In the United States Court of Federal Claims

ROGER BIRDBEAR, et al.

Plaintiffs,

v.

THE UNITED STATES OF AMERICA,

Defendant.

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 No. 16-75L

 (Filed Under Seal: September 9, 2022 |

 Reissued: September 16, 2022)

Michael R. Cashman, Hellmuth & Johnson, PLLC, Edina, MN, for Plaintiffs. Terrance W. 

Moore, Hellmuth & Johnson, PLLC, Edina, MN, Of Counsel.

Thomas A. Benson, Environment & Natural Resources Division, U.S. Department of Justice, 

Washington, DC, with whom was Todd Kim, Assistant Attorney General, for Defendant. Karen 

Boyd and Christopher King, Office of the Solicitor, U.S. Department of the Interior, 

Washington, DC, Of Counsel.

OPINION AND ORDER

KAPLAN, Chief Judge.

Plaintiffs in this case, Nelson Birdbear, Roger Birdbear, Thomas Birdbear, Jamie 

Lawrence, and Rae Ann Williams, are members of the Three Affiliated Tribes of the Fort 

Berthold Indian Reservation (“the Reservation”). They are the beneficial owners of allotted land

on the Reservation that is held in trust for them by the United States. Portions of Plaintiffs’ 

allotted lands are subject to oil and gas leases that the Secretary of the Interior (“the Secretary”)

approved and manages pursuant to federal statutes and regulations. Plaintiffs claim that these

statutes and regulations impose fiduciary obligations on the United States with respect to the 

approval and management of mineral leases on their allotted lands and that the United States has 

breached those obligations in numerous respects. They seek an award of damages to compensate

 This Opinion was originally issued under seal and the parties were given the opportunity to 

request redactions. Both parties notified the Court that they had no proposed redactions and the 

Opinion could be released in full. See ECF Nos. 205, 206.
2

them for the tens of millions of dollars in losses they assert they have experienced as a result of 

those breaches.

Currently before the Court are Plaintiffs’ Motion for Partial Summary Judgment as to 

Count 4 of their Third Amended Complaint and the government’s Cross-Motion for Partial 

Summary Judgment as to Counts 1–4 and 6–10 of Plaintiffs’ Third Amended Complaint. The 

government’s cross-motion challenges the Court’s jurisdiction over the claims set forth in Counts 

1, 3, 7, 8, 9, and 10. The government also contends that it is entitled to summary judgment as to 

Counts 2, 4, 6, and 7 because Plaintiffs have not developed any factual support for the claims set 

forth in those counts.

Oral argument was held on the cross-motions on February 4, 2022. For the reasons set 

forth below, Plaintiffs’ motion is DENIED, and the government’s cross-motion is GRANTEDIN-PART and DENIED-IN-PART.

BACKGROUND1

As noted above, Plaintiffs are enrolled members of the Three Affiliated Tribes of the Fort 

Berthold Reservation, “a federally recognized Indian Tribe with its reservation in northwestern 

North Dakota.” Three Affiliated Tribes of the Fort Berthold Rsrv. v. Wold Eng’g, P.C., 467 U.S. 

138, 141 (1984) (citing Act of Mar. 3, 1891, ch. 543, § 23, 26 Stat. 1032); see also City of New 

Town v. United States, 454 F.2d 121, 122 n.2 (8th Cir. 1972) (observing that the Three Affiliated 

Tribes “is a corporate entity, organized under the Indian Reorganization Act of 1934, 48 Stat. 

984, 25 U.S.C. §§ 461 et seq., which has succeeded to the interests of the Arikara, Gros Ventre 

and Mandan Tribes of Indians”). Each plaintiff is the beneficial owner of allotted land on the 

Reservation.

According to Plaintiffs, the majority of their lands “are located above multiple formations 

including the Bakken Formation, which consists of three separate formations rich in oil and 

natural gas and constitutes one of the largest contiguous deposits of oil and natural gas in the 

country.” Third Am. Compl. at 2, ECF No. 147. Some 1,550 acres of Plaintiffs’ allotted land are 

subject to thirty-eight or more separate oil and gas leases with various oil companies (“Lessees”).

Id.; Pls.’ Mot. for Partial Summ. J. Ex. 2 (“Chavarria Dep.”) at 45:5–12, ECF No. 177-2.

As noted, Plaintiffs allege that the United States has breached a number of its fiduciary 

obligations to them with respect to the management of their allotted lands and their mineral 

resources. See generally Third Am. Compl. They filed the present lawsuit on January 13, 2016,

see Compl., ECF No. 1, and an amended complaint on May 11, 2016, see First Am. Compl., 

ECF No. 7. On June 8, 2016, the government filed a motion for partial dismissal of the First 

Amended Complaint under Rules 12(b)(1) and 12(b)(6) of the Rules of the Court of Federal 

Claims (“RCFC”). See Def.’s Mot. to Dismiss, ECF No. 10. Among other things, the 

government argued that Plaintiffs lacked standing to assert claims with respect to land for which 

they could not prove they held interests. See id. at 6–10. In a brief filed on July 25, 2016,

Plaintiffs responded that they lacked sufficient information to identify all of the tracts of land and 

1 Except where noted, the facts in this section are not in dispute.
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mineral rights that the United States held in trust for their benefit. See Pls.’ Opp’n to Def.’s Mot. 

to Dismiss at 14–15, ECF No. 18.

On July 25, 2016, Plaintiffs filed a motion to stay consideration of the government’s 

motion for partial dismissal pending discovery and to give the government time to produce 

records that would allow Plaintiffs to more specifically identify their property interests. See Pls.’ 

Mot. to Stay at 1, 8–10, ECF No. 24. Then, on August 24, 2016, the parties filed a joint motion 

to stay proceedings in the case for seventy-five days to facilitate further discussions, give 

themselves an opportunity to produce information regarding Plaintiffs’ land interests, and resolve 

their pending motions. See Joint Mot., ECF No. 32. The Court granted the motion the next day.

See Order, ECF No. 33.

Over the succeeding months, the parties engaged in discovery, and the Court was called 

upon to resolve several disputes arising out of that process. See, e.g., EOG Res.’s Mot. to Quash, 

ECF No. 34. On December 15, 2016, Plaintiffs filed their Second Amended Complaint, ECF No. 

52, to which the government filed an answer on January 24, 2017, see Def.’s Answer to Pls.’ 

Second Am. Compl., ECF No. 57, and an amended answer on March 9, 2017,see Def.’s Am. 

Answer to Pls.’ Second Am. Compl., ECF No. 67. In the meantime, the Court denied the 

government’s pending motion for partial dismissal as moot on February 6, 2017. See Order at 1–

2, ECF No. 64.

Over the next eighteen months the parties engaged in discovery, and on July 12, 2018, 

Plaintiffs moved for leave to file a third amended complaint. See Pls.’ Mot. for Leave to Am. 

Compl., ECF No. 140. The Court granted that motion on August 3, 2018, see Order, ECF. No. 

146, and Plaintiffs filed the amended complaint three days later, see Third Am. Compl., ECF No. 

147.

In the Third Amended Complaint, which is the operative pleading, Plaintiffs allege that 

“[t]hey are the beneficial owners of more than 2,200 acres of allotted land, held in trust by the 

United States, within and surrounding the exterior boundaries of the . . . Fort Berthold 

Reservation.” Third Am. Compl. at 2. They assert that “[m]ineral rights in more than 1,550 acres 

of [their] allotted lands are leased for oil and gas mining purposes,” and that the Secretary, acting 

as trustee, “selected and approved” the Lessees. Id.

According to Plaintiffs, “the Department of Interior, and more specifically the Bureau of 

Land Management[,] . . . has consistently failed to collect revenue from oil and gas produced on 

federally managed lands and has failed to provide required oversight and management of oil and 

gas operations.” Id. at 3. Among other things, they allege that their leases were not “properly 

advertised and bid competitively so the royalties they receive are markedly less than those 

received by non-Indian federal and tribal lessors on the Bakken Formation and elsewhere.” Id.

Further, Plaintiffs claim that the government “takes no action to rectify drainage of oil and gas 

from their lands, resulting in losses of tens of millions of dollars,” “deducts expenses from 

royalties without explanation or documentation,” “takes no action to address environmental 

contamination on Plaintiffs’ properties,” and has not “fully paid” Plaintiffs “the income derived 

from their land.” Id. They also contend that they “have sought information from the United 
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States . . . regarding the management of their leases, but the information is either refused, 

ignored, or not provided in a reasonable or timely manner.” Id. at 3–4.

After Plaintiffs filed the Third Amended Complaint on August 6, 2018, the parties again

engaged in extensive discovery until March 5, 2021, when Plaintiffs filed their motion for partial 

summary judgment. See Pls.’ Mot. for Summ. J (“Pls.’ Mot.”), ECF. No. 177. The government 

filed its cross-motion and response on April 23, 2021, see Def.’s Cross-Mot. for Summ. J. and 

Opp’n to Pls.’ Mot. (“Def.’s Cross-Mot.”), ECF No. 180, and oral argument was held on the 

cross-motions on February 4, 2022, see Order, ECF No. 195.

DISCUSSION

I. Summary Judgment Standards

Summary judgment may be granted where there is no genuine issue of material fact and 

the movant is entitled to judgment as a matter of law. RCFC 56(a); Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 250 (1986). A fact is material if it “might affect the outcome of the suit under 

the governing law.” Anderson, 477 U.S. at 248. An issue is genuine if it “may reasonably be 

resolved in favor of either party.” Id. at 250.

The moving party bears the burden of demonstrating the absence of a genuine issue of 

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The moving party “may 

discharge its burden by showing the court that there is an absence of evidence to support the 

nonmoving party’s case.” Dairyland Power Coop. v. United States, 16 F.3d 1197, 1202 (Fed. Cir. 

