Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Matt v. Fort Belknap Indian Community

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

October 16, 2017

TERRYL T. MATT, Plaintiff,
v.
Fort Belknap Indian Community, Defendant. TERRYL T. MATT, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          CONSENT DECREE

          BRIAN MORRIS, UNITED STATES DISTRICT JUDGE

         I. Background

         1. Plaintiff, Terryl T. Matt, filed a Complaint (Appendix A) in this matter (15-cv-0028) pursuant to the Federal Tort Claims Act, 28 U.S.C. §1346(b) and '2671, et seq. The Complaint alleged that Defendant, United States, through the Bureau of Indian Affairs (BIA), carried out improper road building on a road crossing Plaintiff's property on the Fort Belknap Indian Reservation, Montana, which is held in trust by the United States. Among other issues, Plaintiff complained that the road, commonly known as Dan Healy Road (also known as BIA Route 113 or Camp Creek Road), was built so that it obstructed and diverted a creek away from its natural riparian corridor and across the Plaintiff's land causing significant damage to her land.

         2. On May 25, 2017, the Court ordered the Parties to mediation.

         3. Ms. Matt and the United States agree, and this Court by entering this Consent Decree finds, that this Consent Decree has been negotiated by the Parties in good faith, that settlement of this matter will avoid prolonged and complicated litigation between the Parties, and that this Consent Decree is fair, reasonable, and in the public interest.

         THEREFORE, with the consent of the Parties to this Decree, it is ORDERED, ADJUDGED, AND DECREED:

         II. JURISDICTION AND VENUE

         4. This Court has jurisdiction over the subject matter of these actions pursuant to 28 U.S.C. §1346(b), 28 U.S.C. §2671, et seq., 28 U.S.C. §2201 and 28 U.S.C. §1331. Venue lies in this District pursuant to 28 U.S.C. §1402(b) because the Plaintiff resides in the judicial district and the acts and omissions complained of occurred within this judicial district. The Plaintiff and the United States shall not challenge entry of this Consent Decree or this Court's jurisdiction to enter and to enforce this Consent Decree, or venue in this judicial district.

         III. SCOPE, APPLICABILITY, AND PURPOSE

         5. This Consent Decree shall apply to, and be binding upon Defendant, United States of America, and Plaintiff, Terryl T. Matt.

         6. The provisions of this Consent Decree shall apply to, and be binding upon, the Parties to this action, their officers, directors, agents, employees, successors and assigns, and any person, firm, or corporation acting in concert or participation with the Parties.

         7. This Consent Decree in no way affects or relieves Plaintiff and Defendant of their responsibilities to comply with any applicable federal, state, tribal, or local law, or regulation.

         8. A primary purpose of this Consent Decree is to enable the United States to fulfill its role as Trustee for Plaintiff; to remedy the damage to the lands and natural resources identified in this Consent Decree and attached appendices; and to resolve Plaintiff's dispute with Defendant that is the basis of this civil action.

         IV. DEFINITIONS

         9. “BIA” shall mean the Bureau of Indian Affairs, an agency of the United States Department of the Interior, and any of its successor departments or agencies.

         10. “Biota Plan” shall mean the “Matt Property Reclamation Plan Cost Estimate Report, Blaine County, Montana” prepared by Biota Research and Consulting, Inc., of Jackson, Wyoming, dated September 30, 2015, Appendix B, attached hereto and incorporated herein by reference.

         11. “Consent Decree” shall mean this Consent Decree and all appendices attached hereto.

         12. “Creek” shall mean White Horse Canyon Creek on the Fort Belknap Indian Reservation, Montana.

         13. “Dan Healy Road” (also known as BIA Route 113 or Camp Creek Road) shall mean the road that begins at BIA Route 112 on the Fort Belknap Indian Reservation, Montana, and continues south to cross a creek known as Lodgepole Creek toward the mountains along the creek known as White Horse Canyon Creek across allotments 752-B, 752-C, and 751-D, among others.

         14. “Day” shall mean a calendar day. In computing any period of time under this Consent Decree, where the last day would fall on a Saturday, Sunday, or federal holiday, the period shall run until the close of business of the next working day.

         15. “Defendant” shall mean the United States of America.

         16. “Delay” shall mean an event or series of events arising from required licensing and permitting processes that are beyond the control of the Defendant, including its employees, agents, consultants, and contractors, which could not be overcome by due diligence and which delays or prevents the performance of an action required by this Consent Decree and appendices attached hereto within the specified time period.

         17. “Force Majeure” shall mean any event or series of related events arising from causes beyond the control of Defendant, including its employees, agents, consultants and contractors, which could not be overcome by due diligence and which delays or prevents the performance of an action required by this Consent Decree and appendices attached hereto within the specified time period.

         18. “Month” shall mean a calendar month.

