FILED
United States Court of Appeals
Tenth Circuit
October 19, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UTE DISTRIBUTION
CORPORATION,
Plaintiff-Appellant,
RED ROCK CORPORATION, a Utah
corporation,
Plaintiff-Intervenor,
v. No. 08-4147
SECRETARY OF THE INTERIOR OF
THE UNITED STATES, in his official
capacity; UTE INDIAN TRIBE,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 2:95-CV-0376-DB)
Shawn E. Draney, (Max D. Wheeler, Camille N. Johnson, and Judith D. Wolferts
with him on the briefs), of Snow, Christensen & Martineau, Salt Lake City, Utah,
for Plaintiff-Appellant.
Katherine J. Barton, United States Department of Justice, Environment and
Natural Resource Division, Washington, D.C. (John C. Cruden, Acting Assistant
Attorney General; John K. Mangum, Assistant United States Attorney, Salt Lake
City Utah; Elizabeth A. Peterson, United States Department of Justice,
Environment and Natural Resources Division, Washington, D.C.; Jason Hartz,
Office of the Solicitor, United States Department of the Interior, Washington,
D.C., of counsel, with her on the brief), for Defendant-Appellee Secretary of the
Interior.
Tod J. Smith of Whiteing & Smith, Boulder, Colorado, for Defendant-Appellee
Ute Indian Tribe.
Before HENRY, Chief Circuit Judge, BRISCOE, and LUCERO, Circuit Judges.
BRISCOE, Circuit Judge.
Plaintiff Ute Distribution Corporation (UDC) appeals from a decision of the
district court denying UDC’s claim for a declaration that the Secretary’s
implementation of the 1954 Ute Partition and Termination Act, 25 U.S.C. §§ 677
et seq., did not provide for an equitable and practicable division and distribution
of water rights between the “mixed-blood” and “full-blood” members of the Ute
Indian Tribe, and that, consequently, such rights are currently held in trust by the
Secretary for the mixed-blood members. 1 Exercising jurisdiction pursuant to 28
U.S.C. § 1291, we conclude that UDC’s action was untimely filed. Accordingly,
we affirm the district court’s dismissal of UDC’s claim and remand only so that
the district court may amend its judgment to reflect this as the basis for the
judgment.
1
The legislation at issue, the parties, and the court below used the terms
“mixed blood” and “full blood.” We repeat those terms solely for consistency.
2
I
Factual background
Between 1953 and the mid-1960’s, a period commonly referred to as the
“termination era,” Congress “endeavored to terminate [the federal government’s]
supervisory responsibilities for Indian tribes.” South Carolina v. Catawba Indian
Tribe, Inc., 476 U.S. 498, 503 (1986). Consistent with that policy, on August 27,
1954, Congress enacted the Ute Partition and Termination Act (UPA), 25 U.S.C.
§§ 677 et seq. The express purpose of the UPA was “to provide for the partition
and distribution of the assets of the Ute Indian Tribe [(Tribe)] of the Uintah and
Ouray Reservation [(Reservation)] in Utah between the mixed-blood and full-
blood members thereof; for the termination of Federal supervision over the trust,
and restricted property, of the mixed-blood members of said tribe; and for a
development program for the full-blood members thereof, to assist them in
preparing for termination of Federal supervision over their property.” 25 U.S.C.
§ 677. At the time of the UPA’s enactment, the Tribe owned “cash, accounts
receivable, and land” estimated to be worth $20,702,885, as well as “additional
assets consisting of oil, gas, and mineral rights (principally oil shale deposits
underlying the reservation), and unadjudicated and unliquidated claims against
the United States.” Affiliated Ute Citizens of Utah v. United States, 406 U.S.
128, 134 (1972).
Implementation of the UPA began with the preparation and submission, by
3
the Tribe, of “roll[s] of [its] full-blood” and “mixed-blood members . . . [that
were] living on August 27, 1954.” 25 U.S.C. § 677g. Those membership rolls
were finalized and published on April 5, 1956. 21 Fed. Reg. 2208-20 (Apr. 5,
1956). “The rolls listed 490 mixed-bloods and 1,314 full-bloods, a total of 1,804.
