N OTE : This disposition is nonprecedential. 

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

______________________
KLAMATH CLAIMS COMMI TTEE, Plaintiff

- Appellant,

v.

UNITED STATES, Defendant

- Appellee,

______________________

2012

- 5130

______________________ Appeal from the United State s Court of Federal Claims in No. 09

- CV

- 00075, Judge Francis M. Allegra.

______________________ Decided: August 23, 2013

______________________

M ATTHEW J. K ELLY , Fredericks Peebles & Morgan, LLP, of Washington, DC, argued for plaintiff

- appellant. With him on the brief was T HOMAS W. F REDERICKS

.

K

ATHERINE W. H AZARD , Attorney, Appellate Section, Environment & Natural Resources Division, United States Department of Justice, of Washington, DC, argued for defendant

- appellee. With her on the brief was I GNACIA S. M ORENO , Assistant Attorney General.KLAMATH CLAIMS COMMI TTEE v. US 2

M ELODY L. M C C OY , Native American Rights Fund, Boulder, Colorado, argued for amicus curiae th e Klamath Tribes

.

______________________

Before P ROST , B RYSON , and T ARANTO , Circuit Judges.

P ROST , Circuit Judge

, The Klamath Claims Committee (“KCC”) appeals two judgments of the United States Court of Federal Claims

. The first is the court’s decision to dismiss the third and fourth claims of the KCC’s first amended complaint pursuant to Rule 19 of the Court of Federal Claims. We affirm that judgment on the basis of the court’s wellreasoned opinion. See F ED

. C IR

. R. IOP 9 ( 10 ) (a) (W e may aff irm “on the basis of” a trial tribunal’s opinion in a nonprecedential disposition .)

. The second is the court’s dismissal of the KCC’s motion seeking leave to amend its complaint for the second time

. We also affirm that dec ision

, but write briefly to address our reasoning for doing

so

. I

The Klamath and Modoc Tribes and the Yahooskin Band of Snake Indians comprise one federally

- recognized tribal government (the “Tribes”)

. 1 Pursuant to its const itution and by

- laws, the Tribes passed a resolution in 1952 to create the KCC. 2 At that time, the Tribes anticipa ted the termination of its federal recogni tion, which later

1 We use “Tribes” to refer to the single federally

recognized tribal entity.

2 Since its origin, the KCC has had different forms and names. Because t he historical structure and previous

name s of the KCC are not relevant to our deci sion , w e refer to the Klamath Claims Committee and its progeny as simply the “ KCC .”KLAMATH CLAIMS COMMI TTEE v. US 3

occurred t hrough the Klamath Termination Act of 1954. 3 The KCC’s purpose was to represent the interests of the Tribes’s final enrollees (the “1954 Enrollees”) in claims against the United States filed before and after termin ation. A “reserve of necessary fund s for prosecution ” of such claims (the “Litigation Fund”) was created in 1958 from monies due under the Ter mination Act

. J. A

. 734

. 4

In the years following its loss of federal recognition

, the Tribes continued to exist as a self

- governed organiz ation and retained certain water and fishing rights. See 25 U.S.C. § 564r (“[The] t ermination shall not affect the power of the tribe to take any action under its constit ution and bylaws that is consistent with [the Termination Act]”); 25 U.S.C. § 564m (stating that the Termination Act would not affect “any water rights” or “fishing rights or privileges ”). Th ose right s w ere th e founda tion for several post

- termination law suits that involved the Tribes and its members

. As a result of those suits

, the Ninth Circuit issued several opinions that detailed the scope of the Tribes’s right to self -governance and to natural res ources following termination. See Kimball v. Callahan, 493 F.2d 564 (9th Cir. 1974), cert. denied, 419 U.S. 1019 (1974) ( explaining that the Tribes’s hunting, fishing, and water rights survived the Termination Act ); Kimball v. Call ahan , 590 F.2d 768, 770

- 71 (9th Cir. 1979) (discussing which members of the Tribes could exercise tribal fishing rights after termination); United States v. Adair, 723 F.2d 1394 , 1418 (9th Cir. 1983), cert. denied, 467 U.S. 1252

3 Termination did not officially occur until 1961, when the United States had fulfilled all of its obligations under the Termination Act.

