Gros Ventre Tribe v. United States - Opposition

No. 06-1672

In the Supreme Court of the United States

GROS VENTRE TRIBE, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
RONALD J. TENPAS
Acting Assistant Attorney
General
DAVID C. SHILTON
JOHN EMAD ARBAB
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals correctly held that petitioner Indian Tribes did not possess a claim for breach of trust against the United States, arising out of a federal agency's management of third-party mining activity on non-tribal land located off the Tribes' reservation.

In the Supreme Court of the United States

No. 06-1672

GROS VENTRE TRIBE, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-27) is reported at 469 F.3d 801. The opinion of the district court (Pet. App. 40-58) is reported at 344 F. Supp. 2d 1221. A prior opinion of the district court (Pet. App. 28- 39) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on November 13, 2006. A petition for rehearing was denied on March 16, 2007 (Pet. App. 59). The petition for a writ of certiorari was filed on June 14, 2007. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Petitioners Gros Ventre Tribe and Assiniboine Tribe (collectively, the Tribes) reside on the Fort Belknap Indian Reservation in north-central Montana. Pet. App. 3. From 1979 until it declared bankruptcy and ceased operations in 1998, Pegasus Gold Corporation (Pegasus) and its wholly owned subsidiary Zortman Mining, Inc. (ZMI) operated two gold mines, known as the Zortman and Landusky mines, in the Little Rocky Mountains of north-central Montana. Id. at 5-6, 28-29. A portion of the Little Rocky Mountains was once lo cated within the Fort Belknap Indian Reservation, but the land was sold and ceded to the federal government by the Tribes in the late 1800s for the purpose of allow ing gold mining. Id. at 4, 29, 42. The Zortman and Landusky mines are situated partly on federal and partly on private land. Id. at 28, 42. The mines are not located within the Fort Belknap Indian Reservation but are near its southern boundary. Id. at 5, 29, 42-43.

In 1992, ZMI submitted a plan for an expansion of the Zortman mine. Pet. App. 6. The federal Bureau of Land Management (BLM) decided to prepare an envi ronmental impact statement (EIS) to evaluate the ex pansion proposal. Id. at 29. In the course of reviewing the proposal, BLM and the Montana Department of State Lands (DSL) determined that acid rock drainage (ARD) had become widespread at both the Zortman and Landusky mines. Id. at 6, 29.1 In light of the ARD prob lem, BLM ordered ZMI to submit modified plans of op erations for both mines. Id. at 29. In 1994, BLM de cided to enlarge the scope of the expansion EIS to in clude mine expansion and reclamation requirements at both operations. Id. at 30.

In 1996, after completing an EIS, BLM and the Mon tana Department of Environmental Quality (DEQ), a successor agency to DSL, issued a record of deci- sion (ROD). Pet. App. 6 & n.3, 44. The 1996 ROD ap proved expanded operations at both mines, and it re quired the implementation of reclamation plans, includ ing specific measures to control the development of ARD. Ibid.; Supp. C.A. E.R. 63, 82-99, 100, 101-102.2 In late 1996,the Tribes (and other groups) appealed BLM's decision to the Interior Board of Land Appeals (IBLA). Pet. App. 6, 31; see Island Mountain Protectors, 144 I.B.L.A. 168 (1998). IBLA stayed BLM's decision pend ing disposition of the administrative appeal. See id. at 170.

In 1998, while the Tribes' administrative appeal was pending before IBLA, ZMI and Pegasus declared bank ruptcy. Pet. App. 6, 44. The companies abandoned their plans to expand the mines and announced that they would close and reclaim the mines instead. Id. at 6. In May 1998, IBLA issued a decision on the Tribes' admin istrative appeal. Ibid. IBLA concluded, inter alia, that in approving the 1996 ROD, "BLM did not fully observe its trust responsibility to the Tribes." Island Mountain Protectors, 144 I.B.L.A. at 203. The 1996 ROD was va cated in part and remanded to BLM. Ibid.

