in the united states court of federal claims...2020/08/24 · case 1:19-cv-01966-rth document 14...

YAKAMA NATION OFFICE OF LEGAL COUNSEL

P.O. Box 150 / 401 Fort Road Toppenish, WA 98948 Phone (509) 865-7268

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

CONFEDERATED TRIBES AND BANDS OF THE YAKAMA NATION, a federally recognized Indian tribe,

and

YAKAMA FOREST PRODUCTS, an instrumentality of the CONFEDERATED TRIBES AND BANDS OF THE YAKAMA NATION,

Plaintiffs,

v.

THE UNITED STATES OF AMERICA,

Defendant.

Case No. 1:19-cv-01966-RTH

PLAINTIFFS’ RESPONSE TO MOTION TO DISMISS

Case 1:19-cv-01966-RTH Document 14 Filed 08/24/20 of 49

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Table of Contents I. INTRODUCTION ........................................................................................................... 1

II. BACKGROUND ............................................................................................................. 2

A. Overview of the Federal Statutes and Regulations Imposing Money-Mandating Fiduciary Duties on the United States. ................................................................. 2

B. Supplemental Jurisdictional Facts: The Yakama Nation, its Treaty, and its Forest Lands. .................................................................................................................. 7

C. Supplemental Jurisdictional Facts: The United States’ Alleged Breaches of its Fiduciary Duties Owed to Plaintiffs for Managing the Harvest of Timber from the Yakama Forest. .................................................................................................. 11

III. STANDARDS OF REVIEW ......................................................................................... 20

A. Rule 12(b)(1) Standard of Review. ..................................................................... 20

B. Rule 12(b)(6) Standard of Review. ..................................................................... 20

IV. ARGUMENT ................................................................................................................ 21

A. The United States’ Rule 12(b)(1) Motion must be Denied because Plaintiffs have Established that this Court has Subject Matter Jurisdiction. ................................ 21

1. The Supreme Court’s “Two-Step” Test for Determining Whether an Indian Tribe has Properly Invoked this Court’s Jurisdiction is Well-Established. ............................................................................................ 21

2. First Step: Substantive Sources of Law Impose Fiduciary Duties on The United States to Manage the Harvest of Timber from the Yakama Forest, and the United States has Breached those Duties. ................................... 22

a. Substantive Sources of Law Impose Fiduciary Duties on the United States to Manage the Harvest of Timber from the Yakama Forest. ......................................................................................... 22

i. The Comprehensive Timber Management Statutes and Regulations. .................................................................... 22

ii. The Treaty of 1855. ......................................................... 24

b. The United States Breached its Fiduciary Duties to Manage the Harvesting of Yakama Forest Timber.......................................... 27


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3. Second Step: The United States’ Fiduciary Duties to Manage the Harvest of Yakama Forest Timber Mandate Compensation to Plaintiffs for the United States’ Breaches of those Duties.................................................. 29

4. The United States’ Arguments in Support of its Rule 12(b)(1) Motion are Wrong and should be Rejected. .............................................................. 32

a. The United States’ Argument regarding the Mitchell/White Mountain Apache and Mitchell/Navajo/Jicarilla Lines of Cases is Unhelpful to this Court’s Analysis of Plaintiffs’ Claim. .............. 32

b. Plaintiffs have Satisfied the Navajo II Test for Invoking this Court’s Jurisdiction. .................................................................... 35

B. The United States’ Rule 12(b)(6) Motion must be Denied because Plaintiffs have Stated a Plausible Claim for Relief. .................................................................... 36

V. CONCLUSION ............................................................................................................. 40


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Table of Authorities

Cases Apache Tribe of Mescalero Reservation v. United States, 43 Fed. Cl. 155 (1999) .................................................................................................... 30, 34 Ashcroft v. Iqbal, 556 U.S. 662 (2009) .............................................................................................................. 20 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .............................................................................................................. 20 Dobyns v. United States, 91 Fed. Cl. 412 (2010) .......................................................................................................... 38 Harvest Inst. Freedman Fed’n v. United States, 80 Fed. Cl. 197 (2008) .......................................................................................................... 35 Herrera v. Wyoming, 139 S. Ct. 1686 (2019) .................................................................................................... 24, 35 Hopi Tribe v. United States, 782 F.3d 662 (Fed. Cir. 2015) ......................................................................................... 21, 36 Inter-Tribal Council of Arizona, Inc. v. United States,

956 F.3d 1328 (Fed. Cir. 2020)………………………………………………………..20, 21, 35 Jones v. Meehan, 175 U.S. 1 (1899) .................................................................................................................. 24 K-Tech Telecommunications, Inc. v. Time Warner Cable, Inc., 714 F.3d 1277 (Fed. Cir. 2013) ....................................................................................... 20, 36 Navajo Tribe of Indians v. United States, 9 Cl. Ct. 336 (1986) .................................................................................................. 29, 37, 38 Northern Pac. R. Co v. United States., 227 U.S. 355 (1913) .............................................................................................................. 24 Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726 (1998) .............................................................................................................. 37 Oneida v. Oneida Indian Nation, 470 U.S. 226 (1987) .............................................................................................................. 23


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Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746 (Fed. Cir. 1988) ............................................................................................... 19 Seminole Nation v. United States, 316 U.S. 286 (1942) .............................................................................................................. 25 Seufert Bros. Co. v. United States, 249 U.S. 194 (1919) .............................................................................................................. 24 Shoshone Indian Tribe of the Wind River Reservation, Wyo. v. United States, 672 F.3d 1021 (Fed. Cir. 2012) ................................................................................... 7, 10, 19 The Blackfeet Tribe of the Blackfeet Reservation v. United States, United States Court of Federal Claims, Case No. 12-429L (Aug. 21, 2015), ECF 62 ....... 30, 34 The Confederated Tribes of Warm Springs Reservation of Oregon v. United States, 248 F.3d 1365 (Fed. Cir. 2001) ............................................................................................. 30 Trusted Integration, Inc. v. United States, 659 F.3d 1159 (Fed. Cir. 2011) ............................................................................................. 19 Tulee v. Washington, 315 U.S. 681 (1942) .............................................................................................................. 24 U.S. v. Navajo Nation, 556 U.S. 287 (2009) ....................................................................................................... passim United States v. Algoma Lumber Co., 305 U.S. 415 (1939) ................................................................................................................ 3 United States v. Jicarilla Apache Nation, 564 U.S. 162 (2011) ........................................................................................................ 31, 32 United States v. Mitchell, 446 U.S. 992 (1980) ........................................................................................................ 31, 32 United States v. Mitchell, 463 U.S. 206 (1983) ....................................................................................................... passim United States v. Navajo Nation, 537 U.S. 488 (2003) ........................................................................................................ 31, 32 United States v. Washington, 853 F.3d 946 (9th Cir. 2016) ..................................................................................... 24, 25, 26


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United States v. White Mountain Apache, 537 U.S. 465 (2003) ........................................................................................................ 31, 32 United States v. Winans, 198 U.S. 371 (1905) .............................................................................................................. 24 Washington State Dep’t of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000 (2019) .......................................................................................................... 24 Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658 (1979) .............................................................................................................. 24 Water Splash, Inc. v. Menon, 137 S. Ct. 1504 (2017) .......................................................................................................... 24 White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980) .......................................................................................................... 3, 38 White Mountain Apache Tribe v. United States, No. 17-359 L, Opinion and Order at 1-2 (Jan. 15, 2018) .................................................. 23, 38 Worcester v. Georgia, 31 U.S. 515 (1832) .......................................................................................................... 23, 24

Statutes 25 U.S.C. § 3101 ................................................................................................................... 4, 22 25 U.S.C. § 3102 ................................................................................................................... 4, 22 25 U.S.C. § 3103 ......................................................................................................... 5, 7, 33, 36 25 U.S.C. § 3104 ................................................................................................................ passim 25 U.S.C. § 3120 ....................................................................................................... 6, 22, 29, 33 25 U.S.C. § 466................................................................................................................... 22, 32 25 U.S.C. § 5109 ................................................................................................................ passim 25 U.S.C. §§ 406-407......................................................................................................... passim 28 U.S.C. § 1491 ....................................................................................................................... 21 28 U.S.C. § 1505 ....................................................................................................... 1, 21, 23, 35


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Rules 25 C.F.R. § 163.1 .................................................................................................................... 6, 7 25 C.F.R. § 163.10 .................................................................................................... 6, 22, 23, 27 25 C.F.R. § 163.11 ................................................................................................................ 6, 36 25 C.F.R. § 163.13 ...................................................................................................................... 7 25 C.F.R. § 163.3 ...................................................................................................5, 6, 22, 23, 27 25 C.F.R. Part 163 ............................................................................................................. passim Rule 12(b)(1) ..................................................................................................................... passim Rule 12(b)(6) ..................................................................................................................... passim Federal Register 60 Fed. Reg. 52250 (October 5, 1995) ......................................................................................... 5


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I. INTRODUCTION

Pursuant to the Treaty of 1855, the Confederated Tribes and Bands of the Yakama Nation

(“Yakama Nation”) negotiated and reserved for its exclusive use and benefit the Yakama

Reservation as a permanent homeland, which its people have occupied since time immemorial.

Located in central Washington State, the Yakama Reservation contains vast forest lands

(“Yakama Forest”) with valuable resources including high-quality timber. The Treaty of 1855

imposes an obligation on Defendant United States of America (“United States”) to erect and

maintain a sawmill on the Yakama Reservation, and by extension to provide an adequate supply

of logs for the sawmill’s operation. And federal statutes and regulations impose comprehensive

fiduciary duties on the United States to manage the Yakama Forest so that the Yakama Nation

receives the benefit of whatever profit the forest is capable of yielding. United States v. Mitchell,

463 U.S. 206, 221-22 (1983) (“Mitchell II”); see e.g. 25 U.S.C. §§ 3101 - 3120.

The United States materially breached its fiduciary duties in the management and

harvesting of Yakama Forest timber, depriving Plaintiffs of the benefit of the profit and labor

that the Yakama Forest is capable of yielding. Since June 2013 the United States has authorized

only approximately forty percent (40%) of the sustainable harvest level that it established for the

Yakama Forest, thereby denying Plaintiffs millions of dollars in revenue and tribal employment

opportunities. The United States has candidly acknowledged its responsibility, its failures, and its

potential liability for breach of trust. The United States is liable in money damage for its

breaches, and this Court has jurisdiction over Plaintiffs’ claims pursuant to the Indian Tucker

Act, 28 U.S.C. § 1505.

The United States’ Rule 12(b)(1) motion to dismiss must denied. Plaintiffs have

identified the substantive sources of law establishing the United States’ specific “money-

mandating” fiduciary duties to responsibly manage the harvesting of Yakama Forest timber, and

have alleged that the United States has failed faithfully to perform those duties, resulting in

compensable damages. Likewise, the United States’ Rule 12(b)(6) motion to dismiss must be


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denied because Plaintiffs have alleged a facially plausible claim for breach of trust sufficient for

this Court to draw reasonable inferences that the United States is liable in money damages.

II. BACKGROUND

A. Overview of the Federal Statutes and Regulations Imposing Money-Mandating Fiduciary Duties on the United States.

The Secretary of the Interior (“Secretary”) has a “pervasive role” in the management of

Indian forest lands that began with the Act of June 25, 1910, ch. 431, §§ 7-8, 36 Stat. 855, 857,

as amended, 25 U.S.C. §§ 406-407 (“1910 Act”). Mitchell II, 463 U.S. at 219. Before then,

Indians1 had no right to sell timber on reservation land and there was no general law authorizing

the United States to sell timber from allotted or unallotted Indian lands. Id. The 1910 Act

authorized the Secretary—not Indian tribes or individual Indians—to sell timber on unallotted

lands and apply the “proceeds of the sales for the benefit of the Indians.” Id. at 220. The

1910 Act also authorized the Secretary to consent to sales by allottees with the proceeds of such

sales to be “paid to the allottees or disposed of for their benefit.” Id.

