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Cobell v. Norton

September 25, 2003


The opinion of the court was delivered by: Royce C. Lamberth United States District Judge


("Fixing the System")

This is the second of two memorandum opinions issued this date following a forty-four day bench trial. The first opinion dealt with the further relief ordered by this Court relating to the historical accounting owed by defendants to plaintiffs. The present opinion discusses the further relief ordered by the Court relating to the obligation of the Interior defendants to bring themselves into compliance with the fiduciary duties owed to plaintiffs as the trustee-delegate of the United States for the individual Indian money (IIM) trust.


On October 25, 1994, Congress passed the American Indian Trust Management Reform Act ("the 1994 Act"). The Act established the Office of the Special Trustee for American Indians within the U.S. Department of the Interior. 25 U.S.C. § 4042. It also directed the Special Trustee to prepare and, after consultation with Indian tribes and appropriate Indian organizations, submit to the [Interior] Secretary and the Committee on Natural Resources of the House of Representatives and the Committee on Indian Affairs of the Senate, within one year after the initial appointment is made under section 4042(b) of this title, a comprehensive strategic plan for all phases of the trust management business cycle that will ensure proper and efficient discharge of the Secretary's trust responsibilities to Indian tribes and individual Indians in compliance with this chapter. 25 U.S.C. § 4043(a)(1).

In accordance with this provision, the Special Trustee submitted a strategic plan to Interior Secretary Bruce Babbitt and Congress in April of 1997. After reviewing the Special Trustee's strategic plan, Secretary Babbitt issued his own plan in July of 1998, which is known as the High Level Implementation Plan ("HLIP"). The HLIP consisted of twelve subprojects, with a focus on ensuring the accuracy of data retained by Interior regarding the IIM trust fund and developing uniform policies and procedures to guide trust management in the future.*fn2

Meanwhile, on June 10, 1996, the named plaintiffs commenced the present action against the Secretary of the Interior and other federal officials, alleging that the mismanagement of the IIM trust by the Interior and Treasury departments constituted a breach of their fiduciary duties to plaintiffs. On May 5, 1998, the Court bifurcated this action into two distinct phases. Phase I of the litigation, also known as the "fixing the system" phase, would focus on the reforms instigated by defendants to bring the management of the IIM trust into compliance with their fiduciary obligations. This phase is forwardlooking, in that it attempts to discern whether defendants have reformed the management of the IIM trust in such a way that will ensure that the United States will honor its fiduciary obligations to the Indian beneficiaries in the future. Phase II, also known as the "historical accounting phase," would focus on the performance of a formal accounting of the IIM trust, as required by the 1994 Act. This phase is backward-looking, in that it attempts to discern whether and to what extent the United States has honored its fiduciary obligations to the Indian beneficiaries from the inception of the trust until the present date.

In 1999, the Court conducted a six-week bench trial addressing plaintiffs' Phase I claims. During the trial, Interior introduced the HLIP into evidence in order to demonstrate that it was taking steps to bring itself into compliance with its fiduciary obligations to the IIM beneficiaries. On December 21, 1999, the Court issued a memorandum opinion containing detailed factual findings and conclusions of law. Cobell v. Babbitt, 91 F. Supp.2d 1 (D.D.C. 1999) ("Cobell V"). The Court determined that defendants have the type of historical record of recalcitrance that troubles the court. The court is aware that defendants, especially Interior, [have] made promises similar to those relied upon today each time that it has come up for review on the IIM trust. Indeed, these broken promises are what necessitated the passage of the Trust Fund Management Reform Act. Promises made in court, however, are different than the puffing to Congress that Interior has done over the past few decades. The court can ensure that these promises are kept, and it has the contempt power that will allow it to do so when appropriate.

Despite defendants' history, the court has decided to give defendants one last opportunity to carry through on their promises. The HLIP, defendants' most comprehensive plan to eventually bring themselves into compliance with their duty to render an accurate accounting, is a substantial step in the right direction, as even plaintiffs admit. This time, there is substance to support defendants' promises. The court feels that it is therefore its constitutional duty to allow defendants the opportunity to cure the breaches of trust declared in this Memorandum Opinion. Given separation of powers concerns, the court will deny for the time being plaintiffs' request to appoint a receiver or Special Master over the IIM trust. Should the court find in the future upon proper motion by plaintiffs that defendants have been less than truthful in their representations or that defendants' adherence to prompt remedial action turns out to have been feigned, then the court may well decide to exercise its authority to ensure that its orders are carried out.