In June 1998, BLM issued a second ROD in response to the companies' bankruptcy filing. Pet. App. 6, 32. The 1998 ROD required reclamation of existing distur bances using mitigation measures developed by BLM. Id. at 6; see id. at 32. However, because BLM had relied on the 1996 EIS in preparing the 1998 ROD, IBLA va cated the 1998 ROD on the same ground that it had va cated the 1996 ROD. Id. at 6-7, 32.

In response to IBLA's decision, BLM and DEQ con sulted with the Tribes concerning reclamation of the Zortman and Landusky mines. Pet. App. 7, 32. In 2001, pursuant to that consultation, BLM and DEQ prepared a supplemental EIS (SEIS), which examined six recla mation alternatives for each mine. Id. at 7, 44. In May 2002, based on the SEIS, BLM issued a new ROD. Ibid. The reclamation alternative selected for each mine was chosen in part because it "place[s] only the relatively non acid-generating waste rock as backfill in the mine pits, and leave[s] the most strongly acid-generating waste rock on the lined leach pads where any leachate will be easier to control and treat." Supp. C.A. E.R. 60.3

2. In April 2000 (i.e., prior to the issuance of the SEIS and new ROD), the Tribes filed suit in federal dis trict court seeking declaratory, injunctive, and manda mus relief against the United States, BLM, and other federal agencies. Pet. App. 7-8, 28, 32-33, 45.4 Their complaint alleged that the federal government had breached a trust responsibility to the Tribes by approv ing, permitting, and failing to reclaim the Zortman and Landusky mines, the operation of which allegedly had diminished and continues to diminish the quality and quantity of water available to the Tribes. Id. at 7; see id. at 32-33, 44-45.

In its initial decision, the district court granted sum mary judgment in favor of the United States. Pet. App. 28-39. The court explained that, "[w]hile the Tribes have challenged the BLM's 1996 EIS and ROD, those decisions were vacated by the IBLA, and have been sup plemented by the 2002 SEIS and ROD." Id. at 38. Be cause "the only remedy for a defective EIS has already been undertaken by the BLM in the form of the 2002 SEIS," the court concluded, "[r]eviewing the earlier decisions without reviewing the decision supplementing those decisions would be a futile exercise." Ibid.

In response to the Tribes' motion to alter or amend the judgment, the district court issued a second decision, which held that summary judgment in favor of the United States was warranted because the court lacked subject matter jurisdiction over the Tribes' claim. Pet. App. 40-58. The court explained that its jurisdiction over the Tribes' breach of trust claim "must rest upon the challenged action being a 'final agency action'" within the meaning of the Administrative Procedure Act (APA), 5 U.S.C. 704. Pet. App. 46.5 Applying the "final agency action" requirement to the Tribes' breach of trust claim, the court found that the only such contested action falling within the six-year statute of limitations in 28 U.S.C. 2401(a) was the vacated 1996 ROD. See Pet. App. 54. The court held that the Tribes lacked standing to challenge the 1996 ROD because that decision was never implemented and therefore did not cause any in jury to the Tribes. Id. at 54-55.

As an alternative ground for its decision, the district court held that the Tribes had failed to identify with sufficient specificity any statutory obligation breached by the government. Pet. App. 48-53. The court ex plained that, "[i]n the absence of a specific duty, or spe cific control over tribal property, the government fulfills its obligations as a trustee for the Tribes if it complies with applicable statutes." Id. at 48 (citing Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 574 (9th Cir. 1998) (Morongo Band)). The court noted that the Tribes' only statutory challenge was "brought under [5 U.S.C.] 706(1) for failure to act to prevent undue degra dation of tribal lands." Id. at 51. The court further ob served that "[t]he requirements for 'failure-to-act' claims have recently been clarified by" this Court in Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) (SUWA), and that, under SUWA, "the act sought to be compelled under [Section] 706(1) must be a specific, discrete action that is legally required." Pet. App. 51. The court concluded that petitioners had iden tified no such action here. Id. at 52-53.

