict because, as we discuss below, the
Tribes do not have a common law cause of action for breach
of trust. Cf. United States v. Torres-Hernandez, 447 F.3d 699,
704 (9th Cir. 2006) (declining to make a sua sponte en banc
call to address an intra-circuit conflict when the court could
affirm under either standard). Therefore, because the statutes
that the Tribes cite authorize no private right of action, the
Tribes must state their claims within the confines of the APA.
B
The Tribes argue that the APA’s “final agency action”
requirement is inapplicable because they have presented the
court with simple common law trust claims based upon
clearly identified and ongoing injuries. Even if the Tribes
were correct about whether the “final agency action” require-
ment applies to non-APA claims relying on § 702’s waiver of
sovereign immunity, the Tribes cannot allege a common law
GROS VENTRE TRIBE v. UNITED STATES 18483
cause of action for breach of trust that is wholly separate from
any statutorily granted right. See Cobell v. Babbitt, 91 F.
Supp. 2d 1, 28 (D.D.C. 1999) (“[The tribes] cannot state
common-law claims for breach of trust against these federal
officials in the context of financial mismanagement of the
[Individual Indian Money] trust. ‘There is no such thing as a
common law judicial review in the federal courts.’ ” (quoting
Stark v. Wichard, 321 U.S. 288, 312 (1994) (Frankfurter, J.,
dissenting))).
[3] We recognize that there is a “distinctive obligation of
trust incumbent upon the Government in its dealings with
[Indian tribes].” United States v. Mitchell (Mitchell II), 463
U.S. 206, 225 (1983) (quoting Seminole Nation v. United
States, 316 U.S. 286, 296 (1942)). That alone, however, does
not impose a duty on the government to take action beyond
complying with generally applicable statutes and regulations.
Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476, 1482 (D.C.
Cir. 1995) (“[A]n Indian tribe cannot force the government to
take a specific action unless a treaty, statute or agreement
imposes, expressly or by implication, that duty.”); Vigil v.
Andrus, 667 F.2d 931, 934 (10th Cir. 1982) (“[T]he federal
government generally is not obligated to provide particular
services or benefits in the absence of a specific provision in
a treaty, agreement, executive order, or statute.”); Miccosukee
Tribe of Indians of Fla. v. United States, 980 F. Supp. 448,
461 (S.D. Fla. 1997) (“[T]he government assumes no specific
duties to Indian tribes beyond those found in applicable stat-
utes, regulations, treaties or other agreements.”). Although the
Tribes may disagree with the current state of Ninth Circuit
caselaw, as it now stands, “unless there is a specific duty that
has been placed on the government with respect to Indians,
[the government’s general trust obligation] is discharged by
[the government’s] compliance with general regulations and
statutes not specifically aimed at protecting Indian tribes.”
Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 574
(9th Cir. 1998); see also Okanogan Highlands Alliance v.
Williams, 236 F.3d 468, 479 (9th Cir. 2000), Skokomish
18484 GROS VENTRE TRIBE v. UNITED STATES
Indian Tribe v. FERC, 121 F.3d 1303, 1308-09 (9th Cir.
1997), Inter Tribal Council of Arizona, Inc. v. Babbitt, 51
F.3d 199, 203 (9th Cir. 1995).10
In Vigil, the Tenth Circuit declined to find that, within the
federal government’s broad fiduciary obligations to Indian
tribes, there lies a specific duty to provide free lunches to all
Indian children. 667 F.2d at 934. Stating that “the federal gov-
ernment generally is not obligated to provide particular ser-
vices or benefits in the absence of a specific provision in a
treaty, agreement, executive order, or statute,” the court con-
cluded that language in treaties referring to the government’s
obligation to support and educate Indians was too broad and
did not expressly impose a duty on the government to provide
free lunches to all Indians. Id.