Pursuant to that Congressional mandate, in 1911, the United States Department of the

Interior (“Interior”) promulgated “detailed regulations” addressing its trust responsibilities in

“managing the Indian forests so as to obtain the greatest revenue for the Indians consistent with a

proper protection and improvement of the forests.” Id. (internal quotation omitted). Those

regulations addressed “virtually every aspect of [Indian] forest management” and applied to both

allotted and tribal lands. Id.

Over time, Congress continued to increase Interior’s management role and trust

responsibilities with respect to Indian forest lands. The Indian Reorganization Act of 1934,

ch. 576, 48 Stat. 984, (“IRA”), imposed “even stricter duties upon the [United States] with

respect to Indian timber management.” Id. Representative Howard, co-sponsor of the IRA, and

1 Plaintiff’s Response refers to Original Nations and Peoples as “Indian tribes” and “Indians” to remain consistent with the use of those legal terms in federal Indian law.


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Chairman of the House Committee on Indian Affairs, stated that the purpose of Section 6 of the

IRA, 25 U.S.C. § 5109 (formerly 25 U.S.C. § 466) was “to assure a proper and permanent

management of the Indian forest under modern sustained-yield methods so as to assure that the

Indian forests will be permanently productive and will yield continuous revenues to the tribes.”

Id at 221 (internal quotations omitted). Consistent with that Congressional intent, the regulations

promulgated by Interior required the “development of long-term working plans for all major

reservations” as part of an overall federal regulatory scheme “designed to assure that the Indians

receive the benefit of whatever profit [the forest] is capable of yielding.” Id. at 221-22 (internal

quotations omitted).

By 1939, the Supreme Court recognized that the “Indians are beneficial owners of

[reservation] land and the timber standing upon it and of the proceeds of their sale, subject to the

plenary power of control by the United States, to be exercised for the benefit and protection of

the Indians.” United States v. Algoma Lumber Co., 305 U.S. 415, 420 (1939). And, in 1980, the

Supreme Court observed that the United States’ “regulation of the harvesting of Indian timber is

comprehensive,” taking the form of federal statutes and regulations and daily supervision by

Interior’s Bureau of Indian Affairs (“BIA”). White Mountain Apache Tribe v. Bracker, 448 U.S.

136, 145 (1980). The Court found that the BIA exercised “literally daily supervision over the

harvesting and management of tribal timber.” Id. at 147.

Soon after, in its landmark Mitchell II decision, the Supreme Court held that the tribal

timber management statutes, 25 U.S.C. §§ 406-407, and the regulations promulgated thereunder

at 25 C.F.R. Part 163, “establish the comprehensive responsibilities of the [United States] in

managing the harvesting of Indian timber.” Mitchell II, 463 U.S. at 222 (internal quotations

omitted). The Court determined that Interior’s role was so pervasive that “[v]irtually every stage

of the process” for the harvesting and management of tribal timber was “under federal control.”

Id. The Court ultimately held that the tribal timber management statutes and regulations “clearly

[gave] the [United States] full responsibility to manage Indian resources and land for the benefit


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of the Indians,” thereby establishing a “fiduciary relationship” and defining the “contours of the

United States’ fiduciary responsibilities.” Id. at 224. Determining its jurisdiction under the Indian

Tucker Act, the Supreme Court noted that given the tribal trust relationship, “it naturally follows

that the [United States] should be liable in damages for the breach of its fiduciary duties.” Id. at

226. The Court ultimately held that the timber management statutes and regulations could “fairly

be interpreted as mandating compensation by the [United States] for violations of its fiduciary

responsibilities in the management of Indian property.” Id. at 228.

In 1990, Congress further codified this comprehensive “trust responsibility” of the

United States in the management of Indian forest lands when it passed the National Indian Forest

Resources Management Act (“NIFRMA”), 25 U.S.C. §§ 3101–3120. Congress expressly

declared that the “United States has a trust responsibility toward Indian forest lands” and that

“existing Federal laws do not sufficiently assure the adequate and necessary trust management”

of those lands. 25 U.S.C. § 3101(2)-(3). Congress, therefore, allowed the Secretary “to take part

in the management of Indian forest lands, with the participation of the lands’ beneficial owners,

in a manner consistent with the Secretary’s trust responsibility . . . .” 25 U.S.C. § 3102(1).

Congress imposed a non-discretionary statutory mandate requiring the Secretary to

undertake management activities on Indian forest land designed to “achieve” certain objectives.

See 25 U.S.C. § 3104(a)-(b) (“The Secretary shall undertake . . .” (emphasis added)). The

“management objectives” imposed on the Secretary by Congress include, in part:

“(1) the development, maintenance, and enhancement of Indian forest land in a perpetually productive state in accordance with the principles of sustained yield and with the standards and objectives set forth in forest management plans . . . ;

“(2) the regulation of Indian forest lands through the development and implementation, with the full and active consultation and participation of the appropriate Indian tribe, of forest management plans . . . ;

“(3) the regulation of Indian forest lands in a manner that will ensure the use of good method and order in harvesting so as to


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make possible, on a sustained yield basis, continuous productivity and a perpetual forest business;

“(4) the development of Indian forest lands and associated value-added industries by Indians and Indian tribes to promote self-sustaining communities, so that Indians may receive from their Indian forest land not only stumpage value, but also the benefit of all the labor and profit that such Indian forest land is capable of yielding.”

25 U.S.C. § 3104(b)(1) - (4).2 A “forest management plan” is the “principal document, approved

by the Secretary . . . which provides for the regulation of the detailed, multiple use operation of

Indian forest land by methods assuring that such lands remain in a continuously productive state

while meeting the objectives of the tribe . . . .”3 25 U.S.C. § 3103(5). “[F]orest land management

activities” are statutorily defined to mean “all activities performed in the management of Indian

forest lands,” including “all aspects of program administration and executive direction.”

25 U.S.C. § 3103(4)(A). The Secretary is responsible for, among other things, “all aspects of the

development, preparation and revision of forest inventory and management plans, including . . .

allowable annual cut calculations . . . .” 25 U.S.C. § 3103(4)(B).

In 1995, the BIA revised its General Forestry Regulations, 25 C.F.R. Part 163, to

implement NIFRMA’s provisions. 60 Fed. Reg. 52250 (October 5, 1995). Not only did the BIA

acknowledge that NIFRMA “reaffirm[s] many aspects of the existing Indian forestry program,”

2 NIFRMA contains three additional objectives focusing on other forest values and ecosystem services, including cultural and traditional values. 25 U.S.C. § 3104(b)(5) - (7). While important, those objectives are not central to deciding the Government’s motion to dismiss.

3 A forest management plan must reflect and be consistent with a “tribal integrated resource management plan.” 25 U.S.C. § 3103(5). A tribal integrated resource management plan is a coordinating document providing for the comprehensive management of a tribe’s natural resources. 25 U.S.C. § 3103(15). While tribes are consulted and participate in the development of a forest management plan, the Secretary has the authority to approve the forest management plan with or without tribal approval in order to “fulfill the Secretary’s trust responsibility.” 25 C.F.R. § 163.3(b)(2); see 60 Fed. Reg. 52250, 52251 (October 5, 1995) (explaining the purpose of § 163.3(b)(2)).


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it also observed that NIFRMA’s intent is to “maintain the Secretary’s trust responsibility on

Indian land while emphasizing tribal sovereignty.” Id. at 52250-51 (emphasis added). That

observation is consistent with 25 U.S.C. § 3120, which provides that “nothing in [NIFRMA]

shall be construed to diminish or expand the trust responsibility of the United States toward

Indian forest lands, or any legal obligation or remedy resulting therefrom.” 25 U.S.C. § 3120. In

other words, NIFRMA and its implementing regulations did not change the United States’ trust

responsibility or the corresponding money damages remedy recognized in Mitchell II.

The BIA General Forestry Regulations, like NIFRMA, provide that the United States has

a nondiscretionary duty to undertake forest land management activities to achieve certain

management objectives. 25 C.F.R. § 163.10. The management objectives set forth in 25 C.F.R.

§ 163.3 generally mirror NIFRMA’s statutory objectives in 25 U.S.C. § 3104(b), and the

regulations also require the United States to prepare a “forest management plan” for “all Indian

forest lands” to achieve the regulatory management objectives. 25 C.F.R. § 163.11(a); 25 C.F.R.

§ 163.3(b).

The Secretary must approve a forest management plan before it can be implemented.

25 C.F.R. § 163.11(a). Forest management plans “will not be authorized until practical methods

of harvest based on sound economic and silvicultural and other forest management principles

have been prescribed.” 25 C.F.R. § 163.11(c). The harvest of forest products under a forest

management plan must be accomplished “under the principles of sustained yield management.”

Id. “Sustained yield” is defined as “the yield of forest products that a forest can produce

continuously at a given intensity of management.” 25 C.F.R. § 163.1. Harvest schedules regulate

the harvest of forest products, and are intended to “support the objectives of the beneficial

landowners and the [United States]” by “achieving an approximate balance between net growth

and harvest at the earliest practical time.” 25 C.F.R. § 163.11(c). The maximum annual harvest

level during the operational period of a forest management plan is known as the allowable annual


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cut (“AAC”). See Decl. of Ethan Jones in Support of Pls. Resp. to Mot. to Dismiss Ex. 4, at 33

(Aug. 24, 2020) (“Jones Decl.”).

The BIA General Forestry Regulations also authorize Indian tribes to form “tribal forest

enterprises.” 25 C.F.R. § 163.13. With the consent of the beneficial Indian land owners, tribal

forest enterprises may “contract for the purchase of forest products on Indian land at stumpage

rates authorized by the Secretary.” 25 C.F.R. § 163.13(c). NIFRMA imposes a statutory duty on

the United States to provide “forest product marketing assistance” to both Indian tribes and their

tribal forest enterprises including “consultation and advice . . . on maximization of return on

forest products.” 25 U.S.C. § 3103(4)(G)(ii). The BIA General Forestry Regulations impose an

identical regulatory duty on the United States. 25 C.F.R. § 163.1(g)(2).

Federal statutes and regulations prescribe a comprehensive management scheme

imposing fiduciary duties on the United States relating to its management of tribal trust forest

lands. As discussed below in Section IV.A.2.a., those duties were recognized by the Supreme

Court in Mitchell II as mandating compensation for damages when breached.

B. Supplemental Jurisdictional Facts: The Yakama Nation, its Treaty, and its Forest Lands.4

The constituent tribes and bands of the Yakama Nation have inhabited the Yakama

Reservation’s lands and forest since time immemorial. The Yakama Forest contains vast

resources, including traditional and cultural resources such as roots, fruits, fibers, animals, fish

and aquatics, avian resources, minerals, and places of spiritual guidance and strength. The

Yakama Forest also contains substantial timber resources that have been and continue to be

critical to the Yakama Nation’s economic well-being. Jones Decl. Ex. 5, at 25-26. When

properly and sustainably managed, timber within the Yakama Forest is a renewable resource that

4 Plaintiffs provide these supplemental jurisdictional facts in response to the United States’ Rule 12(b)(1) motion. See Shoshone Indian Tribe of the Wind River Reservation, Wyo. v. United States, 672 F.3d 1021, 1030 (Fed. Cir. 2012) (court may look to evidence outside of pleadings and inquire into jurisdictional facts to determine existence of subject matter jurisdiction).