The ratio was 27.16186% mixed-bloods and 72.83314% full-bloods.” Affiliated
Ute Citizens, 406 U.S. at 135 n.5. The UPA provided that, “[e]ffective on the
date of publication of the[se] final rolls,” membership in the Tribe “consist[ed]
exclusively of full-blood members,” and “[m]ixed-blood members” were deemed
to “have no interest [in the Tribe] except as otherwise provided” in the UPA. 25
U.S.C. § 677d.
The next step in the implementation of the UPA was the “division of the
assets of the [T]ribe that [we]re then susceptible to equitable and practicable
distribution.” 25 U.S.C. § 677i. 2 This step was to be carried out by “[t]he
[T]ribal [B]usiness [C]ommittee representing the full-blood group, and the
authorized representatives of the mixed-blood group . . . .” Id. Pursuant to
authority granted by the UPA, the mixed-bloods created an unincorporated
association, Affiliated Ute Citizens of the State of Utah (AUC), to act as their
2
Section 677i also provided that “[a]ll unadjudicated or unliquidated
claims against the United States, all gas, oil, and mineral rights of every kind, and
all other assets not susceptible to equitable and practicable distribution [were to]
be managed jointly by the Tribal Business Committee and the authorized
representatives of the mixed-blood group, subject to such supervision by the
Secretary as [wa]s otherwise required by law,” for the benefit of both the full-
bloods and the mixed-bloods. 25 U.S.C. § 677i.
4
authorized representative. 25 U.S.C. § 677e; App. at 130. In October 1956, the
AUC and the Tribal Business Committee agreed upon a “Plan for Division of
Assets” (Plan for Division). App. at 127-141.
Section X of the Plan for Division, entitled “Land,” provided for the
division of the Tribe’s land. Id. at 133-135. It identified five categories of land
(i.e., “Land Unsatisfactory for Division,” “Assigned Lands,” “Range Lands,”
“Timber Land,” and “Other Lands”) and made specific provision for each.
Subsection F thereof, entitled “Water Rights,” provided as follows:
All water and water rights pertinent to the lands involved or
generally used in connection therewith whether represented by shares
of stock in a corporation or otherwise and all potential water rights
that may subsequently attach to the lands to be divided shall be
considered in arriving at the fair value of the lands divided and shall
be considered as running with the lands.
Id. at 135 (emphasis in original).
In November 1956, the Secretary, through the Acting Commissioner of the
Bureau of Indian Affairs, approved, with minor changes, the Plan for Division.
Id. at 142-44. In doing so, the Secretary made the following recommendation to
the Tribal Business Committee and the AUC’s Board of Directors:
[W]e recommend to you, in fact urge you, to give serious
consideration to the obtaining of unimpeachable qualified
independent advice in the matter of review of proposed plans for
division of the lands falling within [the “Other Lands”]
classification, and such similar review as you may deem advisable
covering your entire real estate partition.
Id. at 143. In late 1957 and early 1958, the Tribal Business Committee, AUC’s
5
Board of Directors, and AUC membership adopted resolutions approving the Plan
of Division. Id. at 1162-1179. The resolutions adopted by the AUC board and
membership confirmed that the division of assets outlined in the Plan of Division
was “satisfactory, equitable, practicable and based upon the relative number of
persons comprising the final membership roll of each group.” Id. at 1169, 1174-
75. On March 24, 1958, the Commissioner of Indian Affairs, acting on behalf of
the Secretary, approved the division of assets, finding that it was “made in a
manner equitable to the two groups and within the legal authority of the” UPA.
Id. at 1209.
