# United States **Court of Appeals**  **for the Federal Circuit**

______________________
CROW CREEK SIOUX TRI BE, Plaintiff

- Appellant

v.

UNITED STATES, Defendant

- Appellee

______________________

2017

- 2340

______________________ Appeal from the United States Court of Federal Claims in No. 1:16

- cv

- 00760

- RHH, Senior Judge Robert H. Hodges , Jr.

______________________ Decided: August 17, 2018

______________________
A USTIN T IGHE , Nix, Patterson & Roach, LLP, Austin, TX, argued for plaintiff

- appellant.

A MBER B ETH B LAHA , Environment and Natural R esources Division, United States Department of Justice, Washington, DC, argued for defendant

- appellee. Also represented by J EFFREY H. W OOD , E RIC G RANT , M ATTHEW L ITTLETON

.

______________________
Before N EWMAN , D YK , and T ARANTO , Circuit Judges.CROW CREEK SIOUX TRI BE v. UNITED STATES 2

D YK , Circuit Judge.
The Crow Creek Sioux Tribe (“Tribe”) is a federally recognized Indian tribe. Its reservation is located in South Dakota along the Missouri River. The Tribe filed suit against the United States in the Court of Federal Claims (“Claims Court”) seeking damages and declaratory and injunctive relief for the alleged taking of its water rights in violation of the Fifth Amendment, and for the alleged mismanagement of its water rights in violation of 25 U.S.C. § 162a(d)(8). The Claims Court dismissed the case for lac k of subject

- matter jurisdiction. We affirm, conclu ding that the Tribe has failed to establish, or even allege

, that it has suffered the requisite injury in fact.

B ACKGROUND

T he Crow Creek Indian Reservation (“Reservation”) was established in central South Dakota in 1863 . T he Missouri River overlies the Reservation’s western boun dary. See Act of Mar. 2, 1889, ch. 405, § 6, 25 Stat. 888, 889

– 90 (1889) (delineating boundaries of the Reserv ation).

Under the Supreme Court’s decision in Winters v. United States , 207 U.S. 564 (1908), the creation of an Indian Reservation carries an implied right to unappr opriated water “to the extent needed to accomplish the

pur pose of the reservation

. ” Cappaert v. United States

, 426 U.S. 128, 138 (1976) ; see also United States v . New Mexico , 438 U.S. 696, 698

– 700 (1978). These reserved rights are known as Winters rights

. They arise as an implied right from the treaty, federal statute

, or executive order that set aside the reservation, and they vest on the date of the reservation’s creation. See Winters , 207 U.S. at 57 6–7 7; Arizona v. California , 373 U.S. 546, 598 (1963) (rejecting the argument that water rights were not r eserved be cause the r eservation was created by executive

o rder, rather than treaty). The par ties agree for purposesCROW CREEK SIOUX TRI BE v. UNITED STATES 3

of the motion to dismiss that, pursuant to the Winters doctrine, the Tribe possesses a perfected right to sufficient water to fulfil the R eservation’s purposes.
In June 2016, the Tribe filed suit in the Claims Court seeking at least $200 million in damages. The complaint began by describing various “Background Facts ,” inclu ding the establishment of the Reservation and the history of the Pick

- Sloan Plan, a federal flood control project on the Missouri R iver , which involved the construction of the Fort Randall Dam and the Big Ben d Dam in the mid

1900s

. 1 The complaint also mentioned a 1996 statute that established a new trust fund for the Tribe, funded with up to $27.5 million in hydroelectric

- power r evenue from the Pick -Sloan Plan, s ee Crow Creek Sioux Tribe Infrastru cture and Development Trust Fund Act of 1996, Pub. L. No. 104

- 223, § 2(a)( 7), 110 Stat. 3026, 3027 (1996); hig hlighted a 2012 settlement between the Tribe and the United S tates unrelated to water rights; and empha sized the generally poor economic prospects of the Reservation.

1 Construction of the dams resulted in the flooding of approximately 15,000 acres of the Reservation. To

co m pensate the Tribe for this loss of land, Congress enacted two statutes by which the United States acquired the flooded land and paid the Tribe and i ts members more than $5 million total “in settlement of all claims, rights, and demands of” the Tribe “arising out of” dam constru ction. Act of Oct. 3, 1962, Pub. L. No. 87

- 735, § 1(a)(2), 76 Stat. 704, 704 (1962) (authorizing the acquisition of roughly 6, 000 acres of Reservation land for the Big Ben d project); Act of Sept. 2, 1958, Pub. L. No. 85