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supports the Yakama Nation’s cultural, social, political, and economic needs. Jones Decl. Ex. 5,

at 25-26.

Under the Treaty with the Yakamas, 12 Stat. 951 (June 9, 1855; ratified Mar. 8, 1859;

proclaimed Apr. 18, 1859) (hereinafter the “Treaty of 1855” or “Treaty”), the United States owes

numerous obligations to the Yakama Nation that directly impact the administration of the

Yakama Forest. Jones Decl. Ex. 13. First, the United States agreed that the Reservation would be

set aside “for the exclusive use and benefit” of the Yakama Nation. Jones Decl. Ex. 13, at 2.

Second, the Treaty obligated the United States to erect one sawmill on the Reservation and to

keep and maintain the same “in repair and furnished with the necessary tools and fixtures . . . .”

Jones Decl. Ex. 13, at 3.

At the 1855 Walla Walla Treaty Council, land, timber, and the future sawmill were an

integral part of the Treaty negotiations. Jones Decl. Ex. 14, at 23, 25, 26, 40-41, 56, 65-67, 81,

90. The United States encouraged tribal self-sufficiency by way of Articles II and V of the

Treaty—promising reserved lands, natural resources upon those tracts of lands, and everything

needed to engage in industry relative to those resources and tracts. Jones Decl. Ex. 13, at 2-3.

The agent for the United States, Territorial Governor Isaac Stevens, described the Treaty of 1855

as ensuring a “mill to saw boards and lumber,” asking “[d]o you want a saw mill to saw the

timber to build your houses?” Jones Decl. Ex. 14, at 26, 41. Governor Stevens said “we want on

each tract a saw mill.” Jones Decl. Ex. 14, at 23. He emphasized the significance of the sawmill,

declaring:

“I have told you about . . . the mill to saw boards and lumber, and that we should employ carpenters in your service.

We want you by and by to live in houses and we shall furnish you with a mill to saw lumber, and with carpenters, and your own people by and by will become carpenters and then you will have houses.”


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Jones Decl. Ex. 14, at 26. As Governor Stevens made these promises, he showed the Yakama

Nation’s ancestors their proposed Reservation on a hand-sketched map (“Treaty Map”) that

depicts significant forest resources within the Yakama Reservation. Jones Decl. Ex. 15; see also

Jones Decl. Ex. 16 (providing a more readable reproduction of the Treaty Map).

Consistent with the Treaty obligations, and the United States’ policy to convert the Indians

to an agricultural lifestyle, logging and lumbering on the Yakama Reservation began in earnest

with the building of a sawmill in 1861. Jones Decl. Ex. 19, at 10. This was used to “civilize” the

Yakama people by teaching them how to cut, saw, and haul logs to the sawmill for conversion

into lumber for the construction of houses, barns, fences, and other permanent structures. Jones

Decl. Ex. 19, at 10. Demand for Yakama Forest timber increased over time, propelled by the

United States’ homesteading policies and accelerated by construction of the Northern Pacific

Railroad’s line across the Reservation, which spurred growth and opened new markets for

Reservation timber. Jones Decl. Ex. 19, at 10.

Following the outbreak of World War II, the United States seized the opportunity to

begin a major commercial timber harvesting program on the Yakama Reservation. Jones Decl.

Ex. 19, at 12. The BIA prepared a Timber Management Plan, which recommended that specific

portions of the Reservation be partially logged each year until the entire Yakama Forest had been

brought under management. Jones Decl. Ex. 19, at 12. Intensive federal forest management soon

followed and with it the United States’ Yakama Reservation timber program grew, becoming a

major part of the Yakama Nation’s economic and social foundation. Jones Decl. Ex. 19, at 12-14.

The United States increased the Yakama Forest AAC from 135 million board feet

(“MMBF”) in 1962 to a planned 186 MMBF in 1974. Jones Decl. Ex. 19, at 13-14. The total

volume harvested by the United States under this plan was 1.5 billion board feet with a gross

stumpage value of $201 million. Jones Decl. Ex. 19, at 37. In 1983, the United States adjusted

the AAC after the Yakama Nation decided to place twenty-five percent (25%) of the Yakama

Forest into reserved status. Jones Decl. Ex. 19, at 37. At a planned AAC of 162.7 MMBF, the


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United States authorized the harvest of 636 MMBF over the next decade with a gross stumpage

value of $132 million. Jones Decl. Ex. 19, at 37. Had the United States continued on this path,

the AAC for 1993 would have been 205 MMBF; instead, the United States identified a plan for a

lower AAC of 143 MMBF with potential for greater revenues. Jones Decl. Ex. 19, at 39.

In the early 1990s, the Yakama Nation recognized that it had not been realizing the full

value of its timber assets by collecting stumpage from non-Indian lumber mills. Jones Decl.

Ex. 19, at 15. It developed its modern timber enterprise policy in 1994, passing a resolution that

provided for establishment of a sawmill operation to produce value-added forest products and a

much-needed source of employment for Yakama Nation members. Jones Decl. Ex. 19, at 15. In

1995 the Yakama Nation established Yakama Forest Products (“YFP”) as a wholly-owned

subsidiary of the Yakama Nation and granted YFP powers to execute the Yakama Nation’s

timber enterprise policy. Jones Decl. Ex. 19, at 15.

Today, YFP operates a commercial log sort yard and sawmill on the Reservation, enters

into contracts with the United States for a timber supply from the Yakama Forest, and generates

stumpage revenue for the Yakama Nation. Id. All sales of timber from the Yakama Forest are

purchased by YFP. Decl. of Steve Rigdon in Support of Pls. Resp. to Mot. to Dismiss 1

(Aug. 21, 2020) (“S. Rigdon Decl.”). At the height of its productivity in 2005, YFP processed

150 MMBF of timber and provided approximately 240 jobs, of which approximately ninety

percent (90%) were held by Yakama Nation tribal members. S. Rigdon Decl. 1. Presently, YFP

requires at least 75 MMBF annually to break even, and at least 100 MMBF annually to

minimally achieve the Yakama’s timber enterprise policy. S. Rigdon Decl. 1.


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C. Supplemental Jurisdictional Facts: The United States’ Alleged Breaches of its Fiduciary Duties Owed to Plaintiffs for Managing the Harvest of Timber from the Yakama Forest.5

In November 2005, the BIA Superintendent for the Yakama Agency at the Yakama

Reservation (“Yakama Agency”) approved the Forest Management Plan, Yakama Reservation

(“2005 FMP”), which remains in effect until amended, revised, or replaced. Jones Decl. Ex. 5,

at 3, 8. The 2005 FMP expressly acknowledges that “Congressional trust responsibilities for

management of the Yakama Reservation forest resources have been delegated to the BIA

Yakama Agency Superintendent.” Jones Decl. Ex. 5, at 19. The 2005 FMP “defines how trust

responsibilities . . . will be fulfilled” and incorporates the statutory management objectives set

forth in 25 U.S.C. § 3104(b). Jones Decl. Ex. 5, at 19, 24. The 2005 FMP also contains a forest

management vision statement, which provides:

“Implementation of the Forest Management Plan will enhance and maintain a diversity of forest conditions, maintain suitable production of commercial and noncommercial resources, and thereby maintain the forest resource as a dependable source of spiritual renewal, food and medicinal plants, revenue, and employment for the Yakama people.”

Jones Decl. Ex. 5, at 25 (emphasis added). The foregoing emphasized language shows that the

Government intended its implementation of the 2005 FMP to maintain the Yakama Nation’s

forest resource as a “dependable source” of, among other things, “revenue[] and employment for

the Yakama people,” consistent with its trust duty. Jones Decl. Ex. 5, at 25.

The roughly 1.4 million acre Yakama Reservation contains approximately 650,000 acres

of forest and wood lands. Jones Decl. Ex. 5, at 13. The 2005 FMP identifies the sustained yield

of timber harvest from the Yakama Forest to be 158.4 MMBF. Jones Decl. Ex. 5, at 66. It also

contains an annual harvest schedule for 2005 to 2014. Jones Decl. Ex. 5, at 72-73. The United

5 Plaintiffs provide these supplemental jurisdictional facts in response to the United States’ Rule 12(b)(1) motion. Shoshone Indian of the Wind River Reservation, Wyo., 672 F.3d at 1030.


12



States identified and approved a variable, declining AAC beginning at 158.4 MMBF and

gradually reducing to 143.3 MMBF over the 2005 FMP’s ten-year planning period. Jones Decl.

Ex. 5, at 72-73. The Yakama Nation selected the declining AAC to avoid a forecasted “sharp

reduction of revenue or jobs immediately following the planning period.” Jones Decl. Ex. 5,

at 65.

The 2005 FMP acknowledges that “[i]nherent in the timber sale program is the obligation

to provide economic returns for the Yakama Nation . . .” Jones Decl. Ex. 5, at 138. It further

states:

“The harvest schedule should provide a reliable, steady flow of annual income . . . . Sound economic planning, such as marketing a mixture of species, with associated varying stumpage rates, is utilized in the development of harvests. There should also be sales within the planning period that may be used to take advantage of unexpected markets.”

Jones Decl. Ex. 5, at 139. The 2005 FMP also acknowledges that all sales of timber from the

Yakama Reservation would be purchased by YFP. Jones Decl. Ex. 5, at 141.

In February 2009, the BIA produced a “Workforce Analysis Report” containing a staffing

analysis of its fiduciary management of the Yakama Forest. Jones Decl. Ex. 26. The report was

prompted by the United States’ finding that the staffing levels for its Yakama Agency’s Branch

of Forestry (“BIA Branch of Forestry”) “are approaching a crisis in such that existing staff

cannot perform in accordance with the forest management plan and their trust responsibility.”

Jones Decl. Ex. 26, at 3 (emphasis added). Despite reduced staffing levels, the report stated there

had been no corresponding “reduction in expected workload over the same time period.” Jones

Decl. Ex. 26, at 4. The report observed that the staffing levels created “a significant impact on

program outputs in both timbersale planning, represented by the annual volume contracted, and

in timber sale implementation and administration, represented by the annual volume harvested.”

Jones Decl. Ex. 26, at 4. Strikingly, the report stated:


13



“[b]y whatever means necessary the case must be made to those in authority to allocate the necessary funds to fulfill program needs. Until this happens the [BIA] will be in default of its trust responsibilities to the tribe, as such the BIA will be subject to legal action from the tribe, tribal budgets will be at risk because of the failure of the [BIA] to meet the AAC, tribal per capitas will be at risk, [and] the YFP mills will be at risk of closure, or reduced operations, resulting in unemployment of tribal members working for YFP and logging contractors.”

Jones Decl. Ex. 26, at 19 (emphasis added). The report ultimately concluded that the reduced

staffing levels confirmed the United States’ “inability . . . to fulfill its federally mandated mission

and departmental goals.” Jones Decl. Ex. 26, at 4.

In November 2010, the BIA produced a forest inventory analysis (“2010 Inventory

Analysis”), which was approved by the BIA Yakama Agency Superintendent more than two

years later in January 2012. Jones Decl. Ex. 6, at 3. The 2010 Inventory Analysis calculated an

AAC of 106 MMBF for the period of 2005 to 2015, which was substantially less than the 2005

FMP’s AAC range beginning at 158.4 MMBF and gradually reducing to 143.3 MMBF. Jones

Decl. Ex. 6, at 18. The 2010 Inventory Analysis made no attempt to reconcile its AAC

calculation with the AAC calculation in the 2005 FMP; nor did it contain any effort to address

impacts to the Yakama Nation’s timber sale revenue, YFP’s log supply and profitability, or the

timber dependent jobs held by the Yakama Nation’s members. Jones Decl. Ex. 6.

