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Villegas v. United States

United States District Court, E.D. Washington

August 5, 2013

DONNELLY R. VILLEGAS, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants

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[Copyrighted Material Omitted]

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For Donnelly R Villegas, an enrolled member of the Spokane Tribe of Indians, Plaintiff: Gabriel S Galanda, LEAD ATTORNEY, Anthony Stephen Broadman, Ryan David Dreveskracht, Galanda Broadman PLLC, Seattle, WA.

For United States of America, Department of the Interior, Bureau of Indian Affairs, Bureau of Land Management, Bureau of Safety and Environmental Enforcement, Formerly the Minerals Management Service, Environmental Protection Agency, Lisa P Jackson, Kenneth L Salazar, Robert Abbey, James Watson, Stanley Speaks, Office of Natural Resources Revenue, Defendants: Jody Helen Schwarz, LEAD ATTORNEY, U.S. Department of Justice, Environment and Natural Resources Division, Washington, DC; Reuben S Schifman, U.S. Department of Justice, Washington, DC.

OPINION

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ORDER GRANTING DEFENDANTS' MOTION TO DISMISS OR FOR SUMMARY JUDGMENT

EDWARD F. SHEA, Senior United States District Judge.

I. INTRODUCTION

Before the Court, without oral argument, is Defendants Department of the Interior (" DOI" ), Bureau of Indian Affairs (" BIA" ), Bureau of Land Management (" BLM" ), Bureau of Safety and Environmental Enforcement (" BSEE" ), Office of Natural Resources Revenue (" ONRR" ), Environmental Protection Agency (" EPA" ), Lisa P. Jackson, Stan Speaks, Kenneth L. Salazar, Robert Abbey, and James Watson's (collectively, " Defendants" ) Motion to Dismiss or for Summary Judgment. ECF No. 154. Defendants contend that Plaintiff's Amended Complaint must be dismissed because the Defendants have not waived sovereign immunity for Plaintiff's claims; Defendants also assert that one of Plaintiff's claims is precluded by a settlement agreement in a different case. Having reviewed the pleadings and the record in this matter, this Court is fully informed. For the reasons set forth below, the Court grants Defendants' Motion to Dismiss or for Summary Judgment, ECF No. 154, and dismisses this action.

II. BACKGROUND

A. Factual History[1]

Plaintiff Donnelly Villegas is an enrolled member of the Spokane Tribe of Indians (hereinafter, " Spokane Tribe" ), a federally-recognized Indian tribe. The Spokane Indian Reservation was created on January 18, 1881, by Executive Order of President Rutherford B. Hayes. In 1902, Congress opened the Spokane Reservation to mineral development, providing

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that the Reservation " shall be subject to entry under the laws of the United States in relation to the entry of mineral lands." Act of May 27, 1902, ch. 888, 32 Stat. 245 (1902). In a separate Joint Resolution passed later that year, Congress directed the Secretary of the Interior to:

make allotments in severalty to the Indians of the Spokane Indian Reservation in the State of Washington, and upon the completion of such allotments the President shall by proclamation give public notice thereof, whereupon the lands in said reservation not allotted to Indians or used or reserved by the Government, or occupied for school purposes, shall be opened to exploration, location, occupation, and purchase under the mining laws.

Cong. J. Res. 31, 32 Stat. 744 (1902). In 1908, Congress directed the Secretary of the Interior to make allotments to all members of the Spokane Tribe who had not received allotments, and to sell and dispose of all unallotted " surplus" lands for use in agriculture and timber production. Act of May 29, 1908, ch. 217, 35 Stat. 458 (1908). This process of allotment and distribution was consistent with the United States' policy of " assimilation" of Indian tribes in the period surrounding the turn of the nineteenth century.

1. Allotment No. 156

In 1910, pursuant to the Acts of Congress described above, Allotment No. 156 was issued to Edward Boyd. The issuing instrument stated that the United States would hold the land in trust for twenty-five years for the sole use and benefit of Mr. Boyd, and that at the end of that period, the United States would convey the 120-acre property in fee to Mr. Boyd or his heirs. Mr. Boyd died intestate in 1939, at which time his interest in the allotment was divided between his spouse and six children. By 1956, following the death of a number of Mr. Boyd's children, the interests in the allotment became concentrated in Lucy and Richard Boyd.

In a 1973 order entered in an otherwise-unspecified adjudication titled In the Matter of the Estates of Richard Boyd, a one-half interest in Allotment No. 156 was awarded to the Spokane Tribe, and the remaining 60-acre interest was divided equally between Plaintiff and his sister, Ortencia Ford. As part of this probate settlement, Plaintiff was also awarded an interest in stockpiles of high-grade uranium located in Ford, Washington. The funds derived from these interests were to be paid into a trust account for the benefit of Plaintiff and his sister, managed by William Sharpe and ONB Bank and Trust until October 1974.

Fee title to the land was never transferred to Mr. Boyd or his heirs; however, Plaintiff retains his one-half interest in a 60-acre portion of Allotment No. 156, currently held in trust by the United States.

