IN THE UNITED STATES COURT OF FEDERAL CLAIMS

______________________________________

)

WHITE MOUNTAIN APACHE TRIBE, )

)

Plaintiff, ) No. 17-359C

)

v. ) Filed: December 16, 2021

)

THE UNITED STATES, )

)

Defendant. )

______________________________________ )

OPINION AND ORDER

Before the Court is the Government’s Motion to Dismiss or for Summary Judgment on 

Plaintiff White Mountain Apache Tribe’s (“Tribe”) Phase I claim under the Indian Lands Open 

Dump Cleanup Act of 1994 (“the Act”), 25 U.S.C. §§ 3901–3908 (1994). The Government 

contends that the Tribe’s claim should be dismissed under Rules 12(b)(1), 12(b)(6), and 12(c) of

the Rules of the United States Court of Federal Claims (“RCFC”). Alternatively, the Government 

asks the Court to grant summary judgment in its favor pursuant to RCFC 56(c). Without 

addressing all of the Government’s arguments, the Court determines it lacks subject-matter

jurisdiction over the Tribe’s claim since the Act imposes no specific fiduciary obligations upon 

the Government. Accordingly, the Government’s Motion to Dismiss is GRANTED pursuant to 

RCFC 12(b)(1), and its alternative request for summary judgment is DENIED AS MOOT. 

I. BACKGROUND

A. Factual Background

The facts relevant to the Tribe’s Phase I claim are largely undisputed. The Tribe resides 

on and is the beneficial owner of the Fort Apache Indian Reservation (“Reservation”) in eastern 

Arizona. Through its Tribal Public Works Department (“Public Works”) and with the help of its 
2

Environmental Planning Office (“EPO”) and other tribal governmental authorities, it regulates 

solid waste disposal on the Reservation. See Open Dump Cleanup Project Jan. 31, 2005 at 6, ECF 

No. 66-3; Integrated Solid Waste Mgmt. Plan 2019–2024 at 11, ECF No. 66-5. Open dumps are, 

and have been, a consistent problem on the Reservation, whether contributed to by Tribe members,

the tribal government, non-Tribe members(both residents and visitors), or the federal government. 

See, e.g., Solid Waste Mgmt. Plan Aug. 1994 at 5, 38, ECF No. 66-2 (discussing the problem of 

unmanaged waste disposal and the removal of federal agency waste); ECF No. 66-5 at 17, 21; 

Letter from Brenda Pusher-Begay (EPO) to Alfred Brooks (Public Works) (Jan. 9, 2017) at 2, 4,

ECF No. 66-8 (describing illegal dumping activities by Public Works).

In the early 1990s, the Indian Health Service (“IHS”), the Bureau of Indian Affairs 

(“BIA”), and the Tribe began closing open dumps on the Reservation, some containing BIA waste. 

See ECF No. 66-2 at 38, 40–41. These federal agencies, as well asthe U.S. Department of Housing

and Urban Development and the U.S. Department of Agriculture, each provided funds through 

grants or loans for constructing the Tribe’s landfill. See id. at 84, 87; Resol. No. 02-96-036, ECF 

No. 66-18. With the construction of the landfill, all remaining open waste dumps were supposed 

to close. Req. for Release of Funds and Certification at 2, ECF No. 66-19. By 1998, 15 of 24 

identified open dumps had been permanently closed. Letter of Ronnie Lupe (Chairman) to 

Benjamin Nuvamsa (BIA) (Feb. 26, 1998) at 2, ECF No. 66-24. Over the next decade, the Tribe 

used its own funds and contributions from BIA and IHS, as well as funds from Environmental 

Protection Agency (“EPA”) grants, to inventory and clean up remaining dumps. See, e.g., ECF 

No. 66-3 at 25; IHS Funding Spreadsheet at 2, 5, ECF No. 66-25; Letter from EPO to Bernie 

Hinton (BIA) (Mar. 21, 2002), ECF No. 66-26; STARS PDS Narrative at 3, ECF No. 66-27; Gen. 

Assistance Program Close-Out Report 10/1/2010 – 9/30/2012 at 2–3, 5, ECF No. 66-28. 
3

Continued illegal dumping caused other dumps to spring up, however, and the number of 

open dumps fluctuated over the years. See ECF No. 66-2 at 5; ECF No. 66-5 at 20–21. In March 

2016, the Tribe’s open dump inventory identified eight open dumps, and by October 2016 that 

number skyrocketed to 85. See WMAT Regulated Facilities List at 5, ECF No. 66-29; Email from

Brenda Pusher-Begay (EPO) to Orlando Tessay (Oct. 7, 2016) at 2–5, ECF No. 66-30. In June 

2020, well before the Tribe first filed its Complaint, IHS completed its own nationwide resurvey 

of open dumps on Indian land and concluded that the Reservation had approximately 45 visible 

open dump sites. Def.’s Resps. to Pl.’s First Set of Interrogs.: Indian Health Service at 5, ECF No. 

66-34. Presumably included among these open dumps is the Sunrise Landfill, which the 

Government has acknowledged may contain federal waste not cleaned up in prior dump closure 

efforts. See Mem. of Points & Auth. in Support of Mot. to Dismiss or for Summ. J. at 15–16, ECF 

No. 66-1; Ltd. Subsurface Investigation: Fort Apache Agency Sunrise Ski Resort Dumpsite at 4, 

ECF No. 66-43 (detailing BIA’s investigation into its own responsibility for dumping at Sunrise 

Landfill). 

