United States Court of Appeals
for the Federal Circuit
__________________________
THE NAVAJO NATION,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2010-5036
__________________________
Appeal from the United States Court of Federal
Claims in case no. 88-CV-508, Senior Judge Eric G. Brug-
gink.
______________________
Decided: January 10, 2011
_______________________
DALE S. ZEITLIN, Zeitlin & Zeitlin PC, of Phoenix, Ari-
zona, argued for plaintiff-appellant.
MARY GABRIELLE SPRAGUE, Attorney, Appellate Sec-
tion, Environment & Natural Resources Division, United
States Department of Justice, of Washington, DC, for
defendant-appellee. With her on the brief were IGNACIA S.
MORENO, Assistant Attorney General, and ELIZABETH
ANN PETERSON, Attorney.
__________________________
NAVAJO NATION v. US 2
Before DYK, MAYER, and MOORE, Circuit Judges.
MAYER, Circuit Judge.
The Navajo Nation appeals a judgment of the United
States Court of Federal Claims denying its claim seeking
damages for an alleged Fifth Amendment taking of its
right to develop land granted to it by the United States in
1934. See Navajo Nation v. United States, No. 88-CV-508
(Fed. Cl. July 13, 2009). Because we conclude that the
claim is barred by the six-year statute of limitations set
out in 28 U.S.C. § 2501, we vacate the judgment of the
Court of Federal Claims and remand with instructions to
dismiss for lack of jurisdiction.
BACKGROUND
The present dispute follows in the wake of a long-
running controversy between the Hopi Tribe and the
Navajo Nation over vast swaths of land in northeastern
Arizona. For decades, the two tribes sought to establish
their respective rights to land within two reservations,
the 1882 Reservation, which consists of approximately 2.5
million acres, and the 1934 Reservation, which consists of
approximately 8.2 million acres. The 1882 Reservation is
surrounded by the 1934 Reservation.
On December 16, 1882, President Chester A. Arthur
established the 1882 Reservation for the benefit of the
Hopi “and such other Indians as the Secretary of the
Interior may see fit to settle thereon.” Exec. Order of Dec.
16, 1882, reprinted in Healing v. Jones, 210 F. Supp. 125,
129 n.1 (D. Ariz. 1962), aff’d, 373 U.S. 758 (1963). In
1934, Congress delineated the exterior boundaries of a
Navajo Reservation and permanently withdrew all unre-
served and non-appropriated public lands within those
boundaries “for the benefit of the Navajo and such other
Indians as may already be located thereon.” Act of June
3 NAVAJO NATION v. US
14, 1934, 48 Stat. 960, 961 (the “1934 Act”). At the time
of the 1934 Act, members of the Hopi Tribe were living on
portions of the 1934 Reservation.
In 1962, a district court concluded that approximately
650,000 acres of the 1882 Reservation belonged exclu-
sively to the Hopi Tribe, and that the Hopi Tribe and the
Navajo Nation had joint and undivided interests in the
remaining land. See Healing, 210 F. Supp. at 191-92.
While the Healing litigation was pending, members of the
Hopi Tribe asked the Department of the Interior (“DOI”)
to take action to protect their rights within the 1934
Reservation. In response, DOI Commissioner of Indian
Affairs Robert Bennett concluded that “the Government
can no longer continue to administer the [portion of the
1934 Reservation located directly to the west of the 1882
Reservation] as though it were owned solely by the Na-
vajo Tribe.” He determined that “[n]o action shall be
taken by an official of the [DOI] that does not take full
cognizance of the undetermined rights and interests of the
Hopi Indians” in the affected area. He therefore imposed
a “mutual consent” requirement, which mandated that
the Hopi and the Navajo obtain the consent of the other
tribe before undertaking development projects in the
region. The region affected by Bennett’s mutual consent
requirement became known as the “Bennett Freeze” area.
See Masayesva v. Zah, 816 F. Supp. 1387, 1415 (D. Ariz.
1992) (explaining that “[t]he Bennett Freeze was intended
to protect the interests of the Hopi Tribe pending any
negotiated, congressional, or court resolution of Hopi and
Navajo property interests in the 1934 Reservation”).