4 The KCC refers to the fund as the “Litigation Trust Fund.” The government asserts that the proper name is the “Liti gation Expense Fund.” We make no judgment on whether the funds are held in trust. We therefore use the term “Litigation Fund.”KLAMATH CLAIMS COMMI TTEE v. US 4

(1984) ( addressing how the Tribes could effect a transfer of the hunting and fishing rights it retained after term ination).
In 1986, the Tribes regained federal recognition under the Klamath Indian Tribe Restoration Act

. After the federally

- recognized sovereignty of the Tribes was r estored, the KCC continued to exist

. T he Tribal Council ( the elected govern mental body for the Tribes ) appears to have supervised the KCC’s post

- restoration activities

, including the disbursement of money from the Litigation Fund

. For example, in 1996, unused monies in t he Litig ation Fund were distributed by the KCC to the 1954 Enro llees and their de s ce nda nts under the supervision of the Tribal Council

. See J. A

. 227

- 28 (resolution authorizing the Bureau of Indian Affairs to distribute money from the Litigation Fund to the 1954 Enrollees )

. And i n 2008

, the Tribal Council authorized payments from the Litigation Fund for litigation expenses incurred by the KCC. See J. A

. 234

- 35 (resolution authorizing the distribution of money from the Litigation Fund to pay litigatio n costs ).

II
The present suit began with a complaint filed by the KCC in February 2009. That complaint was amended

once , as a matter of right

, the following month.

The amended complaint included four claims. The first two alleged wrongdoings by the government related to funds payable to the Tribes and its members under Section 13 of the Termination Act. The third and fourth claims asserted a taking of private property and breach of fiduciary duty arising from the removal of the C hiloquin Dam

— an act that allegedly affected water flow and fishing in waterways used by the Tribes.
Shortly after the amended complaint was filed, t he government moved to dismiss all four claims

. As part of its motion, the government argued that the KCC lacked standing to bring its claims

. It asserted that the KCC did not have a legally cognizable interest in the Section 13KLAMATH CLAIMS COMMI TTEE v. US 5

funds , the Chiloquin Dam

, or the tribal water and fishing rights that were apparently affected by the dam’s remo val . A ccording to the government, the KCC failed to show that “it, instead of the Tribes, [ was ] the proper entity to assert [its] claims.” Def. ’s Mot

. to Dismiss 19 n.9

, Kl amath Claims Comm

. v. United States , No. 09

- cv

- 75, ( Fed. Cl. May 7, 2009), ECF No. 9.

A ft er briefing and a hearing on the motion to dismiss, the Court of Federal Claims ordered the KCC to file “an affidavit or resolution from an appropriate Tribal official or of fici als directly addressing [the KCC’s] authority to file a claim in this matter.” J. A

. 328. In June 2010, t he KCC submitted a letter from the Chairman of the Tribal Council that stated that neither he nor the Council was “in a position to lend support to litigation over which the Klamath Tribes have no control, particularly when the l itigation may potentially affect Tribal rights.” J. A

. 331.
Following the KCC ’s inability to obtain the Tribal Council ’s approval , the Court of Federal Claims ruled in February 2011 that the Tribes was a required party under Rule 19

. 5 Klamath Claims Comm

. v. United States , 97 Fed. Cl. 203, 212

- 13 (Fed. Cl. 2011). The court reasoned, in part, that the Tribes “ claimed an interest in the r emain ing subject matter of th[e] lawsuit ” and “ dispos ing of th[e] case in the Tribes’ absence may, as a practical ma tter, impede the Tribes’ ability to protect that interest.” Id. at 213

- 14

. Because it found the Tribes to be a nece ssary party to the litigation, the court formally invited it to intervene

. Id. at 214.

