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Cobell v. Norton

September 17, 2001

ELOISE PEPION COBELL ET AL. PLAINTIFFS
v.
GALE A. NORTON SECRETARY OF THE INTERIOR, ET AL. DEFENDANTS



The opinion of the court was delivered by: Joseph S. Kieffer, III Court Monitor D.C. Bar No.235200 (202) 208-4078

THIRD REPORT OF THE COURT MONITOR

I. INTRODUCTION

This is the third in the series of reports submitted by the Court Monitor pursuant to this Court's Order of April 16, 2001, to review and monitor "all of the Interior defendants' trust reform activities and file written reports of (the Court Monitor's) findings with the Court."

The first report, submitted to the Court on July 11, 2001, addressed the Court Monitor's review of the Historical Accounting project. The second report, submitted on August 9, 2001, addressed the Court Monitor's review of the status of the Trust Asset and Accounting Management System's (TAAMS) development and deployment.

This third report will address the review by the Court Monitor of what is known as the High Level Implementation Plan's (HLIP) BIA Data Cleanup and Management (BIA Data Cleanup) subproject.

A. BIA Data Cleanup Project Definition And Goals

In the original HLIP, dated July 1998, at page 9 (extract at Tab 1A), the BIA Data Cleanup project was defined as follows:

"The Data Clean Up Sub projects within OST and BIA are aimed at ensuring data housed in existing or new systems are accurate and timely, and at eliminating transaction processing backlogs to ensure records are up-to-date, particularly land ownership information and records. Therefore, references to 'data clean up' in this Report should be viewed broadly, as including both data production (correction), and data updates (data and information transaction processing). *fn1

The goal of the BIA Data Cleanup subproject as outlined in the BIA Data Clean Up section of the HLIP (Tab 1B) was to:

"ensure correct and updated data such that Indian trust records are accurate and meet integrity and operational standards." Id. at 16

As explained in this section, there were two BIA-wide automated systems - the Land Records Information System (LRIS) and the Integrated Records Management System (IRMS). LRIS supported the land title function and was used primarily at the Land Title Records Offices (LTROs) but provided reports to the Agency offices. IRMS supported the land resource management function and was primarily used at the Agency level for generating lease bills and for income/revenue distribution to Indian owners. Id.

The LTROs in several locations had developed their own automated systems and other offices manually performed their functions. The information that had been entered manually into these two systems contained the same data elements, was not integrated or crosschecked, and had been inconsistently maintained by each module. LRIS and IRMS were not integrated and had no electronic interface between them, which allowed them to duplicate the same information in both systems in a potentially inconsistent manner. Id.

The focus of the BIA Data Cleanup effort was on the land title and resource management information maintained by the BIA in automated systems, microfilm/microfiche, and physical hardcopy files/folders. Id.

B. The Importance of the BIA Data Cleanup Subproject

The importance of the BIA Data Cleanup subproject was addressed in a July 1999 TAAMS Project Management Plan (extract at Tab 1C):

"The cleanup of trust data is the foundation upon which the new system will be laid. Without timely and accurate information, TAAMS cannot achieve the improvements in trust management that are expected." Id.

The importance placed on the BIA Data Cleanup subproject was not lost on this Court at the time of trial in July 1999. During the Acting Special Trustee's, Tommy Thompson, testimony about his concerns regarding the implementation and deployment of the TAAMS system, he spoke of the interrelationships of the subprojects with TAAMS and their impact on its success in the following dialogue on cross examination:

Q: Mr. Thompson, I want to turn back to your memo of July 30th , if I could, and ask you a few more questions in that regard. First, could you read into the record the second to last sentence of that paragraph that we have been going through?

A: the - - the - -

Q: Beginning, "The project interdependencies."

A: "The project interdependencies"?

Q: Yes.

A: "The project interdependencies and the numerous critical actions that must be completed successfully at the last possible date raises the risk for failure significantly."

Q: And these project interdependencies, could you explain what you meant? Is that the TAAMS, LRIS?

A: As we discussed, there are a number of events that have to happen as you roll out a system: data cleanup, testing, training, et cetera. Trial Tr. at 3115-3116.

And later:

Q: Do you believe that - - did you believe at the time that you wrote this that these risks were acceptable?

A: They were acceptable to me, but, again, I was not in charge and I didn't have to make the final decision. That was left to higher management.

Q: But if you were in charge, would they have been acceptable to you?

A: I would not have organized the projects in this fashion were I in charge.

The Court: And you wouldn't today?

The Witness: I wouldn't start it today either.

The Court: Right

The Witness: No, I would keep them separate.

The Court: What would you do to unscramble that today if you had to unscramble it today?

The Witness: Well, it's - - to me it's a bit of a moot point. BIA has put the system on the ground out there. In other words, they proved me wrong, which I'm happy to say.

The Court: It depends on data cleanup, doesn't it?

The Witness: Data cleanup has to be done, yes, but the system is on the ground in Billings, and we can work with that. It narrows the things we have to deal with if we have to go to data cleanup. Id. at 3116-3118, emphasis added.

