dv decl in support of rule 56(d) motion

RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS AND FOR SUMMARY JUDGMENT OR ALTERNATIVELY, PLAINTIFF’S RULE 56(D) MOTION TO DENY OR CONTINUE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 1

Galanda Broadman PLLC 8606 35th Ave NE, Suite L1 Seattle, WA 98125 P.O. Box 15146 Seattle, WA 98115 (206) 691-3631

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Gabriel S. Galanda, WSBA #30331 Anthony S. Broadman, WSBA #39508 Ryan D. Dreveskracht, WSBA #42593 Galanda Broadman PLLC 8606 35th Ave NE, Suite L1 P.O. Box 15146 Seattle, WA 98115 (206) 691-3631

UNITED STATES DISTRICT COURT

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

NO. 12 - 0001

RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS AND FOR SUMMARY JUDGMENT OR ALTERNATIVELY, PLAINTIFF’S RULE 56(D) MOTION TO DENY OR CONTINUE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Defendants are in the awkward predicament of attempting to dismiss

Plaintiff’s claims for a lack of subject matter jurisdiction, while simultaneously

contending that those claims are “the very same claims” that have defeated

dismissal on numerous occasions elsewhere. ECF No. 154 at 16 (citing Amended

Complaint, Cobell v. Salazar, No. 96-1285 (D.D.C. Dec. 21, 2010), ECF No. 3671).

Case 2:12-cv-00001-EFS Document 161 Filed 05/08/13



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Defendants’ Motion to Dismiss must fail for the same reasons it did in Cobell, as

well as those cited in Plaintiff’s ECF No. 118. Plaintiff has a right of action that

emerges from a statutorily created trust relationship. The Administrative Procedure

Act provides a waiver of immunity. Those are the two necessary antecedents for an

accounting action, and Plaintiff possesses both.

Defendants’ Motion for Summary Judgment is premature. Defendants seek

to preclude Plaintiff from obtaining an accounting because of his alleged inclusion

in the Cobell Trust Administration Class. But Plaintiff was not given notice of his

inclusion in that class, because the Cobell Notice Program was not executed

correctly – at least as to Plaintiff. At this point, it is unknown whether it was Cobell

class council, Defendants, or a third party that had the responsibility to implement

the Notice Program. What has become apparent, however, from the limited

information that Plaintiff has been able to glean, is that these entities did not have

Plaintiff’s best interests in mind. Indeed, these entities may have purposely

intervened with Plaintiff’s receiving opt-out notice.1 Until Plaintiff is allowed

limited discovery on this issue, Defendants’ Motion for Summary Judgment must

be dismissed or continued pursuant to Rule 56(d). 1 Such accusations are not levied lightly. Given Defendants’ actions in Cobell,

however, they may not be off the mark. See Cobell v. Norton, 226 F.Supp.2d 1

(D.D.C. 2002).




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II. FACTS Plaintiff filed the above-captioned suit on January 3, 2012, seeking, amongst

other relief, a declaration that Defendants had breached their fiduciary duty to

adequately care for Plaintiff’s trust assets. ECF No. 1. On April 19, 2012,

Plaintiff’s counsel mailed a Notice of Records Deposition and subpoena deuces

tecum to the Garden City Group, Inc. (“Garden City”), a non-party administrator of

the class settlement in Cobell. ECF No. 93-1. The discovery was sought to counter

Defendants’ argument that Cobell would present “a substantial defense on the

merits.” ECF No. 62 at 13 n.5.

On May 17, 2012, the Court quashed Plaintiff’s discovery requests, holding

that the “subpoena is premature in light of Rule 26’s mandate that ‘[a] party may

not seek discovery from any source before the parties have conferred as required by

Rule 26(f).’” ECF No. 116 at 17 (quoting FED. R. CIV. PROC. 26(d)(1)). The Court

held, however, that Plaintiff “is free to re-serve a subpoena on Garden City once the

parties have completed a discovery conference . . . .” Id. at 18.

On January 30, 2013, the Court dismissed Plaintiff’s claims, but granted

Plaintiff leave to amend, holding that it could not “summarily pronounce that

Plaintiff is incapable of pleading some combination of claims and relief for which

Federal Defendants have waived sovereign immunity.” ECF No. 152 at 45.

Plaintiff filed an Amended Complaint on March 1, 2013, seeking an equitable




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accounting.2 ECF No. 153 at 24.

