Plaintiffs Gros Ventre Tribe, the Fort Belknap Indian Community Council, and the Assiniboine Tribe (the Tribes) appealed the District Court of Montana's grant of summary judgment for lack of jurisdiction[1] to defendants the Bureau of Land Management (BLM), the Indian Health Service, the Bureau of Indian Affairs and the United States (the Government) on claims that by approving and planning expansion of two cyanide heap-leach gold mines upriver from the Tribes' reservation the Government breached general and specific trust obligations to safeguard tribal trust resources, mainly water rights. Rejecting the Tribes' liability theory combining principles of general trust law with a challenge to agency inaction under the Administrative Procedure Act[2] (APA), the Ninth Circuit affirmed. The Ninth Circuit held that the government had no trust duty to regulate non-tribal resources for the Tribes' benefit, and that after dividing the trial into a remedy and a liability phase the district court did not abuse its discretion by granting summary judgment to the government at the finish of the liability phase.

Residing on the Fort Belknap Indian Reservation (the Reservation), the Assiniboine and Gros Ventre Tribes are both signatories to the Treaty of Fort Laramie[3] and the 1855 Treaty with the Blackfeet.[4] In 1888, Congress reduced the territory of the Gros Ventre and set aside for the Tribes' use the Fort Belknap Indian Reservation,[5] which included the Little Rocky Mountains, an area historically important to the Tribes and harboring gold deposits to which the Tribes relinquished their rights in the "Grinnell Agreement."[6] Between 1979 and 1991, the Montana Department of State Lands authorized open pit mining using cyanide heap-leach technology near the Reservation's southern boundary. In 1981, BLM joined in this authorization. These agencies approved the expansion of mining in a 1996 Environmental Impact Statement (EIS) and Record of Decision (ROD), despite discovering a widespread acid rock drainage problem. The Tribes successfully appealed the 1996 EIS and ROD to the Interior Board of Land Appeals[7] (IBLA), but while the appeal was pending in 1998, the mining companies declared bankruptcy and abandoned the expansion plans. BLM issued another ROD in 1998, rescinding the 1996 ROD and requiring reclamation of mining disturbances. Because the new ROD depended on the 1996 EIS, IBLA vacated it on the same grounds that it cited to revoke the 1996 ROD. In response, the State of Montana and BLM consulted with the Tribes, issuing a Final Supplemental Environmental Impact Statement (SEIS) in 2001 and a new ROD in 2002.

In 2000, the Tribes sued in equity, alleging that by permitting, approving, and failing to reclaim the mines the government breached its common law tribal trust obligations, because operation of the mines was still degrading tribal water resources. The Tribes asked the district court to: 1) declare that the government breached its fiduciary duty to safeguard tribal trust resources, 2) find that the government's failure to obey statutory mandates including the National Environmental Policy Act[8] (NEPA) violated the Federal Land Policy and Management Act[9] (FLPMA) by allowing an undue and unnecessary degradation, 3) compel the government to satisfy its trust obligations by issuing a writ of mandamus, and 4) enjoin the government from continued destruction of tribal trust resources. In 2004, the district court awarded summary judgment to the government and subsequently denied the Tribes' motion to amend judgment. The district court had concluded that the Tribes had no common law trust rights enforceable under the APA, that the Tribes did not have standing to challenge the 1996 ROD even though it was a final agency action because it had been superseded, and that because the mines had closed, challenges to BLM's approval of the mines' operation were moot.

The Ninth Circuit reviews a district court's grant of summary judgment de novo[10] and reviews its litigation management decisions for an abuse of discretion.[11] The Ninth Circuit first addressed the parties' argument involving whether a "final agency action"[12] is required to trigger the waiver of sovereign immunity under the APA[13] for actions in equity against the government. While recognizing a conflict in Ninth Circuit case law concerning this point,[14] the court declined to address that issue and instead affirmed the district court on its alternative holding that the Tribes had no substantive right to enforce the trust obligation independently of some other source of law.

Next, the Ninth Circuit addressed the Tribes' argument that "simple common law trust claims based on clearly identified and ongoing injuries" renders the APA's "final agency action" requirement inapplicable.[15] The court held that the Tribes could not bring a claim for breach of trust under common law that is completely distinct from any right provided in a statute. Further, while "there is a 'distinctive obligation of trust incumbent upon the Government in its dealings with [Indian tribes],'"[16] that by itself does not require the government to do more than obey generally applicable regulations and statutes.[17] The court noted that in Vigil v. Andrus,[18] the Tenth Circuit held that the government's tribal fiduciary duties did not extend to providing free lunches to all Indian schoolchildren.[19] Also, in Shoshone-Bannock Tribes v. Reno,[20] the D.C. Circuit held that a treaty provision that entitled tribes to hunt on unoccupied federal land as long as game remained [21] did not require the government to litigate claims to water rights on behalf of the tribes.[22]

