United States Court of Appeals 

for the Federal Circuit 

__________________________ 

THE NAVAJO NATION, 

Plaintiff-Appellant, 

v. 

UNITED STATES, 

Defendant-Appellee. 

__________________________ 

2010-5036 

__________________________ 

Appeal from the United States Court of Federal 

Claims in case no. 88-CV-508, Senior Judge Eric G. Bruggink. 

______________________ 

Decided: January 10, 2011 

_______________________ 

DALE S. ZEITLIN, Zeitlin & Zeitlin PC, of Phoenix, Arizona, argued for plaintiff-appellant. 

MARY GABRIELLE SPRAGUE, Attorney, Appellate Section, Environment & Natural Resources Division, United 

States Department of Justice, of Washington, DC, for 

defendant-appellee. With her on the brief were IGNACIA S.

MORENO, Assistant Attorney General, and ELIZABETH 

ANN PETERSON, Attorney. 

__________________________ 
NAVAJO NATION v. US 2

Before DYK, MAYER, and MOORE, Circuit Judges. 

MAYER, Circuit Judge. 

The Navajo Nation appeals a judgment of the United 

States Court of Federal Claims denying its claim seeking 

damages for an alleged Fifth Amendment taking of its 

right to develop land granted to it by the United States in 

1934. See Navajo Nation v. United States, No. 88-CV-508 

(Fed. Cl. July 13, 2009). Because we conclude that the 

claim is barred by the six-year statute of limitations set 

out in 28 U.S.C. § 2501, we vacate the judgment of the 

Court of Federal Claims and remand with instructions to 

dismiss for lack of jurisdiction. 

BACKGROUND

The present dispute follows in the wake of a longrunning controversy between the Hopi Tribe and the 

Navajo Nation over vast swaths of land in northeastern 

Arizona. For decades, the two tribes sought to establish 

their respective rights to land within two reservations, 

the 1882 Reservation, which consists of approximately 2.5 

million acres, and the 1934 Reservation, which consists of 

approximately 8.2 million acres. The 1882 Reservation is 

surrounded by the 1934 Reservation. 

On December 16, 1882, President Chester A. Arthur 

established the 1882 Reservation for the benefit of the 

Hopi “and such other Indians as the Secretary of the 

Interior may see fit to settle thereon.” Exec. Order of Dec. 

16, 1882, reprinted in Healing v. Jones, 210 F. Supp. 125, 

129 n.1 (D. Ariz. 1962), aff’d, 373 U.S. 758 (1963). In 

1934, Congress delineated the exterior boundaries of a 

Navajo Reservation and permanently withdrew all unreserved and non-appropriated public lands within those 

boundaries “for the benefit of the Navajo and such other 

Indians as may already be located thereon.” Act of June 
3 NAVAJO NATION v. US

14, 1934, 48 Stat. 960, 961 (the “1934 Act”). At the time 

of the 1934 Act, members of the Hopi Tribe were living on 

portions of the 1934 Reservation. 

In 1962, a district court concluded that approximately 

650,000 acres of the 1882 Reservation belonged exclusively to the Hopi Tribe, and that the Hopi Tribe and the 

Navajo Nation had joint and undivided interests in the 

remaining land. See Healing, 210 F. Supp. at 191-92. 

While the Healing litigation was pending, members of the 

Hopi Tribe asked the Department of the Interior (“DOI”) 

to take action to protect their rights within the 1934 

Reservation. In response, DOI Commissioner of Indian 

Affairs Robert Bennett concluded that “the Government 

can no longer continue to administer the [portion of the 

1934 Reservation located directly to the west of the 1882 

Reservation] as though it were owned solely by the Navajo Tribe.” He determined that “[n]o action shall be 

taken by an official of the [DOI] that does not take full 

cognizance of the undetermined rights and interests of the 

Hopi Indians” in the affected area. He therefore imposed 

a “mutual consent” requirement, which mandated that 

the Hopi and the Navajo obtain the consent of the other 

tribe before undertaking development projects in the 

region. The region affected by Bennett’s mutual consent 

requirement became known as the “Bennett Freeze” area. 

See Masayesva v. Zah, 816 F. Supp. 1387, 1415 (D. Ariz. 

