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THURSDAY, JULY 11, 2002

A non-Indian couple can sue the Bureau of Indian Affairs for a water system that fell into disrepair, a federal appeals court ruled on Wednesday.

In a unanimous decision, the 9th Circuit Court of Appeals allowed the O'Tooles of Nevada to proceed with a damages lawsuit. Reversing a lower court opinion, a three-judge panel said the BIA has no excuse for its "negligent" behavior.

"It is less like an FDA decision not to approve a drug for sale, or a National Park Service decision not to put up a guardrail that will block visitors' views," wrote Circuit Judge Barry G. Silverman for the majority, "than like a government employee's negligent driving."

The case is unusual not only because of the involvement of non-Indians Bartley and Lilly O'Toole but since it affects off-reservation property. The couple claims at least $350,000 in damages to their 800-acre ranch due to BIA negligence.

At issue is an irrigation system located on land held in trust for the Yomba Shoshone Tribe. The O'Tooles property is above stream from the reservation and relies on the same water supply as the tribe.

According to the couple, the BIA had been taking care of the irrigation system since the 1930s, going so far as to clean up their ranch on one occasion. That changed in 1983, however, when budget cuts halted work.

The couple alleges the inaction hurt their ranch and took the BIA to court. But a federal judge in Nevada threw out the case, citing a federal law which protects the government from lawsuits when decisions are based on funding or political considerations.

Yesterday, the appeals court reversed that holding, and said budget cuts do not qualify for an exemption under the Federal Tort Claims Act (FTCA).

"The BIA’s decision to allow the irrigation system on Bowler Ranch to fall into disrepair to the detriment of neighboring landowners does not fall within the protection of the discretionary function exception to the FTCA," the appeals court wrote.

Based on the court's reasoning, the ruling opens up the government to damages suits from tribes. Although the judges found no specific law that required maintenance of the irrigation system, they pointed to BIA regulations that call for "safe, economical, beneficial, and equitable" use of water resources.

The court, however, said the regulations were not a specific requirement or trust responsibility but more like a guiding rule. The judges also rejected notions that the BIA must fully fund contracts with tribes, citing prior case law.

Relevant Documents:
O'TOOLE v. US, No. 01-15310 (9th Cir. July 10, 2002)