I n April 2011, the Tribes declined the court’s invit ation. It agreed that it had an interest in the suit and that

5 The Court of Federal Claims also dismissed the first and second claims of the amended complaint on statute of limitation gro unds. The KCC has not appealed the dismissal of those claims.KLAMATH CLAIMS COMMI TTEE v. US 6

further adjudication may “impede [ its ] ability to protect that interest.” J. A

. 361. The Tribes also informed the court that the KCC “ha [d] no authority to speak for or represent the Trib es. ” Id.
In response to the Tribes’s refusal to intervene , the court ordered briefing on whether the Tribes was an indispensable party

. After the parties filed their brief s , the Tribes submitted an a micus brief to the court. In it

, the Tribes “expressly reserve[d] its sovereign im munity from suit ” and again asserted that the KCC had no a uthority to represent it . It also argued that the rights at issue “belong to the Tribes ” and that the KCC was “acting hostilely to the Tribes, asserting control over tri bal rights, and inviting th[e] Court to de

- legitimize the Tribes.” Klamath Claims Comm

. v. United States

, 106 Fe d. Cl. 87, 92 (Fed. Cl. 2012) (internal quotation marks omitted).
In April 2012, m onths a fter the Rule 19 briefing co ncluded ( and years after the suit began ) , the KCC filed a motion for leave to amend its complaint

. That proposed second amended complaint include d new facts related to the third and fourth claim s of the first amended co mplaint and add ed three new claims against the g over nment . All of those new claims relate d to the Litigation Fund . One demand ed an order directing the government to pay the KCC’s attorney from monies in the Fund. T he other two requested damages for breach of trust and mismanagement of the F und.

Sh ortly after the KCC filed its motion to amend, the Court of Federal Claims ruled that dismissal under Rule 19 was appropriate because the Tribes was an indispe nsable party for the third and fourth claims of the amended complaint . In addition to citing concerns and respect for the Tribes’s sovereignty and the risk of “multiple and conflicting claims” against the government, the court reasoned that the resolution of the third and fourth claims in the amended complaint required adjudication of substantial tri bal interests in water and fishing rights that “might be impaired by an adverse ruling.” KlamathKLAMATH CLAIMS COMMI TTEE v. US 7

Claims Comm

. , 106 Fed. Cl. at 96. In light of its Rule 19 decision , the court dismissed the KCC’s motion to amend
as moot. Id. at 97 n.22.

The KCC filed a timely appeal. We have jurisdiction under 28 U.S.C. § 1295(a)(3).

III
The KCC raises two points on appeal. First, the KCC believes that the Court of Federal Claims erred in di smissing the third and fourth claims of its amended co mplaint under Rule 19. We see no such error and affirm the court’s judgment on the basis of its well

- reasoned opi nion. 6 Second, the KCC argues that the court erroneously dismissed its motion to amend as moot. It asserts that the motion was not moot ed by the Rule 19 dismissal of the third and fourth claims in its amended complaint.

We also affirm the dismissal of the KCC’s motion to amend. Although the Court of Federal Claims characte rized the motion to amend as “moot” in light of its ruling on the Rule 19 issue, we do not int erpret the court’s statement as holding that the dispute relating to the motion was moot in the formal sense, but rather as a statement that it was unnecessary for the court to a ddress that issue. B ecause , given the facts here, the Tribes was unquestionably an indispensable party under Rule 19 for all of the new claims the KCC desired to add in its proposed second amended complaint, we uphold the denial of that motion on the ground that the amendment would have been futile in li ght of the Rule 19 problem that would have required dismissal of those claims. 7 S ee

6 None of the new facts in the proposed second amended complaint present any basis for reversing the Rule 19 dismissal of the third and fourth claims of the first amended complaint.

