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COBELL v. NORTON

February 8, 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 OPINION

This matter comes before the Court on the plaintiffs' Motion [2562] to Compel Deposition Testimony of Anson Baker and Request for Sanctions ("motion to compel"); as well as on the defendants' Motion [2811] for a Protective Order Regarding Plaintiffs' Notices of Deposition of Howard Tipton, Brian Burns, Pat Moloney [sic], Thao Le, and John Messano; the defendants' Motion [2816] for a Protective Order Regarding Plaintiffs' Notices of Deposition of James Cason, Mark Limbaugh, Jeffrey Jarrett, Timothy Vigotsky, Kathryn Clement, Steven Williams, Donald Murphy, Mary Kendall Adler, William Ragsdale, Francis Cherry, Jr., Robert Doyle, Norma Campbell, Regina Lawrence, Ethel Abeita, Thomas Kerstetter, and Wendall Galvan; and the defendants' Motion [2818] for a Protective Order Regarding Plaintiffs' Notice of Deposition of Donnie McClure.*fn1 Page 2

Related to this matter are the plaintiffs' Motion [2653] for Expedited Consideration of Plaintiffs' Motion to Compel Deposition Testimony of Anson Baker and Request for Sanctions ("motion to expedite"), and the defendants' Motion [2573] for Leave to File a Surreply in Opposition to Plaintiffs' Motion to Compel Deposition Testimony of Anson Baker and Request for Sanctions ("motion for leave to file surreply"). Upon consideration of these motions, the oppositions thereto, any replies, the applicable law, and the entire record herein, the Court concludes that the plaintiffs' motion to compel shall be GRANTED IN PART AND DENIED IN PART; that the defendants' motions for protective orders shall be DENIED; that the plaintiffs' motion to expedite shall be DENIED AS MOOT; and that the defendants' motion for leave to file surreply shall be DENIED. The Court's reasoning is set forth below.

  I. BACKGROUND

  The Court broadened the scope of permissible discovery in this case in its Opinion issued September 17, 2002, explaining that "the Court will permit plaintiffs full discovery on matters that they otherwise would not have been able to explore prior to this decision." Cobell v. Norton, 226 F. Supp. 2d 1, 159 (D.D.C. 2002). Pursuant to the Court's restoration of discovery rights, on August 21, 2003 the plaintiffs noticed the deposition of Anson Baker, former Chief Appraiser in the Bureau of Indian Affairs' Navajo Regional Appraisal Office. Mr. Baker had previously admitted to former Special Master Alan Balaran "that he erased all appraisal information related to Navajo rights-of-way from his computer before transferring duty stations." Id. See also Site Visit Report of the Special Master to the Office of Appraisal Services in Gallup, New Mexico and the Bureau of Indian Affairs, Navajo Realty Office in Window Rock, Arizona at 2 (Aug. 20, Page 3 2003) ("Special Master Report"). In that report, the Special Master found that "Baker deliberately erased all appraisal information from his computer and inadvertently misplaced at least two appraisal-related documents — all without any awareness that he had violated a Court order or breached any regulations." Special Master Report at 10. The defendants subsequently moved this Court for a protective order to block the plaintiffs' deposition of Baker and the accompanying document-production requests. On March 15, 2004, in response to the parties' motions, the Court ordered that "plaintiffs may take the deposition of Anson Baker." Cobell v. Norton, 220 F.R.D. 106, 108 (D.D.C. Mar. 15, 2004)

  In its Memorandum and Order issued March 15, 2004, the Court explained that the former Special Master's findings regarding Baker's conduct give rise to "two independent concerns: first, the impact of Baker's actions on the administration of the trust, and second, the professed ignorance of at least one senior Interior official of the Court's long-standing directives to properly retain, safeguard and protect individual Indian trust information." Cobell, 220 F.R.D. at 108. The Court found that these two areas, as well as "issues related to individual Indian trust record creation, retention, or preservation" are fairly subject to discovery during the plaintiffs' deposition of Baker. Id. at 108-09. In that same Memorandum and Order, the Court denied the plaintiffs' requests for the production of documents, which either sought "appraisal records for purposes of evaluating management of trust assets — matters that stray beyond the scope of the underlying litigation," id. at 109 (citing Cobell v. Babbitt, 91 F. Supp. 2d 1, 18 (D.D.C. 1999) ("[A]sset management is not part of this lawsuit. . . .")); or were "overly broad, vague, and impose[d] an undue burden." Id.