Following the adoption and approval of the Plan for Division, the mixed-
bloods, as required by the UPA, 25 U.S.C. § 677l, prepared and ratified a Plan for
Distribution of the mixed-bloods’ assets among the members of the mixed-blood
group. Id. at 147. In accordance with the Plan for Distribution and the UPA, the
mixed-bloods in turn formed three corporations to manage their assets. Two of
those were non-profit grazing corporations (Range Corporations) created to
manage approximately 172,000 acres of former tribal range lands that, pursuant to
the Plan for Division, belonged exclusively to the mixed-bloods. Each mixed-
blood member surrendered his or her individual interest in the range lands in
return for stock in the Range Corporations (which shares could, in the discretion
of each member, be leased or sold). Id. at 161. Fee patents were then issued
conveying to the Range Corporations all of the range lands, as well as “all the
6
rights, privileges, immunities, and appurtenances, of whatsoever nature,” that
were connected therewith. 3 Id. at 1261-74. The only exceptions to these
conveyances were “all minerals and mineral rights, including oil and gas,” which
were “reserved to the . . . Tribe . . . and the [AUC] . . . .” Id.
The third corporation created by the mixed-bloods in connection with the
Plan for Distribution was the UDC. Id. at 652. UDC was created to
manage jointly with the Tribal Business Committee . . . all
unadjudicated or unliquidated claims against the United States, all
gas, oil, and mineral rights of every kind, and all other assets
susceptible to equitable and practicable distribution to which the
mixed-blood members of said tribe . . . [were then], or m[ight]
thereafter become entitled . . . and to receive the proceeds therefrom
and to distribute the same to the stockholders of [UDC] . . . .
Id. at 654 (UDC Articles of Incorporation).
Shortly after the Plan for Distribution received final approval, the Tribe and
AUC jointly hired an engineering consultant named E. L. Decker to study and
produce a report regarding the water rights on the Reservation. Id. at 2724. In
doing so, both the Tribe and the AUC acknowledged that “before a distribution of
lands and assignment of lands c[ould] be fully completed many irrigation
problems ha[d] to be solved . . . .” Id. Decker completed his report on December
12, 1960. The report identified all practicably irrigable acreage within the
3
By May of 1963, the Tribe “had purchased all but 48 [R]ange
[C]orporation units . . . .” Hackford v. First Sec. Bank of Utah, 521 F. Supp. 541,
548 (D. Utah 1981). The Range Corporations “were eventually dissolved and the
39 mixed-bloods whose shares had not been sold to the tribe received individual
interests in grazing land.” Id.
7
Reservation, and in turn used this as the basis for quantifying the tribal reserved
water rights.
On August 26, 1961, the Secretary issued a proclamation finalizing the
termination of the mixed-blood group from the Tribe. The proclamation stated, in
pertinent part, “that effective midnight August 27, 1961,” mixed-blood members
of the Tribe would “not be entitled to any of the services performed for Indians
because of [their] status as . . . Indian[s],” and “[a]ll statutes of the United States
which affect Indians because of their status as Indians [would] no longer be
applicable to [mixed-bloods] . . . , and the laws of the several States shall apply to
[mixed-bloods] in the same manner as they apply to other citizens within their
jurisdiction.” Id. at 1432 (26 Fed. Reg. 8042 (Aug. 24, 1961)).
On March 14, 1969, AUC filed suit in what was then known as the United
States Court of Claims alleging generally “that the Federal Government failed to
divide the . . . Tribe’s assets properly pursuant to the [UPA], and that they
received less than that to which they were entitled.” Affiliated Ute Citizens of
Utah v. United States, 199 Ct. Cl. 1004 (Ct. Cl. 1972). AUC’s petition alleged, in
particular, that the UPA “expressly required the United States to convey to the
individual ‘mixed-blood’ members their share of [the Tribe’s] water rights,” but
that those members “ha[d] not been granted, either directly or indirectly, their
undivided 27.16186% of said water and water rights, nor any water or water
rights whatsoever . . . .” App. at 2767.
8
On October 28, 1977, after eight years of litigation, the Court of Claims
issued a final decision granting summary judgment in favor of the United States.
Affiliated Ute Citizens of Utah v. United States, No. 156-69, 1997 WL 25897 (Ct.
