United States District Court, D. Montana, Great Falls Division
TERRYL T. MATT, Plaintiff,
Fort Belknap Indian Community, Defendant. TERRYL T. MATT, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
MORRIS, UNITED STATES DISTRICT JUDGE
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. Â§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.
May 25, 2017, the Court ordered the Parties to mediation.
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.
with the consent of the Parties to this Decree, it is
ORDERED, ADJUDGED, AND DECREED:
JURISDICTION AND VENUE
Court has jurisdiction over the subject matter of these
actions pursuant to 28 U.S.C. Â§1346(b), 28 U.S.C. Â§2671,
et seq., 28 U.S.C. Â§2201 and 28 U.S.C. Â§1331. Venue
lies in this District pursuant to 28 U.S.C. Â§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.
SCOPE, APPLICABILITY, AND PURPOSE
Consent Decree shall apply to, and be binding upon Defendant,
United States of America, and Plaintiff, Terryl T. Matt.
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.
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
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.
“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.
“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.
“Consent Decree” shall mean this Consent Decree
and all appendices attached hereto.
“Creek” shall mean White Horse Canyon Creek on
the Fort Belknap Indian Reservation, Montana.
“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
“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
“Defendant” shall mean the United States of
“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
“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.
“Month” shall mean a calendar month.
“NEPA” shall mean National Environmental Policy
Act. 42 U.S.C. Â§4321, et seq.
“Paragraph” shall mean a portion of this Consent
Decree identified by an Arabic numeral or a letter.
“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.
“Plaintiff” shall mean Terryl T. Matt, an
enrolled member of the Assiniboine Tribe of the Fort Belknap
Indian Reservation, Montana.
“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.
“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).
“Section” shall mean a portion of this Consent
Decree identified by a Roman numeral.
“United States” shall mean the United States of
America, including its departments, agencies, and
“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
RESTORATION OF SITE AND WHITE HORSE CANYON CREEK
Defendant shall perform restoration activities in accordance
with the scientific principles contained in the following
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,
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. Â§4321, et seq., 40
C.F.R. 1500, et seq., 33 U.S.C. Â§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.)).
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.
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.
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).
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).
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. Â§1251,
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
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.
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.
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.
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.
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
C. Obtain samples or take photographs or video specifically
related to the requirements of this Consent Decree.
Plaintiff shall not interfere with or hinder Defendant's
performance of the obligations described in this Consent
NOTICES AND OTHER SUBMISSIONS
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
RETENTION OF RECORDS
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.
Records, documents, and information to be retained shall
include, without limitation:
A. Final restoration plans submitted and supporting
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.
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.
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