In January 2012, BIA Regional Timber Sale Officer, Kenneth Borchert, conducted a site

visit to the BIA’s Yakama Agency. Jones Decl. Ex. 20, at 2. His subsequent report, dated

April 22, 2012, identified significant program weaknesses with the BIA Branch of Forestry.

Jones Decl. Ex. 20. Mr. Borchert observed that the failure to fill vacant positions was a

significant issue, and noted that the Forest Manager for the BIA Branch of Forestry reported

having twenty-one vacant positions. Jones Decl. Ex. 20, at 15. Rather than recommend budgetary

increases to fill vacant positions, Mr. Borchert instead observed that “[b]udgets are only

expected to decline in the future” and advised the Forest Manager that it was “imperative that the

organization streamline and gain efficiencies where possible.” Jones Decl. Ex. 20, at 15.


14



In a letter dated May 20, 2013, the Yakama Nation initiated government-to-government

consultation notifying the BIA of the readily apparent problems plaguing the BIA Branch of

Forestry. Jones Decl. Ex. 21, at 1. The Yakama Nation expressed concern that the BIA Branch of

Forestry’s staffing levels were inadequate to perform the necessary forestry operations within the

Yakama Forest, including the BIA’s inability to “meet its obligations within the Yakama Nation

Forest Management Plan,” to “prepare timber sales to meet the standards in the National Indian

Forest Resource Management Act, National Environmental Policy Act, the National Historic

Preservation Act, and the Endangered Species Act,” and to “offer[] the annual allowable

harvest.” Jones Decl. Ex. 21, at 1. The Yakama Nation demanded that the BIA fulfill its trust

obligations by funding and filling the many vacancies identified within the 2009 Workforce

Analysis Report, noting that failure to do so would result in “severe impact[s] to employment,

tribal government operations, tribal enterprises, and most importantly the people of Yakama

Nation.” Jones Decl. Ex. 21 at 1.

In June 2013, the BIA organized and held a Yakama Nation Forestry Summit at the

Yakama Reservation. Jones Decl. Ex. 7, at 2. Senior BIA officials from the BIA Northwest

Regional Office in Portland, Oregon, and the Central Office in Washington, D.C. attended the

summit. Jones Decl. Ex. 7, at 2. The BIA assured the Yakama Nation that it would honor the

United States’ treaty and trust obligations by addressing the Yakama Nation’s forestry needs, and

that the two parties would work together to address these issues. Jones Decl. Ex. 7, at 2. The BIA

promised to fill several key staff vacancies. Jones Decl. Ex. 7, at 2.

The BIA did not keep those promises. Jones Decl. Ex. 7. In March 2014, the Yakama

Nation, sent a letter to Michael Black, the Director of the BIA, requesting an emergency

government-to-government consultation. Jones Decl. Ex. 7. Focusing primarily on the many

years of understaffing at the BIA Branch of Forestry, the Yakama Nation outlined the profound

impacts vacancies had on its ability to: “(1) manage [the Yakama] forest, (2) develop budget

forecasts relating to forestry, fire, and fuels, (3) navigate the timber sale process, (4) timely and


15



efficiently work through NEPA, (5) update and maintain [the Yakama Nation’s] annual

allowable cut calculation, and (6) address the inactivity of the Allotments timber sales, and (7) to

properly utilize the timber appraisal system, among other issues.” Jones Decl. Ex. 7 at 1.

The letter also specifically addressed the BIA’s failure to achieve the AAC and that

failure’s resulting impact on the Yakama Nation:

“As a result of the BIA’s failure to reorganize the BIA Branch of Forestry at the Yakama Agency, and to hire the staff necessary to run the program, this last year only 59 million board feet of trust timber was harvested from our forest. Currently, the BIA is not offering the annual allowable harvest to the Yakama Nation, which directly affects our enterprise, YFP. YFP has approximately 18 million board feet under contract for the upcoming year, which will support only three months of production. BIA’s inaction is destroying a viable Yakama Nation industry. Lumber prices are up and YFP could produce more lumber, creating more jobs, bigger economies for the Nation, and treat more forest health issues if the BIA would simply produce more timber sales.”

Jones Decl. Ex. 7, at 2 (emphasis added). The Yakama Nation received a response directly from

BIA Director Black in a letter dated June 4, 2014. Jones Decl. Ex. 22. He acknowledged that

“staffing is a critical issue that needs to be addressed at once.” Jones Decl. Ex. 22, at 1. BIA

Director Black further noted that “[s]taffing of BIA forestry programs is a problem nationwide

and very nearly a crisis.” Jones Decl. Ex. 22, at 2. BIA Director Black promised that the Yakama

Agency would be at the “forefront” of the BIA’s effort to increase staffing levels nationwide.

Jones Decl. Ex. 22, at 2.

The BIA Northwest Regional Director sent a follow up letter, dated August 6, 2014.

Jones Decl. Ex. 23. The Regional Director discerned that “the overall solution to filling

vacancies and reorganization centers on calculating a solid, defendable, and sustainable AAC.”

Jones Decl. Ex. 23, at 1. The Regional Director acknowledged that current staffing levels were

not fully staffed with the proper positions, but that once the “AAC is complete, the staffing levels

and reorganization will fall into place and be implemented.” Jones Decl. Ex. 23, at 3.


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The BIA also assembled a team of federal experts and consultants to conduct a review of

the Yakama Forestry Program, which became known as the “Tiger Team.” Jones Decl. Ex. 8. At

the conclusion of its review, the Tiger Team prepared a written report, which contained its

findings, recommendations, and action items. Jones Decl. Ex. 10. The final report titled

“Yakama Forestry 2014 Program Review, Findings and Recommendations” dated January 29,

2015 (“Tiger Team Report” or “Report”), was signed by BIA Director Black, who provided a

copy of the Report to the BIA Northwest Regional Director. Jones Decl. Ex. 10, at 2. In a cover

letter for the Tiger Team Report, BIA Director Black noted that “key tasks require immediate

attention” and advised the BIA Northwest Regional Director that “[i]t is now the responsibility

of the Northwest Region to oversee this effort and ensure the Yakama Agency begins to

implement [the] action items.” Jones Decl. Ex. 9.

The Tiger Team Report opened with a remarkable admission: “certain events over the

past few years have allowed [the BIA’s Yakama Forestry Program] to diminish in its capacity to

the point that it is on the verge of collapse.” Jones Decl. Ex. 10, at 5 (emphasis added). These

events include “the loss of staff to retirement and other reasons, causing the program to dwindle

to about half of its required size.” Jones Decl. Ex. 10, at 5. BIA Director Black noted that “[w]ith

federal budget cuts and hiring limitations, these positions have gone unfilled for many years,

causing stress and strain on the program,” and that “[t]he program has diminished to the point

where it has been unable to harvest the [AAC].” Jones Decl. Ex. 10, at 5. BIA Director Black

noted that “[i]n 2014, the issue reached a crises state when it was realized that less than half of

the allowable volume would actually be harvested.” Jones Decl. Ex. 10, at 6. BIA Director Black

saw that “[m]any of the issues identified in this report are not new to the BIA Yakama Agency,

or the [Yakama Nation],” and that the “[o]ne thing all of [the BIA Yakama Forestry Program’s]

reviews have in common is that little or no action has taken place to remedy the situations

identified.” Jones Decl. Ex. 10, at 6.


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The Tiger Team Report divided the Yakama Forestry Program into eleven areas of

concern and contained over one hundred recommended actions. Jones Decl. Ex. 10, at 6-7. The

areas of concern included (a) inventory and planning and (b) timber sales. Jones Decl. Ex. 10,

at 6. With respect to inventory and planning, the Tiger Team concluded that there was an “urgent

need” to validate the Continuous Forest Inventory (“CFI”), which is used to develop

forest management plans including the AAC. Jones Decl. Ex. 10, at 27. The scheduling and

management of harvests needed to be improved. Jones Decl. Ex. 10, at 27. The “[l]ack of a

regulated timber sale preparation process results in unpredictability of when logging units will be

available for harvest,” making it “impossible to schedule the flow of logs to [YFP].” Jones Decl.

Ex. 10, at 66. The Report stated that the timber sale development process is “essential to the

long-term economic stability of YFP and to the health of the Yakama forest . . . .” Jones Decl.

Ex. 10, at 66.

In March 2015, the BIA produced a document titled 2015 Addendum to the 2005

Yakama Forest Management Plan (“2015 FMP Addendum” or “Addendum”). Jones Decl.

Ex. 11, at 2. To Plaintiffs’ knowledge, the Addendum has not been approved by the Secretary.

The Addendum, nonetheless, purports to calculate an AAC of 93.4 MMBF for the period of 2016

to 2035. Jones Decl. Ex. 11, at 8. Had the Addendum been approved, the AAC of 93.4 MMBF

would have represented a thirty-five percent (35%) reduction from the 2014 AAC of 143.3

MMBF calculated in the 2005 FMP. Compare Jones Decl. Ex. 11, at 8, with Jones Decl. Ex. 5,

at 72-73.

In September 2017, the Yakama Nation hand delivered a letter to the BIA Northwest

Regional Director—separately signed by every Tribal Council Member—reminding the BIA of

the key tasks that the Tiger Team Report identified as being required, and of the BIA’s fiduciary

responsibilities to ensure that those tasks are successfully implemented. Jones Decl. Ex. 24. The

Yakama Nation confirmed that the situation had continued to worsen despite issuance of the


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Tiger Team Report, with the BIA having taken no meaningful steps to resolve those critical

issues. Jones Decl. Ex. 24, at 2.

In June 2018, the Yakama Nation again wrote to the BIA Northwest Regional Director to

address the understaffing of the BIA Branch of Forestry, noting that timber sales had stalled

because the BIA was not fulfilling its silvicultural harvest prescription responsibility. Jones Decl.

Ex. 25. The Yakama Nation raised this concern because the BIA Branch of Forestry was

working on preparing and producing five timber sale packages, but the process had stalled

because the BIA had not allocated funding to fill vacant silviculturalist positions at the BIA

Branch of Forestry. Jones Decl. Ex. 25, at 2.

In an undated 2019 memorandum from BIA Forest Manager Wyeth (Chad) Wallace to

BIA Yakama Agency Superintendent David Shaw, Mr. Wallace provided his assessment of the

BIA Branch of Forestry since he began his position in 2018. Jones Decl. Ex. 12. Mr. Wallace

saw exactly what the Yakama Nation and the BIA had consistently observed for the past decade.

He noted that “[p]oor forestry practices from 10+ years ago are still being practiced” and that

critical BIA Branch of Forestry staff have “a fundamental lack of forestry knowledge” and are

generally not capable of performing their jobs. Jones Decl. Ex. 12, at 1. Mr. Wallace commented

that “the deck is stacked against making the Branch run more efficiently,” and that an “honest

assessment of the program demands what would be called ‘a hostile takeover’ of the program

where staff are either reassigned, demoted or fired in order to get the right people in the right

places and remove the people who cannot do their job or refuse to change.” Jones Decl. Ex. 12,

at 3-4.

Mr. Wallace also addressed the need for updated CFI modeling and an updated forest

management plan. Jones Decl. Ex. 12, at 4. He identified the CFI as “insufficient in properly

determining the state of the forest” and causing a “misrepresentation” of the current forest

condition. Jones Decl. Ex. 12, at 4. He stated that it is not appropriate to use the CFI to calculate

the AAC. Jones Decl. Ex. 12, at 4. The AAC should be calculated using a “stand based


19



inventory,” which did not exist because “staff has been unable to get the inventory going . . . .”