7 Because of the facts here , we do not decide whet her the Rule 19 dismissal of some of the KCC’s claims itselfKLAMATH CLAIMS COMMI TTEE v. US 8

A123 Sys., Inc. v. Hydro

- Quebec , 626 F.3d 1213, 1221 (Fed. Cir. 2010) ( reviewing de novo a Rule 19 issu e “ in the first instance on appeal ” based on facts in the record ); C ultor Corp. v. A.E. Staley Mfg. Co. , 224 F.3d 1328, 133 2- 3 3 (Fed. Cir. 2000) ( affirming a district court’s denial of a motion to amend on the basis that any amendment would have be en futile)

. Rule 19 explains that a party may be a “required” party if it “claims an interest relating to the subject of the action and is so situated that the disposition of the action in [its] absence may . . . as a practical matter impair or impede [its] ability to protect that interest .” RCFC 19 (a)(1)(B). If joinder of a re quired party is not feasible, the Court of Federal Claims must determine if the absen t party is an indispensable one without whom the action should not proceed. RCFC 19(b). That analysis generally
turns on several factors specified in the rule , including

“ the extent to which a judgment rendered in the [ required party’s] absence might prejudice that [party]” ; “ the extent to which any prejudice could be lessened or avoided ”;

“ whether a judgment rendered in the [required party’s] absence would be adequate ” ; and “whether the plaintiff would have an adequate remedy if the action were di smissed .” RCFC 19(b) (1)

- (4)

. Applying those Rule 19 factors here, we hold that the Tribes is a n indispensable party for the claims the KCC sought to add in its motion to amend. The Tribes is clearly a required party for those claims, and the first Rule 19 factor weighs quite heavily in favor of dismissal.

required dismissal of the whole action. See

, e.g. , RCFC 19 (“If a person who is required to be joined . . . cannot be joined, the court must determine whe ther . . . the action should proceed . . . or should be dismissed) (emphasis added); Molinos Valle Del Cibao, C. por A. v. Lama , 633 F.3d 1330, 1343 (11th Cir. 2011) (“If the party is indi spensable, then we must dismiss the entire case.”).KLAMATH CLAIMS COMMI TTEE v. US 9

T he resolution of th e KCC’s new claims would necessarily implicate significant sovereign interest s of the Tribes and risk substantial prejudice to it

. As the Court of Federal Claims recognized, adjudication of claim s by the KCC would require the court to resolve whether the KCC has standing

. Klamath Claims Comm

. , 97 Fed. Cl. at 212

. For the new claim s, t h e standing inquiry would compel the court to determine which past and current members of the Tribes the KCC represents and whether the KCC has the authority to represent those individuals’ interest in the Litigation Fund

. Those determinations would require the court to decide the extent of the KCC’s power and authority pursuant to, not only several acts of Congress

, but also the legislative acts, law s , and constitu tion of the Tribes

. Any such decision could have a significant prej udicial effe ct on the Tribes’s sovereign power of self

governance and its ability to effectively protect its inte rests

— and its members ’ interests— in the Litigation Fund

. That risk of substantial prejudice h as been made clear by events that transpired after the Court of Federal Claims issued its deci sion

. In July 2012, the Tribes formally dissolved the KCC pursuant to its constitu tion and created a new c ommittee to represent the 1954 Enro llees’ interests in the Litigation Fund (the “1954 Final Enrollees Committee”)

. Resp ’ t’s Add endum 12

- 14. 8 That

8 The government appended to its brief pertinent resolutions of the Tribes’s government that were passed after the Court of Fed eral Claims issued its decision here

. In its reply brief, t he KCC moved to strike those doc uments from the government’s brief and asked us not t o take judicial notice of them. The K CC’s motion to strike is denied . W e take judicial notice of the resolutions the government ap pended to its brief, which are publically available records of the Tribes’s government whose acc uracy cannot be reasonably questioned. See Massachusetts v. Westcott , 431 U.S. 322, 323 n.2 (1977) (explaining that government records may be “judicially noticed” ); TheKLAMATH CLAIMS COMMI TTEE v. US 10

new committee held an open meeting in August 2012 at which an almost unanimous number of the present 1954 Enrollees (or their representative heirs ) voted to distri bute all of the money in the Litigation Fund to themselves