In 1967, Bennett determined that public works pro-
jects would not be subject to mutual consent require-
ments. In 1970, however, this decision was reversed and
public works projects were again made subject to such
requirements. In 1972, development within Moenkopi
NAVAJO NATION v. US 4
and Tuba City was exempted from the mutual consent
requirements. The mutual consent requirements were
again modified in 1976 when DOI Commissioner Morris
Thompson allowed an appeal to him of any Navajo project
“for which the Hopi Tribe has specifically refused to grant
its consent” or for which it refused “to consider granting
its consent within 30 days after being requested to do so.”
The stated purpose for this modification was to lessen any
“arbitrarily imposed obstacle to meeting Navajo needs.”
In 1974, Congress enacted legislation designed to re-
solve the conflicting claims of the Navajo Nation and the
Hopi Tribe to land within the 1934 Reservation. See 25
U.S.C. § 640d et seq. (1974) (the “1974 Settlement Act”).
The 1974 Settlement Act gave the tribes the right to bring
suit against each other for the purpose of determining
their respective property rights in the 1934 Reservation.
25 U.S.C. § 640d-7; see Sekaquaptewa v. MacDonald, 619
F.2d 801, 809-10 (9th Cir. 1980).
On July 8, 1980, Congress amended the 1974 Settle-
ment Act. See Pub. L. No. 96-305, 94 Stat. 929 (codified
at 25 U.S.C. § 640d-9(f) (1980)) (the “1980 Amendment”).
The 1980 Amendment codified the requirement, first
imposed by DOI Commissioner Bennett, that the Navajo
and Hopi obtain the consent of the other tribe before
undertaking development projects within the Bennett
Freeze area:
Any development of lands in litigation pursuant to
section 8 of this Act and further defined as “that
portion of the Navajo Reservation lying west of
the Executive Order Reservation of 1882 and
bounded on the north and south by westerly ex-
tensions, to the reservation line, of the northern
and southern boundaries of said Executive Order
Reservation,” shall be carried out only upon the
5 NAVAJO NATION v. US
written consent of each tribe except for the limited
areas around the village of Moenkopi and around
Tuba City. Each such area has been heretofore
designated by the Secretary. “Development” as
used herein shall mean any new construction or
improvement to the property and further includes
public work[s] projects, power and water lines,
public agency improvements, and associated
rights-of-way.
25 U.S.C. § 640d-9(f) (1980).
The purpose of the 1980 Amendment was “to preserve
the parties’ rights subject to a final adjudication” of the
tribes’ respective interests in the affected area. Ma-
sayesva, 816 F. Supp. at 1397. The amendment did not
grant either tribe the right to appeal to the DOI if its
request for consent to a development project was denied.
Following the enactment of the 1980 Amendment, the
Hopi approved a few Navajo development projects within
the Bennett Freeze area. On August 26, 1982, however,
the Hopi imposed a moratorium on all further Navajo
construction activities:
The Hopi Negotiating Committee . . . unanimously
voted to place a moratorium on any and all con-
struction activities, more specifically within the
Bennett Freeze Order Area (BFOA), until certain
issues have been addressed satisfactorily sur-
rounding current and potential construction ac-
tivities in the litigated BFOA and the entire 1934
Reservation.
In 1988, Congress again amended the 1974 Settle-
ment Act and authorized a procedure under which the
tribes could appeal denials of consent for construction
projects to the DOI. See Navajo and Hopi Indian Reloca-
tion Amendments Act of 1988, Pub. L. No. 100-666, § 6,
NAVAJO NATION v. US 6
102 Stat. 3929, 3932. Pursuant to this provision, the DOI
was authorized to approve development projects to the
extent it determined that such projects were “necessary
for . . . health or safety.” Id.
On August 25, 1988, the Navajo Nation filed suit in
the Court of Federal Claims. It argued that the mutual
consent requirement “constitute[d] a continuing taking of
[its] property without just compensation and violate[d]
the trust responsibility owed by [the United States] to the
[Navajo Nation] as an Indian Tribe and to the [Navajo
Nation’s] members as Native Americans.” The complaint
further alleged that since the time of the 1980 Amend-
ment “[v]irtually no development has been approved by
the Hopi Tribe, which has opposed even repairs to exist-
ing structures.”