1992) (explaining that “[t]he Bennett Freeze was intended 

to protect the interests of the Hopi Tribe pending any 

negotiated, congressional, or court resolution of Hopi and 

Navajo property interests in the 1934 Reservation”). 

In 1967, Bennett determined that public works projects would not be subject to mutual consent requirements. In 1970, however, this decision was reversed and 

public works projects were again made subject to such 

requirements. In 1972, development within Moenkopi 
NAVAJO NATION v. US 4

and Tuba City was exempted from the mutual consent 

requirements. The mutual consent requirements were 

again modified in 1976 when DOI Commissioner Morris 

Thompson allowed an appeal to him of any Navajo project 

“for which the Hopi Tribe has specifically refused to grant 

its consent” or for which it refused “to consider granting 

its consent within 30 days after being requested to do so.” 

The stated purpose for this modification was to lessen any 

“arbitrarily imposed obstacle to meeting Navajo needs.” 

In 1974, Congress enacted legislation designed to resolve the conflicting claims of the Navajo Nation and the 

Hopi Tribe to land within the 1934 Reservation. See 25 

U.S.C. § 640d et seq. (1974) (the “1974 Settlement Act”). 

The 1974 Settlement Act gave the tribes the right to bring 

suit against each other for the purpose of determining 

their respective property rights in the 1934 Reservation. 

25 U.S.C. § 640d-7; see Sekaquaptewa v. MacDonald, 619 

F.2d 801, 809-10 (9th Cir. 1980). 

On July 8, 1980, Congress amended the 1974 Settlement Act. See Pub. L. No. 96-305, 94 Stat. 929 (codified 

at 25 U.S.C. § 640d-9(f) (1980)) (the “1980 Amendment”). 

The 1980 Amendment codified the requirement, first 

imposed by DOI Commissioner Bennett, that the Navajo 

and Hopi obtain the consent of the other tribe before 

undertaking development projects within the Bennett 

Freeze area: 

Any development of lands in litigation pursuant to 

section 8 of this Act and further defined as “that 

portion of the Navajo Reservation lying west of 

the Executive Order Reservation of 1882 and 

bounded on the north and south by westerly extensions, to the reservation line, of the northern 

and southern boundaries of said Executive Order 

Reservation,” shall be carried out only upon the 
5 NAVAJO NATION v. US

written consent of each tribe except for the limited 

areas around the village of Moenkopi and around 

Tuba City. Each such area has been heretofore 

designated by the Secretary. “Development” as 

used herein shall mean any new construction or 

improvement to the property and further includes 

public work[s] projects, power and water lines, 

public agency improvements, and associated 

rights-of-way. 

25 U.S.C. § 640d-9(f) (1980). 

The purpose of the 1980 Amendment was “to preserve 

the parties’ rights subject to a final adjudication” of the 

tribes’ respective interests in the affected area. Masayesva, 816 F. Supp. at 1397. The amendment did not 

grant either tribe the right to appeal to the DOI if its 

request for consent to a development project was denied. 

Following the enactment of the 1980 Amendment, the 

Hopi approved a few Navajo development projects within 

the Bennett Freeze area. On August 26, 1982, however, 

the Hopi imposed a moratorium on all further Navajo 

construction activities: 

The Hopi Negotiating Committee . . . unanimously 

voted to place a moratorium on any and all construction activities, more specifically within the 

Bennett Freeze Order Area (BFOA), until certain 

issues have been addressed satisfactorily surrounding current and potential construction activities in the litigated BFOA and the entire 1934 

Reservation.

In 1988, Congress again amended the 1974 Settlement Act and authorized a procedure under which the 

tribes could appeal denials of consent for construction 

projects to the DOI. See Navajo and Hopi Indian Relocation Amendments Act of 1988, Pub. L. No. 100-666, § 6, 
NAVAJO NATION v. US 6

102 Stat. 3929, 3932. Pursuant to this provision, the DOI 

was authorized to approve development projects to the 

extent it determined that such projects were “necessary 

for . . . health or safety.” Id.

On August 25, 1988, the Navajo Nation filed suit in 

the Court of Federal Claims. It argued that the mutual 

consent requirement “constitute[d] a continuing taking of 

[its] property without just compensation and violate[d] 

the trust responsibility owed by [the United States] to the 

[Navajo Nation] as an Indian Tribe and to the [Navajo 

Nation’s] members as Native Americans.” The complaint 

further alleged that since the time of the 1980 Amendment “[v]irtually no development has been approved by 

the Hopi Tribe, which has opposed even repairs to existing structures.”