On March 18, 2013, Defendants filed a motion styled “Motion to Dismiss

Plaintiff’s First Amended Complaint or Alternatively, Motion for Summary

Judgment.” ECF No. 154 at 1. In their Motion to Dismiss, Defendants make the

jurisdictional argument that “Plaintiff has not identified a valid waiver of sovereign

immunity, and therefore this Court lacks subject matter jurisdiction and must

dismiss under Fed. R. Civ. P. 12(b)(1).” Id. at 14. In their Motion for Summary

Judgment, Defendants make the substantive argument that “[e]ven if subject matter

existed for Plaintiff’s suit, it must still be dismissed because Plaintiff, as a certified

class member of . . . the Trust Administration Class in Cobell, compromised,

waived, and released the United States from any liability.” Id. at 14.

On April 1, 2013, Plaintiff resumed his effort to obtain discovery from

Garden City, as the Court held that it was “free” to do. ECF No. 116 at 18; see

generally Declaration of Ryan D. Dreveskracht (“Dreveskracht Decl.”), Exhibit A.

Defendants have, however, absolutely refused to conduct the Rule 26(f) conference

2 In 1994, Congress required Defendants to make plans for retaining vital trust

records and obtaining missing records from third parties. Cobell v. Babbit, 91 F.

Supp.2d 1, 5 (D.D.C. 1999) (discussing Indian Trust Fund Management Reform

Act, Pub. L. No. 103-412; 108 Stat. 4239 (1994)). Defendants have yet to do so.

Assininboine Sioux Tribes v. Norton, 527 F. Supp.2d 130 (D.D.C. 2007).




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that would allow this process to commence. See generally id.

III. PLAINTIFF’S RULE 56(D) MOTION TO DENY OR CONTINUE MOTION FOR SUMMARY JUDGMENT3

Before any discovery had been conducted – indeed, before they filed an

answer –Defendants filed a Motion for Summary Judgment in an inherently fact-

intensive case involving the Federal Government’s duty to correctly account for

Indian trust assets, including its duty to properly notify a trust beneficiary. Because

fact discovery is required, Plaintiff petitions this Court, pursuant to Rule 56(d), to

dismiss Defendants’ Motion for Summary Judgment. In the alternative, Plaintiff

requests that the Court, also pursuant to Rule 56(d), defer ruling on Defendants’

Motion for Summary Judgment so that limited discovery can be conducted.4

This relief is required in order for discovery to be conducted regarding

compliance with the class action “Notice Program” approved in Cobell. Defendants

3 On April 18, 2013, Plaintiff filed a similar Rule 56(d) Motion, ECF No. 158,

which was stricken by the Court. ECF No. 159. With respect, Plaintiff was not

attempting to circumvent the Local Rules. Rather, Plaintiff was simply filing a

Rule 56(d) Motion as a nonresponsive pleading, as the Rule has been applied in

other cases. See e.g. Rule 56(d) Motion to Continue, Cascade Yarns v. Knitting

Fever, No. 10-0861 (W.D. Wash. Dec. 30, 2010), ECF No. 157; see also id. at ECF

No. 183 (Order Granting Rule 56(d) Motion to Continue). 4 The Court must rule on this motion prior to Defendants’ Motion to Dismiss.

Garrett v. City and Cnty. of S.F., 818 F.2d 1515, 1519 (9th Cir. 1987).




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take the position in their Motion for Summary Judgment that Plaintiff is a “Trust

Administration Class member[] that did not opt-out of” the Cobell settlement and,

therefore, “will be compensated for his Trust Administration Claims, and has

waived, released, and forever discharged the United States from liability for those

claims.” ECF No. 154 at 18. Plaintiff challenges his inclusion in the “Trust

Administration Class.” Plaintiff takes the position that the class action “Notice

Program” was not executed correctly. This has always been Plaintiff’s position.

See e.g. ECF No. 89 at 6, 36. Plaintiff is not challenging the sufficiency of the

Notice Program or the execution of that Program as to anybody else.

Defendants take the further position that Plaintiff’s “assertion that he did not

receive adequate notice is a collateral attack on the Final Order entered by the

United States District Court for the District of Columbia approving the Cobell

settlement.” Dreveskracht Decl., Ex. A. But Plaintiff is not making this attack.

Plaintiff does not challenge Cobell or the Notice Program – he challenges the

execution of the Notice Program as to himself, personally.

