United States District Court, District of Columbia
April 28, 2003
ELOUISE PEPION COBELL, ET AL., PLAINTIFFS,
GALE A. NORTON, SECRETARY OF THE INTERIOR, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge
MEMORANDUM AND ORDER
This matter comes before the Court on defendants' motion for partial summary judgment regarding the statute of limitations and laches [1781-1], which was filed on January 31, 2003. Upon consideration of defendants' motion, plaintiffs' opposition thereto, defendants' reply brief, and the applicable law in this case, the Court finds that defendants' motion should be denied.
I. LEGAL ANALYSIS
A. Legal Standard For Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides, in relevant part, that summary judgment "shall be entered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In a separate memorandum and order issued this date, the Court has explained at length the legal standards that govern motions for summary judgment. Accordingly, it will only be necessary to provide a brief explanation of the relevant burdens of proof governing this motion.
Defendants have moved for partial summary judgment that the statute of limitations or the doctrine of laches bars any claims by plaintiffs for an accounting of individual Indian money (IIM) trust balances or transactions prior to October 1, 1984. Because defendants will bear the burden of persuasion on this issue at trial, defendants presently possess the burden of presenting credible evidence that would entitle them to a directed verdict at trial on this issue, if the evidence were not controverted. If defendants fail to provide such evidence, they will not have satisfied their burden of production, and the Court will deny partial summary judgment. However, if defendants do provide such evidence, they will have met their burden of production (although the burden of persuading the finder of fact on a preponderance of the evidence standard remains with defendants). The burden of production would then shift to plaintiffs, who would be required to provide credible evidence demonstrating the existence of a genuine issue for trial. If plaintiffs failed to provide such evidence, they would not have met their burden of production, and the Court could conclude that defendants have prevailed on their burden of persuasion, and enter partial summary judgment on the issues presented in their motion.
B. The Court's November 5, 1998 Memorandum Opinion
The Court has previously addressed defendants' contention that the statute of limitations or, alternatively, the laches doctrine, bars plaintiffs' claims for an accounting of any IIM trust balances prior to October 1, 1984. The Court agreed with the parties that the statute of limitations found in 28 U.S.C. § 2401 governed this case. Subsection (a) of that statute provides, in relevant part, that "every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues." The Court then rejected plaintiffs' assertion that the tolling language contained in the Department of the Interior and Related Agencies Appropriations Act for fiscal year 1990-91, Pub.L. No. 101-512,*fn1 completely eliminated defendants' right to assert the statute of limitations as a defense, explaining:
Although the Court agrees that the plaintiffs fall
under the protections of the tolling statute because
their claim is one for "trust mismanagement," these
protections do not include the revival of potentially
long stale claims. The tolling language clearly stops
the clock from commencing to run on the plaintiffs'
viable claims as of October 1, 1990. But nothing in
this legislative history shows that the "tolling
provision" was ever intended to do more than its name
suggests. In other words, the provision only tolls a
clock that has not commenced running. It cannot revive
claims for which the clock stopped running long ago.
Cobell v. Babbitt, 30 F. Supp.2d 24, 43-44 (D.D.C. 1998) (footnotes omitted). After examining both the statutory language and the relevant legislative history, the Court concluded that
if the plaintiffs can be allowed to bring their cause
of action for an accounting based on the transactions
that occurred before October 1, 1984, they must show
that these claims did not accrue prior to this date.
Any claims that accrued before October 1, 1984, would
have been time barred before the enactment of the
tolling provision in the 1990 appropriations act.
Id. at 44.