Discovery was conducted from 1990 to 1993. On 

March 8, 1996, the Court of Federal Claims concluded 

that there were genuine issues of material fact regarding 

the Navajo Nation’s breach of trust and takings claims 

and therefore denied the government’s motion for summary judgment on those claims. The case was then held 

in abeyance until ongoing district court litigation concerning the tribes’ respective rights to land within the 1934 

Reservation was concluded. In March 1997, the United 

States District Court for the District of Arizona issued an 

order approving a partial settlement agreement between 

the Hopi Tribe and Navajo Nation over Bennett Freeze 

area property. See Secakuku v. Hale, No. 74-842-PCTEHC (D. Ariz. Mar. 31, 1997). It was not until December 

4, 2006, however, that the district court lifted the statutory freeze in its entirety and approved a final settlement 

resolving the land dispute between the tribes. See Honyoama v. Shirley, No. 74-842-PHX-EHC (D. Ariz. Dec. 4, 

2006). 
7 NAVAJO NATION v. US

On February 27, 2009, the Court of Federal Claims 

granted the United States’ motion for summary judgment 

on the Navajo Nation’s breach of trust claim. It concluded 

that the Navajo Nation had failed to identify “a moneymandating fiduciary duty” on the part of the government 

sufficient to support an action for money damages with 

respect to that claim. In addition, the trial court concluded that the 1934 Act did not vest the Navajo Nation 

with the exclusive right to control land within the Bennett 

Freeze area: 

There is . . . an irreconcilable conflict between 

the rights [the Navajo Nation] claims it had from 

the inception of the 1934 Act and the rights Congress gave the tribe. Inherent in [the Navajo Nation’s] claim is the assertion that it had the right 

to exclusive control to develop in the [Bennett 

Freeze area] without Hopi interference, as well as 

the right to compensation for any such interference. . . . Congress made clear through legislation 

implemented decades after the 1934 Act that [the 

Navajo Nation] did not—and never did have—

exclusive control of the land in question.

The Court of Federal Claims determined that the Navajo Nation’s “right to operate unilaterally on particular 

[Bennett Freeze area] lands (i.e., unencumbered by restrictions originating in Hopi claims) was not part of [the 

Navajo Nation’s] property interest until the conclusion of 

the district court litigation in 2006.” Because it concluded 

that the Navajo Nation did not have the requisite property interest to establish a valid takings action, the trial 

court dismissed the complaint.1

 1 The trial court stated: “The government’s last affirmative act was Congress’ enactment of the 1980 

Amendment, which confirmed the Hopi’s rights to oppose 
NAVAJO NATION v. US 8

The Navajo Nation timely appealed to this court. 

This court reviews final judgments of the United States 

Court of Federal Claims pursuant to 28 U.S.C. 

§ 1295(a)(3). Whether the Court of Federal Claims possesses jurisdiction over a claim is a question of law subject 

to de novo review. Western Co. v. United States, 323 F.3d 

1024, 1029 (Fed. Cir. 2003). 

DISCUSSION

Pursuant to the Fifth Amendment, the government is 

prohibited from taking private property for public use 

without just compensation. U.S. Const. amend. V. “A 

compensable taking can occur not only through the government’s physical invasion or appropriation of private 

property, but also by government regulations that unduly 

burden private property interests.” Huntleigh USA Corp. 

v. United States, 525 F.3d 1370, 1378 (Fed. Cir. 2008) 

(citations omitted). 

