water right so we have an ownership interest in that water but in order to bring the one sixty to eighty eight claim for mismanagement we don't need to have an ownership interest that started a pre requisite to bringing that clay the area committed by the court below was the short cut and that's not my word that's judge hodges work and what he said was well i don't see how you're ever going to be able to prove  right well we don't have to be deprived of the actual use of water to have a claim for the mismanagement of that water if that water is diverted as it has been if that about what what what what what why is that right i mean that all p and neither your taking this enormous management claim has a foundation so i respectfully disagree around it because that conflate one sixty to eighty eight with the winters right i agree with you that one sixty to eighty it does not speak to winters writes what it does say clearly is that the government has an obligation to appropriately manage natural resources i don't think anyone could argue that water is not a natural resource so my claim is is that they did not i certainly had one sixty two with a deep eight gives rise to money mandating claimed the breach of which is a foundation that statue low gives rise to a claim and it's also a basis for my breach of additionally duty i have a that the whole thing sort of swirling around here is well ok so you there's no question i can go down to the river tomorrow and take that war there's no question i have a primary right under the winner started to do so what are my damages math considering that i've walked out and take that walk well inherent in that question is what there's more water coming down around the bend you can you can still go down to get that water what are your damages i have a present perfect in right under arizona in that war that exists the taking of that was our gives rise to a dam just like the mismanagement of that war gives rise to a damages caused the standard here under fisher is i merely need to invoke a money mandating statute if i don't focus money man didn't statute or constitutional provision and i've done both the district court has subject matter jurisdiction and ca of injury the allegation of injury is they diverted that water use it for their own purpose what so that canonical the water of the missouri river which the government concedes at page fourteen of their brief that if that water is mismanaged we have a claim if that water is take it we have a claim the take away from page fourteen of their concession is the word if that's a page fourteen they said we agree for purposes of will twelve that if that the tribe has winters reserved water rights that if mismanaged or if taken give rise to a claim if is a small word but it's the word of the day if is a marriage work if it's taken if he can prove take it if he can prove that it was mismanaged but they can see that those rights give rise to a claim i have p a breach of one sixty to eighty eight money mandating allows me to recover damages taking of the water allows me to recover damages because i have a present perfect and probably interest there's another overarching reason here to why we should dispute reverse this and send it back to the trial court and that reason is that the basis for the claim subject matter jurisdiction case so no my whole argument rises and falls on fish it's fisher and james helicopter all i need to do is to invoke a money mandating statute or constitutional provision and that's the injury does not follow from an assertion that violation of a legal norm it's a separate thing and i think what judge charges was saying put aside the reference to damages and focus just on the part of injury he said you agree that your center right says you have comes from winters you have which has to do with getting enough water for the reservations and needs right now every that's defined yes you have not said we've ever gotten the west then we need so even if somehow there's a breach of some duty because i don't even know how that how that follows but the injury requirement is you have to allege and you haven't he said that you've gotten less then you leave which is what the winters right gives us i think you can see that and i do think that that goes to the takings claim certainly i don't think that that goes to the mismanagement claims that the water can be mismanaged without being taken to water can be mismanaged without impeding my ability to go down to the river and take the water necessary to win the key phrases fulfill the purpose of the reservation so i can still go down to do that i grant you that the reason i can do that is because i have presently perfected property rights in that water that's what winters gives me that's what i get from winters that if you except that as a premise that that's what i have then the taking of that and how does it take it it's diverted to other uses it's taken by consumption it's a billion dollars a year and in the end waapa hydroelectricity all of those are things that take away f right you you only have the water that's necessary reservation use and you're not being deprived of that that's the problem according to reality well i would argue that i am being deprived of that house  well once we have the statute once we have a money mandating statute invoked then all of the general fiduciary duties that the government owes the tribe come into play they want to be very clear fiduciary duty to does not get me subject matter jurisdiction but once i have subject matter jurisdiction then i don't title to that whole wealth of rights that whole wealth of duties owed by the government as a fiduciary i would argue that that includes them giving us as as our trust keep all the water that's necessary to fulfill the purpose of the trial they haven't done that my second claim they failed to give us that water they breached their fiduciary duty to give us the water necessary to fulfill the purpose of the truck but that's something i argue after we have subject matter jurisdiction limitations so i think even where the requirements of fisher are satisfied those jurisdictional prerequisites still must be met the second point on the money mandating statute assertion that steps they could sort of find that there was a non trivial this allegation at the at the threshold stage of the case and look at it again later what this court didn't fisher was say no you need to really make a decision at the very beginning of the case where there is a we're not going to consider the merits of your claim it is very curious they can't saying this tribe on this claim cannot have their day in court and i find it very hard to reconcile with all of the really troubling to me is about this case and say we don't want to hear what you have to say we're not interested because because you haven't proved your case and your complaint seems to be with the government position is that seems very curious to me well i think what the tribe has failed to do here is identify a money mandating duty for the damages that they say they've sustained which i think as has been discussed already are unclear what the actual injury is but in the cases that you're referring to they are mostly i think about trust funds and then they're pointing to money mandating duty for the damages that they claim in their complaint which have to do with specific concerns about the management of trust funds or other items that are specifically mentioned in statutes and that's meet the tests that the supreme court has set forth and navajo and recognized and hi y and others so i think those are very distinct from here where there is no money mandating statute that they're pointing to that relates at all to the damages they're claiming tralee to purported mismanagement of if you want to look at it that way that's also possible but it's still i'm as a matter of law they haven't stated a claim under the statute and so you know i think twelve the six missile would be equally appropriate because i do think it's clear that one sixty to eighty eight so you know other parts of one sixty two a have been relied on by other courts as being a monday make money mandating statute for other types of claims but i think it is really a stretch to then say that one sixty to eighty