Although the Court did observe that, at that time, "[t]he parties agree[d] that the plaintiffs' claims accrued when the plaintiffs knew or should have known that they had a valid right of action for trust mismanagement against the government," the Court made no ruling as to that point of law. Id. Instead, the Court declined to make any ruling on the statute of limitations issue because the issue had not been fully briefed and discovery had not yet been completed. The Court explained that defendants were "free to raise their statute of limitations defense at the summary judgment stage, once the parties have completed their discovery of facts that go to the plaintiffs' knowledge and have had the opportunity to adequately brief the issues presented." Id. at 45. In a footnote, the Court mentioned the relevant issues that it planned to address at that time:
Presumably the Court will address issues such as when
the plaintiffs' claims accrued, the effect of the
statute of limitations on an action for an
accounting, the undisputed facts on which the
defendants base their argument that the plaintiffs'
cause of action for an accounting has accrued, and
equitable tolling. Specifically, the Court expects to
address the issue of the effect of the trust
relationship on the accrual of the plaintiffs' claims
under 28 U.S.C. § 2401(a). See Loudner v. United
States, 108 F.3d 896, 901 (8th Cir. 1997) (holding
that the Indian plaintiffs, as beneficiaries of the
trust, were under a lessened duty to discover their
claims against the United States as trustee for
statute of limitations purposes under
28 U.S.C. § 2401(a) because of the fiduciary
relationship (citing Manchester Bank of Pomo Indians,
Inc. v. United States, 363 F. Supp. 1238 (N.D.Cal.
Id. at 45 n. 26. The Court will now address these issues.
C. Statute of Limitations
Because plaintiffs have alleged claims for relief against the United States, their claims are barred by the statute of limitations if they were not brought within six years after their right of action accrued. The key issue thus becomes whether plaintiffs' claims have "accrued" for purposes of 28 U.S.C. § 2401(a).
In Loudner v. United States, 108 F.3d 896 (8th Cir. 1997), the plaintiffs, who claimed to be descendants of the Sisseton-Wahpeton Sioux Tribe, learned in 1994 of the existence of a judgment fund established in 1973 to settle a class action suit brought by the successor tribes of the Sisseton-Wahpetons. When the plaintiffs brought suit under the "Little Tucker Act," the district court dismissed the action as barred by 28 U.S.C. § 2401(a).*fn2 The Eighth Circuit reversed, explaining that "because plaintiffs had no reason to know of the existence of the judgment fund and, consequently, of their possible claim to it, they have a strong argument that the statute of limitations did not begin to run on their claim until they received actual notice of the fund's existence in 1994." Id. at 901. Because Loudner involved a claim for damages under the Little Tucker Act, not an equitable claim for an accounting as in the instant case, its precedential value for the instant case is somewhat limited. However, the Eighth Circuit did call attention to a case involving a claim for an accounting, Manchester Band of Pomo Indians v. United States, 363 F. Supp. 1238 (N.D.Cal. 1973), in support of its assertion that "because the beneficiary is entitled to rely upon the good faith and expertise of the trustee, the beneficiary's duty to discover claims against the trustee is somewhat lessened." Id. In Manchester Band, the plaintiffs filed suit against the Departments of the Interior and Treasury, asserting that the defendants had mismanaged funds held in trust for them. The plaintiffs sought a declaratory judgment that the defendants were liable to them for their failure to manage the funds consistently with their fiduciary duties as trustees, as well as a judgment setting out the statutory obligations of the defendants with respect to the management of the trust funds. Having concluded that "defendants here have breached their solemn fiduciary duty owed to the Band to manage properly their trust funds, and are therefore liable," the court turned to the plaintiffs' claim for an accounting for the years 1938-46 and for a declaratory judgment as to the defendants' future obligations to provide regular accountings. Manchester Band, 363 F. Supp. at 1247. The court found that "defendants' duty to render satisfactory accountings to the Band is a continuing duty." Id. at 1248 (citing RESTATEMENT (SECOND) OF TRUSTS § 172). Additionally, the court rejected the defendants' contention that 28 U.S.C. § 2401(a) barred any plaintiffs' claims that had accrued six years or more prior to filing suit, explaining that "where, as here, there is a fiduciary relationship between the parties, the universal rule is that `a statute of limitation does not begin to run where there is a fiduciary relationship between the parties until the relationship is repudiated.' Thus, the statute does not run against a beneficiary in favor of a trustee until the trust is repudiated and the fiduciary relationship terminated." Id. at 1249 (internal citations omitted).*fn3
The parallels between the factual situation in Manchester Band and the instant case need hardly be stated. However, defendants have urged the Court not to follow Manchester Band's treatment of 28 U.S.C. § 2401(a), claiming that it "state[s] a little-held viewpoint." Defs.' Mot. at 11. To the contrary, the principle that the statute of limitations does not begin to run for a beneficiary's claim in equity to enforce the obligations of the trustee until the trustee has repudiated the beneficiary's right to the benefits of the trust is well-established in recognized treatises on trust law. The leading treatise on the law of trusts states that "the beneficiaries of an express trust are not barred by laches or by the statute of limitations from enforcing the trust merely because of lapse of time; and it is only where the trustee has repudiated the trust to the knowledge of the beneficiaries that they may become barred from enforcing the trust." AUSTIN W. SCOTT & WILLIAM F. FRATCHER, THE LAW OF TRUSTS § 481.1 (4th ed. 1987). Another well-recognized treatise makes clear that
[t]o cause the Statute [of limitations] to begin
running during the life of the trust there must be
some unequivocal act in violation of the duties of the
trustee or in repudiation of the trust, as where he
declines to account to the beneficiary, or takes trust
income for his own purposes, or sets himself up as the
owner of the trust principal. Whether a given act is
consistent with the continuance of the trust, or
indicates an intent to repudiate the trust and claim
adversely, is a question of fact for the determination
of the court in an individual case.