Cl. Oct. 28, 1977). In doing so, the Court of Claims stated:
We find nothing in the record to shake our conviction that any acts
for which the Federal Government might have been liable occurred
by 1961, leaving plaintiffs’ 1969 filing untimely. The purpose of the
termination act was to end the tribal status of mixed-blood Utes and
to convert their status to that of ordinary American citizens. The
division and distribution of assets of which plaintiffs complain were
effected by 1961, all intangible assets being conveyed either in the
form of shares in the Ute Distribution Corporation or as appurtenant
to land; whatever claims plaintiffs may have had matured then and
became barred by the statute of limitations in 1967. Plaintiffs
contend that their rights matured in 1966, when the range
corporations were dissolved and certain of their assets were acquired
by the tribe. But, whatever rights the mixed-bloods took were fixed
in 1961, after which the Federal Government took no actions
affecting the parties’ division of assets. The later payment of money
by the Government to the Ute Distribution Corporation does not
affect this conclusion, since the relative shares of that corporation
were finally fixed by 1961. Neither do we find merit to plaintiffs’
contention that they did not know and could not have known that all
assets were being divided by the termination procedures.
Defendant’s numerous citations to the statute, to pre-termination
correspondence, and to the plans for division and distribution, leave
us no doubt that the mixed-bloods had notice of the finality of the
termination procedures. In short, plaintiffs have pointed to no
evidence, and we can find none ourselves, establishing a continued
federal responsibility for claimed assets of the mixed-bloods beyond
the time of the termination proclamation.
Id., 1997 WL 25897 at *1.
Procedural background
On April 24, 1995, UDC filed the instant action against the Secretary and
9
the Tribe seeking a declaration of “the parties’ rights and obligations under the”
UPA. App. at 57. UDC alleged that “[t]he Plan for Division . . . did not provide
for an equitable and practicable distribution of water rights, with the possible
exception of rights of use of water which were then being beneficially used on the
lands distributed,” and “did not and could not fully address tribal water rights,
because the nature and extent of tribal water rights was unknown.” Id. at 62.
UDC further alleged that, “[a]t the time of distribution, tribal water rights were
not adjudicated, liquidated, defined or quantified, and they remained under the
trust responsibility of the United States in accordance with the” UPA. Id.
Continuing, UDC alleged that “[f]rom time to time since the passage of the
[UPA], the UDC and its agents ha[d] asserted mixed-blood rights to water on the
Ute Reservation and ha[d] been informed . . . that the Secretary d[id] not
acknowledge such rights.” Id. at 67. Based upon these allegations, UDC sought a
declaration “that certain water rights were not partitioned; that they remain in
trust for the benefit of mixed-blood and full-blood members of the Tribe; and that
they are subject to joint management by the [UDC] and the Tribal Business
Committee under the supervision of the Secretary . . . .” Id. at 69-70.
The Tribe and the Secretary each moved to dismiss the action arguing, in
pertinent part, that UDC’s claims were time-barred. On July 26, 1996, the district
10
court denied the Tribe’s motion 4, stating, in pertinent part:
[T]here is no single, discrete event associated with the UPA that has
given rise to a cause of action and triggered any attendant limitations
period foreclosing this action . . . . [I]f this court were to conclude
that certain tribal water rights were not partitioned and are an
indivisible asset, then the Ute Tribe and the Secretary of the Interior
would each be found to have an ongoing duty to ensure the UDC was
properly included at all times in the joint management of that asset.
Thus, any breach at any time of the continuing responsibility of the
Secretary or the Tribe could trigger a cause of action; hence, a
declaratory judgment defining a party’s rights under the UPA may
properly be sought at any time while the federally supervised joint
management scheme is in effect.
