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COBELL v. NORTON

February 7, 2005.

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 defendants' Motion [2792] to Reconsider the October 22, 2004 Memorandum Opinion (the "motion for reconsideration"). Two related filings are: (1) the defendants' Motion [2765] to File the Declaration of Michael Hackett Under Seal; and (2) the defendants' Motion [2781] to File the Declaration of Nina Sisquieros Under Seal. These filings once again place before the Court the matter of Interior's misinterpretation of this Court's Order issued September 29, 2004, as clarified by the Court's Orders of October 1, 2004, October 22, 2004, and November 17, 2004, and the ensuing controversy involving Interior's alleged bad-faith withholding of trust checks. The Court will take this opportunity to address this matter in some detail in the discussion below.

Upon consideration of the defendants' Motions [2765], [2781] to File the Declarations of Michael Hackett and Nina Sisquieros Under Seal, the oppositions thereto, the replies, the applicable law, and the entire record in this case, the Court concludes that the defendants' Page 2 Motions [2765], [2781] will be granted.

  The defendants made certain redactions on both the Hackett and Sisquieros declarations and requested an order allowing them to file the unredacted versions of these declarations under seal to protect sensitive information. But the defendants have filed with the Court and served upon the plaintiffs only the redacted copies of the declarations of Michael Hackett and Nina Sisquieros,*fn1 which, as the plaintiffs correctly argue, is inconsistent with LCvR 5.1(j)(1). A party must file an appropriate motion and obtain an order from the Court in order to file documents under seal. Further, Local Civil Rule 5.1(j)(1) requires that the party seeking such a sealing order must attach to his or her motion to seal a copy of the document for which the sealing order is sought so that the Court can, upon review of the document, determine whether it warrants filing under seal. "The document will be treated as sealed, pending the outcome of the ruling on the motion." LCvR 5.1(j)(1). Here, however, the defendants' failure to file with the Court unredacted copies of the Hackett and Sisquieros affidavits, while technically improper under the Local Rule, is harmless enough and easily remedied by requiring that they do so now and that they forward copies of the unredacted Hackett and Sisquieros affidavits herein placed under seal to the plaintiffs. The redactions do not impede the Court's ability to consider the Hackett and Sisquieros declarations in the course of analyzing the issues in relation to which those declarations were filed. None of the information relevant to those issues has been redacted.

  Having thus disposed of the relatively simple matter of the defendants' motions to seal, Page 3 the Court now turns to the defendants' motion for reconsideration. Upon consideration of the defendants' motion, the opposition thereto, the reply, the applicable law, and the entire record in this case, the Court concludes that disposition of the defendants' motion to reconsider this Court's October 22, 2004 Memorandum Opinion shall be temporarily deferred. The defendants will be afforded the opportunity to request an evidentiary hearing on the matters set forth in their motion. Should the defendants elect not to call for such a hearing, their motion for reconsideration will be denied. The Court's reasoning is set forth below.

  BACKGROUND

  On September 29, 2004, this Court ordered that Interior discontinue communications with members of the plaintiff class regarding the sale, exchange, transfer, or conversion of Indian trust land until a proper notice appraising the class members of their rights in this litigation could be fashioned by the parties and approved by the Court. Almost immediately following the issuance of this order, on September 30, 2004, Interior disseminated a notice throughout its Bureau of Indian Affairs ("BIA") purporting to interpret the scope of this Court's Order and to explain how the Order should be implemented. See Def.'s Request [2712] for an Emergency Status Conference, Ex. 1 (Notice), Sept. 30, 2004. Importantly, this Notice made no mention of any action to be taken regarding the distribution of trust-related payments to Indian beneficiaries.

  At a Status Conference held by the Court on October 1, 2004, however, the plaintiffs advised the Court that employees of Interior's Bureau of Indian Affairs ("BIA") were withholding checks from Indian trust beneficiaries and citing this Court's Order of September 29, 2004 as the reason for doing so. The Court stated unequivocally in open court that its Order concerning land-sale-related communications could not possibly be construed to require the Page 4 withholding of trust checks. See Stat. Conf. Tr., Oct. 1, 2004, at 9, 12 ("THE COURT: [. . .] Why did anybody even talk about withholding checks? That's preposterous. I had no discussion whatsoever in either the 2002 opinion or the opinion this week about holding up checks. The very thought that the Secretary and her delegates would do that is just beyond my comprehension. . . . So to stop [trust checks] and [say] that it's because of my order is a flat-out lie."). In response, Sandra Spooner, counsel for Interior, assured the Court that "[t]he checks are not being withheld . . . the Secretary and her delegates are not doing that." See id. at 9. Interior distributed its Second Notice explaining this Court's Orders to the BIA on October 4, 2004. Like the First Notice, the Second Notice made no mention of trust checks, a fact which this Court finds disturbing in light of the proceedings at the October 1, 2004 Status Conference. See Def.'s Notice of Filing [2723], Ex. 1 at 1-3, filed Oct. 12, 2004.