Id. at 54.

On September 17, 2002, following a twenty-nine day bench trial, this Court issued a memorandum opinion finding Interior Secretary Gale Norton and Assistant Interior Secretary of Indian Affairs Neal McCaleb to be in civil contempt of court, in their official capacities, with respect to five specifications.*fn3 The opinion also explained the necessity for considering further injunctive relief beyond that imposed in the Court's December 21, 1999 opinion:

It is... apparent to the Court that the defendants are no closer today to discharging their fiduciary responsibilities properly than they were during the Phase I trial back in the summer of 1999. At the conclusion of that trial, after the plaintiffs proved that the defendants were in breach of the fiduciary duties that they owe to the 300,000 individual Indian trust beneficiaries, the plaintiffs requested that this Court put the IIM trust under court supervision. The Court declined to grant such relief at that time because it felt that it was its constitutional duty to allow the defendants to correct the breaches declared by the Court and those found in the 1994 Act. Thus, by declaring the trust duties of the defendants and remanding the matter back to the agency, the Court granted the least intrusive form of relief that it could fashion.

In light of the current posture of this case, it is now obvious that this relief was and is insufficient. The recalcitrance exhibited by the Department of Interior in complying with the orders of this Court is only surpassed by the incompetence that the agency has shown in administering the IIM trust. Accordingly, the Court concludes that while its factual findings and legal conclusions in the Phase I trial ruling were correct (and will therefore not be disturbed), the relief granted by the Court at that time is no longer adequate. Consistent with this conclusion, the Court has determined that it must now consider granting further injunctive relief with respect to the fixing the system portion of the case and the historical accounting project. The Court's conclusion in this regard is in full accord with the principle that courts should exercise the least possible power adequate to the end proposed. The reason is that there is an equally established axiom that when the least intrusive measures fail to rectify the problems, more intrusive measures are justifiable. Moreover, the D.C. Circuit even explicitly stated that "while th[is] court should (and did) remand to the agency for the proper discharge of its obligations, the court should not abdicate its responsibility to ensure that its instructions are followed. This would seem particularly appropriate where, as here, there is a record of agency recalcitrance and resistance to the fulfillment of its legal duties." At this juncture, it is crystal clear that more than a declaratory judgment is necessary to ensure that the defendants discharge their fiduciary obligations properly.

Cobell v. Norton, 226 F. Supp.2d 1, 147-48 ("Cobell VII") (internal citations and quotation marks omitted).

In light of its conclusion to consider further injunctive relief, the Court scheduled further proceedings to determine whether such additional relief was warranted and, if so, to determine the nature and extent of such relief. Because the Court had already conducted a Phase I trial, and because the time was not ripe to conduct a hearing on Phase II of the litigation, the Court designated these proceedings "the Phase 1.5 Trial," in order to stress their nature as an interim stage of this litigation. It explained that this trial would "encompass additional remedies with respect to the fixing the system portion of this case and approving an approach to conducting a historical accounting of the IIM trust accounts." Id. at 162. Specifically, the Court explained that it planned to enter a structural injunction in this case. Id. at 147 n.154.

The Court directed the Interior defendants to submit two plans to the Court: (1) a plan for conducting a historical accounting of the IIM trust accounts, and (2) a plan for bringing themselves into compliance with the fiduciary obligations owed to the IIM trust beneficiaries. It stressed that these plans should "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." Id. at 148-49. The Court also granted the Treasury Department and plaintiffs leave to file any plan or plans of their own regarding these matters.

On January 6, 2003, the Interior defendants and plaintiffs each submitted two plans to this Court. Interior's Plan for bringing itself into compliance with its fiduciary obligations to the IIM beneficiaries was entitled "Department of the Interior Fiduciary Obligations Compliance Plan" (Defs.' Ex. 1). The plaintiffs' alternative plan was entitled "Plaintiffs' Compliance Action Plan Together with Applicable Trust Standards" (Pls.' Ex. 51).