Jones Decl. Ex. 12, at 4. Mr. Wallace warned:

“It will take years to properly implement the changes to get the program operating efficiently and in a manner that is realistically operating a forest and the AAC. In the meantime the Branch needs to get sales out and that is the direction that has been given. Due to inability of much of the staff to fully accept the sense of urgency in their work and the lack of capable resources at the Branches [sic] disposal the Branch is falling behind on offering sales.”

Jones Decl. Ex. 12, at 4. Mr. Wallace also observed that the 2005 FMP was self-contradictory,

remarkably stating that the forest treatment options available under the 2005 FMP

“cannot achieve the AAC of 143 MMBF.” Jones Decl. Ex. 12, at 4 (emphasis added). While

Mr. Wallace observed that a “new FMP is imperative in moving forward,” he also warned that

“the Branch is so far behind that we cannot devote the time necessary to address a new FMP

properly.” Jones Decl. Ex. 12, at 4.

Since 2013, the BIA has only achieved approximately forty percent (40%) of the

cumulative AAC from the Yakama Forest, as set forth in the following table:6

Year AAC

(MMBF)

Actual Harvested (MMBF)

Planned/Salvage

Total % of AAC 2013 143,000 39,079 / 20,733 59,812 41.8% 2014 143,000 29,257 / 29,668 58,925 41.2% 2015 143,000 42,647 / 19,934 62,581 43.8% 2016 143,000 24,630 / 59,802 84,432 59.0% 2017 143,000 46,307 / 571 46,878 32.8% 2018 143,000 50,766 / 0 50,766 35.5% 2019 143,000 30,403 / 3,504 33,907 23.7% Totals 1,001,000 263,089 / 134,212 397,301 39.7%

6 The data in this table includes unplanned salvage harvests totaling 134,212 MMBF, representing 33.8% of the actual harvest volume. Salvage harvest conducted in the applicable period was due to fires, including the 2013 Mile Marker 28 Fire, which burned nearly 20,000 acres of the Yakama Forest, as well as the 2015 Cougar Creek Fire, which burned nearly 50,000 acres of the Yakama Forest.


20



And most recently, in 2019, the harvest level was at only twenty-four percent (24%) of the AAC.

Those harvest levels are congruent with the BIA’s own observations that its Yakama Forestry

Program is on the verge of collapse and unable to achieve the AAC. Jones Decl. Ex. 10, at 5.

III. STANDARDS OF REVIEW

A. Rule 12(b)(1) Standard of Review.

With respect to a Rule 12(b)(1) motion, the plaintiff bears the burden of establishing

subject matter jurisdiction by a preponderance of the evidence. Trusted Integration, Inc. v.

United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). The court accepts “as true all undisputed

facts asserted in the plaintiff’s complaint and draw[s] all reasonable inferences in favor of the

plaintiff.” Id. If a Rule 12(b)(1) motion challenges a complaint’s allegations of jurisdiction, the

factual allegations in the complaint are “not controlling and only uncontroverted factual

allegations are accepted as true.” Shoshone Indian Tribe of the Wind river Reservation, Wyo.,

672 F.3d at 1030. The court may look to evidence outside of the pleadings and inquire into

jurisdictional facts to determine the existence of subject matter jurisdiction. Id.; see also

Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988).

B. Rule 12(b)(6) Standard of Review.

With a Rule 12(b)(6) motion, “[a] complaint should not be dismissed for failure to state a

claim, unless the complaint fails to state a claim to relief that is plausible on its face.” Inter-

Tribal Council of Arizona, Inc. v. United States, 956 F.3d 1328, 1338 (Fed. Cir. 2020) (internal

quotation omitted). A claim has “facial plausibility” when the plaintiff pleads factual allegations

that allow the court to “draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff must plead

factual allegations that “raise a right to relief above the speculative level.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007). The “plausibility standard is not akin to a ‘probability

requirement,’ but asks for more than a sheer possibility that a defendant has acted unlawfully.”

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Courts accept well-pleaded factual


21



allegations as true and construe them in the light most favorable to the plaintiff. K-Tech

Telecommunications, Inc. v. Time Warner Cable, Inc., 714 F.3d 1277, 1282 (Fed. Cir. 2013).

IV. ARGUMENT

A. The United States’ Rule 12(b)(1) Motion must be Denied because Plaintiffs have Established that this Court has Subject Matter Jurisdiction.

1. The Supreme Court’s “Two-Step” Test for Determining Whether an Indian Tribe has Properly Invoked this Court’s Jurisdiction is Well-Established.

The United States cannot be sued without its consent. U.S. v. Navajo Nation,

556 U.S. 287, 289 (2009) (“Navajo II”). For purposes of this action, Congress has consented to

suit in the Indian Tucker Act:

“The United States Court of Federal Claims shall have jurisdiction of any claim against the United States accruing after August 13, 1946, in favor of any tribe . . . whenever such claim is one arising under the Constitution, laws or treaties of the United States, or Executive orders of the President, or is one which otherwise would be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe, band or group.”

28 U.S.C. § 1505 (emphasis added). The italicized clause refers to 28 U.S.C. § 1491(a), known

as the Tucker Act. Navajo II, 556 U.S. at 290. The Tucker Act waives the United States’

sovereign immunity for any claim “founded either upon the Constitution, or any Act of Congress

or any regulation of an executive department, or upon any express or implied contract with the

United States, or for liquidated or unliquidated damages in cases not sounding in tort.” Id.

(quoting 28 U.S.C. § 1491(a)).

The Tucker Act and the Indian Tucker Act do not create substantive rights; they are

jurisdictional statutes that waive sovereign immunity for “claims premised on other sources of

law . . . .” Id. The Supreme Court has established a “two-part” test to determine whether an

Indian tribe has properly invoked the Court of Federal Claims’ jurisdiction under the Indian

Tucker Act. Inter-Tribal Council of Arizona, Inc., 956 F.3d at 1338 (quoting Hopi Tribe v.


22



United States, 782 F.3d 662, 667 (Fed. Cir. 2015)). First, the tribe must “‘identify the substantive

source of law that establishes specific fiduciary or other duties, and allege that the [United

States] has failed faithfully to perform those duties.’” Id. (quoting Navajo II). Second, the trial

court must determine “‘whether the relevant source of substantive law can fairly be interpreted as

mandating compensation for damages sustained as a result of a breach of the duties the

governing law imposes.’” Id. At the second step, the trial court may rely on common law

principles of trust law to infer that Congress intended damages to remedy a breach. Id. (citing

Navajo II and Mitchell II).

2. First Step: Substantive Sources of Law Impose Fiduciary Duties on The United States to Manage the Harvest of Timber from the Yakama Forest, and the United States has Breached those Duties.

a. Substantive Sources of Law Impose Fiduciary Duties on the United States to Manage the Harvest of Timber from the Yakama Forest.

i. The Comprehensive Timber Management Statutes and Regulations.

Statutes and regulations impose fiduciary duties on the United States to manage the

Yakama Nation’s timber harvest, including the 1910 Act, 25 U.S.C. § 5109 (formerly 25 U.S.C.

§ 466), NIFRMA, and the General Forestry Regulations, 25 C.F.R. Part 163, promulgated by

Interior. The Supreme Court has already determined that the 1910 Act, 25 U.S.C. § 5109, and

Interior’s General Forestry Regulations establish “‘comprehensive’ responsibilities” of the

United States in “managing the harvesting of Indian timber.” Mitchell II, 463 U.S. at 222.

Congress passed NIFRMA after, and partially in response to, the Mitchell II decision.

See S. Rep. No. 101-402, at 5, 6 (1990) (providing that S. 1289 was in response to a need to

“clearly define the federal trust responsibility for management of Indian forest resources”)

(provided at Jones Decl. Ex. 27); H.R. Rep. No. 101-835, at 15 (1990) (noting the “sweeping

findings” of the Mitchell II case and the committee’s intention for S. 1289 to “better enable the

United States to meet its existing trust responsibility . . .”) (provided at Jones Decl. Ex. 28).

NIFRMA did not alter the trust responsibility of the United States toward Indian forest lands


23



after Mitchell II. 25 U.S.C. § 3120. Instead, it expressly recognized that “the United States has a

trust responsibility toward Indian forest lands,” and “existing Federal laws do not sufficiently

assure the adequate and necessary trust management” of those lands. 25 U.S.C. § 3101(2), (3).

Its express purpose, therefore, was to allow the Secretary to take part in the management of

Indian forest lands “in a manner consistent with the Secretary’s trust responsibility . . . .” 25

U.S.C. § 3102(1).

The United States’ specific fiduciary duties owed to the Yakama Nation in managing the

Yakama Forest timber harvest are plainly contained in federal statutes and regulations. Those

duties include the duty to manage the Yakama Forest so as to obtain the greatest revenue for the

Yakama Nation and its members consistent with the proper protection and improvement of the

forests, see Mitchell II, 463 U.S. at 220-21 (construing 25 U.S.C. §§ 406-407, 25 U.S.C. § 5109,

and 25 C.F.R. Part 163); the duty to develop, maintain, and enhance the Yakama Forest in a

perpetually productive state in accordance with principles of sustained yield and with the

standards and objectives in the 2005 FMP, see 25 U.S.C. § 3104(b)(1); 25 C.F.R. §§ 163.10,

163.3(b)(1); the duty to regulate the Yakama Forest through the implementation of the

2005 FMP in a manner that makes possible, on a sustained yield basis, continuous productivity

and a perpetual forest business, see 25 U.S.C. § 3104(b)(2), (3); 25 C.F.R. §§ 163.10,

163.3(b)(2), (3); and the duty to develop the Yakama Forest to promote self-sustaining

communities on the Yakama Reservation, so that the Yakama Nation (including YFP) and its

members receive not only stumpage value, but also the benefit of all the labor and profit that the

Yakama Forest are capable of yielding, see 25 U.S.C. § 3104(b)(4); 25 C.F.R. §§ 163.10,

163.3(b)(4).

Those comprehensive duties were already recognized by the Supreme Court in Mitchell

II. Since then, Congress codified these existing duties in NIFRMA, and the United States itself

has not disputed those duties in cases such as White Mountain Apache Tribe v. United States, No.

17-359 L, Opinion and Order at 1-2 (Jan. 15, 2018), ECF 22 (discussed further in Section IV.B.,


24



below). The United States breached those fiduciary duties for the reasons set forth in Section

IV.A.2.b, below.

ii. The Treaty of 1855.

The Indian Tucker Act expressly provides that this Court’s jurisdiction extends to claims

brought by Indian tribes against the United States “arising under . . . treaties of the United

States.” 28 U.S.C. § 1505. The Treaty of 1855 is a treaty with the United States, 12 Stat. 951.

Jones Decl. Ex. 13. Articles II and V of the Treaty of 1855—interpreted pursuant to the treaty

canons of construction as the Yakama Nation’s ancestors would naturally have understood

them—impose substantive duties on the United States to secure and provide a log supply for a

Reservation sawmill sufficient to establish the fiduciary relationship necessary for this Court’s

exercise of Indian Tucker Act jurisdiction. Jones Decl. Ex. 13, at 2-3.

For nearly two centuries, federal courts have applied special canons of interpretation to

Indian treaties. Worcester v. Georgia, 31 U.S. 515, 551-57 (1832), abrogated on other grounds

by White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 141 (1980). Those treaty canons

arise directly from the United States’ unique relationship with Indian tribes. Oneida v. Oneida

Indian Nation, 470 U.S. 226, 247 (1985). They reflect the principle that courts must honor the

context and nature of the negotiations that resulted in a treaty’s text to determine the parties’

intent. Washington State Dep’t of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000, 1012 (2019).