Financial assistance from the Government related to all manner of issues, including open 

dumps, has flowed to the Tribe throughout the years. Between 1982 and 2019, IHS gave 

approximately $94.5 million in funding to the Tribe, with at least $561,500 of that amount 

dedicated to cleaning up open dumps.1 See ECF No. 66-25 at 2 (listing funding provided in fiscal 

years 1997 and 2004). Additionally, IHS provided $140,000 for the Tribe’s Whiteriver Landfill 

expansion in 2018. ECF No. 66-25 at 5. Between 2002 and 2019, EPA also provided over $3 

1 The Tribe alleges that IHS has not allocated any additional funding dedicated to closing 

open dumps or for post-closure maintenance since 2004, while the Government states that IHS 

provided approximately $281,500 between 2004 and 2009 to clean up four existing dumps. Pl.’s 

Resp. to Mot. for Dismissal at 6, 20–21, ECF No. 70; ECF No. 66-1 at 15. 
4

million in General Assistance Program (“GAP”) grants which were used for cleaning up open 

dumps, among other waste related causes. Federal Agency Funding Related to Reservation 

Sanitation at 2, ECF No. 66-37;see EPA Notices of Award 2006 – 2019, ECF No. 66-33; EPA 

Commitment Notices 2002 – 2005, ECF No. 66-36. Recently, the Tribe requested additional IHS

funds for landfill expansion. Letter from Colbert G. Burnette (Tribal Engineer) to Lorenzo Santana 

(IHS) (June 14, 2019) at 5, ECF No. 66-39. 

B. Procedural Background

On March 15, 2017, the Tribe filed its Complaint, alleging the United States, as trustee of 

the Tribe’s “funds, land, timber and other assets,” had breached its fiduciary duties to the Tribe. 

See Pl.’s Compl. ¶ 1, ECF No. 1. The bulk of the Complaint’s allegations relate broadly to

mismanagementof trust funds and timber resources, although it also contains allegations regarding 

dam safety, mineral resources, environmental contamination, rights-of-ways, leases, and grazing. 

See id. ¶¶ 29–60. The Tribe’s allegations relevant to open dumps are contained in its oneparagraph environmental contamination claim, which alleges that “[s]ome Reservation trust lands 

have been contaminated by non-Tribal entities with hazardous waste, pollution, and other harmful 

substances.” Id. ¶ 15. The Complaint also cites the Act, amongst a slew of other statutes, as 

supporting the Tribe’s claims. Id. ¶ 20. 

The Government first moved to dismiss the Tribe’s claims on July 14, 2017. See Def.’s

Mot. to Dismiss, ECF No. 9. The court denied the motion as to the Tribe’s trust fund, dam safety, 

minerals, contamination, rights-of-way, and leases allegations, and granted the Government’s 

motion as to the Tribe’s grazing and forestry claims.

2 Op. & Order at 9–10, 14, ECF No. 22. Nine

2 Prior opinions and orders referenced herein were issued by Senior Judge Damich and 

Judge Hertling. This case was reassigned to the undersigned on December 21, 2020.
5

months later the Government filed a Motion to Certify Interlocutory Appeal on the Tribe’s dam 

claims, which the court denied. See White Mountain Apache Tribe v. United States, No. 17-359 

L, 2018 WL 6293242 (Fed. Cl. Dec. 3, 2018).

Moving forward, the court divided this case into phases and allowed jurisdictional 

discovery on the Tribe’s Phase I minerals, leases, rights-of-way, and contamination claims. See

ECF No. 22 at 10; Scheduling Order, ECF No. 31; Joint Mot. for Enlargement of Time ¶ 2, ECF 

No. 60; Order, ECF No. 61. Following discovery, the Tribe withdrew its minerals, leases, rightsof-way, and non-dump contamination claims, leaving only an open dump claim set forth in the 

court-ordered claim specification it produced on September 1, 2020. See Email from Brian 

Chestnut (Pl.’s Counsel) to Matthew Marinelli (ENRD) (Sept. 1, 2020) at 2, ECF No. 66-46 (“The 

only Phase I environmental claim the Tribe will be making is concerning open dumps . . . .”); 

White Mountain Apache Tribe—Identification of Environmental Claims at 2–3, ECF No. 66-47.

In its claim specification, the Tribe claims that the Government breached its trust 

responsibilities by “failing to provide adequate financial and technical assistance to: (1) inventory 

dumps; (2) develop a plan to close dumps; (3) close dumps and (4) provide postclosure 

maintenance of such dumps.” ECF No. 66-47 at 2. Plaintiff identified the dates of its claim as

pertaining to: (1) open dumps of which the Tribe knew or should have known from March 16, 

2011, to present; and (2) open dumps that the Tribe identified to the Government before March 

16, 2011, where the Tribe relied on Government assurances that it would provide assistance that

never materialized. Id. at 3. As the statutory basis for its claim, the Tribe cites the Act, “as 

informed by” the Resource Conservation and Recovery Act (“RCRA”); 42 U.S.C. §§ 6901–6992k 

(1976); the Snyder Act, 25 U.S.C. § 13 (1998); and 25 U.S.C. § 162a(d)(8) (1994). Id.
6

On November 16, 2020, the Government filed its second Motion to Dismiss or for 

Summary Judgment on the Tribe’s Phase I Claim arguing, among other things, that the Act does 

not meet the jurisdictional requirements of the Indian Tucker Act, 28 U.S.C. § 1505 (1992), since 

it does not impose specific fiduciary duties on the Government or mandate compensation for any 

breach of duties. See ECF No. 66-1. It also argues that the Tribe has failed to plead facts necessary 

to support its claim, and, in any event, the Government is entitled to summary judgment on the 

merits. See id. at 37–45; Def.’s Reply at 18–20, ECF No. 72. On January 22, 2021, the Tribe filed 

its Response to the Government’s Motion. See Pl.’s Resp. to Mot. for Dismissal, ECF No. 70. 

Following the close of briefing, the Court allowed further briefing on the Government’s Notice of 

Supplemental Facts (ECF No. 73). See Pl.’s Mot. for Leave to File Resp. to Def.’s Notice of Suppl. 

Facts, ECF No. 74; Resp. to Def.’s Notice of Suppl. Facts, ECF No. 75; Def.’s Reply Regarding

Notice of Suppl. Facts, ECF No. 77. The Motion has been fully briefed and is ripe for decision. 

II. DISCUSSION

A. Standard of Review

Although the Government’s Motion requests relief pursuant to a number of rules, the Court 

believes this matter presents a clear jurisdictional question that is appropriately resolved under 

RCFC 12(b)(1). Subject-matter jurisdiction is a threshold matter; without it, “the only function 

remaining to the court is that of announcing the fact and dismissing the [case].” Ex parte 

McCardle, 74 U.S. 506, 514 (1869). The plaintiff “bears the burden of establishing subject-matter 

jurisdiction by a preponderance of the evidence.” See Inter-Tribal Council of Ariz., Inc. v. United 

States, 956 F.3d 1328, 1337–38 (Fed. Cir. 2020) (internal quotation marks omitted) (quoting M. 

Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1327 (Fed. Cir. 2010)). 
7

When considering a motion to dismiss for lack of subject-matter jurisdiction, the Court 

accepts as true all uncontroverted factual allegations in the complaint and draws all reasonable 

inferences in the light most favorable to the plaintiff. See Estes Express Lines v. United States, 

739 F.3d 689, 692 (Fed. Cir. 2014)(citing Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583–

84 (Fed. Cir. 1993)); see also Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995)). The 

Court, however, is not strictly confined to the pleadings. Meyers v. United States, 96 Fed. Cl. 34, 

43 (2010). If jurisdictional facts are disputed, the plaintiff may not rest on mere allegations; 

instead, he must produce competent proof sufficient to support his allegations by a preponderance 

of evidence. McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936); Taylor 

v. United States, 303 F.3d 1357, 1359 (Fed. Cir. 2002). 

B. The Court Lacks Jurisdiction to Entertain the Tribe’s Open Dump Claim.

The Government premises its jurisdictional argument on the contention that the Tribe has 

not identified any statute or regulation that imposes a specific, enforceable, money-mandating duty 

to clean up or provide compensation for open dumps on the Tribe’s land. See ECF No. 66-1 at 24. 

The Tribe argues that the Act “easily satisfies the two-part test for money-mandating claims,”

stating that the presence of 45 open dumps on the Reservation with no existing plan to fund closure 

of those dumps shows that the Government is out of compliance with the Act in violation of its 

fiduciary duties. ECF No. 70 at 26. Based on binding Supreme Court and Federal Circuit 

precedent, the Court concludes that the Tribe has not identified a trust-creating source of law

sufficient to demonstrate jurisdiction under the Indian Tucker Act.
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1. Jurisdiction Under the Indian Tucker Act

The Indian Tucker Act provides the Court of Federal Claims with jurisdiction over any 

claim of an American Indian tribe against the United States “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 . . . .” 28 U.S.C. § 1505. Like the Tucker Act, the Indian Tucker Act is a 

jurisdictional statute only. United States v. Navajo Nation (“Navajo II”), 556 U.S. 287, 290 (2009) 

(citations omitted). It provides no enforceable substantive rights; it only waives sovereign 

immunity for claims against the Government based on other money-mandating sources of law. Id.

Whether jurisdiction is satisfied depends on a two-part analysis. First, the Tribe “must identify a 

substantive source of law that establishes specific fiduciary or other duties, and allege that the 

Government has failed to faithfully perform those duties.” Hopi Tribe v. United States, 782 F.3d 

662, 667 (Fed. Cir. 2015) (internal quotation marks and brackets omitted) (quoting Navajo II, 556 

U.S. at 290–91). If the Tribe satisfies the first request, the Court must then “determine whether 

the substantive source of law can be fairly interpreted as mandating compensation for damages 

sustained as a result of a breach of the duties the governing law imposes.” Id.

a. Prong 1: Specific Fiduciary or Other Duties

The Government’s common law trust obligations alone cannot satisfy the first part of the

analysis. Rather, the Government’s violation of a “specific, applicable, trust-creating statute or 

regulation” is required. United States v. Jicarilla Apache Nation, 564 U.S. 162, 177 (2011) 

(quoting Navajo II, 556 U.S. at 302). General trust relationships between the United States and a 

tribe also are insufficient. Hopi Tribe, 782 F.3d at 667 (citing United States v. Mitchell (“Mitchell 

I”), 445 U.S. 535, 542–44 (1980)). Instead, a tribe “must identify statutes or regulations that both 
9

impose a specific obligation on the United States and ‘bear the hallmarks of a conventional 

fiduciary relationship.’” Id. (internal brackets omitted) (quoting Navajo II, 556 U.S. at 301).

In Mitchell I, the Supreme Court considered whether the Indian General Allotment Act of 

1887 (“Allotment Act”), 25 U.S.C. § 331 et seq. (repealed in part 2000),supported jurisdiction in 

the Court of Claims over a claim brought by members of the Quinault Tribe alleging that the 

Government mismanaged timber resources on the tribe’s reservation. The Allotment Act

authorized the President to allot agricultural and grazing land on a reservation to individual tribal

members and provided that “the United States does and will hold the land thus allotted . . . in trust 

for the sole use and benefit of the Indian to whom such allotment shall have been made.” 445 U.S. 

at 541 (quoting 25 U.S.C. § 348 (2006)). Despite this language, the Supreme Court determined 

that the Allotment Act imposed no judicially enforceable trust duty because sections of the 

Allotment Act indicated that the Indian allottee, not the United States Government, was 

responsible for using allotted land for agricultural and grazing purposes. Id. at 542–43. Moreover, 

even though title to the allotted land remained in the hands of the United States, the Indian allottee 

could continue to occupy the land as a homestead for personal use. Id. at 543. Because these 

provisions evidenced that the Allotment Act did not “unambiguously provide that the United States

[had] undertaken full fiduciary responsibilities as to the management of allotted lands,” the 

Supreme Court determined the Allotment Act did not support jurisdiction under the Indian Tucker 

Act. Id. at 542 (emphasis added). 

Following remand proceedings in the same case, the Supreme Court found that other 

sources of law provided the level of government management and control that conferred

jurisdiction over the Quinault Tribe’s breach of trust claim. See United States v. Mitchell

(“Mitchell II”), 463 U.S. 206 (1983). Mitchell II held that the Government had a specific fiduciary 
10

obligation to manage forest resources on the Quinault Tribe’s reservation given its “pervasive role 

in the sales of timber from Indian lands.” Id. at 219. This role was demonstrated by applicable 

statutes and regulations that “addressed virtually every aspect of forest management including 

[(among other things)] the size of sales, contract procedures . . . allowable heights of stumps . . . 

