Appeals from motions to dismiss can be very unsatisfying, even for the winner. Granted, from a doctrinal standpoint, they're pretty good at clarifying the law. And from a practice standpoint, the courts' opinions often help future lawyers and litigants figure out how to plead cases, and frame issues. And the party who wins the appeal can justifiably take back a trophy, often in the form of a published opinion.
But for both the winning and losing litigant, an appeal from a dismissal without prejudice can get them nowhere fast (and in most cases, not for free). Because all that gets the parties in many cases is a do-over.
The Federal Circuit's opinion in Crow Creek Sioux Tribe v. United States, No. 17-2340 (Aug. 17, 2018) doesn't contradict that sense. There, the court affirmed the dismissal by the Court of Federal Claims of the Crow Creek Sioux Tribe's claim against the federal government, for the (alleged) taking of the the tribe's Winters water rights.
Winters rights are those recognized by the Supreme Court in Winters v. United States, 207 U.S. 564 (1908), where "the creation of a Indian Reservation carries an implied right to unappropriated water to the extent needed to accomplish the purpose of the reservation." Slip op. at 2. The tribe's complaint alleged the feds took those rights:
The complaint then alleged 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 alleged that the government breached its fiduciary duty to “[a]ppropriately manag[e] the natural resources located within the boundaries of Indian reservations,” 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 appropriating that water to others and to Defendant’s own use,” J.A. 31.Slip op. at 4.
But, critically, "[t]he complaint did not allege that the government’s actions deprived the Tribe of sufficient water to fulfill the reservation’s purposes or that those actions would cause the Tribe to lack sufficient water in the future." Id.
And that, according to the panel, was fatal to the court's jurisdiction, because the complaint did not allege the tribe suffered an injury, a requirement of Article III jurisdiction. The allegations in the complaint -- "that various government actions and inactions with respect to the Missouri River, including the operation of the Pick-Sloan dams" -- did not "allege that the government action has caused injury to the Tribe's Winters rights." Slip op. at 8.
The facts alleged in the complaint, taken as true, suggest that government action, including operation of the Pick-Sloan dams, generally affects water flows on the Missouri River. But the complaint does not allege that the amount of water flowing by the Reservation and available for the Tribe’s use is insufficient 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 standing.Slip op. at 10. Dismissal affirmed.
A couple of thoughts. First, a technical point. The failure to allege an essential element of a cause of action seems to us more like it should have been subject to dismissal for failure to state a claim under Rule 12(b)(6). Here, the tribe alleged its property was taken. But if there was no allegation of injury, there's been no taking, right? Why the defendant, the CFC, and the Federal Circuit saw this more as a standing and jurisdictional problem, as opposed to one merely of pleading the correct elements, we can't say.
Second, maybe it is related to the usual reaction to a 12(b)(6) motion for failure to state a claim: a motion to amend the complaint to allege the allegedly missing stuff. Here, if the facts support it, you might expect the tribe's response to the government's argument would have been an attempt to make the missing allegation that the water flowing by the reservation is not sufficient. But a jurisdictional dismissal might be a different story.
Finally, back to our original point about motions to dismiss and appeals therefrom being somewhat unsatisfying. The net result of the Federal Circuit's opinion for the parties is -- if the facts support it and the statute of limitations hasn't expired -- that the tribe gets to try again, this time making sure the complaint contains the required allegations. We observers get an opinion that we can use to help us plead future cases, but the parties just get to start all over again.
Crow Creek Sioux Tribe v. United States, No. 17-2340 (Fed. Cir. Aug. 17, 2018)
