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COBELL v. NORTON

November 17, 2004.

ELOUISE PEPION COBELL, et al., on her own behalf and on behalf of all those similarly situated, Plaintiffs,
v.
GALE NORTON, Secretary of the Interior, et al., Defendants.



The opinion of the court was delivered by: ROYCE LAMBERTH, District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on the Interior defendants' Proposed Order [2752] to clarify the Court's Order of September 29, 2004, as clarified by the Court's Orders of October 1, 2004 and October 22, 2004 [the "land sales Order"]; as well as on the plaintiffs' Comments [2754] in response thereto. Upon consideration of the filings before the Court, the proceedings at the Status Conference held by the Court on November 3, 2004, the applicable law, and the entire record herein; and for the reasons set forth in this memorandum, the Court will today issue an Order to further clarify its land sales Order as specified below.

BACKGROUND

  In its Order issued September 29, 2004, the Court required that all "communications between the Interior defendants and class members related to the sale, exchange, transfer, or conversion of Indian trust land" be accompanied by a Court-approved notice. Order issued Sept. 29, 2004, at 1. Subsequently, at Interior's urging, the Court carefully enunciated the already obvious scope of the September 29, 2004 Order in its Order issued October 1, 2004, making clear that the notice requirement applies only to "communications between the Interior defendants and class members related to the sale, exchange, transfer, or conversion of Indian trust land." Order issued Oct. 1, 2004, at 1-2. After proposed language for the notice mandated by the September 29, 2004 Order was submitted by both parties, the Court issued its October 22, 2004 Order, wherein the Court set forth the proper form of the required notice as follows: "[A]ny and all communications between the Defendants, their agents, representatives, employees, officials, and counsel and members of the plaintiff class related to the sale, exchange, transfer, or conversion of Indian trust land that are not excepted by this Order must include the following notice:
Please be aware that the Indian trust land owner to whom the communications or documents to which this notice is attached were directed may be a member of a class action lawsuit, Cobell v. Norton, No. 1:96CVo1285 (D.D.C.) (Judge Lamberth). Nothing in this notice or any letter, document, or other communication to which this notice may be attached will eliminate or adversely affect any rights that the Indian trust land owner who received this notice may have if he or she is a class member in the Cobell litigation. The Indian trust land owner who received this notice will not eliminate or adversely affect any rights that he or she may have as a class member by entering into any transaction or communication with any other person or organization, including the Department of the Interior or the Bureau of Indian Affairs, related to the sale, exchange, transfer, or conversion of Indian trust land.
As a potential class member, the Indian trust land owner who received this notice has the right to consult with the class counsel in the Cobell litigation prior to any proceeding with any further communication or transaction. For further information you may contact the lawyers for the class members: Dennis M. Gingold, Esq., 607 14th Street, N.W., 9th Floor, Washington, DC 20005, phone: (202) 824-1448, fax: (202) 318-2372, email: dennismgingold@aol.com, or Keith Harper, Esq., Native American Rights Fund, 1712 N Street N.W., Washington, DC 20036-2976, phone: (202) 785-4166, fax: (202) 822-0068, email: harper@narf.org. You may also access further information at the plaintiffs' website, www.indiantrust.com. The Indian trust land owner who received this notice may also choose to waive his or her right to consult with class counsel. If the Indian trust land owner who received this notice wishes to do so, he or she must mark the blank below, sign, and return this notice to the Bureau of Indian Affairs office from which you received it within ten (10) days. Waiver of the right to consult with class counsel will not eliminate or adversely affect any rights that the Indian trust land owner who received this notice may have as a class member in the Cobell litigation.
I, the undersigned, hereby waive my right to consult with class counsel in the Cobell litigation before continuing with communications or transactions involving or resulting in the sale, exchange, transfer, or conversion of Indian trust land."
Order issued Oct. 22, 2004, at 6.

  The defendants' Proposed Order [2752], filed November 4, 2004 pursuant to the Court's request made during the November 3, 2004 Status Conference, seeks further clarification of the language of this notice, as well as of the circumstances in which the notice must be provided and various considerations related to the waiver provision. On November 9, 2004, the plaintiffs filed a response to Interior's Proposed Order, listing specific objections to each of Interior's proposed clarifications. Upon consideration of these filings, the Court will yet again acquiesce in this hairsplitting exercise, if only because experience teaches that without precise instructions, Interior is likely to misinterpret and fail to properly implement this Court's Orders. Again, the Court feels duty-bound to note that these requested clarifications are redundant in light of the clarity of the Court's land sales Order. However, to remove any potential for misunderstanding or abuse, the Court will again humor Interior's professed befuddlement with further discussion of the Court's intentions.*fn1 The Court's reasoning and the clarifications the Court has determined to be appropriate are set forth below.

  DISCUSSION

  A. Legal Standard

  Under Federal Rule of Civil Procedure 23(d), this Court "has the duty and authority to restrict communications that interfere with the proper administration of a class action and to restrict conduct that abuses the rights of members of the class." Cobell v. Norton, 212 F.R.D. 14, 19 (D.D.C. 2002) (quoting Jack Faucett Assocs., Inc. v. Am. Tel. & Tel. Co., 1985 WL 25746 at *5 (D.D.C. 1985)); see also Memorandum and Opinion issued Sept. 29, 2004, at 12-13, 18-19. In accordance with this duty and authority, the Court ordered that Interior provide notice, in the form specified in the Court's October 22, 2004 Order and recited above, of Indians' potential membership in the Cobell class and of the rights of class members prior to proceeding with written communications "between the Defendants, their agents, representatives, employees, officials, and counsel and members of the plaintiff class related to the sale, exchange, transfer, or conversion of Indian trust land." The Court's Order of October 22, 2004 both specified the form of notice to accompany the communications subject to the land sales Order and excepted communications on various Indian trust land-related subjects from this notice requirement. Those exceptions already being crystal clear, they will not be recited here. See Order issued Oct. 22, 2004, at 5 (listing, in numbered items 1-7, subjects on which communications need not comply with the notice requirement; excepting all oral communications on any subject from the notice requirement).