[and] base and top diameters of trees for cutting,” id. at 220, and that were “designed to assure that 

the Indians receive ‘the benefit of whatever profit the forest [was] capable of yielding,’” id. at 221–

22 (internal bracketing omitted) (quoting White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 

149 (1980)). Pursuant to those authorities, Interior exercised “‘comprehensive’ control over the 

harvesting of Indian Timber,” id. at 209 (citation omitted), and “literally daily supervision over 

[its] harvesting and management,” id. at 222 (citation omitted). Because the Interior Secretary 

managed sales of timber “so as to obtain the greatest revenue for the Indians consistent with a 

proper protection and improvement of the forests,” id. at 220 (internal quotation marks and citation 

omitted), the relevant statutory provisions directed him to consider “the needs and best interests of 

the Indian owner and his heirs” and required him to account for the need to “maintain[] the 

productive capacity of the land . . . the highest and best use of the land . . . and the present and 

future financial needs of the owner and his heirs,” id. at 222 (quoting 25 U.S.C. § 406(a) (1964)). 

“Virtually every stage of the process” of managing tribal timber, the Supreme Court concluded, 

was subject to federal control. Id. 

The Supreme Court reinforced its Mitchell I and II holdings in United States v. Navajo 

Nation (“Navajo I”), 537 U.S. 488, 510 (2003), determining that the Interior Secretary did not 

violate any trust obligation under the Indian Mineral Leasing Act of 1938 (“IMLA”), 25 U.S.C. § 

396(a) et seq., when he approved a royalty, under a lease between the Navajo Nation and a private 

company to mine coal on the tribe’s land, considered to be half the coal’s value. The Supreme 
11

Court concluded that the IMLA and its implementing regulations did not impose specific fiduciary 

obligations on the Secretary since he was “neither assigned a comprehensive managerial role nor 

. . . expressly invested with responsibility to secure ‘the needs and best interests of the Indian 

owner and his heirs.’” Id. at 507–08 (quoting 25 U.S.C. § 406(a)). The Supreme Court noted that, 

as opposed to the IMLA regulations relating to oil and gas leases, which provided specific criteria 

for the Secretary to use when setting royalty rates, the regulations relating to coal “required only 

that the rate be ‘not less than 10 cents per ton’” and placed no other limitations on the Secretary’s 

approval authority or tribal negotiating capacity. Id. at 495 (quoting 25 C.F.R. § 211.15(c) (1985)). 

The IMLA authorized the Secretary to promulgate regulations governing coal mining operations, 

but because it “aim[ed] to enhance tribal self-determination by giving Tribes” the lead in 

negotiating mining leases, with the Secretary merely approving those leases, no fiduciary duty 

existed. Id. at 508. 

b. Prong 2: Money-Mandating Source of Law

The second part of the analysis is satisfied where the Tribe demonstrates that the source of 

law relied upon mandates monetary compensation from the Government. Mitchell II, 463 U.S. at 

216–17;see Ute Indian Tribe of the Uintah & Ouray Indian Rsrv. v. United States, 145 Fed. Cl. 

609, 624 (2019) (“The Tribe neglects, however, to carry its burden of showing that other sections 

of the [applicable statute] mandate monetary compensation.”). A statute is money-mandating in 

two circumstances: when (1) “it can fairly be interpreted as mandating compensation by the 

Federal Government for . . . damages sustained,” or (2) “it grants the claimant a right to recover 

damages either expressly or by implication.” Lummi Tribe of the Lummi Rsrv. v. United States, 

870 F.3d 1313, 1317 (Fed. Cir. 2017) (internal quotation marks and numbering omitted) (quoting 

Blueport Co., LLC v. United States, 533 F.3d 1374, 1383 (Fed. Cir. 2008)). 
12

A money-mandating statute need not contain a specific provision for damages. For 

example, in United States v. White Mountain Apache Tribe, the Supreme Court held that the Act 

of 1960, Pub. L. No. 86-392, 75 Stat. 8 (codified as 25 U.S.C. § 277), not only expressly defined 

a fiduciary relationship between the Tribe and the Government relating to the former military post 

of Fort Apache but also gave the Government the right to use portions of the property it held in 

trust for the Tribe. 537 U.S. 465, 475, 477 (2003). The Court held that it was fairly inferred by 

that trust relationship, the Government’s actual occupancy of the property, and fundamental 

principles of trust law that the Government was liable in damages for any breach of its fiduciary 

duty to preserve property improvements. Id. at 475–76. 

However, should the statutes or regulations relied upon to satisfy the question of 

jurisdiction grant officials “substantial discretion” in carrying out the statutory scheme, they

generally cannot be interpreted as mandating compensation. Wolfchild v. United States, 731 F.3d 

1280, 1292 (Fed. Cir. 2013) (internal quotation marks and citation omitted); Doe v. United States, 

463 F.3d 1314, 1324 (Fed. Cir. 2006) (“A statute is not money-mandating when it gives the 

government complete discretion over the decision whether or not to pay an individual or group.” 

(citation omitted)). Discretionary schemes are only money-mandating if they: “provide[] ‘clear 

standards for paying’ money to recipients; . . . state[] the ‘precise amounts’ that must be paid; or . 

. . compel[] payment on satisfaction of certain conditions.” Samish Indian Nation v. United States, 

657 F.3d 1330, 1336 (Fed. Cir. 2011) (numbering omitted) (quoting Perri v. United States, 340 

F.3d 1337, 1342–43 (Fed. Cir. 2003), vacated on other grounds, 568 U.S. 936 (2012)). 
13

2. The Act Does Not Impose a Specific Trust Duty Upon the Government to Clean 

Open Dumps.

 

The Tribe identifies the Act, with a focus on § 3904, 3 as the substantive source of law 

creating the alleged fiduciary duty and entitlement to monetary compensation at issue in its Phase 

I claim. ECF No. 66-47 at 3. As pertinent to the Court’s analysis, the Act directs IHS, “[u]pon

request by an Indian tribal government,” to inventory and evaluate open dumps on Indian lands, 

determine the relative threat of each dump to public health and the environment, and develop cost 

estimates for closure and post-closure maintenance of the dumps. 25 U.S.C. § 3904(a)(1). 