The Navajo Nation contends that it suffered a Fifth 

Amendment taking of the right to develop the land 

granted to it by the United States pursuant to the 1934 

Act. It argues that the Act vested it with a compensable 

property interest in the entire 1934 Reservation, with the 

exception of small pockets of land which were occupied in 

1934 by members of the Hopi Tribe, and “that the United 

States temporarily took its land by imposing a develop-

 

Navajo development projects. . . . [I]f the last relevant 

action of the United States occurred in 1980, then the 

action would appear to be filed too late, unless there is 

some reason to delay the accrual of the cause of action 

until at least 1982.” The court did not grant the government’s motion to dismiss the Navajo Nation’s complaint 

as untimely, however, but instead dismissed on the 

ground that the Nation had failed to establish that it had 

the requisite property interest in the 1934 Reservation to 

establish a valid takings claim. 
9 NAVAJO NATION v. US

ment moratorium (including acquiescing in the Hopi 

moratorium)” on the property contained within the Bennett Freeze area.2 The Nation asserts that its takings 

claim accrued in August 1982, when the Hopi Tribe 

refused to grant the Navajo permission to engage in any 

development projects within the affected region or, in the 

alternative, in 2006, when the district court litigation 

resolving the tribes’ respective property rights in the 1934 

Reservation concluded.

In response, the government contends that the 1934 

Act did not grant the Navajo Nation the right to exclusive 

control of property within the 1934 Reservation. Instead, 

according to the government, the 1934 Act gave an interest in the 1934 Reservation to both the Navajo Nation and 

the Hopi Tribe, and the Nation never had the right, until 

the end of the 2006 district court litigation, to unilaterally 

develop land within the Bennett Freeze area. The government argues, moreover, that even if the Navajo Nation 

had a valid takings claim, that claim is barred by the sixyear statute of limitations applicable to suits brought in 

the Court of Federal Claims. 

We agree with the government that the Navajo Nation’s claim is time-barred. “Every claim of which the 

United States Court of Federal Claims has jurisdiction 

shall be barred unless the petition thereon is filed within 

 2 The Navajo Nation correctly acknowledges that 

the 1934 Act did not grant it the exclusive right to control 

property within the 1934 Reservation, since its property 

rights were subject to the overriding authority of the 

United States to manage the lands. See Sekaquaptewa, 619 F.2d at 805; see also United States v. Sioux Nation, 448 U.S. 371, 415 (1980); Shoshone Tribe v. United States, 299 U.S. 476, 496-97 (1937). It argues, however, that the 

1934 Act gave it the right to develop the vast majority of 

land within the 1934 Reservation free from any interference from the Hopi Tribe. 
NAVAJO NATION v. US 10

six years after such claim first accrues.” 

28 U.S.C. § 2501. This six-year limitations period is 

jurisdictional and may not be waived. John R. Sand & 

Gravel Co. v. United States, 552 U.S. 130, 136-39 (2008). 

Even assuming arguendo that (1) the 1934 Act vested the 

Navajo Nation with the right to unilateral development 

within the Bennett Freeze area, and (2) the restrictions 

on development within that area could be construed as a 

compensable taking of the Nation’s property rights, any 

Fifth Amendment takings claim is barred because it was 

filed more than six years after it first accrued. 

In general, a takings “claim first accrues when all the 

events have occurred which fix the alleged liability of the 

[government] and entitle the plaintiff to institute an 

action.” Hopland Band of Pomo Indians v. United States, 

855 F.2d 1573, 1577 (Fed. Cir. 1988) (internal quotation 

marks omitted); Fallini v. United States, 56 F.3d 1378, 

1380 (Fed. Cir. 1995). “Therefore, a claim under the Fifth 

Amendment accrues when [the] taking action occurs.” 

Goodrich v. United States, 434 F.3d 1329, 1333 (Fed. Cir. 

2006) (citations and internal quotation marks omitted). 

Here, the Navajo Nation’s takings claim, if any, accrued 

when the United States precluded it from developing land 

within the Bennett Freeze area without Hopi Tribe approval. This was the only governmental action that 

served to restrict any right the Nation may have had, 

pursuant to the 1934 Act, to exclusive control of property 

within the 1934 Reservation, and it is therefore the only 

action which could even arguably form the basis for a 

valid takings claim. See Nw. La. Fish & Game Pres. 

Comm’n v. United States, 446 F.3d 1285, 1289 (Fed. Cir. 

2006) (“A taking occurs when governmental action deprives the owner of all or most of its property interest.”). 

In 1966, DOI Commissioner Bennett imposed a requirement that the Navajo and Hopi obtain approval from 
11 NAVAJO NATION v. US

the other tribe before undertaking development efforts 

within portions of the 1934 Reservation lying to the west 

of the 1882 Reservation. At the time of this “administrative freeze,” the Navajo Nation knew that any right it 

may have had to undertake unilateral development 

within the affected area had been significantly curtailed. 