  On March 31, 2004, the plaintiffs began to take Baker's deposition, but were unable to Page 4 secure answers to certain questions to which the defendants objected. Those objections are the subject of the present motion to compel.

  On December 30, 2004, the plaintiffs noticed the depositions of Hord Tipton, Chief Information Officer, Department of the Interior; Brian Burns, Chief Information Officer, Bureau of Indian Affairs; Pat Moloney, Chief, Systems Division, Office of the Chief Information Officer, Department of the Interior; Thao Le, Chief Technology Officer, Office of the Chief Information Officer, Department of the Interior; and John Messano, Director, Office of Information Operations. Then, on January 11, 2005, the plaintiffs noticed the depositions of James Cason, Associate Deputy Secretary of the Interior; Mark Limbaugh, Deputy Commissioner, Bureau of Reclamation, Department of the Interior; Jeffrey Jarrett, Director, Office of Surface Mining, Department of the Interior; Timothy Vigotsky, Director, National Business Center, Department of the Interior; Kathryn Clement, Deputy Director, United States Geological Survey; Steven Williams, United States Fish and Wildlife Service, Department of the Interior; Donald Murphy, Deputy Director, National Park Service; and Mary Kendall Adler, Deputy Inspector General, Department of the Interior.

  On January 12, 2005, the plaintiffs noticed the depositions of William Pat Ragsdale, Director, Office of Trust Review and Audit; Francis Cherry Jr., Deputy Director for Operations, Bureau of Land Management, Department of the Interior; Robert Doyle, Deputy Director, United States Geological Survey; and Norma Campbell, Director, Office of Planning and Performance Management. On January 13, 2005, the plaintiffs noticed the depositions of Regina Lawrence, Office of the Chief Information Officer, Department of the Interior; Ethel Abeita, Director, Office of the Special Trustee; Thomas Kerstetter, Service Center Specialist, Office of the Special Page 5 Trustee; and Wendall Galvan, Records Management Specialist. Finally, on January 21, 2005, the plaintiffs noticed the deposition of Donnie McClure, Records Management Officer, Office of Historical Trust Accounting, Department of the Interior.

  The defendants' three motions for protective orders seek to bar all of these depositions. The Court will address the defendants' arguments in these motions after discussing the objections lodged against certain of the plaintiffs' Baker-deposition questions.

  II. ANALYSIS

  The defendants raise two categories of objections to the questions posed by the plaintiffs during the Baker deposition. With respect to the majority of the deposition questions at issue, the defendants argue that the subjects of the plaintiffs' queries stray beyond the permissible scope of discovery as specified in the Court's March 15, 2004 Memorandum and Order. Additionally, the defendants claim that one of the plaintiffs' questions requires the disclosure of information that is shielded from discovery by the attorney-client privilege.

  In seeking to bar the plaintiffs' most recent series of proposed depositions, the defendants argue centrally that this is a case governed by the procedural restrictions of the Administrative Procedures Act, and that discovery is thus limited in a manner that renders the proposed depositions inappropriate. In addition, the defendants contend that the plaintiffs have not proffered a sufficient account of the relevance of the testimony of the proposed deponents, rendering their deposition requests inadequate under Federal Rule of Civil Procedure 26. Finally, the defendants argue that the plaintiffs' discovery rights have been suspended by previous order of this Court.

  Beyond the debate over the propriety of the contested Baker-deposition questions and the Page 6 most recent round of deposition notices, however, looms the larger issue of the nature of this litigation and the corresponding scope of discovery in this case. In an attempt to lay this perpetual dispute to rest, the Court will first address the background issue of the nature and scope of discovery in this case generally, before discussing specific limitations on the scope of discovery that are relevant to the deposition of Anson Baker and the plaintiffs' deposition notices. Finally, the Court will address the two categories of contested Baker-deposition questions in the order they are introduced here and discuss the merits of the defendants' motions for protective orders.