3 Section 3904 provides in relevant part:

(a) Reservation inventory

(1) Upon request by an Indian tribal government or Alaska Native entity, the 

Director shall—

(A) conduct an inventory and evaluation of the contents of open dumps on 

the Indian lands or Alaska Native lands which are subject to the authority 

of the Indian tribal government or Alaska Native entity;

(B) determine the relative severity of the threat to public health and the 

environment posed by each dump based on information available to the 

Director and the Indian tribal government or Alaska Native entity unless the 

Director, in consultation with the Indian tribal government or Alaska Native 

entity, determines that additional actions such as soil testing or water 

monitoring would be appropriate in the circumstances; and

(C) develop cost estimates for the closure and postclosure maintenance of 

such dumps. . . .

(b) Assistance

Upon completion of the activities required to be performed pursuant to subsection 

(a), the Director shall, subject to subsection (c), provide financial and technical 

assistance to the Indian tribal government or Alaska Native entity to carry out the 

activities necessary to—

(1) close such dumps; and

(2) provide for postclosure maintenance of such dumps.

(c) Conditions

All assistance provided pursuant to subsection (b) shall be made available on a sitespecific basis in accordance with priorities developed by the Director. Priorities on 

specific Indian lands or Alaska Native lands shall be developed in consultation with 

the Indian tribal government or Alaska Native entity. The priorities shall take into 

account the relative severity of the threat to public health and the environment 

posed by each open dump and the availability of funds necessary for closure and 

postclosure maintenance.
14

Following completion of these tasks, the Act directs that IHS “shall . . . provide financial and 

technical assistance to the Indian tribal government . . . to carry out the activities necessary to—

(1) close such dumps . . . and (2) provide for postclosure maintenance of such dumps.” Id. § 

3904(b). Subsection (c) conditions this assistance on priorities set by the Director of IHS

(“Director”) according to the Director’s determination of the threat posed by each dump and the 

availability of funds. Id. § 3904(c). 

As the Tribe sees it, the provisions of § 3904 are mandatory and reflect Congress’s intent 

to “expressly establish[] the [Government’s] obligation to manage a trust resource for the benefit 

of the Tribe.” ECF No. 70 at 29 (citing Pawnee v. United States, 830 F.2d 187, 190 (Fed. Cir. 

1987)). Emphasizingthe Act’s prefatory statement that “the United States holds most Indian lands 

in trust for the benefit of Indian tribes and Indian individuals,” the Tribe contends that Congress’s 

use of this language, coupled with the substantive requirements of the Act, demonstrates the 

requisite fiduciary duties satisfying part one of the jurisdictional analysis. See, e.g., id. at 26 

(quoting 25 U.S.C. § 3901(a)(5)). The Tribe also points the Court to the legislative history of the 

Act,4 common law, and related statutes to support its argument. See id. at 30–31, 43. The Tribe

further contends that the Act is money-mandating, satisfying part two of the analysis, given the 

use of the term “shall” in relation to IHS’s provision of assistance and what the Tribe claims is a 

lack of discretion on the part of the Director to allocate funds. Id. at 28, 29, 34–36.

In the Government’s view, the Act does not impose fiduciary duties on the Government to 

clean open dumps or mandate payment of damages for open dumps that exist on tribal lands. 

4 Both parties reference the Act’s legislative history to bolster their respective arguments. 

See, e.g., ECF No. 70 at 15–17, 30; ECF No. 72 at 15–18. Because the statutory language and 

precedent decisively resolve the issue, the Court need not resort to considering the parties’

positions on the legislative history. See Syngenta Crop Prot., LLC v. Willowood, LLC, 944 F.3d 

1344, 1359 (Fed. Cir. 2019).
15

Rather, it contends the Act directs the Government only to provide the Tribe with assistance to 

close open dumps and explicitly conditions such assistance on IHS’s discretion to prioritize the 

expenditure of limited appropriated funds. ECF No. 66-1 at 29–30, 31. Moreover, even if the Act 

imposes a mandatory duty to provide assistance, the Government argues that duty is contingent 

upon a request to IHS to “conduct an inventory and evaluation of the contents of open dumps,” a 

request it claims the Tribe has not identified. Id. at 27–28 (internal quotation marks omitted) 

(quoting 25 U.S.C. § 3904(a)(1)(A)).

To resolve the dispute, the Court first looks to whether the Act contains trust-creating

language and concludes that it does not impose any specific trust duties on the Government.5 To 

be sure, the Act begins with Congress’s finding, among others, that “the United States holds most 

Indian lands in trust for the benefit of Indian tribes and Indian individuals.” 25 U.S.C. § 

3901(a)(5). More than a statement of a general trust relationship is needed, however, to conclude 

that the Act imposes fiduciary duties on the Government. El Paso Nat. Gas Co. v. United States, 

750 F.3d 863, 894 (D.C. Cir. 2014); see Mitchell I, 445 U.S. at 542; see also Hopi Tribe, 782 F.3d 

at 667. In Mitchell I, the Supreme Court found that the Allotment Act did not create any duty on 

the part of the Government to manage tribal timber resources on land allotted under that statute

notwithstanding the statute’s express declaration that such land was held by the Government “in 

trust for the sole use and benefit of the Indian.” 445 U.S. at 542 (quoting 25 U.S.C. § 348). 

5 Whether the Act satisfies the Indian Tucker Act’s requirements appears to be a question 

of first impression in the Federal Circuit. The United States Court of Appeals for the District of 

Columbia Circuit, however, analyzed the Act in a suit seeking equitable relief based on 

Administrative Procedure Act and breach-of-trust claims brought by the Navajo Nation. See El 

Paso Nat. Gas Co. v. United States, 750 F.3d 863 (D.C. Cir. 2014). As discussed below, the Court 

finds the D.C. Circuit’s analysis to be persuasive. 
16

In this case, the trust-related language of § 3901(a)(5) is even less prescriptive. It merely 

states the general principle that the Government holds most Indian lands in trust and makes no 

further specifications relating to open dumps in general or the Tribe’s land specifically. It does 

not, therefore, “unambiguously provide that the United States has undertaken full fiduciary 

responsibilities” as to the control, management, or cleanup of the Tribe’s open dumps. Mitchell I, 

445 U.S. at 542; see El Paso Nat. Gas, 750 F.3d at 899 (holding the Act “does not vest in the 

Government—either expressly as in Mitchell II or by implication as in White Mountain—any 

responsibility for management or control of Indian property” (emphasis in original)). Indeed, the 

language of § 3901(a)(5) obligates the Government to nothing in particular. 