When Congress enacted the 1980 Amendment, it codified 

the mutual consent requirement and explicitly provided 

that “[a]ny development of lands” in the Bennett Freeze 

area could “be carried out only upon the written consent” 

of the other tribe.3 25 U.S.C. § 640d-9(f) (1980). Assuming arguendo that the 1934 Act vested the Navajo Nation 

with the right to develop land within the Bennett Freeze 

area unencumbered by Hopi Tribe claims, the 1980 

Amendment deprived the Nation of that right and “fix[ed] 

the alleged liability” of the government for any takings 

action. Hopland, 855 F.2d at 1577; see Goodrich, 434 F.3d 

at 1333. Because the Navajo Nation did not file suit until 

more than eight years after enactment of the 1980 

Amendment, its claim is time-barred. 

Contrary to the Nation’s assertions, its takings claim 

did not accrue when the Hopi Tribe decided, on August 

26, 1982, to impose a moratorium on approval of Navajo 

construction projects. A takings claim must be predicated 

on actions undertaken by the United States, not the Hopi 

Tribe. What a plaintiff “may challenge under the Fifth 

Amendment is what the government has done, not what 

[third parties] have done.” Fallini, 56 F.3d at 1383; see 

also Alliance of Descendants of Tex. Land Grants v. 

United States, 37 F.3d 1478, 1482 (Fed. Cir. 1994) (“The 

language of the Fifth Amendment itself requires that the 

 3 Congress exempted areas near Tuba City and 

Moenkopi from the mutual consent requirements. See 25 

U.S.C. § 640d-9(f) (1980). 
NAVAJO NATION v. US 12

United States, not a [third party], commit the taking 

action.”). 

Goodrich is instructive on this issue. There, a Montana cattle rancher alleged that he suffered a compensable taking of water rights when the Forest Service 

issued a directive allowing a third party to move his cattle 

onto property adjacent to the rancher’s land. 434 F.3d at 

1333-35. We held that the rancher’s claim accrued when 

the Forest Service issued its directive, not when the third 

party entered the land with his cattle several years later. 

Id. at 1334-36. Likewise, in Fallini, 56 F.3d at 1380-83, 

we held that any takings claim accrued when Congress 

enacted legislation which precluded landowners from 

excluding wild horses from drinking from the proprietary 

water sources they had constructed on federal lands. We 

explained that it was the government’s “enactment of the 

statute, not the individual intrusions by the horses” that 

caused any takings claim to accrue. Id. at 1383; see also

Ladd v. United States, No. 2010-5010, 2010 U.S. App. 

LEXIS 25443, at *21 (Fed. Cir. Dec. 14, 2010) (explaining 

that a takings claim accrues when the government takes 

action which deprives landowners of “possession of their 

property unencumbered by [an] easement,” regardless of 

whether third parties ever take physical possession of 

that easement (footnote omitted)); Caldwell v. United 

States, 391 F.3d 1226, 1233-35 (Fed. Cir. 2004) (concluding that any taking occurred when the government took 

action preventing landowners’ state law reversionary 

interests in a railroad right-of-way from vesting, not when 

subsequent actions by third parties caused the right-ofway to be converted to an interim trail for recreational 

use). 

A similar analysis applies here. When Congress enacted the 1980 Amendment, it precluded the Navajo 

Nation from undertaking any development within the 
13 NAVAJO NATION v. US

Bennett Freeze area unless the Hopi Tribe gave written 

consent. This was the date of the last governmental 

action that served to restrict the Navajo’s right to develop 

property within the 1934 Reservation. Although the Hopi 

Tribe did not decide to withhold consent for all Navajo 

Nation construction projects until August 1982, for purposes of determining when a takings claim accrues “it is 

necessary . . . to look to the nature and timing of the 

governmental action that constituted the alleged taking.” 