1994) (citing Celotex, 477 U.S. at 325). In ruling on a motion for summary judgment, all 

evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable 

factual inferences should be drawn in favor of the nonmoving party. Anderson, 477 U.S. at 255; 

Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970). Nonetheless, “[a] nonmoving party’s 

failure of proof concerning the existence of an element essential to its case on which the 

nonmoving party will bear the burden of proof at trial necessarily renders all other facts 

immaterial and entitles the moving party to summary judgment as a matter of law.” Dairyland, 

16 F.3d at 1202. 

“Once the moving party has satisfied its initial burden, the opposing party must establish 

a genuine issue of material fact and cannot rest on mere allegations, but must present actual 

evidence.” Crown Operations Int’l, Ltd. v. Solutia Inc., 289 F.3d 1367, 1375 (Fed. Cir. 2002) 

(citing Anderson, 477 U.S. at 248). The court should act with caution in granting summary 

judgment and may deny summary judgment “where there is reason to believe that the better 

course would be to proceed to a full trial.” Anderson, 477 U.S. at 255.

II. The Government’s Argument that it is Entitled to Summary Judgment as to Counts 

1, 3, 7, 8, 9, and 10 Based on Lack of Jurisdiction

The bulk of the government’s motion for summary judgment is devoted to its challenges 

to this Court’s jurisdiction over the claims set forth in Counts 1, 3, 7, 8, 9, and 10 of Plaintiffs’ 

Third Amended Complaint. See Def.’s Cross-Mot. at 4–18. It contends that none of the claims 
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fall within the waiver of sovereign immunity contained in the Indian Tucker Act, 28 U.S.C. 

§ 1505. See id. at 5.

For the reasons set forth below, the Court holdsthat the government’s challenge to this 

Court’s jurisdiction over the claims set forth in Counts 3, 7, and 8 lack merit. It agrees with the 

government, however, that Plaintiffs have failed to establish this Court’s jurisdiction over the 

claims in Counts 1, 9, and 10.

A. The Two-Pronged Test of Jurisdiction Under the Indian Tucker Act

The doctrine of sovereign immunity precludes the United States from being sued without 

its consent. United States v. Navajo Nation (Navajo II), 556 U.S. 287, 289 (2009). The Indian 

Tucker Act, 28 U.S.C. § 1505, supplies such consent for claims within its purview. See United 

States v. Mitchell (Mitchell II), 463 U.S. 206, 216 (1983) (“If a claim falls within the terms of 

the [Indian] Tucker Act, the United States has presumptively consented to suit.”). It states:

The United States Court of Federal Claims shall have jurisdiction of any claim 

against the United States . . . in favor of any tribe, band, or other identifiable 

group of American Indians . . . 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.

The Indian Tucker Act’s waiver of sovereign immunity applies only to “claims premised 

on other sources of law.” Navajo II, 556 U.S. at 290; see also United States v. Navajo Nation

(Navajo I), 537 U.S. 488, 503 (2003); United States v. White Mountain Apache Tribe, 537 U.S. 

465, 472 (2003). Therefore, to establish the court’s jurisdiction under the Indian Tucker Act, “a 

tribal plaintiff must invoke a rights-creating source of substantive law that ‘can fairly be 

interpreted as mandating compensation by the Federal Government for the damages sustained.’” 

Navajo I, 537 U.S. at 503 (quoting Mitchell II, 463 U.S. at 218).

The Supreme Court has established a two-prong test to determine whether a claim by a 

tribal plaintiff alleging a breach of trust meets these requirements. See Navajo II, 556 U.S. at 

290–91. Under prong one, the plaintiff must persuade the Court that the source of law on which 

the claim is based imposes “specific fiduciary or other duties” on the government. Navajo I, 537 

U.S. at 506; see also id. (observing that “the analysis must train on specific rights-creating or 

duty-imposing statutory or regulatory prescriptions”). A statute or regulation that merely “recites 

a general trust relationship between the United States and the Indian People is not enough to 

establish any particular trust duty.” Hopi Tribe v. United States, 782 F.3d 662, 667 (Fed. Cir. 

2015) (citing United States v. Mitchell (Mitchell I), 445 U.S. 535, 542–44 (1980)); see also

Fletcher v. United States, 26 F.4th 1314, 1324–25 (Fed. Cir. 2022).

Under prong two, if a statute or regulation imposes specific fiduciary or other duties on 

the United States, the Court must determine whether the statute or regulation also “can fairly be 
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interpreted as mandating compensation by the Federal Government for the damages sustained.” 

Mitchell II, 463 U.S. at 218. To satisfy this requirement, the statute or regulation “need not 

explicitly provide that the right or duty it creates is enforceable through a suit for damages.” 

Navajo II, 556 U.S. at 290. Rather, “[i]t is enough . . . that [the source of substantive law] be 

reasonably amenable to the reading that it mandates a right of recovery in damages.” White 

Mountain Apache, 537 U.S. at 473; see also Navajo I, 537 U.S. at 506 (explaining that a statute 

or regulation may provide for a damages remedy “either expressly or by implication” (quoting 

Mitchell II, 463 U.S. at 217 n.16)).

Further, the existence of a general trust relationship bears on whether a law provides a 

damages remedy because “in drawing the inference that Congress intended damages to remedy a 

breach,” courts may look to general trust law. Navajo II, 556 U.S. at 291 (quoting White 

Mountain Apache, 537 U.S. at 477). “The Supreme Court has ‘consistently recognized that the 

existence of a trust relationship between the United States and an Indian or Indian tribe includes 

as a fundamental incident the right of an injured beneficiary to sue the trustee for damages 

resulting from a breach of the trust.’” Fletcher, 26 F.4th at 1325 (quoting Mitchell II, 463 U.S. at 

226). 

B. Statutes and Regulations Governing Mineral Leasing on Indian Lands

1. The Indian Long-Term Leasing Act and its Implementing 

Regulations2

The federal government’s statutory authority over mineral leasing on Indian lands has its 

origins in the Indian Long-Term Leasing Act of 1909, codified at 25 U.S.C. § 396.

3 The Act 

2 The Indian Long-Term Leasing Act is variously referred to as the 1909 Mineral Leasing Act 

and the 1909 Indian Mineral Leasing Act, see S. Rep. No. 105-205 at 3, 7 (1998), as well as the 

Indian Allotee Leasing Act of 1909, see Nat’l Park Serv., Federal Mineral Leasing (Oil, Gas, and 

Solid Minerals)–Legal Instruments, Geology & Mins.–Res. Laws, Reguls., and Pol’ys (Oct. 9, 

2019), https://www.nps.gov/articles/federal-mineral-leasing-oil-gas-and-solid-minerals-legalinstruments.htm. In this Opinion, the Court refers to the Indian Long-Term Leasing Act or its 

citation in the United States Code, 25 U.S.C. § 396.

3 Some twenty-one years before passage of the Indian Long-Term Leasing Act, Congress passed 

the General Allotment Act of 1887, ch. 119, 24 Stat. 388. That Act “authorize[d] the President to 

allot to each Indian residing on a reservation up to 80 acres of agricultural land or 160 acres of 

grazing land found within the reservation” and “provide[d] that the United States shall retain title 

to such allotted lands in trust for the benefit of the allottees.” Mitchell I, 445 U.S. at 540–41. 

The General Allotment Act codified the federal government’s then-existing practice of 

“divid[ing] Indian lands into individual parcels, taking lands that had been set aside for Indian 

tribes and allotting them to individual tribe members.” Cobell v. Norton, 240 F.3d 1081, 1087

(D.C. Cir. 2001). As the Supreme Court has observed, “[t]he objectives of allotment were simple 

and clear cut: to extinguish tribal sovereignty, erase reservation boundaries, and force the 

assimilation of Indians into the society at large.” County of Yakima v. Confederated Tribes & 

Bands of the Yakima Indian Nation, 502 U.S. 251, 254 (1992).
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“place[d] the Secretary of the Interior at the center of the leasing of Indian mineral lands.” 

Pawnee v. United States, 830 F.2d 187, 189 (Fed. Cir. 1987). It providesthat the leases of Indian 

mineral lands will last “for any term of years as may be deemed advisable by the Secretary of the 

Interior.” 25 U.S.C. § 396. It also empowers the Secretary to “perform any and all acts and make 

such rules and regulations as may be necessary” to effectuate the statute. See id.;see also

Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 372 (1968) (observing that under the Act “[t]he 

Secretary is authorized to promulgate regulations controlling the operation and development of 

the lease and to issue necessary written instructions to the lessee”). Further, it gives the Secretary 

the authority to reject bids to lease mineral resources if, in her judgment, “the interests of the 

Indians will be served by so doing.” 25 U.S.C. § 396.

The regulations the Secretary has issued pursuant to 25 U.S.C. § 396 are codified, in 

pertinent part, at 25 C.F.R. Part 212. They apply “to lands or interests in lands the title to which 

is held, for any individual Indian, in trust by the United States.” 25 C.F.R. § 212.1(a). Their 

purpose is “to ensure that Indian mineral owners desiring to have their resources developed are 

assured that they will be developed in a manner that maximizes their best economic interests and 

minimizes any adverse environmental impacts or cultural impacts resulting from such 

development.” Id.

The regulations explain that the phrase “in the best interest of the Indian mineral owner” 

“refers to the standards to be applied by the Secretary in considering whether to take an 

administrative action affecting the interests of an Indian mineral owner.” Id. § 212.3. They 

further instruct:

In considering whether it is “in the best interest of the Indian mineral owner” to 

take a certain action (such as approval of a lease, permit, unitization or 

communitization agreement), the Secretary shall consider any relevant factor, 

including, but not limited to: economic considerations, such as date of lease 

expiration; probable financial effect on the Indian mineral owner; leasability of 

land concerned; need for change in the terms of the existing lease; marketability; 

and potential environmental, social, and cultural effects.

Id.

The Part 212 regulations give the Secretary a pervasive role in all aspects of the 

acquisition, administration, and enforcement of mineral leases. Under the regulations, an entity 

interested in securing a mineral lease on Indian land must apply for a lease with the relevant

“superintendent”—i.e., “the Bureau of Indian Affairs official in charge of the agency office 

having jurisdiction over the minerals subject to leasing under [Part 212].” Id.; see also id.

§ 212.20(a). Conversely, Indian mineral ownersinterested in leasing their property are directed 

to request that the Secretary “prepare, advertise and negotiate mineral leases on their behalf.” Id.