Ute Distr. Corp. v. Sec’y of Interior, 934 F. Supp. 1302, 1313 (D. Utah 1996). 5
On March 5, 1997, the district court remanded UDC’s claims to the
Secretary “for final action and decision,” and “retain[ed] jurisdiction of th[e]
matter pending final decision by the” Secretary. App. at 50. On remand, the
Secretary, after reviewing the parties’ supplemental submissions, issued a twenty-
two page letter “conclud[ing] that the tribal water rights of the Ute Indian Tribe
were an asset susceptible to equitable and practical distribution and that this asset
4
Although the district court ruled on the Tribe’s motion to dismiss, there is
no indication in the record on appeal that the district court ever ruled on the
Secretary’s motion to dismiss.
5
The Tribe appealed a separate portion of the district court’s order “ruling
that the Tribe’s immunity was waived by provisions of the” UPA. Ute Distrib.
Corp. v. Ute Indian Tribe, 149 F.3d 1260, 1261 (10th Cir. 1998). On July 29,
1998, this court reversed that ruling and remanded the matter to the district court
“to determine whether the tribal corporate entity [wa]s both a named and proper
defendant in this case.” Id. at 1269. That issue was rendered moot shortly
thereafter when the Tribe moved and was allowed by the district court to
intervene as a matter of right, and alternatively by permission.
11
was in fact divided and distributed.” Id. at 1370.
Upon return to the district court, UDC challenged the Secretary’s decision,
in pertinent part, on the grounds that “the Bureau of Indian Affairs . . . failed to
provide the UDC access to various documents that the UDC believed would affect
the outcome of the 1998 decision.” Id. at 1311. On March 24, 2001, the district
court again remanded the case for further proceedings before the Secretary. Id. at
1578.
On February 3, 2004, the Secretary issued a second decision (the 2004
Decision) concluding that “UDC failed to provide any evidence or argument
which warrant[ed] changing the rationale or conclusions of the 1998 Decision.”
Id. at 1312. In particular, the Secretary rejected UDC’s argument that the Tribe’s
unquantified Winters 6 water rights were water rights “claims” not susceptible of
division, and instead concluded that such water rights were vested rights,
established when the reservation was created, and that they were capable of being
partitioned in a reasonable manner based on the division and distribution of the
reservation’s lands. The Secretary further concluded that the documents in the
6
The term “Winters water rights” derives from the case of Winters v.
United States, 207 U.S. 564 (1908). Such rights “are federally created and spring
from the act of reserving lands for a particular purpose, such as transforming
nomadic Indians into productive agrarians or promoting Indian self-sufficiency.”
Hackford v. Babbitt, 14 F.3d 1457, 1461 n.3 (10th Cir. 1994). Thus, such rights
“have a priority date as of the date of establishment of the reservation . . . .” Id.
Further, such rights, “[u]nlike most other water rights, . . . are neither created by
use nor lost by nonuse.” Id.
12
administrative record “clearly show[ed] that Tribal water rights and water rights
claims were susceptible to equitable and practicable distribution under the UPA
and in fact were so divided and distributed pursuant to the UPA.” Id. at 1326.
The matter again returned to the district court. UDC amended its complaint
to add claims challenging the Secretary’s 2004 Decision. The Tribe and the
Secretary responded, in part, by filing a joint pleading reasserting that UDC’s
action was time-barred. District Court Docket #272 at 9-11.
On June 2, 2008, the district court issued a memorandum decision affirming
the Secretary’s 2004 Decision. In doing so, the district court concluded that the
tribal reserved water rights were both an asset susceptible to equitable and
practicable distribution in 1961 and were in fact divided pursuant to the UPA.
The district court also, in the final section of its memorandum opinion and
decision, rejected the defendants’ statute of limitations arguments, concluding
that the earlier denial of the Tribe’s motion to dismiss represented the law of the
case. 7 Supp. App. at 76-77. On June 3, 2008, the district court entered judgment
7
Due to the length of time that elapsed between the filing of UDC’s
original complaint and the ultimate resolution of the case in district court, the
district judge who issued the June 2, 2008 memorandum opinion and decision was
different than the one who initially ruled on the Tribe’s motion to dismiss in
1996. The second judge expressly stated that he found the defendants’ statute of
limitations argument “compelling,” Supp. App. at 76, but nevertheless concluded
he was bound, under the law of the case doctrine, by the first judge’s ruling. Id.
at 77.
