Here are the materials in Inter-Tribal Council of Arizona v. United States (Fed. Cl.):
[Tribal response sealed]
Pending before the court is a motion filed by defendant the United States (“government”) to dismiss this action filed by plaintiff Inter–Tribal Council of Arizona, Inc. (“ITCA”) for breach of tribal trust obligations. The ITCA, which represents nineteen Arizona tribes,1 claims that the government is liable for a breach of trust by failing to fulfill its obligations under the Arizona–Idaho Conservation Act of 1988, Pub.L. No. 100–696, 102 Stat. 4571, 4577–93 (1988) (“the Act”); 25 U.S.C. § 162a; and the American Indian Trust Fund Management Reform Act of 1994, Pub.L. No. 103–412, 108 Stat. 4239 (1994)(“the Trust Fund Reform Act”).Title IV of the Act, which is sometimes referred to as the Arizona–Florida Land Exchange Act, ratified an agreement between the government and the Barron Collier Company, Collier Development Corporation, and Collier Enterprises (together “Collier”) to exchange federally owned property in Arizona for wetlands in Florida owned by Collier. Compl. ¶ 57. The ITCA alleges that under the Act the government is required to make payments into a trust that was established for the benefit of the ITCA’s member tribes and for ensuring a lump sum payment to the ITCA’s trust fund at the end of a 30–year payment period. Under the Act, the trust was held by the government and maintained by annual payments from Collier. Under the terms of the trust agreement, Collier was also obligated to pay into an annuity fund designed to ensure a lump sum payment at the end of 30 years. The trust agreement gave the government a security interest in land owned by Collier as collateral on the 30–year payment obligation.
Collier stopped making payments into the trust and into the annuity fund in 2012. The ITCA alleges that the government has breached its trust obligations by failing to make the payments itself when Collier stopped paying. The ITCA also charges that the government is liable for breach of trust by allowing a private bank, rather than the government, to hold the annuity and by failing to make payments into the annuity fund when Collier stopped paying. The ITCA also claims that the government breached its trust responsibility by failing to properly maintain collateral intended to ensure a full payment at the end of the 30–year period. Finally, the ITCA claims that the government breached its trust obligations by failing to prudently invest the trust funds and by failing to provide a proper accounting of the funds.The government has filed a motion to dismiss the complaint on the grounds that the government does not have any obligation under the Act to make up Collier’s missed payments to either the trust fund or the annuity. The government further argues that it has no trust obligation under the Act to monitor or supplement the value of the collateral or security obtained from Collier. In this connection, the government also argues that to the extent the ITCA’s breach of trust claims relate to the release of collateral more than 6 years ago, this portion of the claim is barred by the 6–year statute of limitations in 28 U.S.C. § 2501. In addition, the government asserts that the ITCA’s claims with regard to the collateral are not ripe because the government is in ongoing litigation against Collier in United States District Court for the District of Arizona (“the district court”) to resolve the collateral issues. The government further argues that the ITCA has failed to state a claim with regard to the government’s management of the trust fund. The government states that the Act gave the government unreviewable discretion in making investment decisions and that there is no allegation of facts to show mismanagement. Finally, the government asserts that the court lacks jurisdiction to grant the ITCA’s claim for an accounting on the grounds that the ITCA cannot establish a claim for money damages based on management of the trust fund. In such circumstances, the government argues that the ITCA must go to the district court for an accounting. Based on these arguments, the government asks the court to dismiss the ITCA’s claims for lack of jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (“RCFC”) and for failure to state a claim pursuant to RCFC 12(b)(6).For the reasons below, the court agrees with the government that this court does not have jurisdiction over the ITCA’s claims based on the government’s failure to make up Collier’s missed payments. These claims fail for lack of jurisdiction on the grounds that the ITCA has not established a fiduciary obligation to make the payments under the Act and thus the ITCA has failed to establish a money-mandating breach of trust claim.
However, the court finds that the ITCA has identified potential money-mandating breach of trust claims with regard to the government’s alleged failure to monitor and maintain adequate collateral to ensure the final payment into the fund. Yet, a portion of the collateral-related claims may be barred by the 6–year statute of limitations. Thus, the court finds that a final decision on its jurisdiction to hear those claims must await a determination of the merits. See Oswalt v. United States, 41 F. App’x 471, 472 (Fed.Cir.2002) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350, at 237 (2d ed.1990)). In addition, the court finds that the ITCA has failed to state a claim to the extent that it argues the government breached its trust obligations by failing to hold the trust fund payments security in trust at the Department of Treasury rather than in a private annuity and certain interests in real property.