2. Establishment of the Midnite Mine

In 1954, Dawn Mining Company, LLC (hereinafter " Dawn Mining" ) leased approximately 571 acres of the Spokane Indian Reservation from the United States for the purpose of mining uranium. Floyd H. Phillips, Superintendent of Defendant DOI's Colville Indian Agency, entered into the lease " for and on behalf of the Spokane Tribe of Indians." Compl. ¶ 27, ECF No. 153, at 9. The land covered by the 1954 lease included unallotted land that was part of the original Spokane Reservation, as well as the entirety of Allotment No. 156. In 1956, the Superintendent of the Colville Indian Agency again leased the allotment to Dawn Mining and Newmont USA Limited (hereinafter " Newmont" ) for a period of 15 years because " the individual Indian ownership was not entirely clear due to pending probate." Id. ¶ 29. Both leases were approved by Defendant BIA's

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Acting Area Director. Mr. Boyd's heirs were neither consulted about nor informed of either lease.

The 1956 lease required Dawn Mining and Newmont to submit monthly reports to the Superintendent of the Colville Indian Agency and to pay annual rents and royalties directly to the Superintendent, who would then issue rents and royalties to the allottees. The Superintendent was also tasked with directing audits of each lessee's accounts and books, while the Mineral Management Service was tasked with conducting audits of the rents and royalties paid to the Colville Indian Agency. Both the 1954 and 1956 leases also provided the Secretary of the Interior with authority to suspend mining operations, collect a bond, inspect the property, approve the lessee's attempts to terminate the lease upon showing that full provision had been made for the conservation and protection of the property, and terminate each lease for violations of the lease's terms and conditions. In 1964, Mr. Boyd's heirs and ONB Bank and Trust entered into a ten-year mining lease with Dawn Mining and Newmont under the same terms as the 1956 lease. The site leased by Dawn Mining and Newmont was developed into the " Midnite Mine."

3. Conclusion of Mining Operations & EPA Superfund Cleanup

In 1981, the Midnite Mine closed. Due to the radioactive ore and toxic metals that were extracted from the mine, the land surrounding the mine (including Allotment No. 156) was heavily contaminated with radioactive materials. A 2008 Seattle Times article, quoted by Plaintiff in his Amended Complaint, identifies some of the serious environmental damage incurred near the mine site; it also cites a scientific model used by Defendant EPA that concluded that " someone living on food gathered in the [nearby area] and using the water for sweat lodges had a 1-in-5 change of getting cancer from the added radiation." Am. Compl. ¶ 56, at 15-16 (citing Warren Cornwall, Radioactive Remains: The Forgotten Story of the Northwest's Only Uranium Mines, Seattle Times, Feb. 24, 2008, available at http://seattletimes.nwsource.com/html/pacificnw/2004191779_pacificpura nium24.html). BIA has since determined that portions of Allotment No. 156 cannot be logged due to extensive environmental damage and radioactivity.

In July 1998, the EPA sought support to include the Midnite Mine on the Superfund National Priorities List (NPL) of sites eligible for cleanup funds. In May 2000, the Midnite Mine was listed on the NPL, and over the following years, EPA regularly shared information with and sought input from members of the Spokane Tribe on the cleanup effort. On October 5, 2005, EPA issued its proposed cleanup plan. After a 105-day comment period and three public meetings, EPA adopted the proposal. The Midnite Mine is currently the subject of a $152-million environmental cleanup project. In January 2012, Senior U.S. District Judge Justin Quackenbush signed a consent decree between the United States, Dawn Mining, and Newmont regarding their respective obligations to fund the environmental cleanup. See United States v. Newmont USA Ltd. and Dawn Mining Co., No. CV-05-020-JLQ, ECF No. 553 (E.D. Wash. Jan. 17, 2012)

4. Specific Disputes Concerning Allotment No. 156

From the inception of the Midnight Mine until the mine eventually closed in 1981, Plaintiff contends that Defendants engaged in an ongoing course of conduct to improperly deprive him of the funds to which he was entitled. He also alleges that Defendants breached fiduciary duties by improperly managing his assets, failing

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to adequately supervise the other Defendants, and failing to adequately keep him informed about the nature of his accounts and the uses of Allotment No. 156.

Trust Account & Missing Funds . William J. Sharp and ONB Bank and Trust were charged with managing a trust account on Plaintiff's behalf. The funds derived from Plaintiff's interests in Allotment No. 156 were to be paid into that trust account until October 1, 1974. Plaintiff contends that BIA continued to make payments into the account until March of 1978 - payments which Plaintiff claims he never received. Plaintiff also argues that charges were withdrawn from the trust account without explanation, and that some of the explanations listed on royalty ledgers issued by Defendants have been inexplicably redacted. According to Plaintiff, Dawn Mining and Newmont paid rents and royalties directly to Defendants, who failed to properly distribute monies owed to Plaintiff. ...


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