But the Court was driving at the point that the data had not been cleaned up and remained an unknown risk of potential criticality. It stated:

The Court: Right. Now, when the contractor testified last week that data cleanup only means to him cleanup of data that's in LRIS and IRMS, so it doesn't even affect anything else - - he considers that data gathering and data inputting, not data cleanup - - you've got a real major problem, don't you?

The Witness: There's a disconnect in my mind, Your Honor. The data cleanup that we're talking about is going back and having some assurance that the data is correct. The data that the systems people, like Dom Nessi and the contractor, are dealing with is simply converting the data that they are handed. And our approach was to do some cleanup of that data before we converted it. They have done some minimal cleanup of that data before they put the TAAMS system in.

The Court: But the basic approach finally taken was not to verify any of that data, just to convert it over?

The Witness: I couldn't even tell you how much was verified because I'm not familiar with the protocols used by the contractor or by the people in Denver who worked on this. I know there were some anomalies that were corrected, but I don't know the extent of that. Id. at 3118-3119, emphasis added.

And finally for the Court's edification, Thompson read Assistant Secretary for Indian Affairs Kevin Gover's own statement about the subject:

The Witness: " I don't think there is any doubt, even on the plaintiffs' side, that this data cleanup and the installation of the new system is critical to have even the basics of a trust management system." Id. at 3127-3128.

The BIA Data Cleanup subproject was viewed by all parties to the Cobell litigation as critical to bringing about trust reform. Perhaps even of more importance than either of two of the other indispensable projects - the Historical Accounting and the TAAMS system deployment - data cleanup represented the foundation on which everything about trust reform had to be built. Without complete and accurate electronic data in TAAMS capable of timely reporting, no accounting would be possible for the IIM account holders of their historical or current land and resource management information. Without this information, the financial accounting system - TFAS - would not function even if it, as an independent computer system, was operable. But the data to be placed in TAAMS was located in two legacy computer systems, hardcopy records and documents, or, in a number of cases, was missing.

II. THE BIA DATA CLEANUP SUBPROJECT'S HISTORY

A. Pre-trial and Trial Evidence

The first HLIP, dated July 1998, contained a BIA Data Clean Up section (see Tab 1B at 16-20) that outlined the goals of the subproject. In part, it stated:

"The BIA Data Clean Up effort will be performed where the title and lease documents are maintained and used; will be performed by a combination of BIA staff familiar with these records/documents and contractors; and will focus on current data only.

Following clean up of data and information essential to the TAAMS Pilot in Billings, additional data clean up will be performed after migration to the new TAAMS and LRIS systems when a modern database and tools are available to support such an effort. The initial tasks under this Sub project will finalize the data clean up approach to take.

The BIA Data Clean Up Sub project will:

•Identify missing documents/data and enter the pertinent data into the appropriate systems;

•Verify/Reconcile Current and Historical data;

•Prepare data for conversion to new TAAMS and LRIS capabilities;

•Establish effective data administration policies and procedures;

•Coordinate the BIA Clean Up effort with the other clean up efforts (e.g., OST, OHA);

•Provide clean land management data in time for the initial implementation of the new

TAAMS system (a pilot) by February 1999 and full deployment to BIA Areas by June 2000;

•Minimize impact to on-going land management activities at the LTROs, Agencies, and Tribes;

Maximize contractor support to ensure that current daily operations are not adversely impacted and service remains responsive." *fn2 Id. at 17.

The contractor selected in January 1999 for the BIA Data Cleanup subproject was DataCom Sciences, Inc. (DataCom); a Native American owned firm specializing in information technology, records management, and business support. The firm had previously assisted the OST in several of its trust reform subprojects. *fn3 Its initial study entitled, "TAAMS Implementation Support: Data Cleanup Task," dated January 27, 1999 (Tab 1D), recommended several solutions for completing data cleanup:

"Data cleanup includes three distinct tasks.

•"The first task is to input the current paperwork backlog of the BIA offices, prioritized by critical and non-critical

•The second task is to investigate and resolve data-related errors identified during system conversion

•The third task is to verify - to the greatest extent practical - the accuracy and completeness of BIA's data, including an exit report quantifying the accuracy and completeness of data at each site.

The recommendations presented here are constrained by the aggressive TAAMS implementation schedule, by the disparity of the legacy systems being replaced by TAAMS, and by the equivocal scope and complexity of the cleanup tasks themselves.

This report recommends a decentralized approach in which cleanup is performed at each Area (Region), Agency, and Tribal office using a combination of core team members deployed from Albuquerque and supplemental team members hired local to each Area Office. The core team members would be in place during conversion activities at the Area Office and one Agency Office, and would then be re-deployed to begin cleanup in the next scheduled Area Office. The locally hired cleanup team members would stay to complete TAAMS implementation at the remaining Agency and Tribal Offices in that Area, and to perform the post-conversion cleanup tasks." Id. at 2.

DataCom was expected to proceed with data cleanup to meet the aggressive TAAMS implementation schedule that was to run from June 1999 for Billings, Montana (Rocky Mountain Region) and continued on with implementation through all 12 Regions ending with Sacramento, California (Pacific Region) in May 2000.