Discovery was conducted from 1990 to 1993. On
March 8, 1996, the Court of Federal Claims concluded
that there were genuine issues of material fact regarding
the Navajo Nation’s breach of trust and takings claims
and therefore denied the government’s motion for sum-
mary judgment on those claims. The case was then held
in abeyance until ongoing district court litigation concern-
ing the tribes’ respective rights to land within the 1934
Reservation was concluded. In March 1997, the United
States District Court for the District of Arizona issued an
order approving a partial settlement agreement between
the Hopi Tribe and Navajo Nation over Bennett Freeze
area property. See Secakuku v. Hale, No. 74-842-PCT-
EHC (D. Ariz. Mar. 31, 1997). It was not until December
4, 2006, however, that the district court lifted the statu-
tory freeze in its entirety and approved a final settlement
resolving the land dispute between the tribes. See Hon-
yoama v. Shirley, No. 74-842-PHX-EHC (D. Ariz. Dec. 4,
2006).
7 NAVAJO NATION v. US
On February 27, 2009, the Court of Federal Claims
granted the United States’ motion for summary judgment
on the Navajo Nation’s breach of trust claim. It concluded
that the Navajo Nation had failed to identify “a money-
mandating fiduciary duty” on the part of the government
sufficient to support an action for money damages with
respect to that claim. In addition, the trial court con-
cluded that the 1934 Act did not vest the Navajo Nation
with the exclusive right to control land within the Bennett
Freeze area:
There is . . . an irreconcilable conflict between
the rights [the Navajo Nation] claims it had from
the inception of the 1934 Act and the rights Con-
gress gave the tribe. Inherent in [the Navajo Na-
tion’s] claim is the assertion that it had the right
to exclusive control to develop in the [Bennett
Freeze area] without Hopi interference, as well as
the right to compensation for any such interfer-
ence. . . . Congress made clear through legislation
implemented decades after the 1934 Act that [the
Navajo Nation] did not—and never did have—
exclusive control of the land in question.
The Court of Federal Claims determined that the Na-
vajo Nation’s “right to operate unilaterally on particular
[Bennett Freeze area] lands (i.e., unencumbered by re-
strictions originating in Hopi claims) was not part of [the
Navajo Nation’s] property interest until the conclusion of
the district court litigation in 2006.” Because it concluded
that the Navajo Nation did not have the requisite prop-
erty interest to establish a valid takings action, the trial
court dismissed the complaint. 1
1 The trial court stated: “The government’s last af-
firmative act was Congress’ enactment of the 1980
Amendment, which confirmed the Hopi’s rights to oppose
NAVAJO NATION v. US 8
The Navajo Nation timely appealed to this court.
This court reviews final judgments of the United States
Court of Federal Claims pursuant to 28 U.S.C.
§ 1295(a)(3). Whether the Court of Federal Claims pos-
sesses jurisdiction over a claim is a question of law subject
to de novo review. Western Co. v. United States, 323 F.3d
1024, 1029 (Fed. Cir. 2003).
DISCUSSION
Pursuant to the Fifth Amendment, the government is
prohibited from taking private property for public use
without just compensation. U.S. Const. amend. V. “A
compensable taking can occur not only through the gov-
ernment’s physical invasion or appropriation of private
property, but also by government regulations that unduly
burden private property interests.” Huntleigh USA Corp.
v. United States, 525 F.3d 1370, 1378 (Fed. Cir. 2008)
(citations omitted).
The Navajo Nation contends that it suffered a Fifth
Amendment taking of the right to develop the land
granted to it by the United States pursuant to the 1934
Act. It argues that the Act vested it with a compensable
property interest in the entire 1934 Reservation, with the
exception of small pockets of land which were occupied in
1934 by members of the Hopi Tribe, and “that the United
States temporarily took its land by imposing a develop-
Navajo development projects. . . . [I]f the last relevant
action of the United States occurred in 1980, then the
action would appear to be filed too late, unless there is
some reason to delay the accrual of the cause of action
until at least 1982.” The court did not grant the govern-
ment’s motion to dismiss the Navajo Nation’s complaint
as untimely, however, but instead dismissed on the
ground that the Nation had failed to establish that it had
the requisite property interest in the 1934 Reservation to
establish a valid takings claim.
