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Matt v. Fort Belknap Indian Community

United States District Court, D. Montana, Great Falls Division

June 13, 2017

TERRYL T. MATT, Plaintiff,
v.
FORT BELKNAP INDIAN COMMUNITY, Defendant. TERRYL T. MATT, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER ON MOTIONS FOR SUMMARY JUDGMENT AND MOTIONS IN LIMINE

          Brian Morris United States District Court Judge

         Procedural and Factual Background

         Plaintiff Terryl Matt (“Matt”) has brought suit against Defendants Fort Belknap Indian Community (“FBIC”) and the United States (specifically the BIA). Matt seeks damages from the BIA for injury to land she owns on the Ft. Belknap Reservation, an injunction preventing FBIC from doing further roadwork on her land not in compliance with the Clean Water Act (“CWA”), and an order requiring FBIC to restore the creek running through Matt's land and pay civil CWA fines. (Doc. 1, 4.)

         Matt owns a piece of land on the Fort Belknap Reservation that her father left to her at his death. Doc. 80 at 1. The United States holds title to this land in trust for Matt. Id. Whitehorse Canyon Creek (“the Creek”) crosses Matt's land. Id. at 4. A road named Route 113 also crosses Matt's land near the creek. Id. at 3. Matt claims that Route 113 historically consisted of a dirt two track. Doc. 119 at 22, citing Doc. 118-17. FBIC claims that family friends and neighbors completed improvements to the road, with the permission of Matt's father, in the years leading up to 2006. (Doc. 87 at 5-8.) The United States and FBIC claim that this pre-2006 roadwork caused the creek to move from its historic channel on the east side of the road to the borrow ditch on the west side of the road. Id.; Doc. 77 at 4.

         Matt acknowledges that various people worked on the road in the years leading up to 2006 and that this work began to alter the creek channel. (Doc. 119 at 23.) Flood events occurred during spring runoff on the Fort Belknap Reservation in 2009, 2011, and 2013. Id. at 16-19. Matt claims that no problems occurred on her land in relation to the Creek or Route 113 during the flood in 2009, even though this flood event was the worst of the three events. Id. at 23. The flood event in 2011 rendered Route 113 impassable. Id. at 15.

         Matt claims that the second flood prompted FBIC to secure federal emergency funding to conduct road work on Route 113 to provide ingress and egress to two tribal members who lived off Route 113. Id. at 15-16. Matt also claims that FBIC planned a roadwork project on Route 113 pursuant to a 638 roads contract that FBIC possesses. Id. at 18; Doc. 120 at 12. Matt asserts that a BIA road crew then completed the roadwork on Route 113 that FBIC had planned and requested. (Doc. 120 at 12-14.)

         The roadcrew deposited fill material on Route 113 in 2011 in order to make the road passable. Id. at 13-14. Matt claims that the BIA conducted this road work negligently and in violation of the CWA. Matt further contends that neither the BIA, nor FBIC, possessed a right of way that would have authorized the road work. (Doc. 1, 4.) Matt also claims that the road crews deposited large amount of fill material on her land that has created a nuisance. (Doc. 1 at 12.)

         Matt asserts tort claims against the United States. (Doc. 1.) Matt directs a separate CWA claim against the BIA. (Doc. 4.) Matt's CWA claim consists of an allegation that FBIC violated CWA Section 404's dredge and fill permit requirements when it deposited fill material in the Creek area during the course of road work. (Doc. 4.)

         A BIA roadcrew again conducted road work after the spring floods in 2013. (Doc. 120 at 15.) Matt alleges that this roadwork involved the deposit of more fill material in the area of the Creek and Route 113. (Doc. 120 at 13-14.) Matt claims that this 2013 road work, similar to the road work in 2011, involved negligence, trespass, and a nuisance on the part of the United States. (Doc. 1.) Matt also claims that this road work represented a violation of Section 404 of the CWA on the part of FBIC. (Doc. 4.)

         Matt generally asserts that the 2011 and 2013 roadwork on Route 113 caused the Creek to be trapped on the west side of Route 113, leaving it unable to return to its historic channel on the east side of the road. (Doc. 120 at 14.) Matt further contends that the roadwork caused the fill material to migrate to her fields, causing damage, and that this migration of fill material arose from the road crew's failure to return, or allow the Creek to return, to its historic channel. Id. at 18.

         The United States filed three motions for summary judgment. The first motion claims that the statute of limitations bars Matt's claims. The United States grounds its second motion on the discretionary function exception to the FTCA. And the United States argues in its third motion that Matt's lack of qualified liability experts precludes her from proving her claims. (Doc. 76, 78, 89.)

         FBIC filed two motions for summary judgment based on statute of limitations and the substance of Matt's CWA claims, respectively. (Doc. 83, 84.) Matt filed a single response to the United States's summary judgment motions and a single response to FBIC's summary judgment motions. (Doc. 119, 120.) Each of the three parties has filed a motion in limine. (Doc. 95, 101, 103.)

         The Court held a hearing on May 25, 2017, to address the summary judgment motions and the motions in limine. (Doc. 130.) The Court ruled on the United States's Second and Third Motions for Summary Judgment (regarding discretionary function exception and lack of liability experts), FBIC's Second Motion for Summary Judgment (regarding CWA claims), and Matt's Motion in Limine. Id. The court reserved its determination on the United States and FBIC's First Motions for Summary Judgment, which both ...


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