§ 212.20(b).

The regulations require that mineral leases be advertised for bids “unless one or more of 

the Indian mineral owners of a tractsought for lease request the Secretary to negotiate for a lease 

on their behalf without advertising.” Id. In that instance, the Secretary decides whether such 
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negotiation “is in the best interests of the Indian mineral owners.” Id. If she concludes that it is 

not, then the regulation states that the leases must be advertised “to receive optimum competition 

for bonus consideration, under sealed bid, oral auction, or a combination of both.” Id.

§ 212.20(b)(1). The regulations prescribe the contents of the notice, its timing, and how it is to be 

distributed. Id.

The regulations state that “[t]he advertisement shall offer the tracts to a responsible 

bidder offering the highest bonus.” Id. § 212.20(b)(2). Further, the Secretary establishes “the 

rental and royalty rates which shall be stated in the advertisement and will not be subject to 

negotiation.” Id.

Under the regulations, “[i]f no satisfactory bid is received, or if the accepted bidder fails 

to complete all requirements necessary for approval of the lease, or if the Secretary determines 

that it is not in the best interest of the Indian mineral owner to accept any of the bids the 

Secretary may re-advertise the tract for sale, or subject to the consent of the Indian mineral 

owner, a lease may be let through private negotiations.” Id. § 212.20(b)(6). The Secretary is 

required to tell the Indian mineral owner the results of the bidding and to get his or her consent 

before approving the lease. Id. § 212.20(c). 

The regulations also confer numerous specific obligations on the Secretary and the 

Department of the Interior’s component agencies in the administration of oil and gas leases on 

allotted lands. They prescribe the size of leased tracts, see id. § 212.25 (cross-referencing 25 

C.F.R. § 211.25), the maximum duration of leases, see id. § 212.27 (cross-referencing 25 

C.F.R. § 211.27), the minimum rental payments and royalty rates, see id. § 212.41, and the 

method by which they must be paid, see id. § 212.40 (cross-referencing 25 C.F.R. § 211.40). The 

Secretary has the power to inspect the leased premises and the books and records of the lessee.

Id. § 212.46 (cross-referencing 25 C.F.R. § 211.46). 

The Secretary’s regulations also impose a number of obligations on lessees. They are 

required, among other things, to “[e]xercise diligence in mining, drilling and operating wells on 

the leased lands,” id. § 211.47(a) (incorporated by reference in 25 C.F.R. § 212.47), and to 

“[p]rotect the lease from drainage,” id. § 211.47(b) (incorporated by reference in 25 CFR 

§ 212.47). The Secretary may impose “restrictions as to time or times for well operations and 

production from any leased premises as the Secretary judges may be necessary or proper for the 

protection of the natural resources of the leased land and in the interest of the lessor.” Id.

§ 211.49 (incorporated by reference in 25 C.F.R. § 212.49).

The regulations at 43 C.F.R. Part 3160 are also pertinent, as they apply to all oil and gas 

operations on federal and Indian lands and expressly cross reference the regulations at 25 C.F.R.

Part 212. See 43 C.F.R. § 3160.0-7. Under the Title 43 regulations, the Secretary approves 

lessees’ applications for permits to drill and their drilling plans. Id. § 3162.3-1. She is also 

empowered to approve subsequent proposals to change well operations, see id. § 3162.3-2, as 

well as the location of wells, see id. § 3162.3-1. The Secretary also inspects lease sites, see id.

§ 3161.3, and prepares environmental assessments of drilling plans, see id. § 3162.5-1. Further, it 

is her responsibility to ensure compliance with lease terms and regulations, see id. § 3161.2,
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assess fines for noncompliance with the regulations, see id. § 3163.1, and address drainage on 

leased lands, see id. §§ 3162.2-10 to 3162.2-15.

2. The Fort Berthold Mineral Leasing Act

The Fort Berthold Mineral Leasing Act (“FBMLA”) is also relevant to Plaintiffs’ claims. 

See Pub. L. No. 105-188, 112 Stat. 620 (1998) (codified as amended at 25 U.S.C. § 396 note).

The FBMLA, which applies to Indian land within the Reservation, was enacted to serve a narrow 

purpose: “‘to facilitate the leasing of mineral rights within the exterior boundaries of the 

reservation of the Three Affiliated Tribes of the Fort Berthold Reservation[,]’ which had 

otherwise encountered significant obstacles, including ‘too many mineral interests tied up in 

probate.’” Fredericks v. U.S. Dep’t of the Interior, No. 20-CV-2458, 2021 WL 2778575, at *2 

(D.D.C. July 2, 2021) (alteration in original) (citation omitted) (quoting S. Rep. No. 105-205, at 

1, 3 (1998)). Mineral interests at the Fort Berthold Reservation ended up mired in probate 

because of the phenomenon of “fractionated heirship,” which made it possible for there to be

“hundreds of owners of an undivided interest in a parcel of land.” Id. (quoting S. Rep. No. 105-

205, at 3–4 (1998)). This impeded oil and gas leasing at the Reservation because the Indian 

Long-Term Leasing Act had been interpreted to require that “all persons who have an undivided 

interest in any particular parcel must consent to its lease.” S. Rep. No. 105-205, at 3 (1998).

The FBMLA addressed this problem by “permit[ting] the mineral leasing of Indian land 

located within the Fort Berthold Indian Reservation in any case in which there is consent from a 

majority interest in the parcel of land under consideration for lease.” See FBMLA. The Act

provides that the Secretary may approve any mineral lease where: 1) “the owners of a majority of 

the undivided interest” in the land “consent to the lease or agreement,” and 2) “the Secretary 

determines that approving the lease or agreement is in the best interest of the Indian owners of 

the Indian Land.” Id. § 1(a)(2)(A)(i)–(ii). 

C. Application of Prong 1: Specific Fiduciary Obligations

1. Count 1

In Count 1, Plaintiffs allege that the government has a specific fiduciary obligation to 

subject leases for oil and gas development on their land to the competitive process described in 

25 C.F.R. § 212.20. See Third Am. Compl. ¶ 37. This obligation, according to Plaintiffs, 

includes a duty to advertise the leases in a way that generates “‘optimum competition’ for bonus 

consideration or in a manner that ‘maximizes their best economic interests.’” Id. ¶ 38 (quoting 25 

C.F.R. §§ 212.1(a), 212.20(b)(1)). According to Plaintiffs, the government’s violation of these 

obligations depressed the royalty and bonus rates they received under the mineral leases the 

Secretary secured for them. See id. ¶¶ 38–39. They seek an award of damages representing the 

difference between the royalties and bonusesthey actually received and “the reasonable value of 

the royalty rate and per acre bonus.” See id. ¶ 41. 

The government contends that the Secretary did not have a duty to hold a competitive 

auction for leases to maximize Plaintiffs’ economic interests and that, accordingly, the Court 

lacks jurisdiction over Count 1 under the Indian Tucker Act. See Def.’s Cross-Mot. at 14–15. It 
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relies upon the FBMLA, which states that “[i]t shall not be a requirement for the approval or 

execution of a lease [by the Secretary] . . . that the lease . . . be offered for sale through a public 

auction or advertised sale.” FBMLA § 1(a)(4). According to the government, this FBMLA 

provision supersedes the requirements imposed by 25 C.F.R. § 212.20(b). See Def.’s Cross-Mot. 

at 14. 

The government’s contention lacks merit. Plaintiffs do not argue that the Secretary 

violated an obligation to hold a public sale. See Third Am. Compl. ¶¶ 37–40. In fact, after 

Plaintiffs requested that the government lease their lands for oil and gas development, the Bureau 

of Indian Affairs (“BIA”) did so using a public-bidding process. See R. Birdbear Decl. ¶¶ 5–6, 

ECF No. 19; see also 25 C.F.R. § 212.20(b) (“Indian mineral owners may request the Secretary 

to prepare, advertise and negotiate mineral leases on their behalf.”). Plaintiffs’ complaint is that 

BIA, having decided to hold the public-bidding process, did not advertise the leases to “receive 

‘optimum competition’ for bonus consideration,” as required by 25 C.F.R. § 212.20(b) and did 

not determine that the leases were in Plaintiffs’ “best interest,” as required by the FBMLA. See

Third Am. Compl. ¶¶ 37–38; FBMLA § 1(a)(2)(A)(ii). Because the government subjected the 

leases to public bidding, the requirements of 25 C.F.R. § 212.20(b) applied, notwithstanding 

§ 1(a)(4) of the FBMLA. The Court concludes, therefore, that Plaintiffs have satisfied prong 1 of 

the test for establishing jurisdiction under the Indian Tucker Act with respect to Count 1.

2. Count 3

Plaintiffs allege in Count 3 that the government breached its fiduciary duty “to properly 

manage, administer and supervise” Plaintiffs’ lands “to prevent the avoidable loss of oil and gas 

through drainage.” Third Am. Compl. ¶ 48.4 They contend that employees of the Bureau of Land 

Management (“BLM”) “knew that drainage was occurring, or was likely to occur from 

Plaintiffs[’] tracts,” but did not inform Plaintiffs of this fact. See id. ¶¶ 49–51. In addition, 

Plaintiffs allege, BLM “failed to have guidance in place to its employees regarding how to 

conduct drainage analysis for nearly a decade and a half,” which they claim led to “a wide 

variety of unapproved, unreliable, and inaccurate practices.” Id. at ¶¶ 52–53. Moreover, they 

assert that the government “has delayed in implementation of requirements, orders and 

technological advances such that production on Plaintiffs’ lands has been impaired.” Id. at ¶ 56. 

“By reason of these breaches,” Plaintiffs claim, they “have lost substantial revenue.” Id. at ¶ 57.