Treaties must be construed as they would naturally be understood by the Indians. Herrera v.

Wyoming, 139 S. Ct. 1686, 1699 (2019). Treaties should never be construed to an Indian tribe’s

prejudice. Worcester, 31 U.S. at 582. Any ambiguities must be resolved in favor of the Indians.

Herrera, 139 S. Ct. at 1699. Narrow, hyper-technical, post-hoc legal arguments to limit or erase

promises made in Indian treaties must be rejected. Jones v. Meehan, 175 U.S. 1, 11 (1899).

The Supreme Court has applied those canons of construction to the Treaty of 1855 on at

least six prior occasions. Cougar Den, Inc., 139 S. Ct. at 1011; Washington v. Washington State

Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 676 (1979); Tulee v. Washington,


25



315 U.S. 681, 684-85 (1942); Seufert Bros. Co. v. United States, 249 U.S. 194, 198 (1919);

Northern Pac. R. Co v. United States, 227 U.S. 355, 362 (1913); United States v. Winans, 198

U.S. 371, 380-81 (1905). In each case, the Supreme Court “stressed that the language of the

treaty should be understood as bearing the meaning that the Yakamas understood it to have in

1855.” Cougar Den, Inc., 139 S. Ct. at 1011.

To discern the Yakama Nation’s understanding of the Treaty of 1855, courts must “focus

upon the historical context in which it was written and signed.” Cougar Den, Inc., 139 S. Ct. at

1012. Courts consider “the fact that the treaty negotiations were conducted in, and the treaty was

written in, languages that put the Yakamas at a significant disadvantage.” Id. As a result, “many

of the representations that the United States made about the treaty had no adequate translation in

the Yakamas’ own language.” Id. Courts interpreting Indian treaties may therefore look beyond

the treaty’s language to the history and context of the negotiations. Id. (citing Water Splash, Inc.

v. Menon, 137 S. Ct. 1504, 1511 (2017)).

In United States v. Washington, 853 F.3d 946 (9th Cir. 2016), aff’d by an equally divided

court, 138 S. Ct. 1832 (2018), the Supreme Court considered the scope of treaty-reserved fishing

rights in the Treaty of 1855 and Indian treaties negotiated, nearly contemporaneously, by

Governor Stevens. In that case, the issue was whether express treaty-reserved fishing rights

necessarily included an implied right to habitat required for fish survival and propagation.

Washington, 853 F.3d at 962. Applying the treaty canons of construction, the Ninth Circuit

concluded that such an implied right existed, reasoning that the “Indians reasonably understood

Governor Stevens to promise not only that they would have access to their usual and accustomed

fishing places, but also that there would be fish sufficient to sustain them.” Id. at 964. The

Yakama Nation’s ancestors understood that their Treaty-reserved right to fish included the

implicit right to have fish in the rivers, and therefore the implied right to have habitat to sustain

those fish runs. Id. at 964-66.


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The Yakama Nation’s ancestors’ historical understanding of the United States’ promise

to erect a sawmill controls the analysis here, too. Both the Treaty of 1855 and the Treaty Minutes

establish that the Yakama Nation’s ancestors naturally understood their Treaty to secure from the

United States both a sawmill and access to sufficient timber to keep that mill in operation for

their benefit. Article II of the Treaty reserves the Yakama Reservation “for the exclusive use and

benefit of said confederated tribes and bands of Indians . . . .” Jones Decl. Ex. 13, at 2. Article V

imposes a fiduciary duty to erect a sawmill on the Yakama Reservation and keep the mill in

“repair and furnished with necessary tools and fixtures . . . .” Jones Decl. Ex. 13, at 3; see

Seminole Nation v. United States, 316 U.S. 286, 296 (1942) (Indian treaties comprise a

foundation of the trust relationship that exists between the United States and Indian tribes). The

Yakama Nation’s ancestors would have naturally understood the promise of a sawmill must

include a supply of logs to operate the mill—which is akin to the implied right to suitable habitat

to maintain a harvestable population of fish, like that found by the Ninth Circuit in United States

v. Washington.

Documents preserved from the Walla Walla Treaty Council further confirm the United

States’ promise of an operational sawmill and timber supply sufficient to meet the purposes of

the Yakama Reservation. The Treaty Minutes record Governor Stevens repeatedly pushing the

Yakama Nation to cede certain rights to more than 10,000,000 acres of land for, among other

things, “the mill to saw boards and lumber . . . .” Jones Decl. Ex. 14, at 26. “We want you by and

by to live in houses and we shall furnish you with a mill to saw lumber, and with carpenters . . .”

said Governor Stevens. Jones Decl. Ex. 14, at 26. Pressing the assembled Treaty negotiators,

Governor Stevens said “[d]o you want these things? Do you want a saw mill to saw the timber to

build your houses?” Jones Decl. Ex. 14, at 41. He pointed to the dwindling buffalo herds, and

said “we will have instead of tents of lodge skin, when there are no buffalo, houses of boards and

lumber . . . .” Jones Decl. Ex. 14, at 29. Governor Stevens leveraged the significant value of


27



access to a timber supply and sawmill to urge the Yakama Nation’s ancestors to accept his

proposed treaty.

As Governor Stevens described the proposed Yakama Reservation, he showed the

Yakama Nation’s ancestors the Treaty Map. Jones Decl. Exs. 15, 16. The only timber identified

on the expansive map is within the Yakama Reservation. Jones Decl. Exs. 15, 16. After the

Treaty was signed, Governor Stevens mailed the Treaty, Treaty Minutes, and Treaty Map to the

Commissioner of Indian Affairs under a cover letter describing the Yakama Reservation and

noting the access to fish, roots, berries, and the “abundance of pine for buildings . . . .” Jones

Decl. Ex. 17, at 2. The Yakama Nation’s ancestors naturally would have understood the rights

reserved in their Treaty, as described by Governor Stevens in the Treaty Minutes, and depicted

on the Treaty Map, as reserving a sawmill and a sufficient supply of logs to keep the mill in

operation. Otherwise, the right to a sawmill would be “worthless” without an adequate log

supply. See United States v. Washington, 853 F.3d at 965 (“Just as the land on the Belknap

Reservation would have been worthless without water to irrigate the arid land, and just as the

right to hunt and fish on the Klamath Marsh would have been worthless without water to provide

habitat for game and fish, the Tribes’ right of access to their usual and accustomed fishing places

would be worthless without harvestable fish.”).

b. The United States Breached its Fiduciary Duties to Manage the Harvesting of Yakama Forest Timber.

In addition to identifying the United States’ specific fiduciary duties in the management

of the Yakama Forest timber harvest, as required by Navajo II, Plaintiffs have alleged that the

United States failed to faithfully perform those duties. In their Complaint, Plaintiffs first allege

that the United States failed to prepare and approve sufficient timber sales to achieve the

maximum AAC authorized by applicable law. ECF 1 at ¶ 13.a. Second, Plaintiffs allege that the

United States failed to provide an adequate log supply for YFP. Id. at ¶ 13.b. Third, Plaintiffs

allege that the United States failed to manage the Yakama Forest Program in a manner that


28



allows the Yakama Nation to receive not only stumpage value from its forest lands, but also the

benefit of all labor and profit that the Yakama Forest is capable of yielding. Id. at ¶ 13.c.

Those alleged failures combine to breach the following fiduciary duties:

1. The duty to manage the Yakama Forest so as to obtain the greatest revenue for the Yakama Nation and its members consistent with the proper protection and improvement of the forests. See Mitchell II, 463 U.S. at 220-21 (construing 25 U.S.C. §§ 406-407, 25 U.S.C. § 5109, and 25 C.F.R. Part 163).

2. The duty to develop, maintain, and enhance the Yakama Forest in a perpetually productive state in accordance with principles of sustained yield and with the standards and objectives in the 2005 FMP by providing effective management and protection through the application of sound silvicultural and economic principles to the harvesting of forest products. See 25 U.S.C. § 3104(b)(1); 25 C.F.R. §§ 163.10, 163.3(b)(1).

3. The duty to regulate the Yakama Forest through the implementation of the 2005 FMP in a manner that ensures the use of good method and order in harvesting so as to make possible, on a sustained yield basis, continuous productivity and a perpetual forest business. See 25 U.S.C. § 3104(b)(2), (3); 25 C.F.R. §§ 163.10, 163.3(b)(2), (3).

4. The duty to develop the Yakama Forest to promote self-sustaining communities on the Yakama Reservation, so that the Yakama Nation and its members receive not only stumpage value, but also the benefit of all the labor and profit that the Yakama Forest are capable of yielding. See 25 U.S.C. § 3104(b)(4); 25 C.F.R. §§ 163.10, 163.3(b)(4); and

5. The duty imposed by the Treaty of 1855 to provide an adequate log supply for YFP. Jones Decl. Ex 13, at 2-3; Jones Decl. Ex. 14, at 23, 25, 26, 40-41, 56, 65-67, 81, 90; Jones Decl. Exs. 15, 16.

The supplemental jurisdictional facts set forth in Section II above, amply support those

allegations of the United States’ breaches of fiduciary duties.

Those facts show that as early as 2014, the BIA’s Tiger Team concluded that the BIA

Branch of Forestry was diminished to the point that it was on the “verge of collapse.” Jones

Decl. Ex. 10, at 5 (emphasis added). The Tiger Team identified an “urgent need” to validate the

CFI, which is used to develop the AAC. Jones Decl. Ex. 10, at 27. The Tiger Team also found

that lack of a regulated timber sale process made it “impossible” to schedule the flow of logs to


29



YFP, thereby imperiling the long-term economic stability of the enterprise and the health of the

Yakama Forest. Jones Decl. Ex. 10, at 66. Consistent with the United States’ fiduciary duties and

plenary control over timber sales, BIA Director Black assigned the responsibility to fix the BIA

Branch of Forestry to the BIA Northwest Regional Director in early 2015. Jones Decl. Ex. 9. By

2019, however, the BIA Branch of Forestry had changed little, if at all, still reflecting many of

the poor forestry practices reviewed by the BIA Tiger Team. Jones Decl. Ex. 12. The BIA did

not have the forest inventory data to develop a reliable and accurate AAC. Jones Decl. Ex. 12, at

4. It was still falling behind on preparing and approving timber sales on a regular basis, and, by

that time, the BIA had determined that the 2005 FMP was internally inconsistent such that the

AAC could not be achieved. Jones Decl. Ex. 12, at 4. In fact, between 2013 and 2019, the BIA’s

harvest of the Yakama Nation’s timber has managed to attain only between approximately

twenty-four percent (24%) and fifty-nine percent (59%) of the AAC. P. Rigdon Decl. Ex. 1.

The allegations in the Complaint, together with the supplemental jurisdictional facts

provided in this memorandum and its supporting declarations, show that at all times since

June 18, 2013, the United States operated the BIA Branch of Forestry program in violation of the

fiduciary duties imposed on it by 25 U.S.C §§ 406–407, 25 U.S.C. § 5109, NIFRMA (and its

implementing regulations), and the Treaty of 1855. Plaintiffs have identified substantive sources

of law establishing the United States’ fiduciary duties to manage the harvest of Yakama Forest

timber, and has alleged that the United States’ breached those duties, thereby satisfying the first

step of the Navajo II test for invoking this Court’s exercise of jurisdiction under the Indian

Tucker Act.

3. Second Step: The United States’ Fiduciary Duties to Manage the Harvest of Yakama Forest Timber Mandate Compensation to Plaintiffs for the United States’ Breaches of those Duties.