  A. The Scope of Discovery Generally

  The plaintiffs contend in their motion that the restrictions on the Baker deposition set forth in the Court's March 15, 2004 Memorandum and Order "should be construed in conformity with both this Court's September 17, 2002 findings and instructions . . . and the Court of Appeals' February 23, 2001 declaratory judgment. . . ." Pl.'s Mot. to Compel at 6 (referring to Cobell v. Norton ("Cobell VI"), 240 F.3d 1081 (D.C. Cir. 2001)). They continue, arguing:
[S]ince the Court of Appeals' February 23, 2001 decision declared that the Trial 2 accounting is to include (1) an accounting of all items of the Trust (including without limitation real estate and mineral interests — not just reported transactions), and (2) the provision of sufficient information for the beneficiaries to meaningfully ascertain whether the trustee-delegates have faithfully discharged their trust duties . . ., Trial 2 discovery is necessarily broad. It encompasses all information pertinent to the conduct (or misconduct) of the trustee-delegates. Given the breadth of the subject matter and applicability of the ordinary, liberal discovery provisions of the Federal Rules of Civil Procedure, any restriction or limitation on the nature and scope of discovery must be precise and narrowly drawn.
. . .
  Furthermore, the unconditional obligation of the trustee delegates to account for their conduct and that of their managers necessarily includes actions they have taken . . . that have damaged the trust beneficiaries, including without limitation the undervaluation of allottee lands for rights-of-way, easements, Page 7 and sales; the failure to collect all trust revenue as obligations become due and owing; the failure to collect all rents, bonuses, and penalties; the failure to obtain market rates for all oil, gas, timber, coal and other natural resources beneficially owned by the Cobell plaintiffs; . . . and any other misappropriation, waste, and loss of Trust assets.

 Pl.'s Mot. to Compel at 5 n. 16, 6 n. 17. These arguments about what subject-matter may fairly be taken up in the Baker deposition, and indeed about what further discovery the plaintiffs may legitimately conduct in general, implicate the broader issue of the nature of this case and the matters that lie properly within the scope of discovery.

  Under Federal Rule of Civil Procedure 26(b)(1), "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party." FED. R. CIV. P. 26(b)(1). As the plaintiffs rightly note, the Court restored their "full discovery rights" in its Opinion and Order issued September 17, 2002.*fn2 Those rights, however, remain limited by the scope-of-discovery provision of the Federal Rules of Civil Procedure. Accordingly, the ongoing debate over the nature of the plaintiffs' claims in this case is also a contest over the scope of discovery. Here, the plaintiffs and defendants have taken the fight over the content of the Baker deposition and the plaintiffs' recent deposition notices as an opportunity to renew their contest over what issues are, in fact, being litigated here. Page 8

  In the first sentence of their motion to compel, the plaintiffs contend that "[i]t is unlawful and a breach of trust for trustee-delegates to waste or ruin, or to permit the waste or ruin of, Individual Indian Trust . . . assets." Pl.'s Mot. to Compel at 1 (citing United States v. White Mountain Apache Tribe, 537 U.S. 465, 476 (2002) ("[E]lementary trust law, after all, confirms the commonsense assumption that a fiduciary actually administering trust property may not allow it to fall into ruin on his watch.")). The plaintiffs characterize the nature of the lawsuit with the claim that "plaintiffs brought this action in equity to compel the United States government (1) to render a complete and accurate accounting of all items in the trust and correct and restate account balances in accordance therewith and (2) to rehabilitate and reform the long-troubled Trust which has been plagued by malfeasance (e.g., pervasive fraud and corruption) and neglect." Pl.'s Mot. to Compel at 2.*fn3

  Clearly, then, the plaintiffs' position is that issues related to the administration of trust assets, in addition to issues related to the manner in which such administration is recorded and accounted for, are within the scope of this litigation, relevant to the plaintiffs' claims, and thus proper subjects of discovery. If there was ever any doubt on this count, the plaintiffs contend, then asset-administration issues are certainly placed squarely within the ambit of the case by the decision of the Court of Appeals in Cobell VI, in which that Court affirmed this Court's finding that the government does, indeed, owe fiduciary duties to the Indian trust beneficiaries; and that the government has breached some or all of the owed fiduciary duties. In their briefs in Page 9 opposition to Interior's motions for protective orders, the plaintiffs argue that the Court of Appeals' two most recent decisions in this case*fn4 affirm that this litigation concerns a variety of fiduciary duties owed by Interior to the Indians beyond the duty to render an adequate accounting of the trust. Whether the plaintiffs' argument has any merit, then, will be determined by an examination of the decision of this Court that was reviewed in Cobell VI and the resulting effects of the Court of Appeals' decisions, both in Cobell VI and in the two most recent opinions, upon proceedings in this Court.