The government’s response—that the regulations do not impose on the Secretary a 

specific fiduciary obligation to protect Plaintiffs’ lands from drainage, Def.’s Cross-Mot. at 15–

17—is unpersuasive. The regulation at 25 C.F.R. § 211.47(b), which applies to lessees of allotted 

lands through 25 C.F.R. § 212.47, provides that “[t]he lessee shall . . . [p]rotect the lease from 

drainage.” See also 43 C.F.R. § 3162.2-3(a)–(b) (stating that the lessee must protect the lease 

against drainage caused by wells that are “[p]roducing for the benefit of another mineral owner” 

or “the same mineral owner but with a lower royalty rate”). The regulations require the lessee to 

“monitor the drilling of wells in the same or adjacent spacing units and gather sufficient 

information to determine whether drainage is occurring.” 43 C.F.R. § 3162.2-9. The lessee “must 

4 Drainage is defined as “the migration of hydrocarbons, inert gases (other than helium), or 

associated resources caused by production from other wells.” 43 C.F.R. § 3160.0-5.
11

notify BLM within 60 days from the date of actual or constructive notice” that drainage is 

occurring of the steps the lessee will take to protect the lease, id. § 3162.2-9(b)(1), and “must 

take protective action within a reasonable time after” receiving actual or constructive notice “that 

the potentially draining well had begun to produce oil or gas,” id. § 3162.2-11(a)(1). Similarly, 

the lease terms include a commitment by the lessee “[t]o drill and produce all wells necessary to 

offset or protect the leased land from drainage or in lieu thereof, to compensate the lessor in full 

each month for the estimated loss of royalty through drainage.” See Pls.’ Resp. to Mot. to Quash 

Ex. 2 (M1969 Lease) ¶ 3(b), ECF No. 79-2.

The government notes that these lease terms and regulatory prescriptions require lessees, 

rather than the Secretary, to protect Plaintiffs’ resources against drainage. See Def.’s Cross-Mot. 

at 16. But while the obligation to avoid uncompensated drainage belongs to the lessees in the 

first instance, BLM is charged with enforcing those obligations. See 43 C.F.R. § 3161.2 (stating 

that BLM “is authorized and directed . . . to require compliance with lease terms, with the 

regulations in this title and all other applicable regulations” (emphasis added)). BLM must also 

notify lessees of their obligation to prevent drainage and must assess payments from lessees that 

fail to protect their leases from drainage. See id. § 3162.2-10 (explaining to lessees that BLM 

“will send you a demand letter . . . if we believe that drainage is occurring); id. § 3162.2-11(b) 

(providing that BLM “will determine . . . whether [lessees] took protective action within a 

reasonable time” after receiving a demand letter or other notice of drainage); id. § 3162.2-12 

(stating that BLM “will assess compensatory royalty beginning on the first day of the month 

following the earliest reasonable time” it determines that a lessee “should have taken protective 

action”). 

Indeed, BLM’s handbooks, including its Drainage Protection Manual, emphasize the 

importance of its fiduciary obligations to protect Indian mineral owners against drainage, and to 

secure compensation for them when it occurs. See, e.g., App. to Pls.’ Opp’n to Def.’s Cross-Mot. 

for Summ. J. & Reply in Supp. of Pls.’ Mot. for Summ. J. (“App. to Pls.’ Resp.”) Ex. 8 (BLM’s 

2015 Drainage Protection Manual) § 1.4 (“It is the responsibility of the Secretary of the Interior 

to protect . . . Indian lessors from loss of royalty as a result of drainage.”), ECF No. 188-9; id.

Ex. 3 (BLM’s 1999 Drainage Protection Guidelines) ¶ .06 (“Protecting . . . Indian lessors from 

loss of royalty as a result of drainage is a prime responsibility of the [BLM].”), ECF No. 188-3; 

id. Ex. 6 (BIA’s 2012 Fluid Mineral Estate Procedural Handbook) § 1.2(B) (discussing the 

division of responsibilities among federal agencies that oversee oil and gas leases and specifying 

that BLM “[i]dentifies drainage . . . and notifies BIA and makes recommendations for remedy”), 

ECF No. 188-7.

To be sure, BLM has discretion to choose which tool or tools to use in response to 

drainage. See 43 C.F.R. §§ 3162.2-2, 3162.2-4 (identifying actions BLM “may take” or “may 

require” lessees to take when it determines that Indian mineral resources are being drained). But 

the regulations clearly contemplate that inaction by the United States in the face of the theft of 

Plaintiffs’ mineral resources is not an option. See White Mountain Apache, 537 U.S. at 475 

(observing that “elementary trust law . . . confirms the commonsense assumption that a fiduciary 

actually administering trust property may not allow it to fall into ruin on his watch” and that 

“[o]ne of the fundamental common-law duties of a trustee is to preserve and maintain trust 
12

assets” (quoting Cent. States, Se. & Sw. Areas Pension Fund v. Cent. Transp., Inc., 472 U.S. 

559, 572 (1985))). 

The Court concludes, therefore, that the government has a specific fiduciary obligation to 

protect Plaintiffs against the uncompensated drainage of oil and gas held in trust for them. Prong 

1 of the test for determining Indian Tucker Act jurisdiction is satisfied as to Count 3.

3. Count 7

The FBMLA states that the Secretary “may approve any mineral lease or agreement that 

affects individually owned Indian land, if . . . the owners of a majority of the undivided interest 

in the Indian land that is the subject of the mineral lease or agreement . . . consent to the lease or 

agreement.” FBMLA § 1(a)(2)(A)(i). In Count 7, Plaintiffs contend that the Secretary has 

violated this provision by approving communitization and unitization agreements that affect their 

land on the Reservation without obtaining consent from the owners of a majority of the interest 

in the land. Third Am. Compl. ¶¶ 77–78. Plaintiffs also allege that some of the agreements cover 

as many as 1,280 acres, which they contend violates the 640-acre limitation on the coverage of 

oil and gas leases set forth in 25 C.F.R. § 211.25. Id. ¶¶ 76, 78. They claim that these violations 

constitute a breach of the Secretary’s fiduciary duty to Plaintiffs, including the duty to act in their 

best interests. Id. ¶ 79.

The government does not deny that the claims in Count 7 are based on regulatory and 

statutory provisions that impose specific obligations on the United States. See Def.’s Cross-Mot. 

at 17–18. The Court, likewise, finds that the FBMLA’s consent requirement and the regulation’s 

acreage limitation on mineral leases plainly prescribe the Secretary’s conduct with respect to oil 

and gas leases on allotted land. Count 7 therefore satisfies prong 1 of the test for jurisdiction 

under the Indian Tucker Act. 

4. Count 8

In Count 8, Plaintiffs claim that the Secretary breached what they allege was a duty 

imposed upon her by the governing regulations to ensure the timely drilling of oil and gas wells 

on Plaintiffs’ leased land. See Third Am. Compl. ¶¶ 82–86. They contend that the Secretary 

“took no action to require that drilling and completion for oil and gas actually occur on 

Plaintiffs’ land in a proper and timely manner” and that she “allowed operators to deviate from 

the existing drilling schedules so that other allotments were drilled in advance of Plaintiffs[’],” 

id. ¶ 86, which “result[ed] in increased drainage from Plaintiffs’ land,” id. at ¶ 87. 

As Plaintiffs note in their response to the government’s challenge to the Court’s 

jurisdiction over Count 8, the allegations in Count 8 are related to those in Count 3. See Pls.’ 

Opp’n to Def.’s Cross-Mot. for Summ. J. & Reply in Supp. of Pls.’ Mot. for Summ. J. (“Pls.’ 

Resp.”) at 29, ECF No. 187. Specifically, Count 8 ties the government’s failure to require lessees 

to timely drill wells to the Secretary’s duty to protect Plaintiffs’ oil and gas against drainage. See

id.
13

In addition, the Court has already recognized that the regulations impose a specific 

obligation on the Secretary to ensure that lessees comply with lease terms. See 43 C.F.R. 

§ 3161.2. The government acknowledges as much but argues that “there is no lease term that 

requires that drilling occur within a set period of time.” See Def.’s Cross-Mot. at 7. That 

observation appears accurate. But the terms of Plaintiffs’ leases also state that lessees must 

“exercise reasonable diligence in drilling and operating wells . . . having due regard for the 

prevention of waste of oil or gas.” Pls.’ Resp. to Mot. to Quash Ex. 2 (M1969 Lease) ¶ 3(f); see

also id. ¶ 3(b)(3) (stating that “if the lessee elects not to drill [offset wells to protect against 

drainage] . . . the Secretary of the Interior may . . . require the drilling and production of such 

wells to the number necessary . . . to insure reasonable diligence in the development and 

operation of the property”); Def.’s Mot. to Dismiss Ex. A (M3111 Lease) ¶ 3(b) (same), ECF 

No. 10-1. And the regulation entitled “[d]rilling and producing operations” gives the government 

the power to direct lessees to meet their obligation to develop the property. See 43 C.F.R. 

§ 3162.2-1. It states that lessees “shall promptly drill and produce such other wells as the 

authorized officer may reasonably require in order that the lease may be properly and timely 

developed and produced in accordance with good economic operating practices.” Id. § 3162.2-

1(b). 

Further, BLM detailed its obligation to ensure that lessees act with reasonable diligence 

in its Indian Diligent Development manual, which “contains guidance for policy and the 

procedures necessary to assure the diligent development of producing Indian oil and gas leases in 

an orderly and timely manner.” App. to Pls.’ Resp. Ex. 2 (BLM’s 1991 Indian Diligent 

Development manual), at 1, ECF 188-2. The authorities listed for the promulgation of the 

manual include the regulations identified above as well as “Indian Tribal and Allotted Lease 

Terms.” Id. ¶ .03. It delegates to BLM State Directors the obligation to:

Monitor producing Indian leases to determine whether such leases are fully

developed, diligently developed for the current review cycle, or not diligently 

developed. Assure that additional development occurs or required wells are timely 

drilled on undeveloped spacing units consistent with the prudent operator rule.

Recommend to the [BIA] that it, in consultation with the affected tribe or allottee, 

require the lessee to relinquish undeveloped acreage, or require additional 

payments in lieu of diligent drilling pursuant to lease terms, or cancel leases. 

Id. ¶ .04.

In short, the Court agrees with Plaintiffs that the United States has a specific fiduciary 

obligation to ensure that lessees exhibit reasonable diligence in their development of mineral 

resources. Prong 1 of the test for jurisdiction under the Indian Tucker Act is therefore met with 

respect to Count 8.