The Supreme Court, in Mitchell II, already determined that the 1910 Act, 25 U.S.C.

§ 5109 (formerly 25 U.S.C. § 466), and the BIA’s General Forestry Regulations, 25 C.F.R.

Part 163, can “fairly be interpreted as mandating compensation by the [United States] for


30



violations of its fiduciary responsibilities in the management of Indian property.” 462 U.S. at

228. Under controlling Supreme Court precedent, then, this Court has jurisdiction under the

Indian Tucker Act for claims alleging breaches of those trust duties. Id.

The Supreme Court did not address the implications of NIFRMA in its Mitchell II

decision because Congress did not enact the law until 1990—seven years after the decision. As

explained further in Section IV.A.2.a.i. above, Congress passed NIFRMA partially in response to

Mitchell II. S. Rep. No. 101-402, at 5, 6 (1990) (provided at Jones Decl. Ex. 27); H.R. Rep. No.

101-835, at 15 (1990) (provided at Jones Decl. Ex. 28). Congress was no doubt aware of the

claims for monetary damages arising from trust actions that tribes and individual Indian allottees

were pursuing successfully against the United States under the 1910 Act and 25 C.F.R. Part 163.

See, e.g., Navajo Tribe of Indians v. United States, 9 Cl. Ct. 336 (1986) (action to recover money

damages against the United States for breach of fiduciary duties relating to the management of

tribe’s forest lands). Congress, however, chose not to limit those claims and remedies when

passing NIFRMA. To the contrary, it expressly provided that nothing in NIFRMA shall be

construed to “diminish or expand the trust responsibility of the United States toward Indian

forest lands, or any legal obligation or remedy resulting therefrom,” thus leaving in place the

money-mandating duties and corresponding remedies recognized in Mitchell II. See 25 U.S.C. §

3120 (emphasis added).

Since NIFRMA’s enactment, Indian tribes have continued to successfully pursue claims

for financial damages based on the United States’ breaches of trust relating to the

mismanagement of their forest lands. See, e.g., The Confederated Tribes of Warm Springs

Reservation of Oregon v. United States, 248 F.3d 1365 (Fed. Cir. 2001) (tribes that own timber

managed by United States enjoy right to seek damages for alleged breaches of the fiduciary

obligations); The Blackfeet Tribe of the Blackfeet Reservation v. United States, United States

Court of Federal Claims, Case No. 12-429L (Aug. 21, 2015), ECF 62, (concluding the United


31



States owed the tribe money-mandating fiduciary duties to manage the tribe’s forest lands);7

Apache Tribe of Mescalero Reservation v. United States, 43 Fed. Cl. 155 (1999) (order denying

the United States’ motion for summary judgment on tribe’s claims for breach of fiduciary duties

for failing to properly manage, cut, and market its timber resources from 1979 to 1992). In The

Blackfeet Tribe of the Blackfeet Reservation, this Court expressly relied on Mitchell II and

selected provisions of NIFRMA to conclude that the United States owed the plaintiff-tribe

certain fiduciary duties to manage the tribe’s forest lands. Jones Decl. Ex. 29, at 2.

Interior itself recognizes the fiduciary duties Congress has imposed on it, which guide the

discharge of its “responsibilities for the management and protection of trust Indian forest lands,”

including policies for forest management planning on Indian forest lands. Jones Decl. Exs. 1, 2.

Interior has also adopted guidance for management of Indian trust assets, including Indian forest

lands. Jones Decl. Ex. 3. It is the policy of Interior to “discharge, without limitation, the

Secretary’s Indian trust responsibility” on Indian forest lands “with a high degree of skill, care,

and loyalty.” Jones Decl. Ex. 3, at 2.

In addition to the federal statutes and regulations, the implied duty in the Treaty of 1855

to provide an adequate log supply for YFP is also money-mandating because all elements of a

common-law trust are present. See Mitchell II, 463 U.S. at 225. There is a trustee (the United

States), a beneficiary (the Yakama Nation), and a trust corpus (the Yakama Forest). Id. As such,

the implied treaty obligation for the United States to provide an adequate log supply for YFP can

be fairly inferred as mandating compensation in the event of a breach of that duty. See id.

Whether by treaty, federal statute, or regulation, Plaintiffs have undeniably identified

specific money-mandating fiduciary duties on the part of the United States to manage the harvest

of timber from the Yakama Forest. Similarly, Plaintiffs have conclusively alleged breaches of

those fiduciary duties. The United States’ Rule 12(b)(1) motion must be denied.

7 The Yakama Nation provides the Opinion and Order on Cross-Motions for Summary Judgment. See Jones Decl. Ex. 29.


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4. The United States’ Arguments in Support of its Rule 12(b)(1) Motion are Wrong and should be Rejected.

In its motion to dismiss, the United States mistakenly focuses on the parties’ trust

relationship instead of the United States’ trust responsibility, imposed by substantive sources of

law, to manage the Yakama Forest. The United States’ reliance on the Mitchell/White Mountain

Apache and Mitchell/Navajo/Jicarilla lines of cases is, therefore, unhelpful for the reasons

explained below. The United States is also simply wrong that Plaintiffs have not satisfied the

Navajo II two-part test for invoking this Court’s jurisdiction.

a. The United States’ Argument regarding the Mitchell/White Mountain Apache and Mitchell/Navajo/Jicarilla Lines of Cases is Unhelpful to this Court’s Analysis of Plaintiffs’ Claim.

The United States observes that between 1980 and 2011, the Supreme Court has issued

six decisions addressing the United States’ liability for breach of trust claims brought by an

Indian tribe for money damages under the Indian Tucker Act. ECF 11 at 13. Those cases include

United States v. Mitchell, 445 U.S. 535 (1980) (“Mitchell I”), Mitchell II (1983), United States v.

White Mountain Apache, 537 U.S. 465 (2003), Navajo I (2003), Navajo II (2009), and United

States v. Jicarilla Apache Nation, 564 U.S. 162 (2011). The United States seeks to synthesize

from those cases that the existence of the tribal trust relationship does not, by itself, impose

financial liability on the United States for breach of trust. ECF 11 at 11-21. The United States

also contends that its complete/plenary control over a trust corpus is a factor in establishing

liability, but is not sufficient in and of itself. Id. Both propositions ignore the fact that the

Supreme Court, in Mitchell II, already concluded that the timber statutes and regulations impose

money-mandating fiduciary duties to manage Indian forest lands. Mitchell II, 463 U.S. at 225.

White Mountain Apache (2003), Navajo I (2003), Navajo II (2009), and Jicarilla Apache Nation

(2011) do not involve the management of Indian forest lands. Each case also acknowledges that

Mitchell II sets forth the contours of the United States’ money-mandating trust duties arising out

of its comprehensive fiduciary duties in the management of Indian forest lands. Simply put,


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Mitchell II remains controlling precedent requiring denial of the United States’ motion to dismiss

in this case.

To avoid that disposition, the United States attempts to distinguish Mitchell II from this

action by focusing on the fact that the case arose out of its alleged mismanagement of the allotted

forest lands of the Quinault Reservation. ECF 11 at 14, 15. In so doing, the United States

endeavors to deny the fiduciary duties that it owes Indian tribes—while accepting that it has

duties toward individual Indian allottees—with respect to its management of Indian forest lands.

This Court should reject the United States’ effort, which is contrary to law.

First, the United States fails to acknowledge that Quinault Tribe itself was a plaintiff in

Mitchell II as owner of some of the trust allotments on the Quinault Reservation. Mitchell I,

445 U.S. at 536. The Supreme Court did not distinguish among the classes of trust allotment

owners that were plaintiffs in that case; rather, the Court concluded that the United States owed

the same fiduciary duties to all classes of owners whether they were individual allottees or the

Quinault Tribe itself.8 Mitchell II, 463 U.S. at 228.

Second, the Supreme Court construed the “timber management statutes,” i.e., 25 U.S.C.

§§ 406–407, 25 U.S.C. § 466 (now codified at 25 U.S.C. § 5109), and 25 C.F.R. Part 163, as

establishing “comprehensive responsibilities of the [United States] in managing the harvesting of

Indian timber.” Id. at 223. Again, the Supreme Court did not distinguish among Indian tribes or

individual allottees. Nor did the Supreme Court differentiate among the types of Indian forest

lands—i.e., unallotted and allotted Indian forest lands. Id. Instead, Mitchell II held that the

“timber management statutes” imposed the same fiduciary duties on the United States in the

management of Indian forest lands regardless of classification of owner or land. See accord

Navajo Tribe of Indians, 9 Cl. Ct. 336 (applying Mitchell II to action by Indian tribe to recover

8 Like the Quinault Tribe in Mitchell II, the Yakama Nation owns trust allotments within the Yakama Forest on the Yakama Reservation. Jones Decl. Ex. 5, at 28.


34



money damages against the United States for breach of fiduciary duties relating to the

management of tribe’s forest lands).

Third, Congress did not take the opportunity in NIFRMA to alter available claims and

remedies for the United States’ breach of fiduciary duties arising out of its “trust responsibilities”

to manage Indian forest lands in NIFRMA. 25 U.S.C. § 3120. In fact, Congress statutorily

defined “Indian forest land” to include “Indian lands,” the land title to which is held by (a) “the

United States in trust for an Indian . . . or an Indian tribe,” or (b) “an Indian . . . or Indian tribe

subject to a restriction by the United States on alienation.” 25 U.S.C. § 3103(3), (10). In other

words, NIFRMA applies to unallotted lands as well as allotted lands. Congress therefore

expressly recognized a non-discretionary statutory duty on the part of the United States to

undertake forest land management activities on “Indian forest land” regardless of whether the

beneficiary is an Indian tribe or an individual Indian allottee. 25 U.S.C. § 3104(a), (b); 25 U.S.C.

§ 3103(3), (10).

The “trust responsibilities” recognized in NIFRMA are entirely consistent with

Mitchell II, and it is wrong for the United States to now suggest otherwise. The United States has

money-mandating fiduciary duties to manage Indian forest lands owned by Indian tribes in

addition to those lands owned by individual Indians. See accord The Confederated Tribes of

Warm Springs Reservation of Oregon, 248 F.3d 1365 (applying Mitchell II fiduciary duties to

claim brought by tribe for breach of trust arising out of the government’s management of the

tribe’s forest lands); The Blackfeet Tribe of the Blackfeet Reservation v. United States, United

States Court of Federal Claims, Case No. 12-429L (Aug. 21, 2015), ECF 62, (same); Apache

Tribe of Mescalero Reservation v. United States, 43 Fed. Cl. 155 (1999) (same). In its arguments

to the contrary, the United States ignores clear Congressional intent, well-established judicial

precedent, and its own policies.


35



b. Plaintiffs have Satisfied the Navajo II Test for Invoking this Court’s Jurisdiction.

The United States asserts that Plaintiffs have not satisfied the Navajo II test for invoking

this Court’s jurisdiction for two additional reasons.9 First, the United States asserts that Plaintiffs

cannot identify a “specific money mandating directive to achieve maximum harvest targets.”

ECF 11 at 22-24. Second, the United States contends that the Treaty of 1855 does not give

Plaintiffs a cause of action. ECF 11 at 27-30. Again, the United States’ arguments fail.