- 916, § 1, 72 Stat. 1766, 1766 (1958) (authorizing the acquisition of roughly 9,000 acres of Reservation land for the Fort Randall project).CROW CREEK SIOUX TRI BE v. UNITED STATES 4

The complaint then al leged that certain, unspecified acts and omissions by the United States

— presumably including the continued operation of the dams

— have taken the Tribe’s “ Winters reserved water rights” without just compensation in violation of the Fifth Amendment. J.A. 32. The complaint also al leged that the g overnment breached its fiduciary duty to “[a]ppropriately manag[e] the natural resources located within the boundaries of Indian rese rvations,” 25 U.S.C. § 162a(d)(8), “by the acts and omissions described hereinabove, including failing to protect , quantify, assert or record Plaintiff’s water rights, and instead continuously diverting, retaining, and appr opriating that water to others an d to Defendant’s own use

, ” J.A. 31. The complaint did not allege that the gover nment’s actions deprived the Tribe of sufficient water to fulfill the reservation’s purpos es or that those actions would cause the Tribe to lack sufficient water in the fu ture.

The United States filed a motion to dismiss pursuant to Rule 12(b)(1) of the Court of Federal Claims for lack of subject

- matter jurisdic tion. The Claims Court granted the motion

, noting that Winters only entitles the Tribe to sufficient water to ful fill the Reservation’s purposes and explaining that nothing in the complaint suggest s that the Tribe is “experienc[ing] a shortage of water” or that its water supply from the Missouri River is or will be “insu fficient for [the Tribe’s] intended pursuits.” Crow Creek Sioux Tribe v. United States , 132 Fed. Cl. 408, 410

– 11 ( Fed. Cl. 2017). The Claims Court rejected the Tribe’s argument that its Winters reserved water rights can be injured by any “taking or diverting [of] waters from the Missouri River ,” even if the diversion does not cause the Tribe to experience any water shortage. Id . at 410. The
court also noted that

, while 25 U.S.C. § 162a(d)(8) “does direct the government to manage the natural resources of Indian tribes, ” the statute “ does not direct any specificCROW CREEK SIOUX TRI BE v. UNITED STATES 5

actions to be taken by the government in that manag ement .” Id . at 411. The Claims Court therefore dismissed the suit for lack of subject

- matter jurisdiction because it could not “identify an injury to the Tribe that has yet occurred.” Id

. In various places in the opinion, the Claims Court discussed the failure of the complaint to allege damages with particularity. Id

. at 409

– 11. The tribe timely appealed. We have jurisdiction under 28 U.S.C. § 1295(a)(3). In assessing a motion to dismiss for lack of subject

- matter jurisdiction, we “must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Warth v. Seldin , 422 U.S. 490, 501 (1975); see also St ephens v. United States , 884 F.3d 1151, 1155 (Fed. Cir. 2018)

. D ISCUSSION

The Tribe initially argues that the Claims Court erred in dismissing its action because the Tribe could not calc ulate damages. We agree with the Tribe that there is no need to allege details of th e damages calculation in the complaint. But the Claims Court’s decision, while it sometimes uses the word “damages ,” turns on the Tribe’s underlying failure to allege an injury in fact. Indeed, the Claims Court concludes its opinion by stating that “[t]he jurisdictional problem

. . . arises from plaintiff's inability to identify an injury to the Tribe.” Crow Creek Sioux Tribe , 132 Fed. Cl. at 411. We think the Claims Court was correct in dismissi ng the case for lack of subject

- matter jurisdiction be cause the Tribe failed to sufficiently allege injury.

In order to bring suit in an Article III court, a plaintiff must establish constitution al standing. Lujan v. Defs. of Wildlife , 504 U.S. 555, 560 (1992). “The Court of Federal Claims, though an Article I court

. . . applies the same standing requirements enforced by other federal courtsCROW CREEK SIOUX TRI BE v. UNITED STATES 6

created under Article III.” Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1358

– 59 (Fed. Cir. 2009) ( quoting Anderson v. United States, 344 F.3d 1343, 1350 n.1 (Fed. Cir. 2003)). To establish constitutional standing, a “plai ntiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defen dant, and (3) that is likely to be redressed by a favorable judicial decision.” Sp okeo, Inc. v. Robins , 136 S. Ct. 1540, 1547 (2016). Standing requires more than just a “keen interest in the issue.” Hollingsworth v. Perry , 570 U.S. 693, 700 (2013). It requires allegations that the plaintiff “personal[ly]” suffered a concrete and particu larized injury in connection with the conduct about which he complains. Spokeo