5. Count 9

In Count 9, Plaintiffs allege that the United States breached its fiduciary duties by failing 

to lease some 500 acres of allotted land held in trust for them, notwithstanding their requests that 

it do so. Third Am. Compl. ¶ 89–90. The government contends that the Court lacks jurisdiction 
14

over this claim because Plaintiffs have failed to identify a substantive law that requires the 

United States to lease all of their allotted lands. Def.’s Cross-Mot. at 9. 

The Court agrees with the government. Plaintiffs have not identified a statute or 

regulation that requires the Secretary to lease all of their lands for oil and gas development upon 

their request. See Pls.’ Resp. at 31. They purport to rely on the same Title 43 regulations that 

they cite in support of Count 8, but those regulations address the duty of the Secretary to enforce 

the terms of leases that require lessees to exercise due diligence in developing the land for oil 

and gas production. See id. at 28–31; see also, e.g., 43 C.F.R. §§ 3161.2, 3162.2-1. They do not 

impose any specific obligation on the Secretary to enter such leases in the first instance. See 

generally 43 C.F.R. Subparts 3160–3162. Count 9 therefore is not within this Court’s jurisdiction 

under the Indian Tucker Act.

6. Count 10

In Count 10, Plaintiffs allege that the United States has a fiduciary duty to lease 

approximately 200 acres of their unleased allotted lands for grazing purposes but that it has not 

done so. Third Am. Compl. ¶¶ 95–96. They allege that this obligation is derived from 25 U.S.C. 

§§ 177 and 3715, and 25 C.F.R. § 162.021. Id. ¶ 94. Plaintiffs’ response to the government’s 

cross-motion for summary judgment, however, relies exclusively on 25 U.S.C. § 3701(2), which 

states that “the United States has a trust responsibility to protect, conserve, utilize, and manage 

Indian agricultural lands consistent with its fiduciary obligation[s].” Pls.’ Resp. at 32 (alteration 

in original) (quoting 25 U.S.C. § 3701(2)). 

This provision, however, does not impose any specific obligation on the United States to 

lease property for grazing purposes. It merely recites a general trust relationship regarding Indian 

agricultural lands. “[A] statute or regulation that recites a general trust relationship between the 

United States and Indian People is not enough to establish any particular trust duty.” Hopi Tribe, 

782 F.3d at 667. Plaintiffs have therefore failed to satisfy prong 1 of the test for jurisdiction 

under the Indian Tucker Act.

D. Application of Prong 2: Money-Mandating Nature of Obligations

Having found that Counts 1, 3, 7, and 8 allege violations of specific fiduciary obligations 

set forth in the relevant statutes and regulations, the next issue before the Court is whether those

statutes and regulations “can fairly be interpreted as mandating compensation by the Federal 

Government for the damages sustained.” See Mitchell II, 463 U.S. at 218. In this case, the 

answer to that question is yes; the money-mandating nature of the obligations may be inferred 

from the government’s comprehensive control over the development of oil and gas on Plaintiffs’ 

land.

This conclusion follows from the Supreme Court’s decision in Mitchell II. In that case, 

Plaintiffs alleged that the United States mismanaged timber resources that it held in trust for 

Indian beneficiaries. Id. at 210. The Supreme Court observed that the timber management 

statutes and implementing regulations “establish the ‘comprehensive’ responsibilities of the 

Federal Government in managing the harvesting of Indian timber.” Id. at 222 (quoting White 
15

Mountain Apache Tribe v. Bracker, 448 U.S. 136, 145 (1980)). The United States, in fact, 

“exercise[d] literally daily supervision over the harvesting and management of tribal timber.” Id.

(quoting Bracker, 448 U.S. at 147). Because the statutes and regulations “clearly g[a]ve the 

Federal Government full responsibility to manage Indian resources and land for the benefit of the 

Indians,” the Court held, they “establish a fiduciary relationship and define the contours of the 

United States’ fiduciary responsibilities.” Id. at 224. Therefore, according to the Court, the 

statutes and regulations that imposed specific obligations could also “fairly be interpreted as 

mandating compensation by the Federal Government for damages sustained.” Id. at 226.

The statutory and regulatory framework for management of mineral resources is very 

similar to the one that governed timber resources in Mitchell II. As described in detail above, see

supra Section II.B., it “places the Secretary of the Interior at the center of the leasing of Indian 

mineral lands” and gives her “wide powers” over Indian mineral leases, Pawnee, 830 F.2d at 

189, 190. The Secretary “determines whether to consent to a lease and the terms of the lease . . . 

performs ‘any and all acts’ necessary to carry out the statute ‘into full force and effect’ . . . [and] 

makes such rules and regulations as may be necessary to carry out the legislation.” Id. at 189 

(quoting 25 U.S.C. § 396); see also Coosewoon v. Meridian Oil Co., 25 F.3d 920, 927 (10th Cir. 

1994) (describing the detailed and comprehensive scheme under which the Secretary exercises 

supervisory authority over oil and gas leases on Indian land); Shoshone Indian Tribe of the Wind 

River Rsrv. v. United States, 56 Fed. Cl. 639, 644 (2003) (describing similarities between the oil 

and gas regulations applicable here and the timber regulations considered in Mitchell II). 

Moreover, she is directed by law to “aggressively carry out [her] trust responsibility in the 

administration of Indian oil and gas.” 30 U.S.C. § 1701(a)(4).

Further, as was also the case in Mitchell II, the substantive law, i.e., 25 U.S.C. § 396 and 

its implementing regulations as well as the FBMLA, contain trust-evoking language. See

Mitchell II, 463 U.S. at 224 (explaining that the relevant timber-management statute required the 

Secretary to consider “the needs and best interests of the Indian owner and his heirs” and to 

ensure that proceeds from timber sales were “disposed of for [the Indian owners’] benefit” 

(quoting 25 U.S.C. § 406(a))). The FBMLA authorizes the Secretary to approve “any mineral 

lease or agreement that affects individually owned Indian land” where she determines “that 

approving the lease or agreement is in the best interest of the Indian owners of the Indian land.” 

FBMLA § 1(a)(2)(A)(ii). And 25 U.S.C. § 396 states that the Secretary has “the right to reject all 

bids” put forward by potential lessees “whenever in h[er] judgment the interests of the Indians 

will be served by so doing, and to readvertise such lease for sale.”

Similarly, the purpose of the regulations at 25 C.F.R. Part 212 is to “ensure that Indian 

mineral owners desiring to have their resources developed are assured that they will be 

developed in a manner that maximizes their best economic interests and minimizes any adverse 

environmental impacts or cultural impacts resulting from such development.” 25 C.F.R. 

§ 212.1(a); see also id. § 212.3 (enumerating factors that the Secretary must consider when 

deciding whether a government action affecting mineral resources on allotted lands is “in the 

best interest of the Indian mineral owner”). This language further “supports the existence of a 

fiduciary relationship.” See Mitchell II, 463 U.S. at 224; see also Pawnee, 830 F.2d at 190 

(finding a fiduciary relationship based in part on statutes and regulations that “always call for 

consideration of the best interests” of the Indian mineral owners). Additionally, as in Mitchell II, 
16

the Court’s “construction of these statutes and regulations is reinforced by the undisputed 

existence of a general trust relationship between the United States and the Indian people.” See

463 U.S. at 225. 

The Court finds, therefore, that the government’s comprehensive responsibility for 

approving and managing Indian oil and gas leases under the Indian Long-Term Leasing Act and 

its implementing regulations, in conjunction with the FBMLA, and the regulations at 43 C.F.R. 

Subchapter C, establish a fiduciary relationship between the United States and Plaintiffs with 

respect to the management of the oil and gas resources on their land. See Pawnee 830 F.2d at 

189–91 (concluding that the Indian Long-Term Leasing Act, in conjunction with the Federal Oil 

and Gas Royalty Management Act, 30 U.S.C. §§ 1701–57, and their implementing regulations, 

impose upon the United States “a general fiduciary obligation toward the Indians with respect to 

the management of . . . oil and gas leases”); accord Coosewoon, 25 F.3d at 929 (observing that 

“[t]he United States has a general fiduciary obligation to Indians with respect to management of 

oil and gas leases on Indian land”).5 And “[b]ecause the statutes and regulations at issue in this 

case clearly establish fiduciary obligations of the Government in the management and operation 

of Indian lands and resources, they can fairly be interpreted as mandating compensation by the 

Federal Government for damages sustained.” See Mitchell II, 463 U.S. at 226. 

Finally, the Court notes that its foregoing conclusions do not rely upon what the 

government calls a “trust-based-on-control” argument that it says “the Supreme Court rejected in 

Navajo II.” See Def.’s Reply in Supp. of Its Cross-Mot. for Summ. J. (“Def.’s Reply”) at 1, ECF 

5 The government notes that the 43 C.F.R. Subchapter C regulations apply to both public lands 

and to those held in trust for individual Indians and do not use the trust-evoking language 

contained in the regulations at 25 C.F.R. Parts 211 and 212. See Def.’s Cross-Mot. at 15. 

According to the government, the Title 43 regulations can therefore not be a basis for finding the 

existence of a fiduciary relationship between the United States and Plaintiffs or be the source of 

specific fiduciary obligations. See id. This argument lacks merit. 