3. The court of appeals affirmed. Pet. App. 1-27. The court concluded:

Nothing within any of the statutes or treaties cited by the Tribes imposes a specific duty on the govern ment to manage non-tribal resources for the benefit of the Tribes. Because the Tribes do not have a com mon law claim for breach of trust-i.e., one that can be raised independently of any applicable statutes or regulations-the Tribes are forced to rely on the APA for a private right of action. In applying the APA to the Tribes' claims, the district court properly concluded that the Tribes did not have standing to challenge the vacated 1996 EIS or ROD. Moreover, the Tribes did not have a cognizable failure to act claim because the Tribes could not assert that the government has failed to take a discrete agency ac tion that it is legally required to take. Therefore, the district court correctly dismissed the Tribes' claims for lack of jurisdiction.

Id. at 26-27.

The court of appeals identified a conflict in Ninth Circuit case law on the question whether 5 U.S.C. 702's waiver of sovereign immunity for non-monetary suits is subject to the "final agency action" requirement of 5 U.S.C. 704. Pet. App. 11; see id. at 12-14 (discussing Gallo Cattle Co. v. USDA, 159 F.3d 1194 (9th Cir. 1998), and Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518 (9th Cir. 1989)). The court determined, how ever, that en banc resolution of that conflict was unnec essary because, even if 5 U.S.C. 702 did waive the United States' sovereign immunity in the absence of "final agency action," "the Tribes do not have a common law cause of action for breach of trust." Pet. App. 14; see id. at 11 (stating that the intra-circuit conflict need not be resolved in this case "as we affirm the district court on its alternative holding").

Consistent with the district court's analysis, the court of appeals explained that, "unless there is a spe cific duty that has been placed on the government with respect to Indians, [the government's general trust obli gation] is discharged by [the government's] compliance with general regulations and statutes not specifically aimed at protecting Indian tribes." Pet. App. 16 (quot ing Morongo Band, 161 F.3d at 574). The court noted that "[h]ere, the Tribes cite the Treaty of Fort Laramie, the Treaty with the Blackfeet, and the Grinnell Agree ment as instances where the government has committed itself to specific fiduciary obligations in the management of water resources existing off of the Reservation." Id. at 20; see pp. 13-16, infra (discussing Treaties and Grinnell Agreement). The court examined those materi als and concluded that they did not constitute a commit ment by the government "to manage off-Reservation resources for the benefit of the Tribes." Ibid. "Rather," the court concluded, "at most, the treaties merely recog nize a general or limited trust obligation to protect the Indians against depredations on Reservation lands: an obligation for which we have no way of measuring whether the government is in compliance, unless we look to other generally applicable statutes or regulations." Id. at 20-21.

Relying on this Court's decision in SUWA, the court of appeals also held that "the district court properly dis missed the Tribes' 'failure to act' claim for lack of juris diction." Pet. App. 24. The court noted that the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1701 et seq., on which the Tribes relied, "is pri marily procedural in nature, and it does not provide a private right of action." Pet. App. 23. The court con cluded that, "[e]ven assuming that the government has a common law trust obligation that can be tied to its statutorily mandated duties under FLPMA, the Tribes have no basis for arguing that these obligations require the government to take discrete nondiscretionary ac tions." Id. at 24.

ARGUMENT

1. Petitioners seek this Court's review of the ques tion whether the waiver of sovereign immunity con tained in 5 U.S.C. 702 is limited by the "final agency ac tion" requirement of 5 U.S.C. 704. See Pet. 15-19. The instant case would be an unsuitable vehicle for resolving that question, however, because the court of appeals explicitly reserved the issue and decided the case on other grounds. See Pet. App. 11-14. While acknowledg ing that an intra-circuit conflict existed with respect to the interplay between 5 U.S.C. 702 and 704, see Pet. App. 12-14, the court concluded that it "need not make a sua sponte en banc call to resolve this conflict because * * * the Tribes do not have a common law cause of action for breach of trust" under the circumstances pre sented here, id. at 14. In light of the court of appeals' disposition of this case, the question whether the Tribes' failure to identify a reviewable "final agency action" pro vided an additional ground for dismissal of their suit does not warrant this Court's review.6