eight creates a money mandating duty for the government with respect to the management of a lot of rights but even if you were to assume treat the whole statute as a whole and say that well it's money mandating for some purpose so we just want to look at whether you've stated a claim within the context of that statute i still think the tribes claims fail because the damages that they have claimed don't fit within the scope of whatever the money mandating duty is and one sixty two because it does not reach the management of water rights i did do you understand the trouble at least one of us has the reliance on this word damages in this threshold get rid of the case determination injury is a very different word from damages injury is part of the standing inquiry it's part of even a element of the claim injury or harm damages sounds rather a lot like something that you get to only later in the proceedings i agree with that read it twice now i think in formulating your arguments besides that there is no money money money mandating statute you've relied on that term damages like there's some trying to understand if if your argument really turns on that or everything you said could have been said with the word injury instead the latter your honor i mean i when i'm using the term damages i am speaking in terms of injury not a quantification of damages and i  what is missing here is any allegation at all that the tribes legally protected right and i want to take issue with one thing the council said you know that that what their property rights was is in the water it's not in the government's actions in managing the flows of the missouri river lit writ large are somehow taking they're right my point is only that they  they don't have a right in the entire missouri river they have the use right absence of water that's what they want to litigate and you're saying you're not going to get a chance to make your case i think that the threshold requirement to be able to proceed with a claim is to have actually alleged injury to for taking some claim to the actual property rights which here is their water use right and i think their complaint is devoid of any allegation that that right has been injured or know we're dealing with a complaint that doesn't have a lot of persuasion and what the injury is but if you were to get to the point where you found that there was actually some injury alleged that could support standing when you look at the complaint the only action taken by the government you know where the injury accrued and where all of the subsequent purported injuries would flow from our actions that were taken in the forty's fifty's and sixt whoever's doing whatever whoever managing the reservoir is diverting the water to make an individual here early decisions these farmers get the water everybody else gets a lottery but not the  ation and if in fact that had been alleged to deprive the tribe of necessary water for the reservation why would that be a out of time complaint when it's that year by year diversion decisions that would have caused that not the building of the dam that the dams fifty years ago there may be a case or a complaint that could be could be theoretically brought where there is a specific action from which you can identify specific damages that's been this court standard is that an independent distinct action from which identifiable event or action by the federal government that is within the six years so i think from our perspective there is a statute of limitations problem when the only thing is you made these you created these dams you install them and you continue to operate them in the way that they have been operated for decades that does not seem to meet the standard of a distinct event with identifiable damages that this court is required  s u one question to which i don't i don't think anything turns on this question the missouri river the boundary of the reservation and in over i'm i'm not certain i'm not sure that that morning was a sort of the waters actually not on the reservation or something i think there's at least some question as to whether it would fit within the scope of you know even with the very very broadest reading of one sixty to eighty eight whether it would fit within the scope of that accurate are there any other questions from the court question ok thank you support him by remaining five minutes i'd like to address two things i want to go back and speak with judge like about the injury issue the aspect of the injury i'm confident with where i are let's say i'm comfortable with where i am in terms of the money mandating invocation of the statute constitutional but i hear the questions about injury the other thing that i want to discuss here statute of limitations and i think i can make sure the thrust of that devote most of my time to the injury aspect but i'd like to begin by citing the war of the case  hundred seventy five supreme court case that says actual injury required by a horrible story may be or maybe exists solely by virtue of statutes creating rights the violation of said statutes giving rise to an entry of go back to one sixty to eighty eight if you miss matt it should that broadly that's not the most robust constitutional standard for standing for any more  maybe it's luan maybe it's something else that what congress cannot do is statutorily clear something that is not an injury in fact to be an injury in fact all it can do is take an injury in fact and say this is now legally cognize simple when it wouldn't have been before true in louisiana was in fact my very next site which pages five sixteen sixty one talks about more and says that that is an injury in the water they used it for their own consumption they sold it to non indians the it is our water our feet it is our winter's reserved rights in that water which is primary and this time of trouble from the founding of the reservation we actually were alerted that the water which fell within the winters right all of it i thought america where we are it doesn't say we needed this two others but you're never anywhere near depriving you of the thousand cubic feet you have for you to have a winters right problem don't you need to say they've gone below the thousand feet not because the winters right says that we have a president property interest and water that is that it's necessary to fulfill the purpose of the reservation us not having that water us not having to utilize that water the government has our trustee not having said here is the water necessary to fulfill the purpose of your reservation that all of that water the taking of which the mismanagement of which gives rise to a present clamp you would have to do you would have to look at it this way judge you have to say that unless and until you are going to take some of that water to fulfil the purpose of your reservation at that point we all agree that it's our water but if that's going to do that you don't have they presently perfected property interest in that water and that's simply not true we do we have winters was reserved water rights yesterday and today and tomorrow the idea that until it is taken or until it is not taken for some reason affects the rights in that wa simply isn't the law and so the injury is when they diverted and use it for other purposes our presently perfected winter's water when they store it when they sell it when they self deal with it that is the injury that gives rise to the claim on the issue of statue of limitations or single case but i think if you look at i've i didn't get the sense that there was great concern about that issue with the court of the reson happy to answer questions but i would  suggest the court take a look at a case called good equal good eagle actually involved one sixty to eighty eight it's a mining case but the court including eagle help and it's interesting too because it was one sixty to eighty eight mismanagement of natural resources quite not a monetary fund claim they were actually mismanaging the minerals in that case the court held that every day that mine operated because one sixty to eighty eight imposes a duty on the government to properly manage that resource each day the mine operator to your point earlier judge a new statute of limitations started because of the beauty