The Title 43 regulations, as noted, expressly cross reference the regulations at 25 C.F.R. Parts 

211 and 212, see 43 C.F.R. § 3160.0-7, and the latter explicitly state that the regulations at 43 

C.F.R. Part 3160 apply to leases issued under those Parts, see 25 C.F.R. §§ 211.4, 212.4. The 

regulations are thus inextricably intertwined, as is reflected by the language of the Department of 

the Interior’s manuals and handbooks. See, e.g., App. to Pls.’ Resp. Ex. 8 (BLM’s 2015 Drainage 

Protection Manual) § 1.3 (noting that 43 C.F.R. Part 3160 “applies to oil and gas operations on 

Indian lands” and citing 25 C.F.R. §§ 211.4 and 212.4); id. Ex. 18 (Office of Natural Resources 

Revenue’s Oil and Gas Indian Payor Handbook) §§ 1.2, 1.3 (explaining that the government has 

a trust responsibility “to supervise and approve all dispositions of [Indian] trust assets, including 

oil and gas resources” and listing the regulations at Titles 25 and 43 of the Code of Federal 

Regulations as among those affecting the Office of Natural Resources Revenue’s role in carrying 

out that responsibility), ECF No. 188-19; id. Ex. 6 (BIA’s 2012 Fluid Mineral Estate Procedural 

Handbook) at 185 (Attach. 25, Designation of Operator Form) (explaining that the government 

may serve on a lessee’s designated operator “written or oral instructions in securing compliance 

with the Operating Regulation,” which the form defines as “43 CFR 3160 and 25 CFR § 211 and 

212”).
17

No. 191; see also Navajo II, 556 U.S. at 301–02. In that case, Plaintiffs sought damages based on 

breach of fiduciary obligations where the Secretary allegedly delayed action on an administrative 

appeal to pressure the Navajo Nation to negotiate an agreement with Peabody Coal (its lessee). 

Navajo II, 556 U.S. at 291–92. As a result of the pressure, the Tribe alleged, it accepted (and the 

Secretary approved) a smaller upward adjustment to its royalty rate than the one BIA had 

imposed, and which was the subject of Peabody’s administrative appeal. Id. The Tribe claimed 

that the Secretary’s actions violated the United States’ fiduciary obligation to act in the Indians’ 

best interests. Id. at 292. 

The Court concluded that the Indian Tucker Act did not provide jurisdiction over the 

Tribe’s breach-of-trust claims because the Tribe failed to identify a statute or regulation 

establishing a specific fiduciary or other duty that was allegedly violated. Id. at 302. The Court 

also rejected the Federal Circuit’s holding that the government violated general trust duties 

rooted in the United States’ “comprehensive control” over coal leasing on Indian land. Id. at 295, 

301–02. Comprehensive control, the Court held, may support finding that the government is 

subject to enforceable fiduciary duties only if coupled with “specific rights-creating or dutyimposing statutory or regulatory prescriptions.” Id. at 301 (quoting Navajo I, 537 U.S. at 506). If 

so, and if those prescriptions “bear[] the hallmarks of a ‘conventional fiduciary relationship,’” 

the Court explained, “then trust principles (including any such principles premised on ‘control’) 

could play a role in ‘inferring that the trust obligation [is] enforceable by damages.’” Id. (second 

alteration in original) (quoting White Mountain Apache, 537 U.S. at 473, 477). 

In this case, the Court finds all of the conditions the Supreme Court articulated in Navajo 

II satisfied as to the claims in Counts 1, 3, 7, and 8 of Plaintiffs’ Third Amended Complaint. See

supra Sections II.C., II.D.; 556 U.S. at 290–91. It concludes that Plaintiffs have alleged the 

violations of specific fiduciary obligations imposed by statute and regulation. See supra Section 

II.C. It further finds that the comprehensive control the Secretary exercises over mineral leasing, 

coupled with the trust language found in the relevant statutes and regulations, gives rise to an 

inference that damages are available for the violation of those specific obligations. See supra

Section II.D. Therefore, the Court’s conclusions are entirely consistent with Navajo II.

E. Whether Count 1 is Barred by the Statute of Limitations

The Court has rejected the government’s argument that the claims in Count 1 

(challenging the alleged failure to advertise the leases to receive optimum competition for bonus 

consideration) are not within this Court’s jurisdiction under the Indian Tucker Act. See supra

Sections II.C., II.D. The government also argues, however, that—based on the undisputed 

facts—all claims regarding the leases executed in 2007, 2008, and 2009 are barred by 28 U.S.C. 

§ 2501. Def.’s Cross-Mot. at 19–22. That provision states that claims in this Court must be filed 

within six years of the time they “first accrue[],” 28 U.S.C. § 2501, i.e., within six years from the 

date when all the events have occurred which fix the liability of the government, Ramona Two 

Shields v. United States, 820 F.3d 1324, 1329 (Fed. Cir. 2016). 

“A cause of action for breach of trust traditionally accrues when the trustee ‘repudiates’ 

the trust and the beneficiary has knowledge of that repudiation.” Shoshone Indian Tribe of the 

Wind River Rsrv. v. United States, 364 F.3d 1339, 1348 (Fed. Cir. 2004). “A trustee may 
18

repudiate the trust by express words or by taking actions inconsistent with his responsibilities as 

trustee.” Id. An “objective standard applies to the accrual of a claim for breach of fiduciary 

duty.” San Carlos Apache Tribe v. United States, 639 F.3d 1346, 1350 (Fed. Cir. 2011). 

Therefore, the claim accrues “when the trust beneficiary knew or should have known of the 

breach.” Jones v. United States, 801 F.2d 1334, 1335 (Fed. Cir. 1986).

As noted, Count 1 challenges BIA’s alleged failure to adequately advertise the leases it 

approved in 2007, 2008, and 2009. See Third Am. Compl. ¶¶ 37–38; see also Def.’s Cross-Mot. 

Ex. 2 (Pls.’ Answers to Def.’s First Revised Interrogs.) at 3, ECF No. 180-1. These claims 

accrued at the time BIA approved the leases. See Ramona Two Shields, 820 F.3d at 1329 

(“Appellants’ claims had accrued . . . when the BIA approved the . . . leases.”). Further, the 

government asserts, and Plaintiffs do not deny, that Plaintiffs had knowledge of the terms of all 

of the leases at the time they were approved and that approval of all of the leases took place more 

than six years before the complaint in this case was filed. See Def.’s Cross-Mot. at 20–21; see 

also Pls.’s Resp. at 38; Def.’s Reply at 13–14. 

Plaintiffs contend that the claims in Count 1 are nonetheless not barred by the statute of 

limitations because the statute of limitations was tolled by the filing of the class action lawsuit in 

the long-running Cobell litigation. See Pls.’ Resp. at 33; see also Cobell v. Salazar, 679 F.3d 

909, 913–16 (D.C. Cir. 2012) (summarizing the Cobell litigation from its start in 1996 to the 

district court’s final approval of a class settlement in 2011). This contention lacks merit.

It is well settled that “[t]he filing of a class action tolls the statute of limitations ‘as to all 

asserted members of the class.’” Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 350 (1983) 

(quoting Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554 (1974)); see also Am. Pipe & 

Constr., 414 U.S. at 552–53 (holding that filing of a class action tolls the statute of limitations for 

would-be class members who seek to intervene in individual lawsuits after a court denies class 

certification); Bright v. United States, 603 F.3d 1273, 1286 (Fed. Cir. 2010) (observing that “the 

filing of a class action complaint . . . toll[s] the limitations period of 28 U.S.C. § 2501”). When 

the class action in Cobell was filed, however, it did not claim breach of fiduciary obligations 

with respect to the management of the plaintiffs’ mineral interests. See generally Compl., Cobell 

v. Babbitt, 30 F. Supp. 2d 24 (D.D.C. 1998) (No. 96-1285), 1996 WL 34443583. The original 

complaint requested an accounting based on the government’s alleged breach of its trust 

obligations with respect to the management of Individual Indian Money (“IIM”) accounts. See

id. ¶¶ 1–4. In fact, the complaint itself expressly disclaimed that it was seeking a remedy for 

breaches of trust involving other money or property held in trust for Indian tribes. Id. ¶ 5.

It was not until 2010, as part of the parties’ settlement in Cobell, that the plaintiffs in that 

case filed an amended complaint setting forth claims alleging mismanagement of other property 

held in trust, including mineral resources. See Am. Compl. ¶ 4(g), Cobell v. Salazar, No. 96-

1285 (D.D.C. Dec. 21, 2010) (“Cobell Am. Compl.”), ECF No. 3671. Those claims do not relate 

back to the original complaint in Cobell because they are based on different underlying facts and 

breaches of trust. See Fauvergue v. United States, 85 Fed. Cl. 50, 54 (2008) (explaining that the 

Federal Circuit determines whether an amendment relates back to an original complaint “[by] 

focus[ing] on the notice given [to the defendant] by the general fact situation set forth in the 

original pleading” (alterations in original) (quoting Snoqualmie Tribe of Indians v. United States, 
19

372 F.2d 951, 960 (Ct. Cl. 1967))). Therefore, to the extent that the limitations period is tolled 

for the claims in Count 1, that tolling period would begin when the amended complaint was filed 

(December 21, 2010), see Cobell Am. Compl., and end when Plaintiffs opted out of the suit on or 

before April 20, 2011, see Order ¶ 11, Cobell v. Salazar, No. 96-1285 (D.D.C. Dec. 21, 2010), 

ECF No. 3667.6

Plaintiffs also argue that Count 1 was timely filed because they did not discover the 

breach of trust until less than six years before they filed the Complaint. Pls.’ Resp. at 37–39. 

They point out that as trust beneficiaries they are entitled “to rely on the good faith and expertise 

of [the government]” and are not required “to supervise the day-to-day management of their 

[property].” Id. at 37 (first quoting Shoshone, 364 F.3d at 1347; then quoting Mitchell II, 463 

U.S. at 227). Further, Plaintiffs observe, trustees who breach their fiduciary responsibilities often 

do so without placing the beneficiary on notice of those breaches. Id. at 38 (citing Shoshone, 364 

F.3d at 1348).

But the specific injuries about which Plaintiffs complain in Count 1—the failure to 

conduct a competitive bidding process and to maximize Plaintiffs’ interests—were, or should 

have been, apparent on the face of the lease agreements. See Third Am. Compl. ¶¶ 37–38. 

Moreover, it is undisputed that Plaintiffs had contemporaneous knowledge of the process that 

BIA was using to bid the leases of their mineral interests. See Def.’s Cross-Mot. Ex 3 (N. 

Birdbear Dep.) at 4–5, ECF No. 180-2 (describing Plaintiff Nelson Birdbear’s attendance at a 

2007 auction of mineral leases for Plaintiffs’ allotments and observing that the auction consisted 

of the reading of bids that were sent in by mail rather than in-person competition for the leases).