Interior submitted an additional Plan on March 28, 2003 entitled "Department of the Interior Comprehensive Trust Management Plan" ("the Comprehensive Plan") (Defs.' Ex. 27).*fn4 As explained by Special Trustee Ross Swimmer during the Phase 1.5 trial, the Comprehensive Plan is intended to replace the HLIP as Interior's comprehensive plan for bringing its management of both the IIM trust and Tribal trusts into compliance with its fiduciary obligations to the beneficiaries of those trusts:

Q. Now did going to [the Comprehensive Plan] in effect mean starting all over again from square one?

A. Oh, not at all. In fact you will find in the plan the -- all of the things that are described in the HLIP are in the business processes or incorporated into the goals and objectives. Obviously what was accomplished at that time in the HLIP also carries through to this plan and to the implementation of it....

THE COURT: Does this replace the HLIP then?

THE WITNESS: It really does. It incorporates those items in the HLIP into this plan, Your Honor.

THE COURT: And what does the January 6th plan do?

THE WITNESS: What the January 6th plan essentially does is to pull out of the Comprehensive Plan the portion of that plan that deals with funds, with just the funds accounting -- the collection of the funds, the investment, disbursement of the funds. The Comprehensive Plan includes not only, for instance, the IIM account business but also tribal trust accounts that we have to manage.

Tr., Day 36, PM session (June 25, 2003) at 31:23 - 32:19. At the Court's request, Special Trustee Swimmer demonstrated for the Court the portions of the Comprehensive Plan that corresponded to the twelve subprojects of the HLIP. See Defs.' Ex. 316.

When asked why the Comprehensive Plan had not been filed on January 6, 2003, Special Trustee Swimmer explained: "We were well along on the Comprehensive Trust Management Plan when we were asked by the court to file a fiduciary compliance plan. We more or less broke off from the Comprehensive Trust Management Plan to complete that portion of the work that would deal with the trust funds, which is what we felt our responsibility to report to the court on how we would bring our trust fund management into compliance. " Tr., Day 25, PM session (June 25, 2003) at 48:12-19. Once again, Interior did not follow the Court's instructions. The Court's order of September 17, 2002 included the following provision:

It is further ORDERED that the Interior defendants shall file with the Court and serve upon plaintiffs a plan for bringing themselves into compliance with the fiduciary obligations that they owe to the IIM beneficiaries. As part of this plan, defendants shall 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. This plan should be filed and served upon completion but no later than January 6, 2003.

Cobell VII, 226 F. Supp.2d at 162. Interior was thus ordered to submit a plan "for bringing themselves into compliance with the fiduciary obligations that they owe to the IIM beneficiaries." The order was not restricted to the submission of a plan for Interior to bring itself into compliance with the fiduciary obligations owed to the IIM beneficiaries merely with respect to the funds in the IIM trust or the accounts in the IIM trust, as opposed to the assets of the IIM trust. Instead, the Court directed Interior to submit a plan to bring itself into compliance with the fiduciary obligations it owes, as the trustee-delegate of the United States, to the beneficiaries of the IIM trust. Indeed, the Court specifically noted that a description of the standards by which Interior intended to administer the IIM accounts, and of how its proposed actions would bring itself into compliance with those standards was merely a "part of this plan," not the plan itself. If Interior considered the order to be unclear or ambiguous, it should have sought clarification from the Court. Instead, in an arrogant and contemptuous manner, Interior improperly misconstrued the Court's order of September 17, 2002.

Nevertheless, the issue has been effectively mooted by Interior's subsequent filing of the Comprehensive Plan, which purports to be a plan for Interior to bring itself into compliance with all of the fiduciary obligations it owes to the beneficiaries of the IIM trust. Accordingly, the Court will treat the Comprehensive Plan as Interior's plan to bring itself into compliance with its fiduciary obligations to the IIM beneficiaries.*fn5

On March 3, 2003, the Court granted leave for the National Congress of American Indians ("NCAI") to file an amicus curiae brief with this Court. The NCAI, which represents the interests of over 250 American Indian tribes and Alaska Native villages, filed its brief the same day.*fn6

The Phase 1.5 Trial began on May 1, 2003 and ended on July 8, 2003. The Court heard forty-four days of testimony and received over 500 exhibits into evidence from both parties. Proposed findings of fact and conclusions of law were submitted by both parties on August 4, 2003. On August 27, 2003, the Court granted leave for NCAI to file a second amicus brief with this Court, which was filed the same day. Interior filed a brief in response to the second amicus brief on September 8, 2003.