Navajo II does not require Plaintiffs to identify a specific money mandating duty to

achieve maximum harvest targets to invoke this Court’s jurisdiction. Plaintiffs are only required

to identify the substantive source of law establishing specific money mandating fiduciary duties

for the United States to manage the harvest of timber from the Yakama Forest and supply logs to

YFP. See generally Navajo II, 556 U.S. at 290-91 (setting forth two-step test). Plaintiffs have

done so in Section IV.A.2. of this memorandum, relying on the 1910 Act, 25 U.S.C. § 5109,

NIFRMA, and 25 C.F.R. Part 163, as imposing money-mandating trust responsibilities on the

United States to maximize the economic returns (both revenue and jobs) from the sustainable

harvest of Yakama Forest timber. The United States denigrates Plaintiffs’ reliance on NIFRMA

without addressing the fact that Congress did not intend to vary the United States’ trust

responsibility, or the remedies for breach of that responsibility, including those recognized in

Mitchell II. Plaintiffs’ claims here are simply indistinguishable from Mitchell II as a matter of

law.

9 The United States argues that it “does not exercise plenary control” over the Yakama Forest. ECF 11 at 24-27. Plaintiffs have already addressed that argument in Section IV.A.4. above. To recap, Mitchell II disposes of that argument because the Yakama Nation is principally relying on statutes and regulations that the Supreme Court has already held imposed money-mandating fiduciary duties on the United States to manage the Yakama Forest. For the reasons set forth in this brief, it is wrong for the United States to suggest that the 1910 Act (25 U.S.C. §§ 406, 407) and NIFRMA do not contain money-mandating trust duties, which is directly contrary to the Supreme Court holding in Mitchell II and the express Congressional intent in NIFRMA.


36



The United States is also wrong to assert that the Treaty of 1855 is not a substantive

source of law for purposes of invoking this Court’s jurisdiction under the Indian Tucker Act. The

United States ignores the text of the Indian Tucker Act itself, which provides that this Court’s

jurisdiction extends to claims brought by Indian tribes against the United States “arising

under . . . treaties of the United States.” 28 U.S.C. § 1505 (emphasis added). The United States

also ignores applicable canons of Indian treaty construction, which require the Treaty of 1855 to

be interpreted as the Indians would have understood it at the time of treaty-making. Herrera,

139 S. Ct. at 1699. For the reasons explained in Sections IV.A.2.a.ii and IV.A.3., the Treaty of

1855 contains a money-mandating duty to provide an adequate log supply for YFP. The United

States’ reliance on Harvest Inst. Freedman Fed’n v. United States, 80 Fed. Cl. 197 (2008) to

contradict this conclusion is misplaced. In that case, the plaintiffs relied on a series of post-Civil

War treaties to argue that Freedmen of five slave-owning tribes should have received reservation

allotments. 80 Fed. Cl. at 198-99. This Court rejected those arguments because tribal

membership was a condition precedent to the provision of allotments and that condition

precedent was never satisfied. Id. at 201. Unlike Harvest Inst. Freedman Fed’n v. United States,

the Treaty of 1855 contains no such conditions precedent to the imposition of a money-

mandating duty to provide an adequate log supply for YFP.

B. The United States’ Rule 12(b)(6) Motion must be Denied because Plaintiffs have Stated a Plausible Claim for Relief.

A complaint should only be dismissed for failure to state a claim if it “fails to state a

claim to relief that is plausible on its face.” Inter-Tribal Council of Arizona, 956 F.3d at 1338. If

the Court denies the United States’ Rule 12(b)(1) motion, it should also deny its Rule 12(b)(6)

motion because the Court will have necessarily concluded that Plaintiffs have stated a plausible

claim for relief. The Court will have determined that Plaintiffs have identified substantive

sources of law imposing fiduciary duties on the United States for managing the harvest of timber

from the Yakama Forest and that Plaintiffs have alleged that the United States breached those


37



fiduciary duties. The Court will have also concluded that the breaches of those fiduciary duties

give rise to a claim for money damages under the Indian Tucker Act. For these reasons and for

the reasons stated below, the United States’ Rule 12(b)(6) motion should be denied.10

The United States mischaracterizes Plaintiffs’ claim as merely the failure to achieve the

AAC contained in the 2005 FMP. ECF 11 at 30-33. Viewing the well-pleaded factual allegations

in the Complaint as true, and in the light most favorable to the Plaintiffs, their claim is properly

understood as seeking money damages from the United States arising out of its mismanagement

of the Yakama Forest, including the BIA’s failure to ensure that the full sustainable AAC was

achieved each year. ECF 1, ¶ 1; see generally K-Tech Telecommunications, Inc., 714 F.3d at

1282 (setting forth standard for construing factual allegations in the complaint). Contrary to the

United States’ assertion, Plaintiffs do not allege that 2005 FMP is the substantive source of law

containing the United States’ money mandating fiduciary duties related to the Yakama Forest;

rather, as set forth in Section IV.A.2.a. above, the fiduciary duties—including the duty to achieve

the maximum sustainable harvest—derive from federal statutes and regulations, as well as the

Treaty of 1855. The 2005 FMP is the “principal document” required by Congress to provide for

“the regulation of the detailed, multiple use operation of Indian forest land by methods assuring

that such lands remain in a continuously productive state while meeting the objectives of the

tribe . . . .” 25 U.S.C. § 3103(5). The United States was responsible for “all aspects” of the

development of the 2005 FMP and was required to approve the plan. 25 U.S.C. § 3103(4)(B);

25 C.F.R. § 163.11(a). Once approved, the United States had a fiduciary duty to manage the

Yakama Forest in accordance with the “standards and objectives” in the 2005 FMP, including

the AAC. 25 U.S.C. § 3104(b)(1).

10 Plaintiffs recognize that they rely on supplemental jurisdictional facts in their opposition to the Rule 12(b)(1) motion. If the Court determines that the Complaint lacks allegations necessary to adequately plead a claim for relief, Plaintiffs would seek leave to amend the Complaint, pursuant to RCFC 15(a), to address those curable deficiencies, if any. See Hopi Tribe v. United States, 20 Cl. Ct. 782, 785 (1990) (leave to amend should be liberally granted unless the complaint contains an incurable defect).


38



In light of those statutory and regulatory duties it is simply wrong for the United States to

attempt to characterize the 2005 FMP as containing only “aspirational goals.” ECF 11 at 23.

The 2005 FMP expressly acknowledges the United States’ “Congressional trust responsibilities

for management of the Yakama Reservation forest resources . . . .” Jones Decl. Ex. 5, at 19. The

2005 FMP also “defines how trust responsibilities . . . will be fulfilled” and incorporates the

statutory management objections set forth in 25 U.S.C. § 3104(b). Jones Decl. Ex. 5, at 19, 24.

The 2005 FMP provides that its implementation “will . . . maintain the forest resource as a

dependable source of spiritual renewal, food and medicinal plants, revenue, and employment for

the Yakama people.” Jones Decl. Ex. 5, at 25.

The United States’ effort to analogize the 2005 FMP to forest management plans

prepared by the U.S. Forest Service (“USFS”) on national forest system lands should be rejected.

See ECF 11 at 23-24. Those plans are not prescribed by the statutory and regulatory fiduciary

duties imposed on the United States to manage Indian forest lands; rather USFS forest

management plans are authorized by the wholly-separate National Forest Management Act of

1976. Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 728 (1998). USFS forest

management plans are entirely unrelated to this case.

Navajo Tribe of Indians, on the other hand—also cited by the United States for the

proposition that an FMP is “aspirational”—does address the United States’ duty to harvest an

allowable cut. See ECF 11 at 26. Navajo Tribe of Indians considered an allowable cut prescribed

under “the 1910 Act and the regulations promulgated thereunder” on tribal forest lands. 9 Cl. Ct.

at 371. But contrary to the United States’ assertions, the court concluded after an exhaustive

analysis that the United States was “obligated to use all reasonable efforts to produce the greatest

revenue for the Indians while protecting the forest.” Id. at 375. The court proceeded to engage in

a careful analysis of “what amount up to the allowable cut defendant should have cut in any

given year” and to allow damages for some of those years. Id. at 376- 79. Plaintiffs’ claim is

entirely consistent with Navajo Tribe of Indians.


39



The United States also cites White Mountain Apache Tribe v. United States, Court of

Federal Claims Case No. 17-359 L, to support its argument. ECF 11 at 24-26. This case again,

like Navajo Tribe of Indians, supports Plaintiffs’ legal position. The court in White Mountain

Apache Tribe acknowledged that the United States has a trust duty to manage Indian forest lands.

See White Mountain Apache Tribe v. United States, No. 17-359 L, Opinion and Order at 2-3

(Jan. 15, 2018), ECF 22. The United States apparently did not even challenge the existence of a

money-mandating duty with respect to its management of the tribe’s forest resources, but instead

asserted only that the tribal trust forest claims were barred by the statute of limitations. Id. at 1-2.

The Court found that the plaintiff tribe had not successfully pointed to any express promises to

remedy the alleged mismanagement of forest trust assets that would toll the statute of limitations,

but observed “[i]t is plausible that some of the provisions of the FMP are implied promises.” Id.

at 9. Ultimately, the Court determined that the presence of express or implied promises in the

FMP was not dispositive. Id. It held that the parties could conduct “discovery regarding [the

plaintiff tribe’s] claims under the 2005 FMP so that the parties and the Court might more

accurately determine the accrual date . . . of [the plaintiff tribe’s] claims,” because it would be an

“injustice” to hold otherwise. Id. at 11.

None of the cases cited by the United States in support of its Rule 12(b)(6) motion to

dismiss undermine the premise that a failure to achieve a target AAC is evidence of a breach of

the trust duty to achieve the maximum sustainable yield, or support the United States’ position

that it may not be held liable for failing to responsibly manage the Yakama Forest. The

allegations that are in the Complaint—that the United States was required to manage the

Yakama Forest to achieve the maximum sustainable yield required by law, but did not—are

plausible on their face and sufficiently pled at this stage. See Dobyns v. United States, 91 Fed. Cl.

412, 422 (2010). The United States’ Rule 12(b)(6) motion to dismiss therefore must be denied.


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V. CONCLUSION

Plaintiffs properly rely on specific money-mandating duties imposed by substantive

sources of law as the legal basis for their claim against the United States, as required by Navajo

II. The United States owes Plaintiffs certain non-discretionary duties to manage the harvest of

timber in the Yakama Forest, imposed by the 1910 Act (codified as amended in 25 U.S.C. §§

406-407), 25 U.S.C. § 5109, NIFRMA (and its implementing regulations), and the Treaty of

1855. These duties are comprehensive and money-mandating. The allegations in the Complaint

together with the supplemental jurisdictional facts show that at all times since June 18, 2013, the

United States has breached those fiduciary duties, and is therefore liable to Plaintiffs for damages

resulting from the breach. Plaintiffs have satisfied the Navajo II two-step test for invoking this

Court’s jurisdiction and have plausibly pled a claim for breach of trust. The United States’

motion to dismiss should be denied.


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DATED: August 24, 2020. s/ Ethan Jones Ethan Jones, Attorney of Record Marcus Shirzad, Of Counsel YAKAMA NATION OFFICE OF LEGAL COUNSEL 401 Fort Road Toppenish, Washington 98948 (509) 865-7268 [email protected] [email protected] Attorneys for Plaintiffs Josh Newton Sarah R. Monkton KARNOPP PETERSEN LLP 360 SW Bond Street, Suite 400 Bend, Oregon 97702 Tel: (541) 382-3011 Fax: (541) 383-3073 [email protected] [email protected] Of Counsel Attorneys for Plaintiff Confederated Tribes and Bands of the Yakama Nation




CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was served electronically by the

Court CM/ECF system on August 24, 2020, upon all counsel of record. s/ Ethan Jones Ethan Jones, Attorney of Record YAKAMA NATION OFFICE OF LEGAL COUNSEL 401 Fort Road Toppenish, Washington 98948 [email protected] (509) 865 7268 Attorney of Record for Plaintiffs