BOGERT & BOGERT, THE LAW OF TRUSTS AND TRUSTEES § 951, at 638-39 (rev.2d ed. 1995).
Not only is this legal principle endorsed by the major treatises on trust law, it is also the controlling law of this Circuit. In Kosty v. Lewis, 319 F.2d 744 (D.C. Cir. 1963), a retired mine worker filed suit to compel the payment of pension benefits from the United Mine Workers of America Welfare and Retirement Fund of 1950. The fund was an irrevocable trust fund created pursuant to the Taft-Hartley Act of 1947. After this Court dismissed the action, the plaintiff appealed. The D.C. Circuit reversed, finding that the trustees had acted in an arbitrary and capricious manner in denying payment of the plaintiff's retirement benefits. The Court also rejected the trustees' claim that the suit was barred by the statute of limitations, explaining that the trustees had failed to repudiate the plaintiff's right to receive the benefits of the trust:
Turning to the defense that the statute of limitations
barred the present action, this Court has previously
held that equity does not necessarily follow the
statutory period of limitations. We will assume,
however, that defendants were correct in their
assertion that the applicable limit would be three
years from the date a cause of action `accrued.' The
Trustees urged that appellant's cause of action
accrued in September of 1953, when his application was
first turned down. This argument we cannot accept.
Appellant was a beneficiary of an express trust.
Numerous courts have held that in order to start the
statute of limitations running against an express
trust, there must be a clear and continuing
repudiation of the right to trust benefits. The
administrative file, which was introduced into
evidence by the Trustees themselves, is replete with
documentary evidence showing that the case was still
not closed in 1960, when this action was commenced. At
least three different investigations were made by the
Trustees into the merits of appellant's claim for a
pension. One was conducted in 1957, and a final one
when this action was begun. Until a defense was
interposed in this case, we cannot say that
appellant's claim was completely repudiated. Until
that time, the Trustees were giving continuing
consideration to appellant's eligibility. On these
undisputed facts, this action is not barred by the
statute of limitations.
Id. at 750 (footnotes omitted). Thus, the D.C. Circuit held that the statute of limitations did not bar an equitable claim by a beneficiary against a trustee unless the trustee made a clear and continuing repudiation of the right of the beneficiary to enjoy the benefits of the trust.
The D.C. Circuit's holding in Kosty is consistent with the findings of other circuits that have construed the relevant statute of limitations in cases filed under ERISA, which federal courts have been directed to construe in light of the common law principles governing trusts.*fn4 For example, the Second Circuit has "consistently held that an ERISA cause of action accrues and the limitations period begins to run when a claim for benefits is clearly and unequivocally denied." Miele v. Pension Plan of New York State Teamsters Conference Pension & Ret. Fund, 72 F. Supp.2d 88, 98 (E.D.N.Y. 1999); see also Miles v. New York State Teamsters Conference Pension & Ret. Fund Employee Pension Benefit Plan, 698 F.2d 593, 598 (2d Cir. 1983) ("A plaintiff's ERISA cause of action accrues, and the six-year limitations period begins to run, when there has been a repudiation by the beneficiary which is clear and made known to the beneficiaries") (emphasis in original) (citation and internal quotation marks omitted); Tinley v. Gannett Co., Inc., 55 Fed. Appx. 74, 78 (3d Cir. 2003) (same). Similarly, in Daill v. Sheet Metal Workers' Local 73 Pension Fund, 100 F.3d 62 (7th Cir. 1996), a laid-off sheet metal worker filed suit under ERISA seeking the payment of pension funds that he claimed had been unlawfully denied. The Seventh Circuit stated that "[t]he principal issue before us is when Daill's cause of action accrued, i.e., when the 10-year statute of limitations clock started ticking. Even when relying on an analogous state statute of limitations, as in this case, we look to federal common law for purposes of determining the accrual date of a cause of action under a federal statute such as ERISA." Daill, 100 F.3d at 65.*fn5 The court reversed the district court's award of summary judgment for the plaintiff, explaining that "the interests of pension funds and plan participants are better served by the consistent treatment of any claim or application for pension benefits so that a cause of action accrues upon a clear and unequivocal repudiation of rights under the pension plan which has been made known to the beneficiary." Id. at 66.