  On November 5, 1998, this Court bifurcated the proceedings in this case into two "phases": (1) a trial to determine the extent to which the defendants have violated their trust duties; and (2) a trial on the extent to which the defendants have remedied those breaches. The results of the "Phase 1" trial are embodied in the Cobell V opinion, wherein this Court set forth and explained at length its conclusions with respect to the defendants' breaches of trust duties. Now in Cobell V, the opinion that generated the Court of Appeals' decision in Cobell VI, this Court held that any fiduciary duties the government owes to the Indian trust beneficiaries, and any corresponding rights that the plaintiffs may enforce through litigation, flow from federal Page 10 statutes and not from the common law. Specifically,
the Court is compelled to follow the more current holdings of the Supreme Court, especially Mitchell II's instruction that `statutes and regulations establish a fiduciary relationship and define the contours of the United States' fiduciary responsibilities.' . . . Consequently, to the extent that plaintiffs seek relief solely alleged to be afforded to them by rights arising under the common law of trusts, plaintiffs have failed to state a claim.
Cobell v. Babbitt ("Cobell V", 91 F. Supp. 2d 1, 31 (D.D.C. 1999) (quoting United States v. Mitchell ("Mitchell II"), 463 U.S. 206, 224 (1983)).

  In detailing the statutes at issue in this case, this Court explained that "[a]ll of the plaintiffs' soundly grounded claims arise from the statutory scheme giving defendants pervasive control of plaintiffs' [Indian] trust money." Id. at 24. One other relevant statute is the Indian Trust Fund Management Reform Act of 1994 (the "1994 Act"), Pub.L. No. 103-412 (1994), which was passed in response to overwhelming evidence that the Departments of the Interior and the Treasury, the government's trustee-delegates for the Indian trust, had mismanaged the trust for decades.*fn5 In that enactment, Congress codified the preexisting fiduciary duties owed by the government to the trust beneficiaries. See Cobell VI, 240 F.3d at 1090, 190 n. 2.

  The 1994 Act requires that the Secretary of the Interior, as trustee-delegate of the Indian trust, take actions that "include (but are not limited to) . . . [(1)] Providing adequate systems for accounting for and reporting trust fund balances[;] . . . [(2)] Providing adequate controls over receipts and disbursements[;] . . . [(3)] Providing periodic, timely reconciliations to assure the accuracy of accounts[;] . . . [(4)] Preparing and supplying . . . periodic statements of . . . account Page 11 performance[;] . . . [and (5)] Establishing consistent, written policies and procedures for trust fund management and accounting." 25 U.S.C. § 162a(d). In its Opinion finding the defendants in breach of the accounting duties codified in the 1994 Act, this Court clarified that the statutory nature of the duties and rights at issue here limits both the proper subject-matter of the litigation and the Court's subject-matter jurisdiction.

  Generally, federal-court subject matter jurisdiction may extend only to actionable cases or controversies, as prescribed by Article III of the Constitution and by 28 U.S.C. § 1331. An actual case or controversy exists only where the rights asserted by the plaintiffs are judicially actionable — that is, one of the constitutional requirements that must be met to demonstrate standing, and thus to meet a necessary prerequisite to stating an actual case or controversy, is that the injury complained of is remediable by judicial action. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).; Valley Forge, 454 U.S. at 472; Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979); Watt v. Energy Action Educational Foundation, 454 U.S. 151, 161 (1981); Branton v. FCC, 993 F.2d 906, 908 (D.C. Cir. 1993); Fulani v. Brady, 935 F.2d 1324, 1326 (D.C. Cir. 1991). Logically then, any cause of action must at least be judicially cognizable in order for it to constitute a justiciable case or controversy.

  As this Court has previously made clear, "plaintiffs' substantive rights are created by — and therefore governed by — statute. Thus, to the extent plaintiffs seek relief beyond that provided by statute, their claims must be denied." Cobell V, 91 F. Supp. 2d at 29. The Court went on to conclude that the plaintiffs' statutorily-based claims may be enforced either under § 702 of the Administrative Procedures Act ("APA"), Id., or through non-statutory review pursuant to the Supreme Court's decision in American School of Magnetic Healing v. McAnnulty. Id. at Page 12 29-30. Despite the potentially misleading name, "non-statutory review" means review of agency action that is not provided for by the APA, but nevertheless requires "that the governmental action violate either a specific statutory provision or deprive an individual of a right granted by statute." Id. at 30. (citing Chamber of Commerce v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996)). Thus, both the plaintiffs' actionable rights and the fiduciary duties that the defendants have been found to have breached are created and fully governed by statute. See Cobell XIII, No. 03-5314, slip op. at 19-20 (D.C. Cir. 2004) (explaining that the Supreme Court's approach to defining the government's fiduciary duties with respect to the Indians is to "look to trust law to find that a particular common law duty . . . [is] implied in a . . . statute"). Of course, as both this Court and the Court of Appeals have recognized, the 1994 Act "may not explicitly recite every trust duty owed by the government to plaintiffs[.]" Cobell V, 91 F. Supp. 2d at 30. However, "this does not mean that every common law duty applies either." Id.