Similarly, in Shoshone-Bannock Tribes, the D.C. Circuit
held that a provision in the Treaty of Fort Bridger of July 3,
1868, 15 Stat. 673, giving the tribes a right to hunt on “the
unoccupied lands of the United States so long as game may
be found thereon” did not impose a duty on the United States
to litigate water-rights claims on the tribes’ behalf. 56 F.3d at
1478, 1482 (internal quotation marks omitted). The court con-
cluded that the broad provision within the Treaty “d[id] not
suggest in the slightest that upon the Tribes’ request, the
United States is bound to file and defend meritless claims to
water rights,” and, “[w]ithout an unambiguous provision by
Congress that clearly outlines a federal trust responsibility,
courts must appreciate that whatever fiduciary obligation oth-
erwise exists[ ] it is a limited one only.” Id. at 1482 (internal
10
We are leaving open the question of whether the United States is
required to take special consideration of tribal interests when complying
with applicable statutes and regulations and when such an obligation may
or may not arise. See Island Mountain Protectors, 144 IBLA at 185 (stat-
ing that, because the Tribes had treaties, “[the] BLM was required to con-
sult with the Tribes and to identify, protect, and conserve trust resources,
trust assets, and Tribal health and safety” in its administration of the
NEPA and other environmental laws).
GROS VENTRE TRIBE v. UNITED STATES 18485
quotation marks omitted); see also Miccosukee Tribe of Indi-
ans of Florida, 980 F. Supp. at 456, 461, 463 (rejecting the
tribes argument that the federal government had a fiduciary
obligation to accede to its request to take certain actions to
alleviate flooding on tribal land caused by Tropical Storm
Gordon because “[t]he Tribe ha[d] not introduced evidence
that the Federal Defendants assumed a duty under any of
these statutes and agreements to provide the Tribe with the
flood relief it has requested”).
[4] In this case, the Tribes argue that the government has
failed to properly consider tribal interests in the approval and
permitting of the Zortman and Landusky mining operations.
Morever, they argue that the BLM’s failure to fully reclaim
the mines and restore the quantity and quality of the Tribes’
water resources constitutes an ongoing breach of the govern-
ment’s trust obligations. But their claim is no different from
that which might be brought under the generally applicable
environmental laws available to any other affected landowner,
subject to the same statutory limitations. We also think this
situation is unique from other cases where courts have
required the United States to comply with a specific fiduciary
obligation; here, the Tribes seek to impose a duty, not found
in any treaty or statute, to manage non-tribal property for the
benefit of the tribes. Cf. United States v. Mitchell (Mitchell I),
445 U.S. 535, 538 (1980) (holding that the United States does
not have a specific fiduciary obligation to manage timber
resources on allotted lands, held in trust for Indian-allotees);
United States v. Mason, 412 U.S. 391, 393, 398, 400 (1973)
(finding that the United States had not breached its trust
responsibility in the management of allotted land held in trust
for a member of the Osage Tribe); Seminole Nation, 316 U.S.
at 296-300 (recognizing that the United States may have
breached its fiduciary duty in its management of Indian annui-
ties); Minnesota v. United States, 305 U.S. 382, 386 (1939)
(stating that “the owner of the fee of the Indian allotted lands
holds the same in trust for the allottees”).
18486 GROS VENTRE TRIBE v. UNITED STATES
In Mitchell I, the seminal case dealing with the fiduciary
trust obligations owed by the government to federally recog-
nized Indian tribes, the Supreme Court declined to find that
the United States had a specific fiduciary obligation to man-
age timber resources on the allotted lands for the benefit of
Indian-allottees, even when there was statutory language
expressly recognizing that the United States held these lands
in trust. 445 U.S. at 541-42; see also Marceau v. Blackfeet
Housing Auth., 455 F.3d 974, 983 (9th Cir. 2006) (“In Mitch-
ell I . . . the Supreme Court found that the General Allotment
Act, under which tribal land was taken into trust, created only
a limited trust relationship between the United States and the
tribal member as it related to timber management.”). The
Court noted that the General Allotment Act did not “unam-
biguously provide that the United States has undertaken full
fiduciary responsibilities as to the management of allotted
lands.” Mitchell I, 445 U.S. at 542 (emphasis added). Further-
more, neither its legislative history nor any of the events sur-
rounding the Act’s passage gave any indication that Congress
intended “the Government to manage timber resources for the
benefit of Indian allottees.” Id. at 545.