None of the case law cited by defendants mandates a contrary conclusion by this Court. First, the cases cited from state courts are wholly concerned with the construction of state trust law, and therefore are not binding on this Court. Second, the cases that defendants cite that were brought under the Tucker Act or the Little Tucker Act are not on point because they involve claims for damages, not equitable claims for an accounting.*fn6 As this Court has previously indicated, the rules governing these two types of cases are not interchangeable. See Cobell, 30 F. Supp.2d at 40 ("Case law has long recognized the distinction between an action at law for damages — which are intended to provide a victim with monetary compensation for an injury to his person, property, or reputation — and an equitable action for specific relief — which may include an order providing for the recovery of specific monies.") (quoting Bowen v. Massachusetts, 487 U.S. 879, 893 (1988)) (internal punctuation omitted). None of these cases undermine the principle that the statute of limitations does not commence running for a beneficiary's equitable claim to enforce the obligations of the trustee until the trustee has repudiated the beneficiary's right to the benefits of the trust. It is true that the Federal Circuit appears to have adopted an exception to the rule that the statute of limitations does not run unless the trustee has repudiated the trust's existence in cases involving claims for damages that allege nonfeasance or misfeasance on the part of the trustee. See, e.g., Cherokee Nation of Oklahoma v. United States, 21 Cl. Ct. 565, 571 (1990). Because this unwarranted "exception" runs against the grain of fundamental trust law principles, however, it has apparently not been adopted in any other Circuit, and this Court will not do so now.
Third, and finally, none of the federal cases cited by defendants involving claims based in equity mandate a contrary conclusion by this Court. In Gruby v. Brady, 838 F. Supp. 820, 830-32 (S.D.N.Y. 1993), the trustees of a pension fund proposed increases in monthly pension benefits in 1973, 1980, 1983, and 1986, without informing the plaintiffs that the fund was experiencing financial difficulties. In response to plaintiffs' ERISA claims for breach of fiduciary duty, the trustees moved to dismiss, asserting that the statute of limitations barred any such claims to the extent that they were based on payment increases that were made before 1986. The court first explained that "[w]hether any of plaintiffs' claims are time-barred depends on whether the Trustee-Defendants engaged in one `continuous' violation or separate, `repeated' breaches of duty." Id. at 830-31. Because the court concluded that each of the payment increases gave rise to separate causes of action for breach of fiduciary duty, it barred those causes of action that occurred prior to May 27, 1986. By contrast, in the present action, plaintiffs are not alleging that they have made a series of individual requests for accountings or transaction reports, and that such requests have been denied. Rather, when plaintiffs commenced the present suit, they sought a declaratory judgment of defendants' fiduciary obligations, including a finding that defendants were required to provide a complete historical accounting of the IIM accounts, because defendants have never conducted such an accounting during the life of the IIM trust. The situation in Gruby is therefore inapposite to the present situation. If the Court were to adopt the dichotomy used by the Gruby court, it would conclude that defendants have engaged in a single continuous violation of their fiduciary duties rather than separate, repeated breaches of duty, and therefore are not entitled to summary judgment on statute of limitations grounds.