  The D.C. Circuit made clear that the common law of trusts has but one application in this litigation — to aid in the elaboration of the government's fiduciary duties — explaining that "the general `contours' of the government's obligations may be defined by statute, but the interstices must be filled in through general trust law." Cobell VI, 240 F.3d at 1101. To be distinguished from the application of common law to elaborate the nature of the defendants' duties as trusteedelegates, however, is the potential for enforcement of those duties through a common-law cause of action for breach of trust. As explained above, the plaintiffs' rights must be based in statute in order for this Court to have the requisite jurisdiction to enforce them. Put differently, just as there is not necessarily a private right of action to enforce every right created by statute; the common law may create an array of rights yet fail to provide a mechanism by which a private Page 13 individual whose common-law rights are violated may seek redress.

  Accordingly, this Court dismissed the plaintiffs' common-law breach of trust claims as non-actionable. See Cobell V, 91 F. Supp. 2d at 31 (explaining the distinction between use of the common law in the elaboration of the defendants' statutorily created trust duties on the one hand and to enforce those duties through litigation on the other, finding that the latter application of common law does not give rise to judicially cognizable rights); Id. at 32 ("Although many of these same [common law] duties may arise . . . as concomitants to the government's statutorily enumerated trust duties, the common-law nature of those actions cannot be considered actionable in [itself.]"). Specifically, the Court denied "the importation of various trust duties not relevant to obtaining an accounting of existing trust money," and disposed of "plaintiffs' common-law claim that the government has breached its duty of care" in managing trust assets. Id. at 32 n. 23. In this way, the Court confined the scope of this litigation solely to issues related to the defendants' duty to provide to the Indian beneficiaries an accounting of the trust, which is the subject matter of the only claim the plaintiffs assert that is statutorily-based. As such, the claim for an accounting is the only "live" claim in this litigation.*fn6

  The plaintiffs claim that in Cobell VI "the Court of Appeals declared that the historical accounting must include (1) all items of the trust and (2) the conduct of the trustee," Pl.'s Mot. to Compel at 6 (citing Cobell VI, 240 F.3d at 1103); and that this declaration indicates that all Page 14 asset-management issues are relevant to resolution of the question whether the defendants have rendered an adequate accounting consistent with their fiduciary obligations. The Court is unable to find the language wherein the Court of Appeals held that the required accounting must include "the conduct of the trustee," but even assuming that such a statement is implicit in the Court of Appeals' holding, it does not follow that the adequacy of the defendants' management of trust assets is thereby made a part of this case. The Court of Appeals in Cobell VI did not impose any additional requirements upon the defendants beyond those set forth by this Court in Cobell V. To the contrary, Cobell VI reversed this Court's Cobell V ruling that the defendants had breached not one, but several, fiduciary duties related to the duty to render an accounting.

  In Cobell V, this Court concluded that the defendants had breached separate fiduciary duties by failing to "retrieve and retain all information concerning the IIM trust that is necessary to render an adequate accounting[;]" by failing to "establish written policies and procedures" for collecting and retaining documents and records necessary to the rendition of an accounting; by failing to implement "computer and business systems architecture necessary" to facilitate the required accounting; and by failing to provide for adequate "staffing of trust management functions" to fulfill accounting obligations. See Cobell V, 91 F. Supp. 2d at 58. The Court of Appeals, however, concluded that "[w]hile there is a specific duty to provide a complete accounting, there is no specific duty to, for example, implement particular policies or retrieve information either in the 1994 Act or elsewhere." Cobell VI, 240 F.3d at 1105. Far from expanding the scope of the accounting duties imposed by this Court in Cobell V, then, Cobell VI actually narrowed the range of actions that defendants would be required to undertake as a matter of legal duty. It follows that this Court's decision in Cobell V continues, after the Cobell VI Page 15 decision, to define the subject-matter of this litigation.