Even coupling the language of § 3901(a)(5) with the substantive provisions of § 3904, the 

Act does not establish the “conventional fiduciary relationship” necessary to satisfy jurisdiction. 

Hopi Tribe, 782 F.3d at 667 (quoting Navajo II, 556 U.S. at 301). The Act consistently makes 

clear that the Tribe, not IHS, is primarily responsible for cleaning open dumps on tribal land. As 

the Act repeatedly emphasizes, IHS’s role is that of providing assistance. See, e.g., 25 U.S.C. §§

3901(b)(3), 3904(b)–(c); see also El Paso Nat. Gas, 750 F.3d at 899 (describing the Act as 

“impos[ing] a duty upon the Director of [IHS] to assist tribal governments as they” act to close 

open dumps (emphasis in original)). Unlike in Mitchell II, where the federal timber management 

statutes and regulations at issue demonstrated the Government’s “full responsibility to manage 

Indian resources and land for the benefit of the Indians,” 463 U.S. at 224, the Act lacks any 

indication of IHS’s responsibility to control or manage open dumps on Indian lands, see 25 U.S.C. 

§ 3904(b) (defining the authority of the Director to inventory open dumps and provide assistance 

to tribes subject to certain conditions). When a tribe submits a request for an inventory of open 

dumps, the Government’s role is only that of performing the inventory-related activities and 
17

providing financial and technical assistance for the Indian tribal government “to carry out the 

activities necessary” to close open dumps. Id. §§ 3904(a)–(b); see El Paso Nat. Gas, 750 F.3d at 

899. Thus, even if the Act mandates some amount of assistance upon satisfaction of the 

requirements of § 3904(a), the Tribe still retains the principal “responsibility to manage” open 

dumps on its lands.6 Mitchell II, 463 U.S. at 224; see El Paso Nat. Gas, 750 F.3d at 899 (“Because 

[the Act] contemplates management and control in the hands of tribal governments, the [Act] falls 

comfortably within the ambit of Mitchell I.”). 

Indeed, the evidence before the Court demonstrates that the Tribe has for decades directly 

handled its own solid waste management and taken the lead on efforts to close open dumps on the 

Reservation with assistance from the federal government at the Tribe’s request. See, e.g., ECF 

No. 66-2 at 11 (describing in a 1994 solid waste management plan the Tribal Solid Waste 

Authority, which was organized to manage the landfill and collection system on the Reservation); 

Letter from Ronnie Lupe (Chairman) to Benjamin Nuvamsa (BIA) at 2–3, ECF No. 66-16 

(detailing the Tribe’s 1994 efforts, with IHS’s assistance, to close 19 open waste sites); ECF No. 

6 Other sections of the Act support interpreting § 3904 as placing responsibility for dump

cleanup and maintenance activities in the hands of the tribes. Section 3905 provides that the 

Director shall implement the Act, “[t]o the maximum extent feasible,” through agreements with 

tribal governments pursuant to the Indian Self-Determination and Education Assistance Act of 

1975 (“ISDA”), 25 U.S.C. §§ 5301–5423 (1975). 25 U.S.C. § 3905(a). ISDA serves to assure 

maximum Indian participation in the direction of educational and other federal services so as to 

increase the responsiveness of those programs to the needs of Indian communities. See 25 U.S.C. 

§ 5302(a); Yellen v. Confederated Tribes of Chehalis Rsrv., 141 S. Ct. 2434, 2439 (2021) 

(describing ISDA as “decentraliz[ing] the provision of federal Indian benefits away from the 

Federal Government and toward Native American . . . organizations”). Additionally, § 3906 

authorizes the Director to carry out “demonstration projects involving open dumps on Indian land” 

through the selection and participation of tribal governments that have developed their own

comprehensive solid waste management plans, and closure and post-closure maintenance plans, 

for existing open dumps on their land. 25 U.S.C. §§ 3906(a), (b).
18

66-26; ECF No. 66-28 at 5 (showing the Tribe’s commitment to inventory illegal dump sites for 

the 2010–2011 period using EPA grant funds).

Moreover, the amount of discretion left to the Director to set priorities for allotting 

assistance to tribes further supports finding that the Act does not satisfy the first part of the 

jurisdictional analysis. As the D.C. Circuit explained in El Paso Natural Gas, the Director’s 

discretion in setting priorities, combined with the Act’s prerequisites, indicate that the Act does 

not provide a “legally required duty to act.” 750 F.3d at 891 (internal quotation marks omitted). 

Indeed, the Act states no precise amount of assistance that IHS must provide and no specific 

number or percentage of tribes that should receive assistance. See 25 U.S.C. § 3904(c). In fact, 

only one limitation is imposed on the Director’s prioritization: that it must take into account “the 

relative severity of the threat to public health and the environment posed by each dump and the 

availability of funds.” Id. Otherwise, the Act leaves to the Director the decision of how to allocate 

assistance as he deems fit. Easy to envision, then, is a scenario where a tribe receives no assistance 

(or assistance in an amount far below what is needed) to clean a low threat dump simply because 

other dumps on other tribal lands are a higher threat and require a larger share of available funds. 

As the Government aptly notes, permitting any one tribe to compel monetary compensation—from 

a limited amount of appropriated funds—for an existing open dump on its land would thwart the 

prioritization scheme that Congress expressly provided. See ECF No. 66-1 at 29.

Thus, even if the Act creates a duty for the Director to provide assistance upon the 

satisfaction of the prerequisites and subject to certain conditions, there is no indication that the 

Government has “undertaken full fiduciary responsibilities as to the management” of open dumps

on the Tribe’s land. Mitchell I, 445 U.S. at 542. Consequently, the Act lacks any indication of the 
19

“elaborate” government control that courts have found gives rise to fiduciary duties on the part of 

the Government. Mitchell II, 463 U.S. at 225. 