Fallini, 56 F.3d at 1383 (emphasis added); see also Alliance of Descendants of Tex. Land Grants, 37 F.3d at 

1482.4

On appeal, the Navajo Nation advances three arguments in support of its contention that its complaint was 

timely filed. First, it asserts that its claim did not accrue 

until August 1982 because the Hopi Tribe was acting as 

an agent of the United States when it imposed a moratorium on all further development within the Bennett 

Freeze area. Second, the Nation contends that the statute 

of limitations did not begin to run when the 1980 

Amendment was enacted because its takings claim was 

not “known and stabilized” at that time. Finally, it argues that its cause of action did not accrue until December 2006, when a district court entered final judgment 

resolving the respective rights of the tribes to land within 

the 1934 Reservation. We address each of these arguments in turn. 

 4 We do not reach the issues of whether the 1934 

Act vested the Navajo Nation with the right to exclusive 

control of property within the Bennett Freeze area or 

whether the government’s directive that no development 

in the area could take place without Hopi Tribe consent 

constituted a compensable taking of those property rights. 

We hold only that any takings claim is barred by the sixyear statute of limitations set forth in 28 U.S.C. § 2501. 
NAVAJO NATION v. US 14

I. 

The Navajo Nation contends that the Hopi Tribe was 

acting as an agent of the United States when it imposed a 

moratorium on Navajo construction activities, and that 

the moratorium can therefore be attributed to the United 

States for purposes of determining when its cause of 

action accrued. We disagree. “[A]n agency relationship

results from the manifestation of consent by one person to 

another that the other shall act on his behalf and subject 

to his control, and consent by the other to so act.” 

Brubaker Amusement Co. v. United States, 304 F.3d 1349, 

1360 (Fed. Cir. 2002) (citations and internal quotation 

marks omitted). Here, the record contains nothing even 

to suggest that the Hopi Tribe was acting under the 

direction or control of the United States when it imposed 

a moratorium on Navajo development efforts. See Goodrich, 434 F.3d at 1334 (concluding that a third party could 

not be considered an agent of the United States for purposes of determining when a takings claim accrued because the United States did not control the third party’s 

actions). 

In codifying the mutual consent requirements, Congress was trying “to preserve the parties’ rights subject to 

a final adjudication” of the tribes’ respective interests in 

the Bennett Freeze area. Masayesva, 816 F. Supp. at 

1397. The Navajo Nation points to no credible evidence 

indicating that the United States directed, or even encouraged, the Hopi Tribe to impose a moratorium on all 

Navajo Nation construction activities. To the contrary, 

Congress acted in 1988 to ameliorate some of the harsh 

effects of the Hopi moratorium by giving the DOI the 

right to approve Navajo construction projects to the extent 

such projects were deemed “necessary for . . . health or 

safety.” Navajo and Hopi Indian Relocation Amendments 

Act of 1988, Pub. L. No. 100-666, § 6, 102 Stat. 3929, 3932 
15 NAVAJO NATION v. US

(amending 25 U.S.C. § 640d-9(f)). Because the Hopi Tribe 

was not acting under the direction or control of the United 

States, or for its benefit, when it imposed the moratorium 

on Navajo development, its actions cannot be attributed to 

the United States for purposes of determining when any 

takings claim accrued. See B & G Enters. v. United 

States, 220 F.3d 1318, 1324 (Fed. Cir. 2000) (concluding 

that California did not act as an agent of the United 

States when it enacted a law banning tobacco vending 

machines because the legislation “was not enacted for the 

benefit of the federal government”). 

II. 

We likewise reject the Navajo Nation’s assertion that 

its cause of action did not accrue with passage of the 1980 

Amendment because its claim was not “known and stabilized” at the time. It is beyond cavil that a takings claim 

does not accrue until “the claimant knew or should have 

known that the claim existed.” Goodrich, 434 F.3d at 

1333 (citations and internal quotation marks omitted); see

Nw. La. Fish, 446 F.3d at 1290-92. Here, however, it is 

clear that the Navajo Nation knew, long before the enactment of the 1980 Amendment, that it had no right to 

exclusive control of property within the Bennett Freeze 

area. The record is replete with evidence that even prior 

to the 1980 Amendment the Hopi Tribe seldom granted 

approval for Navajo Nation construction activities. Indeed, Glen Renner, the Director of the Navajo-Hopi Legal 

Services Program, testified that during the period of the 

administrative freeze, the Hopi Tribe approved only three 

of thirty-six Navajo development requests, including two 

that were conditioned on Navajo approval of Hopi projects. Thus, if not before, as of July 8, 1980, when the 