9 NAVAJO NATION v. US
ment moratorium (including acquiescing in the Hopi
moratorium)” on the property contained within the Ben-
nett Freeze area. 2 The Nation asserts that its takings
claim accrued in August 1982, when the Hopi Tribe
refused to grant the Navajo permission to engage in any
development projects within the affected region or, in the
alternative, in 2006, when the district court litigation
resolving the tribes’ respective property rights in the 1934
Reservation concluded.
In response, the government contends that the 1934
Act did not grant the Navajo Nation the right to exclusive
control of property within the 1934 Reservation. Instead,
according to the government, the 1934 Act gave an inter-
est in the 1934 Reservation to both the Navajo Nation and
the Hopi Tribe, and the Nation never had the right, until
the end of the 2006 district court litigation, to unilaterally
develop land within the Bennett Freeze area. The gov-
ernment argues, moreover, that even if the Navajo Nation
had a valid takings claim, that claim is barred by the six-
year statute of limitations applicable to suits brought in
the Court of Federal Claims.
We agree with the government that the Navajo Na-
tion’s claim is time-barred. “Every claim of which the
United States Court of Federal Claims has jurisdiction
shall be barred unless the petition thereon is filed within
2 The Navajo Nation correctly acknowledges that
the 1934 Act did not grant it the exclusive right to control
property within the 1934 Reservation, since its property
rights were subject to the overriding authority of the
United States to manage the lands. See Sekaquaptewa,
619 F.2d at 805; see also United States v. Sioux Nation,
448 U.S. 371, 415 (1980); Shoshone Tribe v. United States,
299 U.S. 476, 496-97 (1937). It argues, however, that the
1934 Act gave it the right to develop the vast majority of
land within the 1934 Reservation free from any interfer-
ence from the Hopi Tribe.
NAVAJO NATION v. US 10
six years after such claim first accrues.”
28 U.S.C. § 2501. This six-year limitations period is
jurisdictional and may not be waived. John R. Sand &
Gravel Co. v. United States, 552 U.S. 130, 136-39 (2008).
Even assuming arguendo that (1) the 1934 Act vested the
Navajo Nation with the right to unilateral development
within the Bennett Freeze area, and (2) the restrictions
on development within that area could be construed as a
compensable taking of the Nation’s property rights, any
Fifth Amendment takings claim is barred because it was
filed more than six years after it first accrued.
In general, a takings “claim first accrues when all the
events have occurred which fix the alleged liability of the
[government] and entitle the plaintiff to institute an
action.” Hopland Band of Pomo Indians v. United States,
855 F.2d 1573, 1577 (Fed. Cir. 1988) (internal quotation
marks omitted); Fallini v. United States, 56 F.3d 1378,
1380 (Fed. Cir. 1995). “Therefore, a claim under the Fifth
Amendment accrues when [the] taking action occurs.”
Goodrich v. United States, 434 F.3d 1329, 1333 (Fed. Cir.
2006) (citations and internal quotation marks omitted).
Here, the Navajo Nation’s takings claim, if any, accrued
when the United States precluded it from developing land
within the Bennett Freeze area without Hopi Tribe ap-
proval. This was the only governmental action that
served to restrict any right the Nation may have had,
pursuant to the 1934 Act, to exclusive control of property
within the 1934 Reservation, and it is therefore the only
action which could even arguably form the basis for a
valid takings claim. See Nw. La. Fish & Game Pres.
Comm’n v. United States, 446 F.3d 1285, 1289 (Fed. Cir.
2006) (“A taking occurs when governmental action de-
prives the owner of all or most of its property interest.”).
In 1966, DOI Commissioner Bennett imposed a re-
quirement that the Navajo and Hopi obtain approval from
11 NAVAJO NATION v. US
the other tribe before undertaking development efforts
within portions of the 1934 Reservation lying to the west
of the 1882 Reservation. At the time of this “administra-
tive freeze,” the Navajo Nation knew that any right it
may have had to undertake unilateral development
within the affected area had been significantly curtailed.