, 136 S. Ct. at 1548. The Supreme Court has held that each element of standing “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof.” Lujan , 504 U.S. at 561. With this in mind, we join the majority of our sister circuits in holding that the Supreme Court’s “plausibility” requirement for facial challenges to claims under Rule 12(b)(6), as set out in Bell Atlantic Corp. v. Twombly

, 550 U.S. 544, 570 (2007)

, and Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009), also applies to facial challenges to subject

- matter jurisdiction under Rule 12(b)(1). 2 Thus, “[t]o survive a motion to dismiss [for lack

2 See, e.g. Garling v. EPA , 849 F.3d 1289, 1293 n.3 (10th Cir. 2017); Hochendoner v. Genzyme Corp. , 823 F.3d 724, 730 (1st Cir. 2016); Silha v. ACT, Inc. , 807 F.3d 169, 173

– 74 (7th Cir. 2015); In re Schering Plough Corp. Intron/Temodar Consumer Class Action , 678 F.3d 235, 24 3– 44 (3d Cir. 2012); Amidax Trading Grp. v. S.W.I.F.T. SCRL , 671 F.3d 140, 145 (2d Cir. 2011) (per curiam); White v. United States , 601 F.3d 545, 551

– 52 (6th Cir. 2010); Stalley v. Catholic Health Initiatives , 509 F.3d 517, 521 (8th Cir. 2007). We note tha t RCFC 12(b)(1) andCROW CREEK SIOUX TRI BE v. UNITED STATES 7

of standing], a complaint must contain suff icient factual matter” that would plausibly establish standing if accep ted as true. Iqbal , 556 U.S. at 678 (citing Twombly , 550 U.S. at 570). “T hreadbare recitals of the elements of [standing], supported by mere conclusory statements, do not suffice.” Id.
The question here is whether the Tribe has sufficien tly alleged injury in fact, which the Supreme Court has characterized as “a hard floor of Article III jurisdiction.” S ummers v. Earth Island Inst. , 555 U.S. 488, 497 (2009). To establish injury in fact, “a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imm inent, not conjectural or hypothetical.’” Spokeo , 136 S. Ct. at 1548 (quoting Lujan , 504 U.S. at 560). The Tribe acknowledges that the Winters doctrine is the sole source of the legally protected interest asserted in this case

— both for the takings claim and the statutory claim. Oral Arg. 00:30

– 00:50; J.A. 14. The question is whether the Tribe has sufficiently a lleged injury to those rights.
The Tribe argues that various government actions and inactions with respect to the Missouri River, inclu ding the operation of the Pick

- Sloan dams, constitute a taking of the Tribe’s Winters water rights under the Fifth Amend ment and a breach of the government’s fiduciary duty under 25 U.S.C. § 162a(d)(8) to “appropriately ma nage[]” the Tribe’s vested, Winters water rights, and ther eby amount to an injury

- in

- fact. The Fifth Amendment ’s Takings Clause requires just compensation for the taking of property. Section 162a generally concerns the Secretary of the Interior’s responsibility for management of Indian trust funds and expenditure of money collected from

FRCP 12(b)(1 ) are substantial ly the same for these pu rposes.CROW CREEK SIOUX TRI BE v. UNITED STATES 8

irrigation projects, but it also states that “[t]he Secr etary’s proper discharge of the trust responsibilities of the United States shall include .

. . [a]ppropriately managing the natural resources located within the boundaries of Ind ian reservations.” 25 U.S.C. § 162a(d)(8). The Tribe’s breach of trust claim is based on the view that its Winters water rights count as “natural resources” under § 162a(d)(8), and the government has a statutory duty to “appropriately manage” those Winters wat er rights.
While it is clear that the tribe possesses Winters rights, it is not clear wh ether those rights are protected by § 162a(d)(8) . Because § 162a(d)(8) does not define “appropriate management” of natural resources and does not assign the Secretary any standards or specific obli g ations as to natural resources

, the government argues that § 162a(d)(8) is not the kind of “specific rights

- creating or duty

- imposing statutory or regulatory prescription []” required to support jurisdiction under the Indian Tucker Act. United States v. Navajo Nation , 537 U.S. 488, 50 6– 07, 514 (2003) (holding tha t the Indian Mineral Leasing Act does not give the Secretary sufficient specific respo nsibilities to support Indian Tucker Act juris diction). But we need not decide that question. If § 162a(d)(8) does not

cover Winters rights, the Tribe has suffered no in jury under the statute. And even if Winters rights are “natural resources” for purposes of the statute, the Tribe still has not established standing.
The problem is that the complaint fails to allege that the government action has caused injury to the Tribe’s Winters rights. As discussed above, the Supreme Court held in Winters that the establishment of an Indian reservation impliedly reserves the amount of water nece ssary to fulfill the purposes of the reservation. 207 U.S. at 576