Nor does Littlewolf v. Hodel, 681 F. Supp. 929 (D.D.C. 1988), undermine the Court's conclusion. The issue presented in that case was whether the statute of limitations in the White Earth Reservation Land Settlement Act of 1985 was "unreasonable" for purposes of the Due Process Clause of the Fifth Amendment, not whether the United States, as trustee, was required to repudiate the existence of the trust before the applicable statute of limitations would run. And Adams v. Hinchman, 154 F.3d 420 (D.C. Cir. 1998), involved neither trust principles nor claims for breach of fiduciary duty, but rather claims for back pay and overtime by federal employees. Nothing in the dicta cited by defendants from that case suggests that the D.C. Circuit was addressing anything but claims for back pay and overtime.
Based on the evidence presented in defendants' motion, including the statements of material fact alleged by defendants to be undisputed, the Court finds that defendants have neither repudiated the existence of the IIM trust nor repudiated plaintiffs' right to enjoy the benefits of the trust. Instead, defendants have consistently chosen the coward's route by failing to provide the IIM beneficiaries with the information that the beneficiaries were entitled to by law, while simultaneously insisting that they were fully complying with their fiduciary obligations to the beneficiaries. Having failed to persuade Congress to pass legislation that would cut off plaintiffs' claims with respect to all transactions that occurred prior to October 1, 1984, defendants presently invite the Court to make a ruling to the same effect. The Court declines defendants' invitation. Such a construction of the statute of limitations would not only proceed down a path that Congress expressly rejected, it would also undermine the mandate of the D.C. Circuit's February 23, 2001 opinion in this case. Responding to the assertion that plaintiffs did not have a judicially-enforceable right to a complete historical accounting, the D.C. Circuit stated:
Contrary to appellants' claims, Section 102 of the
1994 Act makes clear that the Interior Secretary owes
IIM trust beneficiaries an accounting for "all funds
held in trust by the United States for the benefit of
an Indian tribe or an individual Indian which are
deposited or invested pursuant to the Act of June 24,
1938." 25 U.S.C. § 4011(a) (emphasis added). "All
funds" means all funds, irrespective of when they were
deposited (or at least so long as they were deposited
after the Act of June 24, 1938). Therefore, the 1994
Act reaffirms the government's preexisting fiduciary
duty to perform a complete historical accounting of
trust fund assets. . . . Appellants never explain how
one can give a fair and accurate accounting of all
accounts without first reconciling the accounts,
taking into account past deposits, withdrawals, and
accruals. Indeed, the government's own expert
acknowledged that one could not determine an accurate
account balance without confirming historical account
Cobell v. Norton, 240 F.3d 1081
, 1102 (D.C. Cir. 2001) (emphasis in original). "All funds" still means all funds, regardless of when they were deposited. Defendants' arguments to the contrary simply provide further evidence of their craven hypocrisy: while insisting to the public that they are committed to reforming the Indian trust system, they are simultaneously doing everything in their power to dodge the trust responsibilities that have been bestowed upon them, and that both Congress and the courts have spelled out for them.
In sum, defendants have failed to provide credible evidence that, if uncontroverted, would entitle them to a directed verdict at trial that the relevant statute of limitations, 28 U.S.C. § 2401(a), bars any claims by plaintiffs for an accounting of IIM balances or transactions prior to October 1, 1984. Defendants have therefore failed to satisfy their burden of production on this issue, and the Court will deny their motion for partial summary judgment.*fn7
Defendants also seek partial summary judgment that the laches doctrine bars plaintiffs' claims for an accounting of transactions that occurred before October 1, 1984. The equitable doctrine of laches applies in situations in which a plaintiff has unfairly delayed in bringing an action, resulting in prejudice to the defendant. CarrAmerica Realty Corp. v. Kaidanow, 321 F.3d 165, 171 (D.C. Cir. 2003). The rationale for this doctrine is that "as claims become increasingly stale, pertinent evidence becomes lost; equitable boundaries blur as defendants invest capital and labor into their claimed property; and plaintiffs gain the unfair advantage of hindsight, while defendants suffer the disadvantage of an uncertain future outcome." Id. (citation omitted).
In its November 5, 1999 memorandum opinion, this Court denied defendants' motion to dismiss based on the laches doctrine, explaining that "[i]n general, the time period for a laches analysis cannot begin to run until a repudiation of the trust has occurred and the plaintiffs have actual notice of it." Cobell, 30 F. Supp.2d at 45 (citing BOGERT & BOGERT, THE LAW OF TRUSTS AND TRUSTEES § 964, at 73 (rev.2d ed. 1985)). The Court explained, however, that defendants were free to reintroduce the laches argument at the summary judgment stage. As noted above, defendants have failed to demonstrate that a repudiation of the trust has occurred. Therefore, the Court will deny defendants' motion for partial summary judgment that the doctrine of laches bars plaintiffs' claims for an accounting with respect to transactions that occurred before October 1, 1984.