When Congress enacted the 1980 Amendment, it codified
the mutual consent requirement and explicitly provided
that “[a]ny development of lands” in the Bennett Freeze
area could “be carried out only upon the written consent”
of the other tribe. 3 25 U.S.C. § 640d-9(f) (1980). Assum-
ing arguendo that the 1934 Act vested the Navajo Nation
with the right to develop land within the Bennett Freeze
area unencumbered by Hopi Tribe claims, the 1980
Amendment deprived the Nation of that right and “fix[ed]
the alleged liability” of the government for any takings
action. Hopland, 855 F.2d at 1577; see Goodrich, 434 F.3d
at 1333. Because the Navajo Nation did not file suit until
more than eight years after enactment of the 1980
Amendment, its claim is time-barred.
Contrary to the Nation’s assertions, its takings claim
did not accrue when the Hopi Tribe decided, on August
26, 1982, to impose a moratorium on approval of Navajo
construction projects. A takings claim must be predicated
on actions undertaken by the United States, not the Hopi
Tribe. What a plaintiff “may challenge under the Fifth
Amendment is what the government has done, not what
[third parties] have done.” Fallini, 56 F.3d at 1383; see
also Alliance of Descendants of Tex. Land Grants v.
United States, 37 F.3d 1478, 1482 (Fed. Cir. 1994) (“The
language of the Fifth Amendment itself requires that the
3 Congress exempted areas near Tuba City and
Moenkopi from the mutual consent requirements. See 25
U.S.C. § 640d-9(f) (1980).
NAVAJO NATION v. US 12
United States, not a [third party], commit the taking
action.”).
Goodrich is instructive on this issue. There, a Mon-
tana cattle rancher alleged that he suffered a com-
pensable taking of water rights when the Forest Service
issued a directive allowing a third party to move his cattle
onto property adjacent to the rancher’s land. 434 F.3d at
1333-35. We held that the rancher’s claim accrued when
the Forest Service issued its directive, not when the third
party entered the land with his cattle several years later.
Id. at 1334-36. Likewise, in Fallini, 56 F.3d at 1380-83,
we held that any takings claim accrued when Congress
enacted legislation which precluded landowners from
excluding wild horses from drinking from the proprietary
water sources they had constructed on federal lands. We
explained that it was the government’s “enactment of the
statute, not the individual intrusions by the horses” that
caused any takings claim to accrue. Id. at 1383; see also
Ladd v. United States, No. 2010-5010, 2010 U.S. App.
LEXIS 25443, at *21 (Fed. Cir. Dec. 14, 2010) (explaining
that a takings claim accrues when the government takes
action which deprives landowners of “possession of their
property unencumbered by [an] easement,” regardless of
whether third parties ever take physical possession of
that easement (footnote omitted)); Caldwell v. United
States, 391 F.3d 1226, 1233-35 (Fed. Cir. 2004) (conclud-
ing that any taking occurred when the government took
action preventing landowners’ state law reversionary
interests in a railroad right-of-way from vesting, not when
subsequent actions by third parties caused the right-of-
way to be converted to an interim trail for recreational
use).
A similar analysis applies here. When Congress en-
acted the 1980 Amendment, it precluded the Navajo
Nation from undertaking any development within the
13 NAVAJO NATION v. US
Bennett Freeze area unless the Hopi Tribe gave written
consent. This was the date of the last governmental
action that served to restrict the Navajo’s right to develop
property within the 1934 Reservation. Although the Hopi
Tribe did not decide to withhold consent for all Navajo
Nation construction projects until August 1982, for pur-
poses of determining when a takings claim accrues “it is
necessary . . . to look to the nature and timing of the
governmental action that constituted the alleged taking.”
Fallini, 56 F.3d at 1383 (emphasis added); see also Alli-
ance of Descendants of Tex. Land Grants, 37 F.3d at
1482. 4
On appeal, the Navajo Nation advances three argu-
ments in support of its contention that its complaint was
timely filed. First, it asserts that its claim did not accrue
until August 1982 because the Hopi Tribe was acting as
an agent of the United States when it imposed a morato-
rium on all further development within the Bennett
Freeze area. Second, the Nation contends that the statute
of limitations did not begin to run when the 1980
Amendment was enacted because its takings claim was
not “known and stabilized” at that time. Finally, it ar-
gues that its cause of action did not accrue until Decem-
ber 2006, when a district court entered final judgment
resolving the respective rights of the tribes to land within
the 1934 Reservation. We address each of these argu-
ments in turn.