The Tribe argues that use of the word “shall” in §§ 3904(a) and 3904(b) is a “dispositive 

indication that the duties imposed are mandatory and create a fiduciary relationship.” ECF No. 70 

at 29 (citing, inter alia, Samish Indian Nation v. United States, 419 F.3d 1355, 1364 (Fed. Cir. 

2005), and Agwiak v. United States, 347 F.3d 1375, 1380 (Fed. Cir. 2003)). Agwiak specifies that 

“shall” is generally useful in determining whether a statute is money-mandating, not whether it 

creates a fiduciary duty. 347 F.3d at 1380. Samish also addressed whether a statute was moneymandating and recognized that such statutes, unlike the Act, typically “leave[] the government no 

discretion over payment of claimed funds.” 419 F.3d at 1364. The Tribe provides no authority 

showing that use of the term “shall” alone creates government fiduciary duties, as opposed to some 

other non-fiduciary obligation, nor has it shown that is the case here. 

As discussed, the obligation that the “Director shall . . . provide financial and technical 

assistance” to tribes to close open dumps on their land, 25 U.S.C. § 3904(b), is conditioned on the 

Director’s discretionary authority to prioritize which tribes receive assistance and the amount of 

assistance provided. See id. § 3904(c). Moreover, the provisions of § 3904(a), which are

preconditions for § 3904(b), are predicated on the filing of a tribal inventory request. See id. §§

3904(a), (b). Thus, in the broader context of the Act, the force of the term “shall” is 

counterbalanced by the Act’s conditions and preconditions. 

The Tribe’s comparison of the Act with the Indian Dams Safety Act (“IDSA”), 25 U.S.C. 

§§ 3801–3805 (1994), which the court previously found imposes a fiduciary relationship, is also

unpersuasive. See ECF No. 70 at 29–30; ECF No. 22 at 14. IDSA explicitly provides that the 

Interior Secretary is responsible for creating “a comprehensive list of dams located on Indian 
20

lands,” 25 U.S.C. § 3803(e)(1), and “perform[ing]such rehabilitation work as is necessary to bring 

the dams identified . . . to a satisfactory condition,” id. § 3803(c). Under the Dam Safety 

Maintenance and Repair Program, the Government—not the tribes—is responsible for dam 

rehabilitation, maintenance, and monitoring, regardless of any tribal request. See id. §§ 3803(a), 

(c). While the Secretary may contract with Indian tribes to carry out these activities, IDSA 

specifies no mandatory tribal role. See id. § 3803(h). The role of IHS under the Act is reversed; 

it is charged with providing government assistance (subject to conditions) for the tribes to carry 

out the work of cleaning open dumps. 7 See id. § 3904. 

The Court likewise disagrees that RCRA, the Snyder Act, and 25 U.S.C. § 162a(d)(8), 

“provide context for the [Act] and confirm that it creates specific fiduciary duties.” ECF No. 70 

at 43; see ECF No. 66-47 at 3. Although the Court may look to “a network of other statutes and 

regulations” to determine whether a trust duty exists within the Act, Navajo I, 537 U.S. at 504–05 

(citing Mitchell II, 463 U.S. at 224), the statutes the Tribe references provide no support for the 

notion that the Act vests “comprehensive control” in the Government to manage open dumps on 

7 Plaintiff incorrectly suggests that the court’s opinion denying in part the Government’s 

first motion to dismiss as to the Tribe’s dam safety claims under IDSA, as “law of the case,” 

supports the conclusion that the Act similarly supplies Indian Tucker Act jurisdiction. ECF No. 

70 at 30 (citing ECF No. 22 at 14); see id. at 11, 41. The prior opinion, however, did not evaluate 

whether the two acts contain similar trust-creating, money-mandating language or whether they 

are distinguishable. Indeed, the opinion did not address the Act or the substance of Plaintiff’s open 

dump claim at all, nor did the parties litigate (or the court decide) the question of jurisdiction over 

that claim. See ECF No. 22 at 9–10. Rather, acknowledging that the Tribe needed more time to 

“determine the status and nature of the . . . contamination so it can specify claims in detail based 

on the legal duties of the Government to enforce applicable law,” it “indulge[d]” the Tribe’s 

request for limited discovery and denied without prejudice the Government’s motion to dismiss 

the open dump claim, among other claims. Id. at 10. Thus, the instant decision does not run afoul 

of the law-of-the-case doctrine. See ArcelorMittal Fr. v. AK Steel Corp., 786 F.3d 885, 888 (Fed. 

Cir. 2015) (explaining that, except in extraordinary circumstances, “when a court decides upon a 

rule of law, that decision should continue to govern the same issues in subsequent stages in the 

same case” (internal quotation marks and citation omitted)). 
21

Indian lands, Mitchell II, 463 U.S. at 209 (internal quotation marks omitted), as the Government 

correctly argues. See ECF No. 66-1 at 31–37. 

The Snyder Act “governs the general appropriations of [BIA],” White Mountain Apache 

Tribe v. United States, 249 F.3d 1364, 1372 (Fed. Cir. 2001), and dictates that BIA “direct, 

supervise, and expend such moneys as Congress may from time to time appropriate, for the benefit, 

care, and assistance of the Indians,” 25 U.S.C. § 13. The listed purposes for which funding may 

be allotted makes no mention of Indian lands generally or in relation to open dumps specifically. 

See id. Furthermore, the statute does not dictate how funds should be expended towards each 

purpose. It therefore does not impose “legally binding obligations.” Lincoln v. Vigil, 508 U.S. 

182, 194 (1993); see Hopi, 782 F.3d at 670–71 (rejecting similar argument that the Snyder Act, as 

part of a larger group of statutes, demonstrated the Government’s comprehensive control over 

water resources). 

As for § 162a(d)(8), the Court again agrees with the Government. This provision only 

defines the Government’s trust responsibilities “with respect to tribal funds,” not tribal lands.

Jicarilla, 564 U.S. at 178 (emphasis added); see 25 U.S.C. § 162a; Hopi, 782 F.3d at 670 n.1 

(stating that § 162a(d)(8) only “detail[s] the United States’ trust responsibilities in managing tribal 

funds and investments, which are not relevant to the management of drinking water quality”). 