2. Petitioners contend (Pet. 20-29) that the court of appeals, in rejecting the Tribes' breach of trust claims for equitable relief, erred by applying principles articu lated by this Court in tribal suits for money damages. The court of appeals' ruling is correct and does not war rant this Court's review.

a. In United States v. Mitchell, 445 U.S. 535 (1980) (Mitchell I), this Court addressed Indian allottees' claims for damages under the Indian Tucker Act, 28 U.S.C. 1505. See 445 U.S. at 537, 538-539. The Court concluded that the Indian General Allotment Act, 25 U.S.C. 331 et seq., "created only a limited trust relation ship between the United States and the allottee that does not impose any duty upon the Government to man age timber resources." 445 U.S. at 542. The Court ex plained, inter alia, that the General Allotment Act "does not unambiguously provide that the United States has undertaken full fiduciary responsibilities as to the man agement of allotted lands." Ibid. After further proceed ings on remand, however, the Court concluded that, un like the General Allotment Act, the additional statutes and regulations on which the plaintiff allottees relied "clearly give the Federal Government full responsibility to manage Indian resources and land for the benefit of the Indians." United States v. Mitchell, 463 U.S. 206, 224 (1983) (Mitchell II). The Court in Mitchell II fur ther concluded that those sources of law "can fairly be interpreted as mandating compensation by the Federal Government for violations of its fiduciary responsibili ties in the management of Indian property." Id. at 228.

This Court recently summarized the governing prin ciples as follows:

To state a claim cognizable under the Indian Tucker Act, Mitchell I and Mitchell II thus instruct, a Tribe must identify a substantive source of law that estab lishes specific fiduciary or other duties, and allege that the Government has failed faithfully to perform those duties. If that threshold is passed, the court must then determine whether the relevant source of substantive law can fairly be interpreted as mandat ing compensation for damages sustained as a result of a breach of the duties the governing law imposes.

United States v. Navajo Nation, 537 U.S. 488, 506 (2003) (brackets, citations, and internal quotation marks omitted); see United States v. White Mountain Apache Tribe, 537 U.S. 465, 473-474 (2003). Because petitioners' current suit is for equitable rather than monetary relief, the second prong of that two-part test is inapplicable here-i.e., petitioners were not required to identify a source of substantive law that mandates compensation for breach of the government's trust responsibilities. The nature of the relief sought, however, provides no basis for dispensing with the antecedent requirement that petitioners "identify a substantive source of law that establishes specific fiduciary or other duties." Na vajo Nation, 537 U.S. at 506. The importance of identi fying a source of law imposing specific trust responsibili ties is particularly great in the present case, since the activities at issue here have occured outside of tribal land, and petitioners seek to compel the government "to regulate third-party use of non-Indian resources for the benefit of the Tribes." Pet. App. 21.

b. Petitioners contend (Pet. 23) that, insofar as the court of appeals applied Mitchell I and its progeny to the Tribes' claims for equitable relief, its decision con flicts with Blue Legs v. United States Bureau of Indian Affairs, 867 F.2d 1094 (8th Cir. 1989), and Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975). Petitioners' reliance on those decisions is misplaced.

In Blue Legs, the district court found that two fed eral agencies had "contributed to open dumping on the Reservation by generating solid waste, contracting for its disposal and, in some instances, transporting solid waste to dumps operated in violation of federal law." 867 F.2d at 1099. Based on that finding, the court of appeals held that the agencies were required by the Re source Conservation and Recovery Act to undertake court-ordered remedial efforts. See id. at 1098-1100. Although the Eighth Circuit also stated that the agen cies' "duty to clean up the dumps [wa]s buttressed by the existence of the general trust relationship between these agencies and the Tribe," id. at 1100, the equitable relief ordered in that case was firmly grounded in fed eral statutory law.