. Id. at 16. In November 2012, t hat vote was ratified by the Tribes

, and the Tribal Counci l was directed to distribute the funds. Id.
The KCC’s standing directly depends upon its autho rity to bring claims on behalf of the 1954 Enrollees that accord with the interests of those individuals. It is now apparent that t he same sovereign that created the KCC has dissolved it and formed a new govern ment committee to represent the interests of the 1954 Enrollees in the Litigation Fund

. And, even though the 1954 Enrol lees have voted to disburse all the monies in the Fund to themselves, the KCC demands as relief under its first new claim that proceeds from the Fund be paid to its atto rneys

— not the 1954 Enrollees. 9 Thus, there are significant questions here regarding t he KCC’s authority to bring its new claims and the true identity of the tribal members (and their interests) that the KCC represents. T o dete rmine if the KCC has standing, the Court of Federal Claims w ould be forced to resolve those issues by , in large part, i nterpr eting the Tribes’s laws and const it ut ion. Such a decision c ould un doubtedly impinge upon the Tribes’s sovereignty and substantially prejudice its ability

Klamath Tribes General Council Resolution #2012

- 003, available at http://www.klamathtr ibes.org/claims/CC_2012- 003%20GCR%20Litigation%20 Fund.pdf ; The Klamath Tribes General Council Resol ution #2012

- 002, available at http://www.klamathtribes .org/claims/Z_2012%2007%2014%20Resolution%202012% 20002.pdf

.

9 The existence of competing c laims to the same pot of money is a classic reason for dismissing under Rule 19 when one of the claimants is not a party.KLAMATH CLAIMS COMMI TTEE v. US 11

to self -govern, regulate the activit ies of its agents under its laws

, and prot ect the interests of the 1954 Enrollees in the Litigation Fund

— which it appears to have historically done without objection by the KCC

. 10 Thus, the first Rule 19 factor overwhelmingly favors dismissal. Accord Repu blic of Philippines v. Pimentel , 553 U.S. 851, 869 (2008) (finding error in a court’s analysis of the first Rule 19(b) factor by “not accord[ing] proper weight to the compelling claim of sovereign immunity” ).
The remaining Rule 19 factors also point to dis missal. Although the KCC might be able to obtain adequate relief in absence of the Tribes, there is no practical way for the
court to lessen the potential prejudice to the Tribes by shaping the relief it grants or including protective prov isions in its ju dg ment

. Furthermore, the KCC is not without remedy if its new claims are dis missed : i t is free
to seek a resolution or declara tion under tribal law r egarding its right to represent the 1954 Enrollees and then refile its suit if successful

.

10 T he KCC believes that it has authority to bring its claims solely pursuant to the Termination Act. But that view is overly simplistic and discounts the relevance of tri bal law here. We cannot simply ignore that the sove reign which created and empowered the KCC under its laws has now dissolved the KCC using that very same power and created a new government committee to repr esent the interests of the 1954 Enrollees in the Litigation Fund. It seems axiomatic that the sovereign Tribes may choose which of its branches or agen ts can bring suit on its behalf to vindicate its rights or the rights of its me mbers. If certain members of the Tribes disagree with that choice , they should seek relief in tribal court or through the Tribal Council. F ederal courts are generally not the proper forum to settle such disputes , especially in absence of a relevant sovereign tribe

. See Marceau v. Blackfeet Hous. Auth. , 540 F.3d 916, 920

- 21 (9th Cir. 2008).KLAMATH CLAIMS COMMI TTEE v. US 12

Therefore, a pplying the standards of Rule 19 to the particular facts of this case , we conclude that the Tribes are clearly a required and an indispensable party to the claims the KCC sought to add in its motion to amend. Adjudi cating those claims in the absence of th e Tribes would be an abuse of discretion. Accordingly , we affirm the dismissal of the KCC’s mo tion to amend along with the Rule 19 dismissal of the third and fourth claims of the KCC’s amended complaint.

AFFIRMED