4 We do not reach the issues of whether the 1934
Act vested the Navajo Nation with the right to exclusive
control of property within the Bennett Freeze area or
whether the government’s directive that no development
in the area could take place without Hopi Tribe consent
constituted a compensable taking of those property rights.
We hold only that any takings claim is barred by the six-
year statute of limitations set forth in 28 U.S.C. § 2501.
NAVAJO NATION v. US 14
I.
The Navajo Nation contends that the Hopi Tribe was
acting as an agent of the United States when it imposed a
moratorium on Navajo construction activities, and that
the moratorium can therefore be attributed to the United
States for purposes of determining when its cause of
action accrued. We disagree. “[A]n agency relationship
results from the manifestation of consent by one person to
another that the other shall act on his behalf and subject
to his control, and consent by the other to so act.”
Brubaker Amusement Co. v. United States, 304 F.3d 1349,
1360 (Fed. Cir. 2002) (citations and internal quotation
marks omitted). Here, the record contains nothing even
to suggest that the Hopi Tribe was acting under the
direction or control of the United States when it imposed
a moratorium on Navajo development efforts. See Good-
rich, 434 F.3d at 1334 (concluding that a third party could
not be considered an agent of the United States for pur-
poses of determining when a takings claim accrued be-
cause the United States did not control the third party’s
actions).
In codifying the mutual consent requirements, Con-
gress was trying “to preserve the parties’ rights subject to
a final adjudication” of the tribes’ respective interests in
the Bennett Freeze area. Masayesva, 816 F. Supp. at
1397. The Navajo Nation points to no credible evidence
indicating that the United States directed, or even en-
couraged, the Hopi Tribe to impose a moratorium on all
Navajo Nation construction activities. To the contrary,
Congress acted in 1988 to ameliorate some of the harsh
effects of the Hopi moratorium by giving the DOI the
right to approve Navajo construction projects to the extent
such projects were deemed “necessary for . . . health or
safety.” Navajo and Hopi Indian Relocation Amendments
Act of 1988, Pub. L. No. 100-666, § 6, 102 Stat. 3929, 3932
15 NAVAJO NATION v. US
(amending 25 U.S.C. § 640d-9(f)). Because the Hopi Tribe
was not acting under the direction or control of the United
States, or for its benefit, when it imposed the moratorium
on Navajo development, its actions cannot be attributed to
the United States for purposes of determining when any
takings claim accrued. See B & G Enters. v. United
States, 220 F.3d 1318, 1324 (Fed. Cir. 2000) (concluding
that California did not act as an agent of the United
States when it enacted a law banning tobacco vending
machines because the legislation “was not enacted for the
benefit of the federal government”).
II.
We likewise reject the Navajo Nation’s assertion that
its cause of action did not accrue with passage of the 1980
Amendment because its claim was not “known and stabi-
lized” at the time. It is beyond cavil that a takings claim
does not accrue until “the claimant knew or should have
known that the claim existed.” Goodrich, 434 F.3d at
1333 (citations and internal quotation marks omitted); see
Nw. La. Fish, 446 F.3d at 1290-92. Here, however, it is
clear that the Navajo Nation knew, long before the en-
actment of the 1980 Amendment, that it had no right to
exclusive control of property within the Bennett Freeze
area. The record is replete with evidence that even prior
to the 1980 Amendment the Hopi Tribe seldom granted
approval for Navajo Nation construction activities. In-
deed, Glen Renner, the Director of the Navajo-Hopi Legal
Services Program, testified that during the period of the
administrative freeze, the Hopi Tribe approved only three
of thirty-six Navajo development requests, including two
that were conditioned on Navajo approval of Hopi pro-
jects. Thus, if not before, as of July 8, 1980, when the
1980 Amendment was enacted, the Navajo Nation knew
not only that it was statutorily prohibited from developing
land within the Bennett Freeze area without Hopi Tribe
NAVAJO NATION v. US 16
consent, but that the Hopi had rarely granted approval
for Navajo development projects in the past. At this
point, the Nation knew, or should have known, that it had
been deprived of any right it may have had, under the
1934 Act, to exclusive control of land within the 1934
Reservation. See Fallini, 56 F.3d at 1380 (“The question
whether the pertinent events have occurred is determined
under an objective standard; a plaintiff does not have to
possess actual knowledge of all the relevant facts in order
for the cause of action to accrue.”). Accordingly, even
assuming arguendo that the 1980 Amendment, standing
alone, was insufficient to cause any takings claim to
accrue, the Amendment—coupled with the Navajo Na-
tion’s knowledge that the Hopi Tribe was unlikely to
approve development within the Bennett Freeze area—
was clearly sufficient to trigger the running of the limita-
tions period.