1980 Amendment was enacted, the Navajo Nation knew 

not only that it was statutorily prohibited from developing 

land within the Bennett Freeze area without Hopi Tribe 
NAVAJO NATION v. US 16

consent, but that the Hopi had rarely granted approval 

for Navajo development projects in the past. At this 

point, the Nation knew, or should have known, that it had 

been deprived of any right it may have had, under the 

1934 Act, to exclusive control of land within the 1934 

Reservation. See Fallini, 56 F.3d at 1380 (“The question 

whether the pertinent events have occurred is determined 

under an objective standard; a plaintiff does not have to 

possess actual knowledge of all the relevant facts in order 

for the cause of action to accrue.”). Accordingly, even 

assuming arguendo that the 1980 Amendment, standing 

alone, was insufficient to cause any takings claim to 

accrue, the Amendment—coupled with the Navajo Nation’s knowledge that the Hopi Tribe was unlikely to 

approve development within the Bennett Freeze area—

was clearly sufficient to trigger the running of the limitations period. 

While it is true that the Navajo Nation might not 

have reasonably foreseen that the Hopi Tribe would, in 

August 1982, decide to withhold approval for all—as 

opposed to most—of the Navajo Nation’s construction 

projects, this court has “soundly rejected” the contention 

“that the filing of a lawsuit can be postponed until the full 

extent of the damage is known.” Boling v. United States, 

220 F.3d 1365, 1371 (Fed. Cir. 2000). As Fallini makes 

clear, “it is not necessary that the damages from the 

alleged taking be complete and fully calculable before the 

cause of action accrues.” 56 F.3d at 1382. Thus, even 

though a plaintiff might not be aware of the full economic 

cost of a taking at the time it occurs, for purposes of 

determining when the statute of limitations begins to run, 

the “proper focus” must be “upon the time of the [defendant’s] acts, not upon the time at which the consequences

of the acts [become] most painful.” Delaware State Coll. v. 
17 NAVAJO NATION v. US

Ricks, 449 U.S. 250, 258 (1980) (citations and internal 

quotation marks omitted) (emphasis in original)). 

Nor are we persuaded by the Navajo Nation’s assertion that its claim did not accrue when Congress enacted 

the 1980 Amendment because it did not understand at 

that time that it no longer had the right to appeal to the 

DOI if the Hopi Tribe refused to consent to a development 

project. During certain periods while the administrative 

freeze was in effect, the Nation was granted the right to 

appeal to the DOI when the Hopi Tribe refused to approve 

a construction request.5 When the 1980 Amendment was 

enacted, however, the Nation was given no such DOI 

appeal rights.6 See 25 U.S.C. § 640d-9(f) (1980). At this 

point, the Nation was on notice that any DOI appeal 

rights it may previously have had had been curtailed. See

Catawba Indian Tribe v. United States, 982 F.2d 1564, 

1572 (Fed. Cir. 1993) (refusing to apply a later accrual 

date where “all the relevant facts were known” and it was 

 5 From 1967 to 1970, public works projects could be 

submitted directly to the DOI for approval. In 1970, 

however, public works projects were again made subject 

to the mutual consent requirements. Development within 

Moenkopi and Tuba City was exempted from the mutual 

consent requirements in 1972. In 1976, the Navajo Nation was given the right to appeal to the DOI if the Hopi 

Tribe denied a Navajo construction request or refused to 

act on that request within thirty days of being asked to do 

so. 

6 A Senate bill would have given the Navajo the 

right to appeal to the DOI if the Hopi denied a construction request. See Navajo and Hopi Relocation Amendments Act of 1979, S. 751, 96th Cong. § 3(e) (Oct. 24, 

1979). The House bill, however, did not provide for any 

such appeal rights, and it was the House version of the 

bill that was ultimately enacted. 
NAVAJO NATION v. US 18

only “the meaning of the law that was misunderstood” 

(emphasis in original)). 

III. 

Finally, we address the Navajo Nation’s argument 

that its taking claim did not accrue until 2006, when a 

district court entered judgment adopting a settlement 

between the Navajo Nation and Hopi Tribe over title to 

the disputed land and terminated the requirement that 

each tribe obtain approval from the other tribe before 

engaging in development activities. See Honyoama, slip 

op. at 2-5. The Nation contends that the 1980 Amendment caused a temporary regulatory taking of its right to 

develop land in the Bennett Freeze area, and that the 

statute of limitations for a temporary regulatory takings 

claim does not run until the regulation at issue is no 

longer in force. 