Moreover, even though it directs the Government to appropriately manage natural resources on 

tribal lands, it does not include “specific rights-creating or duty-imposing” prescriptions for natural 

resource management and, as relevant here, solid waste management. Navajo I, 537 U.S. at 506. 

Likewise, RCRA, as a statute of general applicability, is unsupportive. See El Paso Nat. 

Gas Co., 750 F.3d at 899. Rather than imposing fiduciary duties on the Government vis-à-vis 

open dumping, RCRA mandates that states work to close or upgrade existing open dumps. See 42 
22

U.S.C. §§ 6943(a)(3), 6945(a). RCRAalso appliesto tribes, which, as at least one court has found, 

have “the responsibility to regulate, operate, and maintain the dumps” on their tribal lands as part 

of their inherent sovereignty. Blue Legs v. U.S. Env’t Prot. Agency, 668 F. Supp. 1329, 1337

(D.S.D. 1987), aff’d sub. nom. Blue Legs v. U.S. Bureau of Indian Affs., 867 F.2d 1094 (1989). 

With respect to solid waste, the federal government’s role, among other things, is to provide 

discretionary assistance to states in implementing their waste management plans and limited, 

discretionary enforcement of the open dumping prohibition. See 42 U.S.C. § 6948(a) (authorizing 

lump-sum appropriations in fiscal years 1980–1982 and 1985–1988to provide financial assistance 

to states and other authorities); id. § 6948(d) (authorizing the EPA Administrator to provide 

technical assistance to state and other authorities); id. § 6945(c)(2)(A) (authorizing the EPA

Administrator to enforce the prohibition with respect to solid waste management facilities in a 

state). Alleged violations of RCRA’s open dumping prohibition are also subject to citizen suits in 

federal district court. See id. §§ 6945(a), 6972. To be sure, the Government may be liable for its 

own actions that violate RCRA, including its contribution to open dumping on tribal lands, see 

Blue Legs, 668 F. Supp. at 1341, but nothing in the statute “establish[es] a conventional fiduciary 

relationship” between tribes and the Governmentsufficient to support a breach of trust claim, El 

Paso Nat. Gas Co., 750 F.3d at 899. Consequently, even when viewing the Act as informed by 

these other statutes, it cannot establish the creation of fiduciary duties; the Government’s 

“elaborate control” of open dumpsis missing. Mitchell II, 463 U.S. at 225.

Finally, the Tribe contends that the Government’s reliance on El Paso Natural Gas is 

misplaced. It distinguishes that case on the basis that it “was not a suit in the Federal Court of 

Claims for money damages, did not involve the Indian Tucker Act, and did not involve the same 

statutory language in the [Act].” ECF No. 70 at 32. Although Plaintiff is correct that El Paso 
23

Natural Gas involved a claim brought in district court for equitable relief, not money damages, it 

is a distinction without a difference. As the Government correctly notes, in resolving the question 

of whether the tribe pled a cognizable breach of trust claim for the Government’s alleged failure 

to provide the tribe with financial and technical assistance under the Act, the D.C. Circuit analyzed

whether the Act established specific duties that characterizeda conventional fiduciary relationship. 

See ECF No. 72 at 9 (citing El Paso Nat. Gas, 750 F.3d at 893–95, 899). In holding that it did not, 

for the reasons discussed above, the Courtspecifically contemplated Indian Tucker Act precedent 

and rejected the distinctions pushed by the Tribe here. 8 See El Paso Nat. Gas, 750 F.3d at 895–

96. Regardless, this Court has analyzed the Act under Supreme Court and Federal Circuit 

precedent and independently concludes that it imposes no specific fiduciary obligations on the 

Government over the Tribe’s open dumps. 

Accordingly, the Court finds that the Act lacks the “hallmarks of a conventional fiduciary 

duty” and thus cannot support jurisdiction. Navajo II, 556 U.S. at 301 (internal quotation marks

and citation omitted). The Tribe’s Phase I claim is dismissed accordingly.9

8 The Court’s analysis of the tribe’s Administrative Procedure Act (“APA”) claim is also 

instructive. To resolve that claim, the D.C. Circuit analyzed whether the Act imposed a mandatory 

duty on the Director to provide financial and technical assistance to the tribe under the Act. El 

Paso Nat. Gas, 750 F.3d at 891. It held that because the Director’s duty was conditioned on the 

tribe submitting a request (a prerequisite not established by the tribe) and because he had 

“discretion in doling out assistance” the Director had no “‘legally required’ duty” to provide 

assistance to the tribe. Id. As the Court explained, the analyses of the tribe’s causes of action 

overlapped. Its failure to identify “a substantive source of law establishing specific fiduciary 

duties” was “fatal . . . regardless of whether [the Court] read the claim as brought under the APA 

or under a cause of action implied by the nature of the fiduciary relationship itself.” Id. at 892 

(emphasis in original).

9 Because the Court’s determination is sufficient to resolve the jurisdictional question 

solely based on whether the Tribe has identified any specific fiduciary obligations, it is not 

necessary to address the parties’ arguments regarding whether the Act is money-mandating. See 

Hopi, 782 F.3d at 671 (declining to address whether the cited statutes were money-mandating since 

they failed to establish a specific fiduciary obligation of the Government).
24

III. CONCLUSION

For the reasons stated above, the Court GRANTS the Government’s Motion to Dismiss

(ECF No. 66). Having concluded that the Act does not establish any specific fiduciary obligations 

on the part of the Government necessary to confer jurisdiction on this Court under the Indian 

Tucker Act, the Tribe’s Phase I open dump claim is hereby DISMISSED pursuant to RCFC 

12(b)(1). Additionally, because the Tribe has voluntarily withdrawn its Phase I minerals, leases, 

rights-of-way, and non-dump contamination claims, those claims also are DISMISSED. In light 

of the Court’s determination that it lacks jurisdiction over the Tribe’s claim, the Government’s 

alternative request for summary judgment is DENIED AS MOOT. 

The Court hereby ORDERS the parties to file a joint status report by no later than

January 18, 2022, proposing a schedule for further proceedings related to the Tribe’s Phase II 

claims.

SO ORDERED.

Dated: December 16, 2021 /s/ Kathryn C. Davis 

KATHRYN C. DAVIS

Judge