         19. “NEPA” shall mean National Environmental Policy Act. 42 U.S.C. §4321, et seq.

         20. “Paragraph” shall mean a portion of this Consent Decree identified by an Arabic numeral or a letter.

         21. “Parties” shall mean Terryl T. Matt and the United States, including but not limited to the BIA, its officers, directors, agents, employees, successors, and assignees and any person, firm, or corporation acting in concert or participation with the United States.

         22. “Plaintiff” shall mean Terryl T. Matt, an enrolled member of the Assiniboine Tribe of the Fort Belknap Indian Reservation, Montana.

         23. “Reclamation, Restoration, or Rehabilitation” shall mean the manipulation of the physical, chemical, or biological characteristics of the Restoration Site for the purpose of establishing ecologically stable and functioning conditions at the Site.

         24. “Restoration Site” or “Site” shall mean the impacted area illustrated in the Biota Plan (Appendix B, Exhibit 2) and the head cut that has migrated upstream as illustrated in the Biota Plan (Appendix B, Exhibit 2 and Addendum 1).

         25. “Section” shall mean a portion of this Consent Decree identified by a Roman numeral.

         26. “United States” shall mean the United States of America, including its departments, agencies, and instrumentalities.

         27. “Work Plan” shall mean the document detailing the completion of tasks required for restoration pursuant to this Consent Decree, in accordance with the principles of 33 C.F.R. 332.4(c)(7).

         V. RESTORATION OF SITE AND WHITE HORSE CANYON CREEK

         28. Defendant shall perform restoration activities in accordance with the scientific principles contained in the following publications:

A. United States Department of Agriculture, Natural Resources Conservation Service, National Engineering Handbook Part 654, Stream Restoration Design, FISRWG, (10/1998).
B. Federal Interagency Stream Restoration Working Group, Stream Corridor Restoration: Principles, Processes, and Practices (15 federal agencies of the U.S. Government).
C. Rosgen, Dave, Watershed Assessment of River Stability and Sediment Supply (WARSSS), Wildland Hydrology, Fort Collins, Colorado (2006).

         29. Defendant shall perform restoration activities in accordance with the principles undergirding applicable laws and regulations that protect the environment including, but not limited to, those of 42 U.S.C. §4321, et seq., 40 C.F.R. 1500, et seq., 33 U.S.C. §1251, et seq., and the laws, regulations, guidelines, and requirements of the U.S. Army Corps of Engineers (33 C.F.R. Chapter II; 40 C.F.R. 230; United States Army Corps of Engineers 2017 Nationwide Permits, General Conditions, District Engineer's Decision, Further Information and Decisions (82 FR 1860, January 6, 2017); and those of the U.S. Army Corps of Engineers and Environmental Protection Agency Compensatory Mitigation Regulations and Guidelines (33 C.F.R. 332, et seq.)).

         30. Defendant shall perform and achieve restoration activities at the Restoration Site under the terms, conditions, and objectives set forth in the Biota Restoration Plan in Appendix B, appended hereto and incorporated by reference, with the exception that restoration to Dan Healy Road will occur in its current location in accordance with the applicable standards found in the Guidelines for Geometric Design of Very Low-Volume Local Roads (ADT 400), American Association of Highway and Transportation Officials (AASHTO), 2001, for existing, unpaved roads in rural areas. Dan Healy Road will not be relocated as indicated in the Biota Plan, Appendix B, pp. 8, 14, 15.

         31. Except as otherwise provided in this Consent Decree or ordered by the Court, Defendant shall complete full restoration within eighteen (18) months from the date of entry of this Consent Decree.

         32. Defendant shall timely provide Plaintiff and this Court a detailed Work Plan for the completion of tasks required for restoration pursuant to this Consent Decree, in accordance with the principles of 33 C.F.R. 332.4(c)(7).

         33. Defendant shall timely secure funding or provide financial assurance to Plaintiff and this Court for adequate staff and materials to complete obligations under this Consent Decree, in accordance with the principles of 33 C.F.R. 332.3(n).

         34. Defendant shall timely obtain all federal, state, tribal, and local permits necessary for performing any compliance obligation under this Consent Decree, including but not limited to any permits required pursuant to 33 U.S.C. §1251, et seq.