Because the decision in Joint Tribal Council pre- dated Mitchell I, the First Circuit in that case had no opportunity to discuss the proper understanding of Mitchell I and its progeny. The First Circuit's decision, however, is consistent with this Court's later holdings and with the court of appeals' analysis in the instant case. The court in Joint Tribal Council agreed with the State of Maine that "[a] fiduciary relationship in this context must * * * be based upon a specific statute, treaty or agreement which helps define and, in some cases, limit the relevant duties." 528 F.2d at 379. The court held, however, that the Nonintercourse Act, 25 U.S.C. 177, "is such a statute" because it "imposes upon the federal government a fiduciary's role with respect to protection of the lands of a tribe covered by the Act." 528 F.2d at 379.

Thus, the courts in both Blue Legs and Joint Tribal Council looked to relevant sources of positive law in de termining the nature and extent of the federal govern ment's fiduciary obligations. Neither of those decisions, moreover, suggested that the federal government has a trust responsibility to manage non-tribal lands to serve the interests of the Tribes. The decisions in Blue Legs and Joint Tribal Council therefore do not conflict with the Ninth Circuit's ruling here.

c. Petitioners contend (Pet. 24-26) that the court of appeals misconstrued treaties and agreements between the federal government and the Tribes. In the court of appeals, petitioners relied on the Treaty of Fort Laramie, Sept. 17, 1851, 11 Stat. 749 (Pet. App. 61-68); the Treaty with the Blackfoot Indians, Oct. 17, 1855, 11 Stat. 657 (Pet. App. 69-78), also referred to as the Treaty with the Blackfeet (Pet. App. 69); and an Agree ment with the Indians of the Fort Belknap Indian Res ervation in Montana, Oct. 9, 1895, 29 Stat. 350 (Pet. App. 90-97), also referred to as the Grinnell Agreement. Pet. App. 4. Petitioners argued below that those documents were "instances where the government has committed itself to specific fiduciary obligations in the management of water resources existing off of the Reservation." Id. at 20. The petition for a writ of certiorari offers no anal ysis of the language of those documents, however, nor do petitioners contend that any circuit conflict exists re garding the proper construction of the pertinent treaties and agreement. Further review is not warranted.

In Article 3 of the Treaty of Fort Laramie, the United States agreed to protect the petitioner Tribes "against the commission of all depredations by the peo ple of the said United States, after the ratification of this treaty." Pet. App. 62. In Article 7 of the Treaty with the Blackfeet, 11 Stat. 658, the United States similarly agreed to protect the Tribes "against depredations and other unlawful acts which white men residing in or pass ing through their country may commit." Pet. App. 72. The court of appeals construed those treaties as ex pressing the United States' promise "to protect the Tribes from depredations that occurred only on tribal land." Id. at 22.

Petitioners offer no textual basis for rejecting that interpretation of the treaties.7 Nor do petitioners iden- tify a contemporaneous understanding of the word "dep redations" that would encompass the adverse impacts on water resources alleged in this case. Cf. 1 Noah Web ster, An American Dictionary of the English Language 58 (1828) (defining "depredation" as "[t]he act of plun dering; a robbing; a pillaging").8 Thus, although peti tioners contend (Pet. 21) that the court of appeals' deci sion is inconsistent with the canon that ambiguity in treaty language is to be resolved in favor of the Indians, they make no effort to show that any language in the foregoing treaties or agreement is ambiguous. "The canon of construction regarding the resolution of ambi guities in favor of Indians * * * does not permit reli ance on ambiguities that do not exist." South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 506 (1986).