The Tribes argue that Mitchell I and Mitchell II apply only
to claims for monetary damages. In other words, the Tribes
contend that, when a party seeks monetary relief, Mitchell I
and Mitchell II require a substantive source of law that estab-
lishes a specific fiduciary duty that can be fairly interpreted
as mandating compensation for damages sustained as a result
of a breach of the duty imposed. However, the Tribes contend
that the government still maintains a general trust responsibil-
ity towards them and this responsibility exists for any federal
action that relates to Indian tribes. Therefore, in their view—
despite Ninth Circuit caselaw to the contrary—this general
trust obligation cannot be satisfied simply through facial com-
pliance with statutory and regulatory requirements. And, for
§ 702 claims for non-monetary damages, the general trust
obligation imposes duties on the federal government even in
the absence of a specific treaty, agreement, executive order,
GROS VENTRE TRIBE v. UNITED STATES 18487
or statute. However, we are not in a position to overrule prior
precedent. In Morongo Band of Mission Indians, 161 F.3d
569, the Morongo Band of Mission Indians sought non-
monetary relief under the APA. Id. at 573. Although we rec-
ognized that “the United States does owe a general trust
responsibility to Indian tribes,” we stated that “unless there is
a specific duty that has been placed on the government with
respect to Indians, this responsibility is discharged by the
agency’s compliance with general regulations and statutes not
specifically aimed at protecting Indian tribes.” Id. at 574; see
also N. Slope Borough v. Andrus, 642 F.2d 589, 612 (D.C.
Cir. 1980) (“Without an unambiguous provision by Congress
that clearly outlines a federal trust responsibility, courts must
appreciate that whatever fiduciary obligation otherwise exists,
it is a limited one only.”). This is the law of the circuit, and
this is the law we must follow.
[5] Here, the Tribes cite the Treaty of Fort Laramie, the
Treaty with the Blackfeet, and the Grinnell Agreement as
instances where the government has committed itself to spe-
cific fiduciary obligations in the management of water
resources existing off of the Reservation. However, nowhere
do we find the government “unambiguously agreeing” to
manage off-Reservation resources for the benefit of the
Tribes. See Mitchell I, 445 U.S. at 542. Rather, at most, the
treaties merely recognize a general or limited trust obligation
to protect the Indians against depredations on Reservation
lands: an obligation for which we have no way of measuring
whether the government is in compliance, unless we look to
other generally applicable statutes or regulations.
Morever, unlike Mitchell I and Mitchell II, where the tribes
sought to impose a specific fiduciary obligation on the United
States to manage timber located on tribal land, the Tribes here
seek to impose a duty on the government to manage resources
that exist off of the Reservation. Essentially, this amounts to
a duty to regulate third-party use of non-Indian resources for
the benefit of the Tribes. We are not aware of any circuit or
18488 GROS VENTRE TRIBE v. UNITED STATES
Supreme Court authority that extends a specific Mitchell-like
duty to non-tribal resources. Indeed, as we recently stated in
Marceau, the government does not bear complete fiduciary
responsibility unless it has “take[n] full control of a tribally-
owned resource and manage[d] it to the exclusion of the
tribe.” 455 F.3d at 984 (emphasis added); see also id. at 984
(“[F]iduciary duties arise under Mitchell only where the fed-
eral government pervasively regulates a tribally-owned
resource.”); Inter Tribal Council of Arizona, Inc., 51 F.3d at
203 (finding no Mitchell-like trust duty because “[t]he off-
reservation school was not part of Indian lands, but was
merely allocated by the BIA for use by the Tribes”). There-
fore, because the tribes in Marceau failed to show how fund-
ing from the Department of Housing and Urban Development
could be a tribal resource, the court held that no Mitchell fidu-
ciary duty existed.