The Court has weighed all of the evidence presented and fully reviewed the arguments presented by the parties. After analyzing the Plans submitted by the parties and the amici curiae briefs submitted by NCAI, the Court hereby enters these findings of fact and conclusions of law.


A. Introduction

Interior's Comprehensive Plan is divided into seven chapters: Introduction, Strategic Direction, Business Objectives and Business Profile, Organizational Realignment, Transformation Activities, Trust Reengineering, and Conclusion. The Court will examine each of these chapters separately.

The introductory chapter notes that Interior is "committed to implementing the actions described in this Comprehensive Trust Management Plan." Interior's Comprehensive Plan at 1-1. It provides a brief overview of the history of the IIM trust. It notes that in 1975, Congress passed the Indian Self-Determination and Assistance Act of 1975, Public Law 93-638, codified as amended at 25 U.S.C. §§ 450-458bbb-2 ("Self-Determination Act"). The Self-Determination Act directed the federal government to ensure "maximum Indian participation in the direction, planning, conduct, and administration of educational as well as other federal programs and services to Indian communities so as to render such programs and services more responsive to the needs and desires of those communities." Interior's Comprehensive Plan at 1-5. Interior also notes that Congress subsequently enacted additional laws affording Tribes an even greater degree of autonomy in the management of Tribal trust assets and federal funds spent on behalf of the Tribes.

B. Strategic Direction

The second chapter of Interior's Comprehensive Plan is described as presenting a "strategic direction and goals for Indian trust management... emphasiz[ing] achievement of results and set[ting] the strategy for achieving improvements in comprehensive trust management." Id. at 1-2. It opens with Interior's mission statement for Indian trust management: "To perform our fiduciary trust responsibilities to American Indian tribes, individual Indians, and Alaska Natives by incorporating a beneficiary focus and beneficiary participation while providing effective, competent stewardship and management of trust assets." Id. at 2-2. After listing thirteen principles of guidance for discharging Interior's trust responsibilities, the Plan lists six "strategic goals":

1. Beneficiary services that are trusted, accurate, and responsive

2. Tribal self-governance and self-determination that increase participation in managing assets

3. Ownership information that is accurate, timely, and reliable

4. Land and natural resources management that maximizes return while meeting beneficiary desires.

5. Trust fund assets management that meets fiduciary standards

6. Administrative services that

A. enable and empower the organization and workforce to be an effective fiduciary trustee, and

B. provide modern, appropriate systems and tools to manage the fiduciary trust.

Id. at 2-6 (footnotes omitted).

C. Business Objectives and Business Profile

The third chapter of Interior's Plan "examines trust management as a business." Id. at 1-2. It begins by listing twenty-six "business objectives" intended to achieve the strategic goals identified in the previous chapter. The Plan then "summarizes the business profile, identifies the business lines, and lays the foundation for the new mode of operations as defined by the business environment model and the service delivery model." Id. at 3-1.

The Plan's "business profile" consists of a list of "key stakeholders involved in producing trust management services." Id. at 3-12. In a table reproduced below, the Plan "further defines the future relationship of each stakeholder to trust management":

Stakeholder Role as identified in the business environment model

Trustee: Congress*fn7 Congress enacts statutes and provides funding. Through the 1994 Reform Act, it established standards for trust management. It receives periodic reports on the implementation of trust management programs.

Trustee Designate: Office of the Secretary The Secretary provides overall trust direction and principles. The Secretary receives status updates on reform efforts and reports on implementation of programs.

Beneficiaries: Beneficiaries request fiduciary trust services and receive fiduciary trust representation, advice and counsel, information, and payments. They provide lease approvals and information, such as address changes, ownership changes, and family updates.