While it is true that the Navajo Nation might not
have reasonably foreseen that the Hopi Tribe would, in
August 1982, decide to withhold approval for all—as
opposed to most—of the Navajo Nation’s construction
projects, this court has “soundly rejected” the contention
“that the filing of a lawsuit can be postponed until the full
extent of the damage is known.” Boling v. United States,
220 F.3d 1365, 1371 (Fed. Cir. 2000). As Fallini makes
clear, “it is not necessary that the damages from the
alleged taking be complete and fully calculable before the
cause of action accrues.” 56 F.3d at 1382. Thus, even
though a plaintiff might not be aware of the full economic
cost of a taking at the time it occurs, for purposes of
determining when the statute of limitations begins to run,
the “proper focus” must be “upon the time of the [defen-
dant’s] acts, not upon the time at which the consequences
of the acts [become] most painful.” Delaware State Coll. v.
17 NAVAJO NATION v. US
Ricks, 449 U.S. 250, 258 (1980) (citations and internal
quotation marks omitted) (emphasis in original)).
Nor are we persuaded by the Navajo Nation’s asser-
tion that its claim did not accrue when Congress enacted
the 1980 Amendment because it did not understand at
that time that it no longer had the right to appeal to the
DOI if the Hopi Tribe refused to consent to a development
project. During certain periods while the administrative
freeze was in effect, the Nation was granted the right to
appeal to the DOI when the Hopi Tribe refused to approve
a construction request. 5 When the 1980 Amendment was
enacted, however, the Nation was given no such DOI
appeal rights. 6 See 25 U.S.C. § 640d-9(f) (1980). At this
point, the Nation was on notice that any DOI appeal
rights it may previously have had had been curtailed. See
Catawba Indian Tribe v. United States, 982 F.2d 1564,
1572 (Fed. Cir. 1993) (refusing to apply a later accrual
date where “all the relevant facts were known” and it was
5 From 1967 to 1970, public works projects could be
submitted directly to the DOI for approval. In 1970,
however, public works projects were again made subject
to the mutual consent requirements. Development within
Moenkopi and Tuba City was exempted from the mutual
consent requirements in 1972. In 1976, the Navajo Na-
tion was given the right to appeal to the DOI if the Hopi
Tribe denied a Navajo construction request or refused to
act on that request within thirty days of being asked to do
so.
6 A Senate bill would have given the Navajo the
right to appeal to the DOI if the Hopi denied a construc-
tion request. See Navajo and Hopi Relocation Amend-
ments Act of 1979, S. 751, 96th Cong. § 3(e) (Oct. 24,
1979). The House bill, however, did not provide for any
such appeal rights, and it was the House version of the
bill that was ultimately enacted.
NAVAJO NATION v. US 18
only “the meaning of the law that was misunderstood”
(emphasis in original)).
III.
Finally, we address the Navajo Nation’s argument
that its taking claim did not accrue until 2006, when a
district court entered judgment adopting a settlement
between the Navajo Nation and Hopi Tribe over title to
the disputed land and terminated the requirement that
each tribe obtain approval from the other tribe before
engaging in development activities. See Honyoama, slip
op. at 2-5. The Nation contends that the 1980 Amend-
ment caused a temporary regulatory taking of its right to
develop land in the Bennett Freeze area, and that the
statute of limitations for a temporary regulatory takings
claim does not run until the regulation at issue is no
longer in force.