Nothing in the treaties or the Grinnell Agreement gives any
indication that Congress intended to impose such a duty on
the government. For instance, in the Treaty with the Black-
feet, the United States agreed to “protect said Indians against
depredations and other unlawful acts which white men resid-
ing in or passing through their country may commit.” Treaty
with the Blackfeet, art. 7. This provision obligates the govern-
ment to protect only against those depredations that occur on
Indian land. While we recognize that the area of concern in
this case was actually considered to be a part of the Tribes’
territory at the time the Treaty with the Blackfeet was ratified,
it cannot be said that the United States agreed to manage that
land for the benefit of the Tribes in perpetuity, even after the
Tribes later relinquished their ownership in that land. What-
ever duty exists at law today must be expressly set forth in
statutes or treaties.
Moreover, we believe that this language gives some indica-
tion as to what Congress intended when it ratified the Treaty
of Fort Laramie. In article 2 of that treaty, the Indian nations
“recognize[d] the right of the United States Government to
GROS VENTRE TRIBE v. UNITED STATES 18489
establish roads, military and other posts, within their respec-
tive territories.” In article 3 of the treaty—upon which the
Tribes rely—it reads: “In consideration of the rights and privi-
leges acknowledged in the preceding article, the United States
bind themselves to protect the aforesaid Indian nations against
the commission of all depredations by the people of the said
United States, after the ratification of this treaty.” Treaty of
Fort Laramie, art. 3.
[6] When we read these two articles together it is clear that
—as in the Treaty with the Blackfeet—the United States
agreed to protect the Tribes from depredations that occurred
only on tribal land. Although we recognize that activities
occurring off of the Reservation may impact resources on the
Reservation, the language in these treaties simply cannot be
read to impose a specific fiduciary obligation on the govern-
ment to manage non-tribal resources, such as the clean-up of
nearby gold mine tailings, for the benefit of the Tribes. As the
Supreme Court has stated, the purposes of this treaty were to
“assure safe passage for settlers across the lands of various
Indian Tribes; to compensate the Tribes for the loss of buf-
falo, other game animals, timber, and forage; to delineate
tribal boundaries; to promote intertribal peace; and to estab-
lish a way of identifying Indians who committed depredations
against non-Indians.” Montana, 450 U.S. at 557-58; see also
id. at 553 (stating that the Treaty of Fort Laramie “chiefly rep-
resented a covenant among several tribes which recognized
specific boundaries for their respective territories”).
C
Because we conclude that the Tribes cannot allege an inde-
pendent common law cause of action for breach of trust, we
turn now to their statutory claim. In addition to its breach of
trust claim, the Tribes also sought summary judgment against
the government for allegedly failing to prevent unnecessary
and undue degradation of public lands in violation of FLPMA.11
11
Specifically, the Tribes alleged that the government’s failure to com-
ply with NEPA, 42 U.S.C. §§ 4321-4347, and the National Historic Pres-
18490 GROS VENTRE TRIBE v. UNITED STATES
The FLPMA is primarily procedural in nature, and it does not
provide a private right of action. Ctr. for Biological Diversity
v. Veneman, 394 F.3d 1108, 1111 (9th Cir. 2005). Therefore,
the Tribes sought relief under § 706(1) of the APA for failure
to act.
[7] In Norton v. Southern Utah Wilderness Alliance, 542
U.S. 55 (2004), the Supreme Court stated that “[a failure to
act claim] under [5 U.S.C.] § 706(1) can proceed only where
a plaintiff asserts that an agency failed to take a discrete
agency action that it is required to take.” Id. at 64. As such,
courts do not have the authority to “enter general orders com-
pelling compliance with broad statutory mandates.” Id. at 66.
Even assuming that the government has a common law trust
obligation that can be tied to its statutorily mandated duties
under FLPMA, the Tribes have no basis for arguing that these
obligations require the government to take discrete nondiscre-
tionary actions. Therefore, the district court properly dis-
missed the Tribes’ “failure to act” claim for lack of
jurisdiction.
[8] In so far as the Tribes relied on the APA to assert a
claim for relief based on alleged violations of NHPA or
NEPA, the district court correctly determined that it lacked
jurisdiction. Neither statute provides a private right of action;
therefore, the Tribes must rely on the APA to state a claim.