Having examined the evidence presented by defendants in their motion for partial summary judgment, the Court concludes that defendants have failed to present evidence that, if uncontroverted, would entitle defendants to a directed verdict that the statute of limitations or the laches doctrine bars plaintiffs' claims for an accounting of balances or transactions before October 1, 1984. Therefore, defendants have failed to satisfy their burden of production, and the Court will deny their motion for partial summary judgment. It is therefore
ORDERED that defendants' motion for partial summary judgment regarding the statute of limitations and laches [1781-1] be, and hereby is, DENIED.
Upon consideration of defendants' motions for partial summary judgment that the Interior Department's historical accounting plan and trust management plan comport with their obligation to perform a historical accounting, plaintiffs' briefs in opposition thereto, defendants' reply briefs, and the applicable law in this case, the Court finds that defendants' motions should be denied.
On September 17, 2002, this Court ordered the Interior defendants ("defendants") to file with the Court a plan for conducting a historical accounting of the individual Indian money (IIM) trust accounts and a plan for bringing themselves into compliance with the fiduciary obligations that defendants owe to the IIM beneficiaries. With respect to the latter plan, the Court further ordered defendants to "describe, in detail, the standards by which they intend to administer the IIM trust accounts, and how their proposed actions would bring them into compliance with those standards." Cobell v. Norton, 226 F. Supp.2d 1, 162. Defendants filed plans purporting to comport with the Court's orders on January 6, 2003.
Defendants presently seek an order from the Court declaring, as a matter of law, that the steps outlined in both of these plans comport with the Interior Department's obligation to perform an accounting. The Court declines to enter such an order because defendants have failed to present, in conjunction with their motions, statements of allegedly undisputed facts that, if true, would entitle defendants to judgment as a matter of law that the steps outlined in these plans would comport with their fiduciary obligation to perform a complete historical accounting of the IIM accounts. Instead, each statement consists in its entirety of the following factual assertions: (1) "The Secretary of the Interior and the Assistant Secretary of Interior-Indian Affairs ("Interior Defendants") serve as trustee-delegates of the Federal Government with regard to the administration of Individual Indian Money ("IIM") trust accounts"; (2) this Court ordered defendants to submit the above-mentioned plans; (3) defendants submitted the plans; and (4) the plans contain assertions that they comport with defendants' fiduciary obligations.[fn1a]
Even if defendants were to demonstrate that each of these four assertions were true, defendants would not therefore be entitled to partial summary judgment that the steps outlined in these plans comport with defendants' fiduciary obligations to perform a complete historical accounting. A finding that these plans assert that "they are the relevant part of an ongoing trust reform planning and implementation process" and that "upon completion of the historical accounting, [defendants] will be in a position to provide the holder of each IIM account covered by the Plan an Historical Statement of Account" is manifestly not the same as a finding that these plans will accomplish what defendants claim that they will accomplish. Therefore, defendants have failed to satisfy their burden of production, which requires them to produce credible evidence that, if uncontroverted, would entitle them to a directed verdict at trial that the measures outlined in these plans comport with the Interior Department's obligation to perform an accounting of the IIM trust accounts. Accordingly, the Court will deny defendants' motions for partial summary judgment.
Defendants have submitted to the Court two plans outlining measures to make plans that (they allege) will result in the performance of an accounting. However, defendants have presented no evidence that they have conducted a historical accounting of the IIM accounts, or that they are presently conducting any operation that would constitute such an accounting. In the absence of such evidence, the Court will not enter summary judgment that the steps outlined in these "plans to make plans" somehow comport with defendants' obligation to conduct a complete historical accounting. It is therefore
ORDERED that defendants' motion for partial summary judgment that Interior's historical accounting plan comports with their obligation to perform an accounting [1775-1] be, and hereby is, DENIED. It is further
ORDERED that defendants' motion for partial summary judgment that Interior's trust management plan comports with their obligation to perform an accounting [1776-1] be, and hereby is, DENIED.