Finally, citing Shoshone Indian Tribe of the Wind River Rsrv. v. United States, 672 F.3d 

1021, 1035–36 (Fed. Cir. 2012), Plaintiffs argue that the claims in Count 1 are not time barred 

because they involve continuing violations. Pls.’ Resp. at 39–40. They contend that the mineral 

leases at issue “are void for failure to competitively bid [them] and because [the government] did 

not conduct a ‘best interests’ determination in accordance with the regulations.” Id. at 39. As a 

result, according to Plaintiffs, the lessees are trespassers. Id. They assert that 25 C.F.R. § 211.54 

imposes a duty on the Secretary to eject trespassers and argue that the lessees’ “continuing 

trespasses each give rise to their own cause of action with its own six-year limitations period.” 

Id. Plaintiffs’ arguments—which are reduced to a single paragraph in their response brief—lack 

merit.

In Shoshone, the Secretary had approved the conversion of certain pre-existing long-term 

oil and gas leases entered under the authority of an earlier statute into leases under the 1938 

Indian Mineral Leasing Act (“IMLA”), 25 U.S.C. §§ 396a–396g. Shoshone, 672 F.3d at 1026–

27. The plaintiff Indian Tribes claimed that the Secretary lacked the authority to so “convert” the 

pre-existing leases because the IMLA obligated the Secretary to subject such leases to 

6 The limitations period may therefore be extended by, at most, 120 days. Because the Complaint 

in this case was filed on January 13, 2016, see Compl., all claims that accrued before September 

15, 2009, would be barred. According to the United States there is only one lease at issue in this 

case that was entered after that date. See Def.’s Reply at 13; see also Def.’s Cross-Mot. Ex. 1, 

Attach. A, ECF No. 184-1.
20

competitive bidding and award leases “to the highest responsible qualified bidder.” Id. at 1035; 

see also 25 U.S.C. § 396b. 

The court of appeals noted that it was undisputed “that the [IMLA] requires leases to be 

competitively bid.” Shoshone, 672 F.3d at 1037 (citing 25 U.S.C. § 396b). Moreover, the court 

observed, “[a]ll conveyances of Indian lands must occur . . . in accordance with the Nonintercourse Act.” Id. That Act “requires a federal statute or treaty to authorize conveyances 

between an Indian Tribe and a third party.” Id. at 1038. “[F]ailure to strictly comply with the 

requirements of such a statute,” the court explained, “renders any resulting conveyance void.” Id. 

The leases at issue in Shoshone were therefore void because they lacked a statutory basis. See id.

The court of appeals then addressed the government’s argument that, “even if the leases 

are void, the lessees would be tenants at sufferance or tenants at will, i.e., the lessees would have 

a license, and would, thus, not be trespassers.” Id. It rejected that argument, holding that 

imputing any implied rights to the lessees would run counter to the will of Congress, expressed 

in the Non-Intercourse Act, to prohibit leases from having any legal effect where, as in 

Shoshone, the lease was not authorized by statute. Id. at 1038–39.

Having concluded that the lessees in Shoshone were trespassers, the court of appeals 

remanded the case to the trial court to decide in the first instance whether the plaintiffs had 

identified a source of substantive law establishing a specific obligation on the government’s part 

to eject trespassers. Id. at 1041.

Shoshone is inapposite. Plaintiffs do not claim that the Secretary lacked the statutory 

authority to enter the mineral leases at issue here, as in Shoshone. Instead, as described above, 

their argument is that—in violation of fiduciary obligations allegedly imposed by statute and 

applicable regulations—the leases BIA secured did not optimize their interests. Third Am. 

Compl. ¶¶ 37–38. In other words, Plaintiffs’ claims challenge the adequacy of the process the 

Secretary employed when she leased Plaintiffs’ mineral interests; they do not challenge her 

authority to lease them in the first instance, as in Shoshone. See id. ¶ 40; Shoshone, 672 F.3d at 

1035, 1037–38. Therefore, even if the Plaintiffs claims in Count 1 were meritorious, that would 

not render the leases void. Nor would it render the lessees trespassers.

Finally, even if the leases were void, and even if the lessees could be treated as 

trespassers, Plaintiffs have not met their burden of showing the existence of a duty on the 

Secretary’s part to eject such alleged trespassers. Plaintiffs simply assert, without explanation, 

that 25 C.F.R § 211.54 imposes such a duty. Pls.’ Resp. at 39. That regulation only gives the 

Secretary discretionary authority to cancel a lease upon determining that a lessee “has failed to 

comply with the terms of the . . . lease.” 25 C.F.R. § 211.54(a). It does not create a broader duty 

to remove trespassers. In fact, it is not even clear how the provision applies to the allegations in 

Count 1, which do not involve violations of lease terms. See Third Am. Compl. ¶¶ 36–41. 

Because Plaintiffs have not met their burden of establishing that the Secretary breached a 

continuing duty to remove the lessees, the statute of limitations bars the claims in Count 1, 

except as to leases entered on or after September 15, 2009, for the reasons set forth above. See

supra note 6.
21

III. The Parties’ Cross-Motions for Summary Judgment as to Count 4

The parties filed cross-motions for summary judgment as to Count 4 of Plaintiffs’ Third 

Amended Complaint. In their motion, Plaintiffs argue that they are entitled to judgment as a 

matter of law because the United States—without notice or hearings—disbursed funds to lessees 

from Plaintiffs’ IIM accounts. Pls.’ Mot. 1–2.7 They contend that doing so violated their rights to 

due process and constituted a breach of the United States’ fiduciary obligations. Id. at 2, 10 

(citing Kennerly v. United States, 721 F.2d 1252, 1254, 1257 (9th Cir. 1983)). The government, 

for its part, contends that it is entitled to summary judgment because the factual premise of 

Plaintiffs’ claim is based on a misreading of the Statements of Performance (“SOPs”) that the 

United States provides IIM account holders on a quarterly basis. Def.’s Cross-Mot. at 35–36. 

The Court finds the government’s argument persuasive and consistent with the 

undisputed facts. SOPs report transaction activity in IIM accounts. R. Winter Decl. ¶ 11; see, 

e.g., Pls.’ Mot. Ex. 3 (Sept. 1, 2015 SOP), ECF No. 178-1; id. Ex. 4 (Sept. 1, 2010 SOP), ECF 

No. 178-2; id. Ex. 8 (Sept. 1, 2018 SOP), ECF No. 178-6. But contrary to Plaintiffs’ claims in 

Count 4, the transactions on their SOPs that were identified as “Cash Disbursements” to the 

“Great Plains Regional Office [of BIA]” do not reflect withdrawals made from their accounts by 

lessees. See, e.g., Sept. 1, 2018 SOP at 2; see also Pls.’ Mot. at 2–3. Rather, they reflect 

adjustments that lessees make in the amount of the royalty payments that they put into the 

accounts. See Def.’s Cross-Mot. at 36; R. Winter Decl. ¶ 15. 

As the government explains, operators are required to make royalty payments to 

Plaintiffs within the month following the sale of the oil or gas they have extracted. Winter Decl. 

¶ 17. It is routine for operators to make estimated payments and then adjust the payments they 

make in subsequent months to account for shortfalls or overpayments caused by inaccuracies in 

their estimates. Id.; see also Def.’s Cross-Mot. Ex. 12 (G. Chavarria Dep.) at 71:8–73:13 

(explaining that a cash adjustment does not result in the withdrawal of monies; rather “[i]t’s an 

adjustment to current month’s collections based off previous months’ reversals and re-credits” 

either as determined by the oil producer or required by the Office of Natural Resources Revenue 

(“ONRR”)), ECF No. 180-7.

Indeed, in their response to the government’s cross-motion for summary judgment as to 

Count 4, Plaintiffs appear to concede the validity of the government’s explanation of the “cash 

disbursement” notation. See Pls.’ Resp. at 45–48. They contend, however, that even if the cash 

disbursements reflect funds that were deducted from Plaintiffs’ royalty payments before they 

were deposited, that practice also resulted in a deprivation of their property without due process 

of law. Id.

7 An IIM account is an interest-bearing account managed by the Department of the 

Interior, Bureau of Trust Funds Administration (“BTFA”) on behalf of individuals like 

Plaintiffs who have money or other assets held in trust for them by the federal government. See

25 C.F.R. § 115.002; Def.’s Cross-Mot. Ex. 6 (R. Winter Decl.), ¶¶ 3, 5, 7, ECF No. 180-3. The 

federal government deposits rents and royalties paid under mineral leases into allottees’ IIM 

accounts. R. Winter Decl. ¶¶ 7, 14. Thereafter, the account holders are generally free to transfer 

these monies into other accounts of their choosing. See 25 C.F.R. § 115.101.
22

Plaintiffs’ due process argument lacks merit for a number of reasons including that, 

because the funds did not belong to Plaintiffs until they were actually deposited in their IIM 

accounts, Plaintiffs lacked the property interest required to implicate the Due Process Clause. To 

be sure, Plaintiffs had a property interest in their royalties, once earned. But they do not allege in 

Count 4 that they did not receive their royalties. They instead object to the accounting method 

employed to ensure the accuracy of the royalty amounts deposited from month to month. Their 

motion for summary judgment as to this claim is therefore denied, and the government’s crossmotion is granted.

IV. The Government’s Cross-Motion Alleging that Plaintiffs Have Failed to Provide 

Evidentiary Support for Counts 2, 6, and 7

A. Count 2

In Count 2, Plaintiffs claim that the Secretary violated her obligation to “value the oil, 

gas, and natural gas produced and saved from Plaintiffs’ land for purposes of calculating 

royalties” they are due. Third Am. Compl. ¶¶ 43–44. At the oral argument on the parties’ crossmotions, Plaintiffs clarified that they were not arguing that the Secretary had not properly 

calculated the value of the oil and gas actually produced on their land. Oral Arg. Tr. at 66:6–

66:20, ECF No. 198. In fact, as the government points out, Plaintiffs have supplied no evidence 

to support such an allegation. See Def.’s Cross-Mot. at 26–27. Instead, Plaintiffs argued that this 

claim concerns their failure to receive royalty payments that they would have received had the 

Secretary not violated her fiduciary obligations to prevent drainage and to require the timely 

production of oil and gas on their lands. Oral Arg. Tr. at 66:17–68:4. 