We need not decide whether the second judge was somehow bound by the
first judge’s ruling because, in any event, “a district court’s adherence to law of
(continued...)
13
in favor of defendants. On July 22, 2008, the district court entered an amended
judgment affirming the Secretary’s 1998 and 2004 decisions, and dismissing with
prejudice UDC’s second amended complaint.
II
Timeliness of UDC’s action - 28 U.S.C. § 2401(a)
Defendants assert, and we agree, that the threshold question we must
address is whether the district court erred in denying defendants’ motions to
dismiss UDC’s action as untimely under 28 U.S.C. § 2401(a). Although UDC
asserts that the issue is moot due to defendants’ failure to file a cross-appeal
challenging the district court’s rulings, UDC is mistaken. An appellee may,
without filing a cross-appeal, “‘urge in support of a decree any matter appearing
in the record, although his argument may involve an attack upon the reasoning of
the lower court,’ but may not ‘attack the decree with a view either to enlarging
his own rights thereunder or of lessening the rights of his adversary.’” El Paso
Natural Gas v. Neztsosie, 526 U.S. 473, 479 (1999) (quoting United States v. Am.
Ry. Express Co., 265 U.S. 425, 435 (1924)); see 15A Charles Alan Wright, Arthur
7
(...continued)
the case cannot insulate an issue from appellate review . . . .” Christianson v.
Colt Indus. Operating Corp., 486 U.S. 800, 817 (1998). In other words, as there
has been no prior ruling by this court or the Supreme Court in this case regarding
the statute of limitations issue, we are not bound by any restriction that the law of
the case doctrine may impose. See United States v. Monsisvais, 946 F.2d 114,
115-16 (10th Cir. 1991) (explaining the law of the case doctrine; citing Arizona v.
California, 460 U.S. 605, 618 (1983)).
14
R. Miller & Edward H. Cooper, Federal Practice and Procedure §3904, at 199-201
(1992) (“Cross-appeal is unnecessary even with respect to matters that have been
put aside by the district court, or matters that have been explicitly rejected by the
district court.”). Defendants’ statute of limitations argument falls within the
former category because, although it involves an attack on the district court’s
reasoning in denying the defendants’ motions to dismiss, it is neither intended to
enlarge defendants’ own rights or lessen the rights of UDC. Instead, defendants’
statute of limitations argument merely provides an alternative rationale, based on
materials well developed in the record, for affirming the dismissal of UDC’s
claims for relief. We therefore proceed to review the § 2401(a) issue de novo.
UOP v. United States, 99 F.3d 344, 347 (9th Cir. 1996) (holding that § 2401(a)
statute of limitations issue “must be reviewed de novo”); see Forest Guardians v.
United States Forest Serv., — F.3d —, 2009 WL 2915022, at *4 (10th Cir. Aug.
26, 2009) (“We review de novo the district court’s jurisdictional conclusion.”).
Section 2401(a) provides, in pertinent part, that “every civil action
commenced against the United States shall be barred unless the complaint is filed
within six years after the right of action first accrues.” 28 U.S.C. § 2401(a).
Determination of the accrual date of an action is critical for purposes of applying
§ 2401(a). “A claim against [the] United States first accrues on the date when all
events have occurred which fix the liability of the Government and entitle the
claimant to institute an action.” Izaak Walton League of Am., Inc. v. Kimbell,
15
558 F.3d 751, 759 (8th Cir. 2009) (internal quotation marks and alterations
omitted); see Felter v. Kempthorne, 473 F.3d 1255, 1259 (D.C. Cir. 2007)
(“Actions usually accrue when they come into existence.”) (internal quotation
marks and brackets omitted).