  To be sure, the Court of Appeals defined the nature and scope of the defendants' accounting duty expansively, explaining, for example, that "[i]t is black-letter trust law that `[a]n accounting necessarily requires a full disclosure and description of each item of property constituting the corpus of the trust at its inception." Cobell VI, 240 F.3d at 1103 (quoting Engelsmann v. Holenkamp, 402 S.W.2d 382, 391 (Mo. 1966)). However, in the subsequent section of that opinion the Court of Appeals clarified the limited scope of this litigation, holding that "[t]he actual legal breach is the failure to provide an accounting, not [the] failure to take the discrete individual steps that would facilitate an accounting." Id. at 1106; see also Cobell XIII, No. 03-5314, slip op. at 16 (restating this holding). The plaintiffs' single "live" cause of action seeks a remedy for this legal breach, and the remedy that this Court has fashioned is limited to ensuring that the defendants produce the requisite accounting of the Indian trust. Nothing in the Cobell VI Opinion can be construed to broaden the scope of this case to include issues unrelated to the defendants' obligation to provide an accounting of the trust, such as matters related to asset management or other aspects of trust administration unrelated to the processes by which records and other documentation of transactions involving trust assets and the actions of the trusteedelegates are created, stored, preserved, and so forth. The plaintiffs themselves seem to have come to this realization — they concede in their reply brief that the Court of Appeals found "`. . . no need to alter the district court's order [in Cobell V].'" Pl.'s Reply at 7 (quoting Cobell VI, 240 F.3d at 1106).

  The foregoing discussion makes clear that this case is only about the rendition of an accounting of the Indian trust. It has been the consistent position of both this Court and the Page 16 Court of Appeals that, currently, the plaintiffs' only justiciable claim in this litigation is for the defendants' breach of their legal duty to provide that accounting. Every remedy and form of relief that has been afforded the plaintiffs by this Court has related directly to the reform and supervision of the defendants' records-management infrastructure. This is because the only aspects of the defendants' activities as trustee-delegates that are properly within the Court's jurisdiction are those that relate directly to the capacity of the defendants to render the accounting required by law.

  This limitation on the subject-matter of this litigation similarly functions to limit the subjects that the plaintiffs may explore through discovery. "Full discovery rights," as granted by this Court in its September 17, 2002 Opinion and Order, are rights to take full discovery within the scope established by Rule 26, which provides that discovery may only be taken where it is relevant to some claim or defense of one of the parties. As the plaintiffs' only "live" claim here is that the defendants have breached their duty to render an accounting of the Indian trust, the scope of discovery includes only those matters directly related to the defendants' accounting infrastructure — that is, those systems and processes, either in place or deficient and in need of reform, that constitute the defendants' capacity to render a complete accounting of the trust assets and the transactions involving those assets during the existence of the trust.

  The plaintiffs' reply brief in support of their motion to compel advances two principal arguments for the proposition that the scope of this litigation, and thus of discovery, is not in fact limited in the manner set forth above. First, the plaintiffs contend that the Cobell V Order "provided for continuing oversight of trust management — not merely the discharge of the historical accounting duty — for at least five years." Pl.'s Reply at 5 (emphasis in original). As Page 17 evidence of this Court's commitment to enforcing broad trust reform duties against the defendants, the plaintiffs cite the Court's requirements set forth in the Order accompanying the Cobell V Opinion that "the trustee-delegates . . . file quarterly `status reports' that explain their progress . . . in their trust reform effort and `bring themselves into compliance' with the trust obligations codified in the 1994 Act and elsewhere." Pl.'s Reply at 5 (citing Cobell V, 91 F. Supp. 2d at 59-60). However, this a misstatement of the Court's Order.

  Paragraph II of the Cobell V Order issues a declaratory judgment that "The Indian Trust Fund Management Reform Act . . . requires defendants to provide plaintiffs an accurate accounting of all money in the IIM trust held in trust for the benefit of plaintiffs, without regard to when the funds were deposited." Cobell V, 91 F. Supp. 2d at 59. The Court went on, in subparagraphs II(2)-(4) of the Cobell V Order, to declare that "the statutes and regulations governing the management of the IIM trust" impose upon the defendants the various duties related to record and document management and retention infrastructure discussed above.*fn7 See id. Each of these other duties declared in Cobell V were explicitly limited to the established scope of this case, as evidenced by the fact that each paragraph declaring a trust duty expressly limits the actions demanded of the defendants to those "necessary to render an accurate accounting of the IIM trust." Id. Subparagraph II(5) of the Cobell V Order declares that "defendants are currently in breach of the statutory trust duties declared in subparagraphs Page 18 II(2)-(4)." Id. The subparagraphs of the Cobell V Order establishing the Court's continuing ...


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