The third document on which petitioners rely-the Grinnell Agreement-effected a cession of tribal land to the United States in return for certain commitments from the government. See Pet. App. 90-95. The text of the agreement contains no language that can be con strued to prohibit the governmental actions that are alleged to constitute a breach of trust in this case. Peti tioners contend that a Senate document concerning the Grinnell Agreement "reflects, verbatim, the very spe cific understanding that the Indians of Fort Belknap had of [that agreement]." Pet. 24-25 n.7; see S. Doc. No. 117, 54th Cong., 1st Sess. (1896) (Pet. App. 99-172). The statements of three individual Indians on which petition ers rely (see Pet. App. 118-119, 121; Pet. 24-25 n.7), how ever, indicate only that some Indians were unwilling to "sell" the water in the lands ceded via the Grinnell Agreement and did not want the federal government to "shut off" that water. The court of appeals' construction of the agreement is consistent with those statements. Cf. Fort Belknap Indian Community, 11 Ind. Cl. Comm. 479, 489 (1962) (evidence does not establish that "there was any understanding and agreement between the par ties that * * * water rights would be reserved from the area ceded").9

d. Petitioners contend (Pet. 26-29) that the govern ment's trust responsibilities are effectively rendered nugatory if the plaintiff in a breach of trust suit is re quired to establish a violation of some specific provision of law. That argument ignores the fact that specific pro visions of treaties, statutes, and agreements are the means by which the United States defines its relation ship with Indian Tribes, and therefore are the only proper source of legally enforceable obligations on the part of the United States. At the same time, however, those instruments afford Tribes substantial protection, as demonstrated by this Court's many decisions enforc ing their provisions. The court of appeals' decision- declining to find legally enforceable trust obligations outside of the governing treaties, statutes, and agree ments-thus scarely "empties the trust obligation of all meaning." Pet. 27. Petitioners acknowledge, moreover, that the Ninth Circuit's analysis on this point is consis tent with the D.C. Circuit's decisions in North Slope Borough v. Andrus, 642 F.2d 589, 611-612 (1980), and subsequent cases. See Pet. 27-28.

Petitioners' objection to the Ninth Circuit's approach is particularly misplaced in a case, like this one, that involves the management of non-tribal resources. Peti tioners contend that, even if the land-management prac tices at issue in this case comply with all environmental statutes and regulations of general applicability, and with the treaty obligations that the United States has assumed to the Tribes, a court may declare the govern ment to be in breach of trust obligations if the court deems BLM's practices insufficiently protective of tribal interests. Petitioners, however, point to no source of constitutional authority for courts to impose binding legal obligations on the United States, unanchored in any source of positive law, based on judicially-crafted common-law notions and generalized considerations of a relationship of trust or guardianship between the United States and Indians in a historical, political, or moral sense. A vast number of federal actions, more over, could be alleged to have some indirect impact on tribal resources. Petitioners identify no workable stan dard by which a court could determine when the trust responsibilities they posit preclude the government from undertaking otherwise-lawful actions not involving the management of tribal property. Cf. Navajo Nation, 537 U.S. at 506.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
RONALD J. TENPAS
Acting Assistant Attorney
General
DAVID C. SHILTON
JOHN EMAD ARBAB
Attorneys

AUGUST 2007

1 "ARD occurs when rock containing sulfides is exposed to air and water during mining operations. The water becomes acidic, sometimes containing metals such as lead, arsenic, zinc, copper, and silver." Pet. App. 6 n.2. In 1996, petitioners, the United States, and others entered into a consent decree settling federal Clean Water Act lawsuits "relat ing to the discharge of mine drainage and other mine wastewaters" at or from the Zortman and Landusky mines. Id. at 31.

2 "Supp. C.A. E.R." refers to the supplemental excerpts of record filed by the United States in the court of appeals.

3 The Tribes appealed the SEIS and 2002 ROD to IBLA. While the instant case was pending before the court of appeals, IBLA dismissed the Tribes' administrative appeal as moot. Pet. App. 9 n.4. IBLA con cluded that the administrative appeal was moot because, "given the nature of, and authority under which, the 2002 ROD was issued and the mine operator's discharge in bankruptcy, there is no longer any effec tive relief the Board may grant, nor are the issues raised capable of repetition yet evading review." Assiniboine & Gros Ventre Tribes, IBLA No. 2002-444 (June 22, 2006), slip op. 13-14 (unreported order). The Tribes did not challenge the 2002 ROD in court. Pet. App. 33.