This court has previously rejected the notion “that the 

cessation of [a] regulation is a necessary condition to 

liability” of the United States for a temporary regulatory 

takings claim. Bass Enters. Prod. Co. v. United States, 

133 F.3d 893, 896 (Fed. Cir. 1998); see also First English 

Evangelical Lutheran Church v. Los Angeles, 482 U.S. 

304, 320 (1987) (“It would require a considerable extension of [earlier Supreme Court] decisions to say that no 

compensable regulatory taking may occur until a challenged ordinance has ultimately been held invalid.” 

(footnote omitted)). In Bass, for example, we explicitly 

rejected the argument that a plaintiff was required to 

wait until a regulation was no longer in effect before 

bringing a temporary regulatory takings claim. 133 F.3d 

at 896; Caldwell, 391 F.3d at 1234-35 (emphasizing that a 

takings claim accrues when the government deprives the 

plaintiff of a property interest, regardless of whether that 

taking is permanent or temporary); Seiber v. United 
19 NAVAJO NATION v. US

States, 364 F.3d 1356, 1364-66 (Fed. Cir. 2004) (concluding that a claim for a temporary regulatory taking accrued when the government issued a final decision 

denying a landowner’s permit application, notwithstanding the fact that the regulation at issue was still in force). 

Indeed, our precedent requires “that temporary reversible 

takings [must] be analyzed in the same constitutional 

framework applied to permanent irreversible takings.” 

Yuba Natural Res., Inc. v. United States, 821 F.2d 638, 

641 (Fed. Cir. 1987); see Skip Kirchdorfer, Inc. v. United 

States, 6 F.3d 1573, 1583 (Fed. Cir. 1993) (explaining that 

“[t]he limited duration of [a] taking is relevant to the 

issue of what compensation is just, and not to the issue of 

whether a taking has occurred”). 

In certain situations, a claim for a temporary regulatory taking does not accrue when a regulation is enacted 

because the regulation itself is not a final governmental 

determination depriving a plaintiff of a compensable 

property right. See United States v. Riverside Bayview 

Homes, Inc., 474 U.S. 121, 127 (1985); see also Creppel v. 

United States, 41 F.3d 627, 631-33 (Fed. Cir. 1994) (temporary regulatory takings claim accrued only after a 

district court ordered a land reclamation project to proceed). In Boise Cascade Corp. v. United States, for example, this court concluded that in situations where 

regulations require a landowner to obtain an environmental permit, a takings claim is not ripe until a governmental agency denies that landowner’s permit 

application. 296 F.3d 1339, 1347 (Fed. Cir. 2002); Morris 

v. United States, 392 F.3d 1372, 1376 (Fed. Cir. 2004) 

(“[W]hen an agency provides procedures for obtaining a 

final decision, a takings claim is unlikely to be ripe until 

the property owner complies with those procedures.”). As 

the Supreme Court has made clear, “a takings claim 

challenging the application of land-use regulations is not 
NAVAJO NATION v. US 20

ripe unless the government entity charged with implementing the regulations has reached a final decision 

regarding the application of the regulations to the property at issue.” Palazzolo v. Rhode Island, 533 U.S. 606, 

618 (2001) (citations and internal quotation marks omitted).

No such ripeness concerns are present here. See

Goodrich, 434 F.3d at 1334-35 (explaining that a takings 

claim is ripe when the government issues a final directive 

restricting a landowner’s property rights). The 1980 

Amendment was a final congressional directive prohibiting the Navajo Nation from developing land within the 

Bennett Freeze area without Hopi Tribe approval. If the 

1934 Act granted the Navajo any right to exclusive control 

of property within the Bennett Freeze area, the 1980 

Amendment unequivocally took that right away. The 

latest date, therefore, that any takings claim could have 

accrued was July 8, 1980. 

CONCLUSION

Accordingly, the judgment of the Court of Federal 

Claims is vacated and the case is remanded with instructions to dismiss the complaint. 

COSTS

No costs. 

VACATED AND REMANDED