Custodians: Custodians are financial institutions that settle trades, collect income, and hold securities.

Department of the Treasury: Treasury provides financial services. Lease revenues are submitted to Treasury through various DOI agencies, including MMS, BIA, OST, and tribes under compact and contract.

Lessees: Lessees lease Indian lands. BIA executes and manages the leases. OST accounts for, invests, and disburses income from leases. Funds are held in Treasury.

Office of the Solicitor: Office of the Solicitor provides legal counsel to DOI agencies and participates in probate for members of the Five Civilized Tribes.

Office of the Special Trustee for American Indians (OST): OST provides financial management and disbursement, beneficiary trust services, and representation for individual Indians and Indian tribes. OST oversees DOI performance of trust management.

Bureau of Indian Affairs (BIA): BIA provides stewardship and management of land and natural resources for individual Indians and Indian tribes. BIA handles small, noncomplex probate cases internally. BIA also maintains land title ownership information.

Minerals Management Service (MMS): MMS collects and verifies mineral lease revenue and performs mineral compliance audits. It deposits revenue with the Federal Reserve Bank and posts the data with Treasury, notifies OST for investment purposes, and provides lease-level data to BIA to convert to individual and/or tribal ownership information and ultimate disbursement to beneficiaries.

Bureau of Land Management (BLM): BLM conducts and submits mineral appraisals, leasing compliance, and contracts for cadastral surveys to BIA as required by law.

Office of Hearings and Appeals (OHA): Complex probate cases go to OHA for an order determining heirs and distribution. When a decision is final, estate distribution involving ownership information is forwarded to BIA.

Office of Surface Mining (OSM): OSM directly regulates all coal mining and reclamation operations on Indian lands under the Indian Land Program Regulations. As the regulatory authority, OSM reviews and approves mining permits and conducts inspection and enforcement activities on Indian lands.

State Counties Cities Taxpayers: State, counties, and cities review and comment on trust land acquisition. Trust land within their jurisdictions impacts them through changes to the tax base and law enforcement jurisdiction.

Individual and tribal Indian associations and interest groups: The associations and interest groups provide insight to Indian requirements, needs, and expectations. DOI maintains public relations with associations, interest groups, and lobbyists to foster communication with the beneficiaries.

Id. at 3-17 to 3-18 (footnote added). The Plan next identifies three "distinct business lines," each representing "a distinct group of products or services for comprehensive trust management and encompass[ing] related processes, products, and services within its scope," and consisting of "common business processes focused on a particular activity." Id. at 3-18. The three business lines are defined as follows:

1. Beneficiary trust representation. Representing the beneficiaries in all matters related to the trust, which requires independent representation on behalf of the beneficiaries.

2. Trust financial management. Managing the receipt, investment, and disbursement of funds generated by Indian assets, as well as record keeping and reporting on fiduciary trust management activities and accounts.

3. Stewardship and management of land and natural resources. Managing the land and natural resource assets of the trust.

Id. After describing the products and services provided through each business line, the Plan next provides a "future service delivery model." This model "identifies the new mode of comprehensive trust management business operations," and describes the respective roles of the Office of the Special Trustee (OST) and the Bureau of Indian Affairs in such operations. Id. at 3-22.

Section 3.6 of the Plan is entitled "Fiduciary Obligations and Requirements." The Plan asserts that "Interior has examined the requirements applicable to administration of the Individual Indian Monies (IIM) accounts. The primary accounting requirements that Interior must meet is set by the 1994 Act. The Act specifically describes the accounting duties owed by DOI to tribes and individual Indians." Id. at 3-27. After listing the relevant portions of the 1994 Act, the Plan states that the 1994 Act requires that certain systems or programs be implemented to achieve the 1994 Act's standards for beneficiary service. It uses terms such as "adequate" and "timely," but the Act generally does not specify the manner in which Interior must structure or operate its accounting programs. Instead, Interior must exercise its best judgment in determining which of myriad ways to operate an accounting program that effectively fulfills the statutory obligations. Id. at 3-28. In subsection 3.6.2, which is entitled "Fiduciary Trust Management Requirements," the Plan explains that

Interior looks to a number of sources as guidance to inform its judgment and assess its performance in meeting the 1994 Act's requirements: applicable federal statutes, Interior regulations, the Departmental Manual, [Office of Management and Budget] circulars, Department of the Treasury guidelines, generally accepted accounting and auditing standards, its employees' and consultants' experience and expertise, as well as other sources of relevant fiduciary practices.