  As the duty to monitor communications with class members and to safeguard the rights of the class falls squarely on the Court, the Court's power to act to restrain and regulate communications between the defendants and members of the plaintiff class need not be first invoked by motion of a party. To the contrary, the Court may act sua sponte to restrict communications between the defendants and class members, or to impose conditions on such communications, in whatever manner it finds appropriate pursuant to the Court's determination of what is in the best interests of the class members. Accordingly, the Court has determined that no harm will come from setting forth certain clarifications to the land sales Order; and the nature of the approved clarifications is therefore discussed below.

  B. Interior's Proposed Clarifications

 
Interior's first proposed clarification to the land sales Order reads as follows.
Defendants may make modifications to the text of the notice related to the sale, exchange, transfer, or conversion of Indian trust land required by the Court's Order issued October 22, 2004 (hereinafter "Notice") as set forth in this paragraph. Defendants may modify the text of the Notice to specify a location other than a Bureau of Indian Affairs office for return of the waiver form. Defendants may remove the blank line adjacent to the waiver language, remove the text requiring the class member to "mark the blank below," and instead specify under the signature line that "Signature constitutes waiver." Defendants may remove the text indicating that the Notice is "attached" to a document so that the notice alone may be provided where appropriate. Defendants may make other minor changes for purposes of clarity, as appropriate, to conform the text of the notice to specified circumstances.
Def.'s Proposed Order at 1-2. The plaintiffs represented their assent to all but the final sentence of this proposed clarification at the November 3, 2004 Status Conference. However, the plaintiffs argue that the final sentence should be stricken from the proposal because conferring upon the defendants the discretion to modify the language of the notice without functional qualification would be to "vitiate the remedies that this Court carefully has fashioned to protect trust beneficiaries[.]" Pl.'s Cmts. at 2. The Court agrees.

  Circumstances may arise in which Interior would be required, by the nature of the communication at issue, to provide notice in compliance with the land sales Order and in which the language of that notice as set forth in the Court's October 22, 2004 Order would be either inappropriate or confusing. However, no such circumstances, beyond those discussed and dealt with herein, have been brought to the Court's attention either during the November 3, 2004 Status Conference or in the memoranda currently before the Court. Any additional modifications to the language of the required notice beyond those discussed and approved herein must be the subject of a future status conference or briefings so that the Court, in its Rule 23(d) discretion, may determine how best to proceed. Certainly the discretion to regulate communications with class members in a manner that protects the interests of the class should not be entrusted to Interior, the adverse party that has proved, time and again, to be unwilling or perhaps unable to act in the best interests of the Indian trust beneficiaries. Accordingly, the Court will incorporate the above-quoted clarification without the final sentence into today's clarifying Order.

  Interior's second proposed clarification to the land sales Order provides that the defendants "may accept as valid a waiver form signed by a class member (or guardian) whether or not the form contains a mark on the blank line adjacent to the waiver." Def.'s Proposed Order at 2. The plaintiff's suggest that the word "may" in this proposed language should be replaced with "shall," again to forestall the possibility of Interior abusing any discretion that this Court might grant with respect to determining when the right to consult with class counsel has been validly waived. See Pl.'s Cmts. at 3. Because the Court herein removes the check-line from the waiver form, this issue should not arise in connection with notices issued subsequent to today's Order. However, for those notices and waiver forms already issued, which contain the checkblank, the Court finds that the plaintiff's concerns about potential abuse should Interior be given discretion to decide whether and when to accept certain signed waiver forms as valid are justified in light of the record in this case. Therefore, the Court will issue the proposed clarification with the word "shall" substituted for the word "may" to ensure that all waiver forms containing checkblanks that are signed and returned to Interior must be construed as valid waivers of the right to consult with class counsel. This conclusion is reflected in the Order issued herein.

  The plaintiffs also request that the Court add language to this clarification requiring that anyone claiming to act as a guardian on behalf of a potential class member be required to "state his or her legal relationship to the class member . . . [;] provide evidence of the legal authority empowering such guardian to act on behalf of the class member . . . [; and] attest to the truth and accuracy of such representation in strict conformity with LCvR 5.1(h)(2) and 28 U.S.C. § 1746." Pl.'s Cmts. at 3. Presumably, this request is made in light of the potential that individuals may fraudulently represent that they are guardians of class members to the derogation of those class members' rights in this litigation. This concern, however, is not corroborated by any evidence currently before the Court. If the plaintiffs wish that the Court impose their suggested requirement, they must present evidence that persuades the Court that there is some basis in fact for the concern motivating the request. Until such evidence is brought forth, however, the Court finds no reason to impose what will obviously be a time-consuming and complicated procedural requirement on the defendants at this time. The defendants' third proposed clarification to the land sales Order provides that the defendants "may accept as valid a waiver form returned more than ten days after the Notice is provided to a class member (or guardian)." Def.s' Proposed Order at 2. The plaintiffs' argue, again, that the word "may" should be replaced with "shall" in this clarification sentence so that the defendants' acceptance of late waiver forms would be mandatory. See Pl.'s Cmts. at 3-4. The Court understands the parties to have stipulated as much at the November 3, 2004 Status Conference. Therefore, the Court will order that the defendants must accept waiver forms returned more than ten days after receipt of the notice by ...


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