4 Petitioner Fort Belknap Indian Community Council, the Tribes' governing body, was also a plaintiff in the district court. The Bureau of Indian Affairs and the Indian Health Service, respondents in this Court, were named as additional defendants in the district court. Pet. ii; Pet. App. 28.

5 Section 704 provides in relevant part that "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." A different APA provision, 5 U.S.C. 702, states that "[a]n action in a court of the United States seeking relief other than money damages * * * shall not be dismissed * * * on the ground that it is against the United States." In the instant case, the district court concluded:

[B]ecause the APA waives the government's sovereign immunity, the APA establishes the necessary prerequisites to the court's jurisdiction. "[T]he terms of [the government's] consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586 (1941). Judicial review under § 702 is expressly conditioned, under § 704, on the existence of a "final" agency action.

Pet. App. 47.

6 The position of the United States is that 5 U.S.C. 702 waives the government's sovereign immunity only in actions brought under the APA, and that the waiver is therefore subject to the limitations imposed by other APA provisions, including the "final agency action" require ment contained in 5 U.S.C. 704. The bases for that position are set forth in the government's brief in opposition (at 4-7) to the petition for a writ of certiorari in Sample v. Miles, No. 06-11003 (filed Apr. 23, 2007), which is currently pending before the Court. We have provided petitioners' counsel with a copy of the government's brief in opposition in Sample.

7 The duty assumed by the government in the Treaty with the Blackfeet is expressly limited to the prevention of "depredations and other unlawful acts which white men residing in or passing through [the Tribes'] country may commit." Pet. App. 72 (emphasis added). Under Article 3 of the Treaty of Fort Laramie, the government's obli gation to prevent "depredations" is not explicitly confined to acts occur ring on tribal land. See Pet. App. 62. The government's promise to perform that protective function, however, was made in return for the Tribes' "recogni[tion]," in Article 2 of the treaty, of "the right of the United States Government to establish roads, military and other posts, within [the Tribes'] respective territories." Pet. App. 62. Read in conjunction with the preceding Article, Article 3 is naturally construed as obligating the United States "to protect the Tribes from depredations that occurred only on tribal land." Id. at 22.

8 Petitioners quote the district court's statement that the serious adverse impacts of the Zortman-Landusky mines on tribal land and water resources is "undisputed." Pet. 12 (quoting Pet. App. 38); see Pet. 24. Earlier in the same opinion, however, the district court cor rectly noted that "[t]he government * * * disputes the Tribes' claim that mining has affected water quantity and water quality on the reserva tion." Pet. App. 33-34. BLM's stated view is that (1) the quality of water upstream from the reservation meets applicable health standards at the reservation boundary; (2) the Tribes have not shown that the quantity of water flowing onto the reservation from the Little Rocky Mountains is insufficient to meet their needs; and (3) Spirit Mountain (see Pet. 11 n.1), located on private land, was unavailable for traditional cultural practices and was covered by a dense grid of exploration roads and prospect pits that existed prior to the permitting of the Landusky mine by the State of Montana in 1979. See Gov't C.A. Opp. to Tribes' Pet. for Reh'g en Banc 15 n.11 (filed Feb. 9, 2007).

9 Petitioners also rely on another part of the Senate document con cerning the Grinnell Agreement, which reflects that the federal com missioners assured the Fort Belknap Indians that they retained suf ficient water for their "needs" and "uses." Pet. 24 n.7 (citing Pet. App. 104, 105). Petitioners have not contended in this case, however, that the operation of the Zortman and Landusky mines has deprived the Tribes of the quantity of water necessary to meet their "needs" or "uses." Rather, the Tribes have simply asserted that the operation of the mines has diminished the quantity and quality of water available to them. Pet. App. 7; see id. at 32-33, 44-45.