Id. The Plan then provides a three-page table listing "some of [the] requirements that may contain provisions affecting the trust management business lines." Id. The reader is then directed to Appendix C of the Plan, which groups the various requirements listed in the table under the business line that they potentially affect.

D. Organizational Realignment

The fourth chapter of the Plan "presents the organizational redesign needed to support the new service delivery model." Id. at 1-3. This chapter sets forth a proposed reorganization of Interior that is described as "vital to [Interior's] multifaceted approach to trust reform." Id. at 4-2. The Plan represents that the result of this reorganization will be to "enhance benefits to trust beneficiaries in the following ways":

- Dedicating personnel to provide consolidated beneficiary services

- Increasing the emphasis on tribal contracting and compacting

- Maintaining staff and conserving monetary resources within BIA and OST

- Improving organizational accountability

- Elevating the profile of Indian economic development

- Grouping organizational functions more efficiently.

Id. at 4-2 to 4-3.

The decision to reorganize was apparently prompted by the recommendations of a "Joint DOI/Tribal Leaders Task Force" in December of 2002. This task force ultimately agreed to recommend that Congress establish the position of Undersecretary for Indian Affairs, appointed by the President, confirmed by the Senate, and reporting directly to the Secretary. The Undersecretary would have direct-line authority over all aspects of Indian affairs within DOI. This authority would include coordination of trust reform efforts across the relevant agencies and programs within DOI to ensure these functions are performed in a manner consistent with its trust responsibility. The Office of the Special Trustee for American Indians would be phased out.

The task force also agreed that the Office of Self-Governance and Self-Determination should report directly to the new Undersecretary for Indian Affairs. This arrangement would enhance the ability of tribes interested in moving toward more compacting and contracting to directly provide the services due to Indian beneficiaries. Similarly, the task force agreed that any authorizing legislation would also include the creation of a Director of Trust Accountability, reporting directly to the Undersecretary, who would have day-to-day responsibility for overseeing the trust programs of DOI.

Members of the task force also recommended a restructuring of BIA.

Id. at 4-3. The remainder of the chapter describes the proposed reorganization in greater detail. The primary focus of the reorganization is upon "four primary offices within [Interior that] are critical to reforming comprehensive trust management," the Office of the Assistant Secretary of Indian Affairs; the Office of the Assistant Secretary of Land and Minerals Management; the Office of the Assistant Secretary for Policy, Management and Budget; and the Office of the Special Trustee. Id. at 4-5. The reader is also directed to Appendix D, which provides a table identifying the key roles and responsibilities of bureaus and offices within Interior following the proposed reorganization.

E. Transformation Activities

The fifth chapter "describes the transformation activities required to achieve comprehensive trust management as defined in the previous chapters." Id. at 5-1. Specifically, it lists six "major project components" under which each of the individual activities may be grouped, provides a "project schedule," and lists eight "major risks" anticipated to arise during the implementation process.

The six project components are (1) project planning and management, (2) change/risk management, (3) creation of a vision and strategic plan, (4) organizational development and realignment, (5) trust reengineering, and (6) establishment of a performance management program. Id. at 5-2 to 5-3. Each of these six components are defined, and individual tasks are listed as falling within the purview of each component. The fifth component, trust reengineering, is described at greater length in the Plan's sixth chapter, discussed infra.

The Plan provides a "project schedule" for each of the tasks falling under the purview of the six components. However, this schedule contains no deadlines; instead, it simply describes the status of various tasks as either "completed," "on-going," or "in-process." Moreover, approximately half of the enumerated tasks are not accompanied by one of these three status designations.

Finally, the chapter lists eight major risks expected to be encountered during the implementation process of the "modernization plan":

1. The strategic and business directors for [comprehensive trust management, or "CTM"] lack sufficient definition and clarity to create the understanding and acceptance of the modernization project.