See San Carlos Apache Tribe v. United States, 417 F.3d 1091,
1098-99 (9th Cir. 2005) (concluding that § 106 of the NHPA
does not contain an implied right of action); Turtle Island
Restoration Network v. U.S. Dep’t of Commerce, 438 F.3d
937, 942 (9th Cir. 2006) (recognizing that NEPA does not
provide a private right of action). The only “final agency
action” that occurred within the six-year statute of limitation
period12 is the now-vacated 1996 ROD.13 The district court
ervation Act (NHPA), 16 U.S.C. §§ 470-470x-6, constituted unnecessary
and undue degradation.
12
The “general six-year statute of limitations for civil actions brought
against the United States, see 28 U.S.C. § 2401(a), applies to actions for
GROS VENTRE TRIBE v. UNITED STATES 18491
properly concluded that because the Tribes could not allege
an injury based on the 1996 ROD, they do not have standing
to challenge that decision. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992) (stating that standing—at a
minimum—requires (1) injury in fact, (2) a causal connection
between the injury alleged and the challenged action, and (3)
a likelihood that the injury will be redressed by a favorable
decision). Therefore, the district court did not have jurisdic-
tion over these APA claims.
IV
Finally, the Tribes argue that the district court abused its
discretion by granting the government’s motion for summary
judgment based on a finding that remedies were not available
at the conclusion of the liability phase and before the Tribes
had an opportunity to present evidence pertaining to possible
remedies. In its original order, the district court did state that
“although damages have been bifurcated from liability, the
lack of an effective remedy for any wrongs committed on the
Tribes renders the exercise of judicial power superfluous, and
the case moot.” However, in its subsequent order, the district
court clarified its reasoning. It explained that it chose to
reconsider its prior ruling regarding jurisdiction sua sponte,
and, because the Tribes did not have standing to challenge the
only “final agency action” that had occurred within the appli-
cable statute of limitation, it lacked jurisdiction to consider
the Tribes’ claims.
[9] It is now apparent that the district court did not grant the
government’s motion for summary judgment based on a lack
of any effective remedy. Rather, the district court granted the
government’s motion because the Tribes’ claims were either
judicial review brought pursuant to the [APA].” Wind River Mining Corp.
v. United States, 946 F.2d 710, 712-13 (9th Cir. 1991).
13
The Tribes do not challenge the 2001 SEIS or 2002 ROD.
18492 GROS VENTRE TRIBE v. UNITED STATES
barred by the statute of limitation, not based on a “final
agency action,” or did not involve a controversy for which the
Tribes had standing to pursue. A court has an obligation to
consider its jurisdiction at every stage of the proceedings. See
Scholastic Entm’t, Inc. v. Fox Entm’t Group, Inc., 336 F.3d
982, 985 (9th Cir. 2003). The parties had thoroughly briefed
these issues when the district court initially considered the
government’s motion to dismiss. Cf. id. (stating that the dis-
trict court’s sua sponte dismissal for lack of jurisdiction did
not deprive the appellant of due process because the parties
had previously briefed the issue). Therefore, the district court
did not abuse its discretion by reconsidering its jurisdiction at
the conclusion of the liability phase.
V
[10] Nothing within any of the statutes or treaties cited by
the Tribes imposes a specific duty on the government to man-
age non-tribal resources for the benefit of the Tribes. Because
the Tribes do not have a common law claim for breach of trust
—i.e., one that can be raised independently of any applicable
statutes or regulations—the Tribes are forced to rely on the
APA for a private right of action. In applying the APA to the
Tribes’ claims, the district court properly concluded that the
Tribes did not have standing to challenge the vacated 1996
EIS or ROD. Moreover, the Tribes did not have a cognizable
failure to act claim because the Tribes could not assert that the
government has failed to take a discrete agency action that it
is legally required to take. Therefore, the district court cor-
rectly dismissed the Tribes’ claims for lack of jurisdiction.
AFFIRMED.