– 77

. Winters arose out of a dispute between Indians residing on the Fort Belknap Reservation and upstream,

non

- Indian water users who had constructed dams diver t-CROW CREEK SIOUX TRI BE v. UNITED STATES 9

ing the water that otherwise would have flowed through the reservation. Id. at 565

– 67. The United States, in its capacity as trustee, sought to enjoin the diversions, but the upstream users claimed paramount water rights based on state wa ter law that followed the prior

appropriation doctrine. Id . at 568

– 69. The Winters Court held that the Indians actually possessed the superior water right because the 1888 treaty establishing the Fort Belknap Reservation had also impliedly reserved water sufficient to fulfill the purpose s of the reservation. Id . at 576

– 77. This implied water right was justified, in the Court's view, because Congress would have had no good reason to reserve land for Indians without also reserving their right to sufficient water for the reservation's pu rpos e— which was, in that case, to encourage Indians to adopt an agricultural (and thus irrigation

- dependent) way of life. Id . at 576. The scope of Winters reserved water rights, like their exis tence, turns on the reservation’s need for water. The amount of wa ter reserved is “that amount of water nece ssary to fulfill the purpose of the reservation, no more.” Cappaert , 426 U.S. at 141 ; see also New Mexico , 438 U.S. at 700 n.4 ; Arizona , 373 U.S. at 600

– 01 . In Winters itself, the purpose of the reservation was agr icultural in nature, 207 U.S. at 576, but other cases have noted fishing and hunting as a purpose of the reservation as well, see United States v. Adair , 723 F.2d 1394, 1410 (9th Cir. 1983) (identifying Winters rights as to “a quantity of the water flowing through the reservation not only for the purpose of supporting Klamath agriculture, but also for the pu rpose of maintaining the [Klamath] Tribe’s treaty right to hunt and fish on reservation lands ”).

Thus , water is only reserved for the Tribe under Wi nter s “to the extent needed to accomplish the purpose of the reservation.” Gi la River Pima

- Maricopa Indian Cm ty

. v. United States , 695 F.2d 559, 561 (Fed. Cir. 1982); see alsoCROW CREEK SIOUX TRI BE v. UNITED STATES 10

Cappaert , 426 U.S. at 141. The facts alleged in the co mplaint, taken as true, sugges t that government action, including operation of the Pick

- Sloan dams, generally affects water flows on the Missouri River. But the co mplaint does not allege that the amount of water flowing by the Reservation and available for the Tribe’s use is insu fficie nt to fulfill the purposes of the Reservation or will be insufficient in the future. The Tribe therefore has failed to allege injury in fact, as necessary to demonstrate stan ding.

Th e Tribe argues that, because it s Winters rights vested at the founding of the Reservation, any subsequent action affecting the waters of the Missouri River const itutes an injury of those rights, even if the action does not affect the Tribe’s ability to draw sufficient water to fulfill the purposes of the Reservation. In the Trib e’s view, “[w]hen the Government took and used the Tribe’s water and water rights

— whether the Tribe was using that water at the time or not, and despite the natural flow continuing along the river’s banks

— it breached its duty under 162a(d)(8) to appropriat ely manage the water, and alternatively, violated the Takings Clause by taking a fully vested property interest from the Tribe.” Appellant Br. 34.
In so arguing, the Tribe appears to misunderstand what its water rights entail. As noted above, Winters , the sole source of the water rights asserted in this case, only entitles tribes to “that amount of water necessary to fulfill the purpose of the reservation, no more.” Cappaert , 426 U.S. at 141. And because water rights are usufructuary in
nature

— meaning that the property right “consists not so much of the fluid itself as the ad vantage of its use ”— the Tribe has no right to any particular mole cules of water, either on the Reservation or up - o r downstream, that may have been used or diverted by the government. Casitas Mun. Water Dist. v. United States , 708 F.3d 1340, 1353CROW CREEK SIOUX TRI BE v. UNITED STATES 11

(Fed. Cir. 2013). T he Tribe’s Winters rights, which give the Tribe the right to use sufficient water to fulfill the purposes of the Reserva tion , simply cannot be injured by
governme nt action that does not affect the Tribe’s ability
to use sufficient water to fulfill the purposes of the Rese rva tion. The complaint in this case does not allege that the challenged government action has such an effect.

C ONCLUSION
Because the Tribe failed to allege an injury in fact, we affirm the Claims Court’ s dismissal for lack of subject

matter jurisdiction

. AFFIRMED

C OSTS

No costs.