So construed, Count 2 makes no claims that are not already encompassed by other claims 

in the Third Amended Complaint. Accordingly, to avoid confusion, the Court will strike Count 2 

from the Third Amended Complaint in accordance with RCFC 12(f).

B. Count 6

In Count 6, Plaintiffs allege that the United States breached its trust duties when, 

allegedly in violation of 30 C.F.R. § 1206.57, it allowed lessees to deduct transportation costs 

from Plaintiffs’ royalties without them having first submitted Oil Transportation Allowance 

Reports. Third Am. Compl. ¶¶ 70–71. The government contends that the pre-filing requirement 

for Oil Transportation Allowance Reports, which was in effect until July 1, 2015, applied only to 

oil leases, Def.’s Cross-Mot. at 29 (citing 30 C.F.R. §§ 1206.56, 1206.57; 80 Fed. Reg. 24,800 

(May 1, 2015)), and that “[n]o such requirement ever existed for gas,” id. (citing 30 C.F.R. 

§§ 1206.177, 1206.178).

In response, Plaintiffs appear to jettison their claims regarding the alleged failure of the 

lessees to submit Oil Transportation Allowance Reports. See Pls.’ Resp. 42–43. Instead, they 

press a different and more general argument that Plaintiffs’ leases are “gross proceeds” leases, 

which means that their royalties are calculated on the basis of the total amount the lessees receive 

for the products “without deductions for making the product[s] marketable.” Id. (quoting 
23

Newfield Expl. Co. v. State ex rel. N.D. Bd. of Univ. & Sch. Lands, 931 N.W.2d 478, 480 (N.D. 

2019). By allowing lessees to deduct transportation and other costs from Plaintiffs’ royalties, 

according to Plaintiffs, the United States violated its duty to collect the full amounts due under 

the leases. Id. at 43.

The claim pressed in Plaintiffs’ response is not the one Plaintiffs presented initially. 

Compare Third Am. Compl. ¶ 71, with Pls.’ Resp. at 42–43. Further, the new claim is legally 

without merit. As the government notes, the regulations permit lessees to deduct reasonable 

transportation costs for oil and gas. See Def.’s Reply at 18; see also 30 C.F.R. §§ 1206.52(h), 

1206.56(a), 1206.177(a). And the leases require lessees “[t]o abide by and conform to any and all 

regulations . . . in force relative to such leases.” See, e.g., App. to Pls.’ Resp. Ex. 31 (1744 

Lease) ¶ 3(g), ECF 188-33. Therefore, the deduction of transportation costs from Plaintiffs’ 

royalty payments did not result in a breach of the government’s fiduciary duties to collect and 

pay to Plaintiffs the royalty payments to which they are entitled under their lease agreements. 

The government is entitled to summary judgment as to this claim.

C. Count 7

In Count 7, Plaintiffs allege that the Secretary approved communitization and unitization 

agreements affecting Plaintiffs’ properties without obtaining consent from owners representing a 

majority interest in those properties, which they claim violated FBMLA § 1(a)(2)(A). Third Am. 

Compl. ¶¶ 77–78. That provision states that “[t]he Secretary may approve any mineral lease or 

agreement that affects individually owned Indian land, if . . . the owners of a majority of the 

undivided interest in the Indian land that is the subject of the mineral lease or agreement . . . 

consent to the lease or agreement.” FBMLA § 1(a)(2)(A)(i).8 Plaintiffs allege that they were 

injured by the approval of the agreements, although they do not explain how. See Third Am. 

Compl. ¶ 80; see also Pls.’ Resp. at 43–44.

The issue before the Court is the scope of the phrase “mineral lease or agreement.”

Plaintiffs read the phrase broadly to cover any agreement that “affects individually owned Indian 

land.” See Pls.’ Resp. at 43 (quoting FBMLA § 1(a)(2)(A)). This is not a reasonable reading of 

the statutory language because it would encompass agreements affecting the land that are 

unrelated to the mineral interests governed by the regulations. Instead, it is more reasonable to 

read the language so that the phrase “mineral lease or agreement” encompasses both mineral 

leases and mineral agreements. 

8 As explained above, Plaintiffs also allege in Count 7 that some of the communitization 

agreements the Secretary approved cover as many as 1,280 acres, which Plaintiffs claim violates 

the 640-acre limitation on the coverage of oil and gas leases set forth in 25 C.F.R. § 211.25. See

Third Am. Compl. ¶¶ 76, 78; supra Section II.C.3. While the Court has concluded that it has 

jurisdiction over this claim, it agrees with the government that the claim lacks legal merit. The 

regulation at 25 C.F.R. § 211.25 sets limits on the acreage size of individual leases; it does not 

govern the amount of acreage that may be subject to a communitization agreement. See 25 

C.F.R. § 211.25(a) (“[N]o single lease shall be granted . . . in excess of . . . 640 acres . . . .” 

(emphasis added)). The government is entitled to summary judgment as to this claim.
24

So construed, the issue then becomes whether a communitization agreement is a “mineral 

agreement.” To resolve that question, the Court must read the phrase “mineral agreement” in the 

context of the language of the FBMLA as a whole. See Gen. Dynamics Land Sys., Inc. v. Cline, 

540 U.S. 581, 596 (2004) (explaining a “cardinal rule” of statutory interpretation: “[s]tatutory 

language must be read in context” (alteration in original) (quoting Jones v. United States, 527 

U.S. 373, 389 (1999))); Dole v. United Steelworkers, 494 U.S. 26, 35 (1990) (stating that 

statutory interpretation is “not guided by a single sentence or member of a sentence, but look[s] 

to the provisions of the whole law” (quoting Massachusetts v. Morash, 490 U.S. 107, 115 

(1989))). The Court must also look to the statute’s purposes in interpreting its language. See

Wassenaar v. Off. of Pers. Mgmt., 21 F.3d 1090, 1096 (Fed. Cir. 1994).

The FBMLA is entitled “An Act [t]o permit the mineral leasing of Indian land located 

within the Fort Berthold Indian Reservation in any case in which there is consent from a majority 

interest in the parcel of land under consideration for lease.” As this statement of purpose reflects, 

and as described above, the FBMLA was enacted with a specific and narrow goal in mind: “ to 

facilitate the leasing of mineral rights” within the Reservation. Fredericks, No. 20-CV-2458, 

2021 WL 2778575, at *2 (quoting S. Rep. No. 105-205, at 1). Congress sought to eliminate an 

obstacle to that goal, which was the requirement that the Secretary obtain the approval of 

potentially “hundreds of owners of an undivided interest in a parcel of land” before leasing 

mineral rights. Id. (quoting S. Rep. No. 105-205, at 3–4). Under the FBMLA, the Secretary is 

empowered to approve leases with the consent of the majority of the owners of undivided 

interests, rather than all of them. FBMLA § 1(a)(2)(A)(i).

Considering the statutory language and its purposes, the Court concludes that 

communitization agreements are not “mineral agreements” because they govern activities 

undertaken after mineral leases have been entered and approved. Communitization agreements 

are “drilling agreements” that allow “operators who cannot independently develop separate tracts 

due to well-spacing or well development programs” to instead develop them cooperatively with 

other lessee operators. 43 C.F.R. § 3217.11. Their purpose is to “promot[e] conservation and 

efficient utilization of minerals.” 25 C.F.R. § 212.28(a). To those ends, the Secretary is 

authorized to “approve a cooperative unit, drilling or other development plan on any leased area 

upon a determination that approval is advisable and in the best interest of the Indian mineral 

owner.” Id.

Significantly for purposes of the issue at hand, the regulations at 25 C.F.R. Part 212 

(which were also in effect when the FBMLA was enacted in 1998) specifically state that “[t]he 

consent of the Indian mineral owner to such unit or cooperative agreement shall not be required 

unless such consent is specifically required in the lease.” 25 C.F.R. § 212.28(b). Plaintiffs 

contend that this regulation cannot be given effect because it conflicts with the FBMLA. Pls.’ 

Resp. at 44. The Court disagrees that such a conflict exists. Indeed, there is no reason to believe 

that, when it enacted the FBMLA, Congress intended to impose a consent requirement as to 

communitization agreements on the Reservation that applied nowhere else; to the contrary, as 

explained above, Congress’ focus was on rendering less restrictive the consent requirement 

applicable to the lease agreements themselves. See Fredericks, No. 20-CV-2458, 2021 WL 

2778575, at *2. Because the statute and the regulations can easily be reconciled with one 
25

another, the Court rejects Plaintiffs’ argument that the Secretary had an obligation to secure the 

consent of the Indian lessors before approving communitization agreements among lessees.

CONCLUSION

On the basis of the foregoing, Plaintiffs’ motion for partial summary judgment as to 

Count 4, ECF No. 177, is DENIED. The government’s motion for partial summary judgment, 

ECF No. 180, is GRANTED as to Counts 4, 6, 7, 9, and 10. It is also GRANTED as to Count 1, 

except as to leases entered on or after September 15, 2009, with respect to which it is DENIED. 

The government’s motion is DENIED as to Counts 3 and 8. Count 2 is STRICKEN from the 

Third Amended Complaint in accordance with RCFC 12(f).

Additionally, on March 9, 2022, Plaintiffs moved to supplement the record with slides 

from a Department of the Interior presentation entitled “Indian Mineral Royalty Management: 

Roles and Responsibilities of the U.S. Department of the Interior.” Pls.’ Mot. to Suppl., ECF No. 

201; see also M. Cashman Decl. in Supp. of Pls.’ Mot. to Suppl. Ex. 1, ECF No. 202-1. 

Plaintiffs’ motion to supplement is GRANTED. 

The parties are directed to file a joint status report no later than October 11, 2022,

recommending further proceedings in this case.

IT IS SO ORDERED.

s/ Elaine D. Kaplan 

ELAINE D. KAPLAN

Chief Judge