This court has previously rejected the notion “that the
cessation of [a] regulation is a necessary condition to
liability” of the United States for a temporary regulatory
takings claim. Bass Enters. Prod. Co. v. United States,
133 F.3d 893, 896 (Fed. Cir. 1998); see also First English
Evangelical Lutheran Church v. Los Angeles, 482 U.S.
304, 320 (1987) (“It would require a considerable exten-
sion of [earlier Supreme Court] decisions to say that no
compensable regulatory taking may occur until a chal-
lenged ordinance has ultimately been held invalid.”
(footnote omitted)). In Bass, for example, we explicitly
rejected the argument that a plaintiff was required to
wait until a regulation was no longer in effect before
bringing a temporary regulatory takings claim. 133 F.3d
at 896; Caldwell, 391 F.3d at 1234-35 (emphasizing that a
takings claim accrues when the government deprives the
plaintiff of a property interest, regardless of whether that
taking is permanent or temporary); Seiber v. United
19 NAVAJO NATION v. US
States, 364 F.3d 1356, 1364-66 (Fed. Cir. 2004) (conclud-
ing that a claim for a temporary regulatory taking ac-
crued when the government issued a final decision
denying a landowner’s permit application, notwithstand-
ing the fact that the regulation at issue was still in force).
Indeed, our precedent requires “that temporary reversible
takings [must] be analyzed in the same constitutional
framework applied to permanent irreversible takings.”
Yuba Natural Res., Inc. v. United States, 821 F.2d 638,
641 (Fed. Cir. 1987); see Skip Kirchdorfer, Inc. v. United
States, 6 F.3d 1573, 1583 (Fed. Cir. 1993) (explaining that
“[t]he limited duration of [a] taking is relevant to the
issue of what compensation is just, and not to the issue of
whether a taking has occurred”).
In certain situations, a claim for a temporary regula-
tory taking does not accrue when a regulation is enacted
because the regulation itself is not a final governmental
determination depriving a plaintiff of a compensable
property right. See United States v. Riverside Bayview
Homes, Inc., 474 U.S. 121, 127 (1985); see also Creppel v.
United States, 41 F.3d 627, 631-33 (Fed. Cir. 1994) (tem-
porary regulatory takings claim accrued only after a
district court ordered a land reclamation project to pro-
ceed). In Boise Cascade Corp. v. United States, for exam-
ple, this court concluded that in situations where
regulations require a landowner to obtain an environ-
mental permit, a takings claim is not ripe until a govern-
mental agency denies that landowner’s permit
application. 296 F.3d 1339, 1347 (Fed. Cir. 2002); Morris
v. United States, 392 F.3d 1372, 1376 (Fed. Cir. 2004)
(“[W]hen an agency provides procedures for obtaining a
final decision, a takings claim is unlikely to be ripe until
the property owner complies with those procedures.”). As
the Supreme Court has made clear, “a takings claim
challenging the application of land-use regulations is not
NAVAJO NATION v. US 20
ripe unless the government entity charged with imple-
menting the regulations has reached a final decision
regarding the application of the regulations to the prop-
erty at issue.” Palazzolo v. Rhode Island, 533 U.S. 606,
618 (2001) (citations and internal quotation marks omit-
ted).
No such ripeness concerns are present here. See
Goodrich, 434 F.3d at 1334-35 (explaining that a takings
claim is ripe when the government issues a final directive
restricting a landowner’s property rights). The 1980
Amendment was a final congressional directive prohibit-
ing the Navajo Nation from developing land within the
Bennett Freeze area without Hopi Tribe approval. If the
1934 Act granted the Navajo any right to exclusive control
of property within the Bennett Freeze area, the 1980
Amendment unequivocally took that right away. The
latest date, therefore, that any takings claim could have
accrued was July 8, 1980.
CONCLUSION
Accordingly, the judgment of the Court of Federal
Claims is vacated and the case is remanded with instruc-
tions to dismiss the complaint.
COSTS
No costs.
VACATED AND REMANDED