UDC argues, as it did below, that its action is necessarily timely because
the Secretary had, and continues to have, a continuing duty to properly manage
any undistributed assets, including what UDC claims were the undistributed water
rights and water rights claims, which it asserts are now held in trust for the
mixed-bloods. We reject this argument. UDC’s original complaint sought a
declaration “that certain water rights were not partitioned; that they remain in
trust for the benefit of mixed-blood and full-blood members of the Tribe; and that
they are subject to joint management by the [UDC] and the Tribal Business
Committee under the supervision of the Secretary . . . .” App. at 69-70.
Assuming, for purposes of argument, that this constitutes a valid claim, it does
not in any way allege that the Secretary mismanaged assets in his possession or
otherwise violated his fiduciary duties to the mixed-bloods. Indeed, this
allegation effectively concedes, consistent with the language of the UPA itself,
that UDC itself was responsible, together with the Tribal Business Committee, for
directly managing any undivided assets. 25 U.S.C. § 677i (providing that “all
other assets not susceptible to equitable and practicable distribution [were to] be
managed jointly by the Tribal Business Committee and the authorized
16
representatives of the mixed-blood group,” i.e., UDC). Moreover, as noted by the
Secretary, “the continuing wrong doctrine ‘cannot be employed where the
plaintiff’s injury is definite and discoverable and nothing prevented plaintiff from
coming forward to seek redress.’” Sec’y Br. at 34 (quoting Tiberi v. Cigna Corp.,
89 F.3d 1423, 1431 (10th Cir. 1996) (internal quotation marks omitted)). Thus,
UDC cannot rely on the continuing wrong doctrine to save its action from being
dismissed as untimely. Cf. Catawba Indian Tribe of S.C. v. United States, 982
F.2d 1564, 1572-73 (Fed. Cir. 1993) (rejecting similar continuing duty argument).
The Secretary argues that “UDC’s claim regarding the division or lack
thereof of tribal water rights came into existence no later than the Secretary’s
termination of the mixed-bloods in 1961,” by which time “the full-blood and
mixed-blood groups had agreed which assets were susceptible to division and had
developed plans to divide and distribute the assets equitably, and the Secretary
had approved the plans.” Sec’y Br. at 31. Further, the Secretary notes,
“numerous actions from 1960 forward put UDC on notice that the United States
and the Tribe did not recognize UDC as holding an interest in the Tribe’s water
and water rights . . . .” Id. at 32.
We find the Secretary’s arguments compelling. Contrary to the conclusion
reached by the district court, there was, indeed, a “single, discrete event
associated with the UPA that has given rise to a cause of action and triggered any
attendant limitations period foreclosing this action . . . .” Ute Distr. Corp., 934 F.
17
Supp. at 1313. That event was the Secretary’s approval of the Plan of Division.
At that point in time, all of the Tribe’s assets were either divided between the
mixed-bloods and the full-bloods, or retained by the United States on behalf of,
and to be jointly managed by, the mixed-bloods and full-bloods. As a result, the
mixed-bloods knew or should have known that any claims asserting improper
division of those assets would need to be filed within six years of the date of the
Secretary’s approval of the Plan of Division. Cf. Catawba Indian Tribe, 982 F.2d
at 1572-73 (“The breach of the Government’s duty would have been evident in
the way in which the Government implemented the [Catawba Indian Tribe
Division of Assets] Act.”).
Moreover, as asserted by the Secretary, numerous events have occurred
since the time of the Secretary’s approval that establish UDC either knew or
should have known of the claim it originally sought to assert in this action. Most
notably, in March of 1969, AUC (the mixed-bloods’ representative in the UPA’s
division process) filed suit in the United States Court of Claims alleging that the
federal government had failed to properly divide under the UPA the Tribe’s assets
including, in particular, the Tribe’s water rights. In other words, an entity closely
aligned with UDC and acting on behalf of the mixed-bloods filed suit alleging a
claim similar, if not identical, to the one now asserted by UDC.
Because we conclude that UDC’s action was untimely, we AFFIRM the
district court’s dismissal of UDC’s action with prejudice and REMAND only for
18
the district to amend its judgment to reflect this as the sole basis for the judgment.
19