The Ninth Circuit distinguished cases holding that the government had to obey a particular fiduciary obligation on the ground that in this case the Tribes sought to enforce a duty not specified in any statute or treaty to regulate non-tribal lands for the good of the Tribes.[23] The court discussed United States v. Mitchell,[24] in which the Supreme Court held that the United States did not have a fiduciary duty to manage timber on allotted lands for the good of the Indian-allottees. Although there was statutory language providing that the United States held the land in trust, that language was ambiguous, and the legislative history did not suggest that Congress intended the government to have a fiduciary duty.[25] Citing precedent as mandatory authority, the Ninth Circuit rebutted the Tribes' assertion that Mitchell only applies to suits seeking money damages and that the government still has a general fiduciary duty to them in actions relating to Indian tribes that cannot be met through facial compliance with regulatory and statutory mandates.[26]

Next, the Ninth Circuit addressed the Tribes' argument that Treaty with the Blackfeet, the Treaty of Fort Laramie, and the Grinnell Agreement impose a fiduciary duty on the government to manage water resources not located on the Reservation. The court noted that none of these agreements indicated that the government agreed unambiguously to manage water resources off the Reservation for the Tribes' benefit. [27] Instead, the agreements only required the government to protect the Tribes from depredation on the Reservation, a duty only measurable in reference to universally applicable regulations and statutes. The court distinguished Mitchell on the grounds that in that case the tribes sought to enforce the United States' fiduciary duty to manage resources on tribal land, whereas here the Tribes sought to impose a duty on the government "to regulate third-party use of non-Indian resources for the benefit of the Tribes."[28] Providing that it knew of no authority that imposed a fiduciary duty in management of non-tribal resources, the court cited Marceau v. Blackfeet Housing Authority[29] as indicating that the government has a comprehensive fiduciary responsibility only when it has "'take[n] full control of a tribally-owned resource and manage[d] it to the exclusion of the tribe.'"[30] The court indicated that when it read the Grinnell Agreement, the Treaty of Fort Laramie, and the Treaty with the Blackfeet it discerned a fiduciary duty on the government to protect the Tribes only from depredations on tribal land, which did not extend to the management of non-tribal resources for tribal benefit, including the mitigation of the nearby mine tailings.

The Ninth Circuit next addressed the Tribes' claim under § 706(1) of the APA[31] that the government violated FLPMA by failing to stop the undue and unnecessary degradation of public lands.[32] The court noted that in Norton v. Southern Utah Wilderness Alliance[33] the Supreme Court provided 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,"[34] therefore courts lack the power to "enter general orders compelling compliance with broad statutory mandates."[35] The Ninth Circuit affirmed the district court's decision to dismiss the Tribes' FLPMA claim for lack of jurisdiction, providing that even if the government had a common law fiduciary duty springing from its obligations under FLPMA, there was no basis on which to assert that these obligations mandate the government to perform certain nondiscretionary acts.

Next, the Ninth Circuit addressed the district court's finding that it lacked jurisdiction to hear the Tribes' claims relying on the APA to allege violations of NEPA and the NHPA. The court provided that there is no private right of action under either NEPA or NHPA, so the Tribes had to assert claims under the APA.[36] The court noted that within the six-year statute of limitations,[37] the only "final agency action" that the Tribe challenged was the vacated 1996 ROD. The Ninth Circuit upheld the district court's determination that it did not have jurisdiction over the Tribes' claims under the APA because the Tribes could not allege injury arising from the 1996 ROD because it had since been vacated.[38]

Finally, the Ninth Circuit addressed the Tribes' claim that the district court abused its discretion by granting summary judgment to the government at the close of the liability phase of the trial, before the Tribes could present evidence regarding feasible remedies. The court noted that while the district court's original order provided "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,"[39] it explained its reasoning in a subsequent order. The district court's subsequent order provided that it reconsidered its prior ruling on jurisdiction sua sponte and that it lacked jurisdiction to hear the Tribes' claims because the Tribes could not challenge any actions outside the six year statute of limitations, and could not challenge the 1996 EIS and ROD, which had been vacated. The Ninth Circuit provided that because a district court is obligated at every stage of a trial to examine its jurisdiction,[40] and because the parties had briefed the issues thoroughly when the district court first considered the government's motion to dismiss,[41] by reconsidering its jurisdiction at the close of the trial's liability phase the Montana District Court did not abuse its discretion.

In conclusion, the Ninth Circuit affirmed the district court's grant of summary judgment to the government, rejecting the Tribes' argument that the government had a fiduciary duty to regulate off-reservation mining sites on behalf of the Tribes.