  Furthermore, despite the representations of counsel at the October 1, 2004 Status Conference, the plaintiffs thereafter filed with the Court several notices detailing Interior's ongoing withholding of checks in violation of the Court's explicit instructions.*fn2 The Court held yet another Status Conference on October 6, 2004, to address further confusion at Interior as well as the check-withholding issues raised by the plaintiffs, at which the Court again made clear that its orders in no way required that trust checks be withheld. Interior subsequently distributed a Page 5 Third Notice to the BIA on October 8, 2004, which expressly superseded the First and Second Notices in their entirety. See Def.'s Notice of Filing [2723], Ex. 1 (Notice #3), at 4-6, filed Oct. 12, 2004. In this Third Notice, Interior finally addressed the issue of trust check withholding in the following paragraph:
It has also been brought to our attention that some individuals appear to be confused about any effect that the court's most recent Orders may have upon the payment of checks to individual Indians. Please be advised that the court has made it clear that the Order does not affect our normal processes of receiving payment checks on behalf of individual Indians, the processing of those checks or the subsequent payment of funds to individual Indian recipients. Please utilize your currently established business practices to process Indian funds in an effective and expeditious manner. In addition, please communicate with and reassure individual Indians that there are no court-related delays in processing funds.
Def.'s Notice of Filing [2723], Ex. 1 at 5, filed Oct. 12, 2004.

  This rare bit of candor from Interior would be more reassuring were it not for the strange timing of its release. Again, on October 1 the Court explicitly instructed Interior that trust payments to individual Indians were not to be withheld. But Interior's Second Notice, released October 4, made no mention of trust checks at all. Interior waited an additional four days to distribute the Third Notice to the BIA, so that the Court's instruction against the withholding of trust checks was not relayed to BIA's offices in Indian country for eight full days after it was announced. And the plaintiffs have adduced evidence that, during this eight-day lag, BIA employees continued to withhold trust checks from individual Indian beneficiaries.

  One example to be found among the plaintiffs' various filings is the First Affidavit of Francelia Phillips, filed with the Court on October 8, 2004. Therein, Ms. Phillips averred that on several occasions between October 6, 2004 and October 8, 2004, at least two employees in the Page 6 rental office of the Bureau of Indian Affairs' Winnegabo agency represented that her Indian trust check would be or was then being withheld as a result of this Court's Order of September 29, 2004. At least one of those employees referred to this Court's Order as a "gag order." Ms. Phillips did not receive her trust check until the week of October 18, 2004.

  On November 19, 2004, the defendants filed with the Court the Affidavit of Michael Hackett, supposedly in response to the allegations set forth in the Phillips Affidavit. Mr. Hackett's affidavit, however, does not address the incidents that reportedly occurred between October 6, 2004, and October 8, 2004; but rather only discusses events occurring after October 12, 2004. The incidents described in the Phillips affidavit, if true, constitute blatant and reprehensible violations of this Court's clear directions. These occurrences are made more disturbing by the necessary conclusion that Interior's upper management must have been somehow involved.

  A second example is found in the affidavit of Carmen Patricio, filed on November 15, 2004 as an exhibit to the plaintiffs' Emergency Notice [2761] Regarding Ongoing Retaliation in Violation of this Court's Orders. Ms. Patricio explains that around October 5, 2004, she attempted to contact her local BIA field office, the Papago Agency in Arizona, regarding the status of her IIM trust check; and that one Liz Siow told her that the BIA was prohibited from discussing trust checks by this Court's Order. See Patricio Aff. at ¶ 3. Patricio, like Phillips, was advised that this Court had imposed a "gag order" on the BIA. See Pl.'s Emergency Notice [2761] Regarding Ongoing Retaliation in Violation of this Court's Orders, Attch. 2 (Rempel Aff.), at ¶ 2; Pl.'s Second Notice [2719] of Supplemental Information Regarding Pl.'s Request for Second Emergency Status Conference to Address Ongoing Retaliation Taken by Interior Page 7 Secretary Gale Norton Against Individual Indian Trust Beneficiaries ("Pl.'s Second Notice"), Attch. 2 (Evans Aff.), at ¶ 6 (Ms. Patricio `was told that there is a gag order and to contact plaintiffs['] counsel.").

  The defendants filed the affidavit of Nina Sisquieros, superintendent of the Papago Agency, in response to Ms. Patricio's affidavit. See Def.'s Notice [2781] Regarding Plaintiffs' Emergency Notice Regarding Ongoing Retaliation in Violation of this Court's Orders, Ex. 1 (Sisquieros Decl.). However, like the Hackett affidavit discussed above, the Sisquieros affidavit alleges no facts to rebut the plaintiffs' specific evidence that trust checks and information regarding trust checks was being withheld from IIM trust beneficiaries by the BIA during the period between October 1 and October 8, 2004. In fact, Sisquieros does not allege any facts regarding the exchange between Patricio and Liz Siow on October 5, 2004. Rather, Sisquieros makes only the broad statements that "[a]t no time did BIA or the Papago Agency attempt to delay or withhold any royalty payments," and that "Ms. Patricio's trust payments were processed in the ordinary course of business." See Sisquieros Decl. at ¶¶ 9-10. Neither of these statements address Ms. Patricio's allegation that BIA employees refused to give her information about her trust check on October 5, and cited this Court's Order as the reason. Mr. Rempel's affidavit corroborates Ms. Patricio's claims, as he attests that he had to explain ...


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