Federal Claims Court Dismisses Crow Creek Sioux Water Rights Takings Claim

Here are the materials in Crow Creek Sioux Tribe v. United States (Fed. Cl.):

6 Motion to Dismiss

12 Response

17 Reply

22 DCT Order

An excerpt:

Plaintiff Crow Creek has sued the United States through the Department of the Interior alleging a Fifth Amendment taking of its reserved water rights. See Winters v. United States, 207 U.S. 564, 576–78, 28 S.Ct. 207, 52 L.Ed. 340 (1908). Defendant filed a motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction. Its motion has several bases, including standing, ripeness, and issues related to the statute of limitations. Defendant also contends that the Government’s bare trust relationship with Crow Creek does not provide the “money-mandating” statute or regulation necessary for jurisdiction in this court. See United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976).

Plaintiff’s pleadings do not show how damages from an alleged taking could have accrued currently, and oral arguments did not clarify this threshold issue. Nevertheless, plaintiff urged the court to permit sufficient discovery for it to address defendant’s jurisdictional arguments. Given the opportunity to inquire into the extent of defendant’s diversion of its rights in the waters of the Missouri River, the Tribe argued it would be able to definitively establish damages. Plaintiff believes that granting defendant’s dispositive motion at this stage would be premature.

Crow Creek would pursue expensive and time-consuming litigation to find some evidence that defendant has taken an amount of water that the Tribe could have used for another, unnamed purpose. For example, counsel stated during oral arguments that plaintiff could hire experts to submit reports on various methods of obtaining appraised values for those waters. Plaintiff believes that those values would supply evidence of the damages that its case now lacks.

The relationship between Native American tribes and the United States is a special one in this court; plaintiff is entitled to every latitude in its efforts to establish a cause of action. In this case, however, opening discovery in response to defendant’s motion to dismiss would result in a waste of resources for both parties. We must grant defendant’s motion for the reasons described below.