DataCom also was expected to do the data cleanup. It would not be the responsibility of the Regional offices. See Nessi testimony, Trial Tr. at 2536. Most of the data cleanup would be performed once the data had been converted or manually inputted into TAAMS. See Trial Tr. at 2970-2971.

Although the BIA Data Cleanup subproject was still in its infancy at the time of trial in July 1999, the Acting Trustee, Tommy Thompson, had expressed concerns about BIA's ability to meet the aggressive schedule they had set. Shown a memorandum that he had authored during cross-examination, the following dialogue ensued:

Q: And when you say Billings will be ready, but the other sites question mark, does that suggest that just because Billings may be successful in the data cleanup effort, may not necessary indicate that others will also be ready on time?

A: I would think that - -

Q: Is that a fair interpretation?

A: My sense is that there would be a risk of that not occurring, given the schedule. Trial Tr. at 3079.

And later, he read part of the memorandum he authored:

A: "I am concerned, based on personal experience and corporate history, with the schedule compression and project approach BIA contemplates in the plan for BIA data cleanup, and the TAAMS and LRIS systems implementation."

Q: When you say in that - - when you use the term "corporate history," what did you mean by that?

A: The corporate history I was referring to is working in the past with the Bureau of Indian Affairs on this issue and on other issues, and trying to get the follow-through and the commitment that is needed for an effort such as this. I didn't think the record was sterling. Id. at 3104.

And finally, in speaking of the LRIS, TAAMS and data cleanup subprojects' integration:

Q: And what made - - what precisely makes the combination of three elements, these three subprojects? What makes that such a high risk?

A: Well, the problem I had with this was that, one, the Special Trustee's look at the systems indicated that perhaps the land record information system, the LRIS part, wasn't as in dire straits as the land management, the IRMS portion of this system. And we had advised that they should work - - spend more time on the IRMS replacement systems, TAAMS, and do LRIS as a second step. So they had basically combined the two of those.

The second problem I saw was that with but a year left before the rollout of a new system, with all kinds of procurement, data cleanup, staffing, et cetera, it just appeared to me to increase the risk of failure or delay on the rollout of this new system. Id. at 3106.

But Thompson, however prophetic his concerns might have been, did not have the data to judge just how far behind the data cleanup effort might fall if all did not go as planned. In response to this Court's question regarding whether there had been "slippage" in January 1999 in the BIA data cleanup effort, he replied:

A: I honestly don't know. At this point, we were still trying to assess what the impact was of trying to do these systems all at one point. This was about a month after the contract was awarded to Artesia, and we had not seen yet their approach for this. Id. at 3111.

But he had gained a somewhat false sense of security which he relayed to the Court because the TAAMS system had allegedly been introduced on time in June 1999 by BIA in Billings as testified to by Dom Nessi, the TAAMS Project Manager:

Q: Do you believe that - - did you believe at the time that you wrote this that these risks were acceptable?

A: They were acceptable to me, but, again, I was not in charge and I didn't have to make the final decision. That was left to higher management.

Q: But if you were in charge, would they have been acceptable to you?

A: I would not have organized the projects in this fashion were I in charge.

The Court: And you wouldn't today?

The Witness: I wouldn't start it today either.

The Court: Right.

The Witness: No, I would keep them separate.

The Court: What would you do to unscramble that today if you had to unscramble it today?

The Witness: Well, it's - - to me it's a bit of a moot point. BIA has put the system on the ground out there. In other words, they proved me wrong, which I'm happy to say. Id., at 3117-3118.

Further illustrating the basis for Thompson's concerns, the plaintiffs' own accounting expert, Sharon Fitzsimmons of Price Waterhouse Coopers, who had attended the trial and reviewed the testimony and exhibits presented at the trial on BIA Data Cleanup, had the following dialogue with the plaintiffs' counsel:

Q: What is your understanding of data cleanup in the High Level Implementation Plan?

A: As it's stated in the High Level Implementation Plan?

Q: That's correct.

A: My understanding of data cleanup is it's not defined in the High Level Implementation Plan, and the discussion of data cleanup relates to, as I read it, the gathering of all the documents that Interior can find and the sorting of those documents into appropriate files.

It also includes, as information is input into these new systems and new modules, that it be correctly moved over from one system to another without errors in that transition process.

Q: How difficult a problem is data cleanup, to your knowledge?

A: I think it's a huge part of the issue with the Indian funds.... This seems to be a one-directional data cleanup of let's get all the documents into the right files. There is a completely different directly (sic) you must take with data cleanup to ensure that you get to the end result, which is that the accounts are supported by the relevant documentation, and the best form of documentation is third-party document of probate information, title, third-party receipts and so forth

Q: How do go about doing this? What is the - - you said one way. What's the - - is this a two-way process, then?

A: At least a two-way process. You can really look at it - - as these both ways. The discussion so far of data cleanup has been let's get what we have and tidy it up. It's what is not there that is my far greater concern, ...." Trial Tr. at 4282-4284.

She testified further about the missing information:

Q: How do you fix them if documents are missing?

A: The documents have to be acquired from going back to ...


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