2. Beneficiaries do not accept the DOI modernization plan.

3. Various major stakeholders disagree on the CTM mission and implied boundaries.

4. Sufficient resources are not available to complete the modernization effort.

5. Organizational revisions do not effectively align with the service delivery model or support achievement of the business objectives, limiting the degree to which service delivery can be improved.

6. Reengineering efforts do not generate the degree of improvement nor integration needed.

7. Information systems do not support the process improvements or the data and record accuracy needed.

8. Desired BIA cultural shift does not occur, hampering efforts to complete the modernization.

Id. at 5-13 to 5-14. A table identifies the potential impact and likelihood of occurrence of each of these eight risks as "low," "medium," or "high." The table also provides a paragraph-length "mitigation strategy" and "project action" for coping with each of the eight identified risks.

F. Trust Reengineering

The Plan's sixth chapter describes in further detail one of the six major project components identified in the previous chapter: trust reengineering. The chapter describes the creation of two models for trust management: the "As-Is Model" and the "To-Be Model."

The As-Is Model is a massive document that was filed with the Court on May 1, 2003. The Plan describes the purpose of the As-Is Model as "establish[ing] a comprehensive understanding of how trust operations are conducted currently." Id. at 6-3. The As-Is Model identifies and analyzes "eight core processes" of trust management: (1) Probate, (2) Title Services, Acquisition & Disposal, (3) Beneficiary Services, (4) Appraisal, (5) Surface Asset Management, (6) Subsurface Asset Management, (7) Accounting Management, and (8) Cadastral Survey Services. See As-Is Trust Business Model Report at ii-v. The Plan states that the As-Is Model is the result of a yearlong effort beginning in February 2002 and ending in February 2003. Interior's Comprehensive Plan at 6-3.

Unlike the As-Is Model, which is intended to describe how trust management is currently conducted, the stated purpose of the To-Be Model is to provide a comprehensive statement of the manner in which trust management will be conducted after Interior's proposed internal changes. As described by the Plan, the To-Be Model represents "the new integrated transformational design for trust management within DOI. The To-Be model will not only encompass reengineering and designing new Trust business processes; it will also include coordinated improvements and requirements in supporting systems, organizations, training, and personnel requirements, combined with an internal and external communication plan." Id. During the Phase 1.5 trial, Special Trustee Swimmer provided an approximate timeline for implementation of the To-Be Model:

Q. Now what is the expected time frame for the implementation of these plans?

A. We are expecting to have the "to-be" model for all of the processes completed around March or April of '04....

We will then begin to introduce those. We will actually begin introducing some of this much earlier, but as far as the basic model is concerned, we will start implementing that at each agency, what we call the pilot agencies that we actually start with this year in introducing the trust officer.

We will introduce the models there, and then bring each agency up, literally one at a time, until they are -- everything is current, everything is working the way that it should, and then expand it out to the other agencies. And by the time that we have implemented the model, we are looking at probably the end of '04, the beginning of '05.

Tr., Day 36, PM session (June 25, 2003) at 47:11- 14, 47:17 - 48:3.*fn8

Swimmer also testified that the completed To-Be Model would include deadlines for "milestones" to be achieved in the implementation of the To-Be Model:

THE WITNESS: Your Honor, I hope -- I hope that this [To-Be] plan that has been put together... as you can see from these eight business processes, pretty well incorporates the items of the HLIP, [but] it also gives us a complete road map to the future, and it would be adaptable, hopefully again, to any new secretary that comes in.

It will have included with it mile stones, benchmarks, you know, and a pathway, a road map, if you will, towards success, and that, I think, is what is needed.

THE COURT: When do those come?

THE WITNESS: Those will be developed -- they are being developed right now, in fact, and they will be more fully developed as we get to the "to-be" process, because each one of these processes that gets changed carries with it the responsibility for the managers to give us the time lines, and the responsible parties to implement, and the work that has to be done to get there.

THE COURT: So by the end of this administration they will be ready?

THE WITNESS: They will be accountable. I believe they will be accountable, and I believe it will be before the end of the administration. Tr., Day 36, ...

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