         35. Defendant shall timely develop and implement objective and verifiable performance measures and reporting mechanisms for the duration of restoration and the monitoring period in accordance with the principles of

         33 C.F.R. 332.5.

         36. Pursuant to this Consent Decree, the publications, laws, guidelines, and regulations referenced herein, and the Biota Plan, Appendix B, Defendant shall, without limitation:

A. Rehabilitate agricultural lands at the Restoration Site, including but not limited to removal, collection, and stockpiling of deposited material such as rocks and sediment, reclamation of topsoil, treatment and removal of weeds, and re-establishment of vegetative communities in pasture lands.
B. Fill incised degraded channel of the Creek to stable topographic conditions through the importation of topsoil, re-seeding, and re-establishment of vegetative communities characteristic of the area.
C. Restore and stabilize incised upstream impacted reaches of the Creek, including head cuts and nick points, and deliver the watercourse to the natural downstream historic alignment.
D. Restore and stabilize Dan Healy Road in its current location in accordance with the recommendations of the Guidelines for Geometric Design of Very Low-Volume Local Roads (ADT 400), American Association of Highway and Transportation Officials (AASHTO), 2001, for existing, unpaved roads in rural areas.

         37. Defendant shall accept from the Fort Belknap Indian Community materials provided in-kind for the purpose of restoration, including but not limited to rip-rap and gravel.

         38. Defendant shall develop and implement a post-restoration monitoring plan to ensure that the project meets performance standards for a period of no less than five (5) years in accordance with the principles of 33 C.F.R. 332.6.

         39. Upon completion of restoration of the Site as set forth in the detailed Work Plan developed by the Defendant and approved by the Court, Defendant shall not conduct work, construction, or maintenance or similar activities that disturb soils, vegetation, or water resources in any manner at or around any area of restoration except as in accordance with the terms of this Consent Decree.

         40. Until termination of this Consent Decree, and with timely written notice to Plaintiff, Defendant and its authorized agents shall have authority at all reasonable times to enter the Restoration Site to:

A. Conduct activities required by this Consent Decree.
B. Inspect, evaluate, and monitor activities required by this Consent Decree.
C. Obtain samples or take photographs or video specifically related to the requirements of this Consent Decree.

         41. Plaintiff shall not interfere with or hinder Defendant's performance of the obligations described in this Consent Decree.

         VI. NOTICES AND OTHER SUBMISSIONS

         42. For the first two (2) years following entry of this Consent Decree, within five (5) days of May 30 and November 30 of each year, Defendant shall provide to the Court a written status report detailing its progress toward completing all tasks required by this Consent Decree and the Work Plan. From the third year following entry of the Consent Decree until the Consent Decree is terminated, on an annual basis within five (5) days of November 30, Defendant shall provide to the Court a written status report detailing its progress toward completing all tasks or monitoring activities required by this Consent Decree and the Work Plan. Defendant shall timely send a copy of each status report to Plaintiff via certified mail to the address specified in Section X of this Consent Decree.

         VII. RETENTION OF RECORDS

         43. During the term of this Consent Decree and until three (3) years after the termination of this Consent Decree, Defendant shall preserve and retain the records, documents, and information now in its possession or control or which come into its possession or control that relate in any manner to the performance of the tasks in this Consent Decree (including all Appendices), unless any retention policy requires a greater retention period, and Defendant shall allow inspection of the same by Plaintiff within sixty (60) days after receipt of written request to do so.

         44. Records, documents, and information to be retained shall include, without limitation:

A. Final restoration plans submitted and supporting documentation.
B. Status reports submitted pursuant to Paragraph 42.
C. All permits and supporting documentation.
D. Subject to Paragraph 46, correspondence, including in electronic format, between and among Defendant, Plaintiff, and the Fort Belknap Indian Community related to activities required by this Consent Decree.
E. Records regarding payments or expenditures related to the performance of the tasks required by this Consent Decree.
F. Documents related to the transfer, rental, or leasing of any land included within, or adjacent to, the Restoration Site, including payment documentation associated therewith.
G. Requests or motions for dispute resolution.
H. Force majeure or Delay notifications and related correspondence between or among Defendant, Plaintiff, and the Fort Belknap Indian Community.
I. Restoration monitoring records.
J. Requests for termination and related filings.

         45. Defendant shall instruct its contractors and agents to preserve all non-identical copies of documents, records, and information identified in Paragraph 44 relating to the performance of the tasks in this Consent Decree (including Appendices) for a period through three (3) years following the termination of this Consent Decree.

         46. At the conclusion of the document retention period, Defendant shall notify the Plaintiff pursuant to the Notification procedures in Section X at least ninety (90) days prior to the destruction of any records or documents identified in Paragraph 44, and, upon written request by Plaintiff, Defendant shall make available to the Plaintiff any non-privileged, non-identical records or documents in Defendant's, its contractors' or its agents' possession, custody or control, as applicable. If Plaintiff does not submit a written request for delivery of such documents or records within the 90-day period, then the records or documents may be destroyed. The Defendant may assert that certain documents, records, and other information are privileged under the attorney-client privilege or any other privilege recognized by the federal law. However, no document created or generated pursuant to the requirements of this Consent Decree or correspondence between the Parties or correspondence with the Fort Belknap Indian Community created or generated pursuant to the requirements of this Consent Decree shall be withheld on the grounds that it is privileged.

         VIII. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.