The Ninth Circuit has made clear that where this is the case – where an

individual “did not receive adequate notice” according to a the terms of a court-

approved class action notice program – that party will “not be bound by the

settlement.” Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1375 (9th Cir. 1993).




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Allowing Plaintiff the opportunity to collect evidence that the class action “Notice

Program” was not executed correctly is clearly allowed. See Celotex v. Catrett, 477

U.C. 317, 322 (1986) (Rule 56 allows for summary judgment “after adequate time

for discovery and upon motion”) (emphasis added).

If Defendants were unwilling to allow Plaintiff to conduct limited discovery,

they should have filed a Motion to Dismiss on jurisdictional matters and left it at

that. Instead, knowing that their Motion to Dismiss was meritless in light of Cobell,

Defendants shoehorned a Motion for Summary Judgment into their filing.

Defendants’ strategic attempt to prevent Plaintiff the opportunity to defend his

Complaint should not be sanctioned. Defendants cannot put Plaintiff’s inclusion in

the Cobell settlement directly at issue, then blockade him from obtaining any

evidence to refute that assertion. The fact that Defendants bootstrapped their

Motion for Summary Judgment to a Motion to Dismiss does not convert the Motion

for Summary Judgment into one based on purely legal or jurisdictional matters.

A. Rule 56(d) Standard FED. R. CIV. PROC. 56(d) provides:

If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:

(1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.




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The Declaration of Donnelly R. Villegas in Support of Plaintiff’s Rule 56(d)

Motion (“Villegas Decl.), setting forth the specified reasons that Plaintiff cannot

present facts essential to justify his opposition, is filed contemporaneously with

this Rule 56(d) Motion. This Declaration provides the following:

• Plaintiff has “exercised all due diligence in an attempt to obtain information regarding trust accounts and actions taken on Allotment 156.” Id. at 3.

• Despite this due diligence, it was not until April 26, 2011, that Plaintiff “became aware of the Cobell v. Salazar litigation.” Id. at 2.

• Upon becoming aware of the Cobell litigation, Plaintiff filed the above-captioned lawsuit. Id. at 3.

• Plaintiff “ha[s] not confirmed that the address to which any Cobell Notice Packet was mailed was [his] correct and current mailing address.” Id. Plaintiff is “not aware of where the Cobell Notice Packet was mailed, if it was mailed at all.” Id. All Plaintiff “know[s] is that [he] did not receive any Notice Packet.” Id.

The Declaration of Ryan D. Dreveskracht in Support of Plaintiff’s Rule 56(d)

Motion, setting forth the specified reasons that Plaintiff cannot present facts

essential to justify his opposition, is also filed contemporaneously with this Motion.

The Ninth Circuit has explained that in order to prevail under Rule 56(d)

“parties opposing summary judgment must make (a) a timely application which (b)

sufficiently identifies (c) relevant information, (d) where there is some basis for

believing that the information sought actually exists.” Emplrs. Teamsters Local

Nos. 175 & 505 v. Clorox, 353 F.3d 1125, 1129 (9th Cir. 2004) (quotation omitted).




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District Courts should grant Rule 56(d) motions if the nonmoving party has not had

the opportunity to discover information essential to its opposition. Burlington N.

Santa Fe R.R. v. Assiniboine & Sioux Tribes, 323 F.3d 767, 773 (9th Cir. 2003).

Indeed, the Ninth Circuit has explicitly held that where, as here, a summary

judgment motion is filed “before a party has had any realistic opportunity to pursue

discovery relating to its theory of the case, district courts should grant any Rule

56([d]) motion fairly freely.” Id.; see also Metabolife Int’l v. Wornick, 264 F.3d

832, 846 (9th Cir. 2001) (“Although Rule 56([d]) facially gives judges the

discretion to disallow discovery when the non-moving party cannot yet submit

evidence supporting its opposition, the Supreme Court has restated the rule as

requiring, rather than merely permitting, discovery ‘where the non-moving party

has not had the opportunity to discover information that is essential to its

opposition.’”) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986));

Berkeley v. Home Ins., 68 F.3d 1409, 1414 (D.C. Cir. 1995) (noting a “generous

approach toward granting Rule 56([d]) motions”); Freeman v. ABC Legal Svc., 827

F.Supp.2d 1065, 1078 (N.D. Cal. 2011) (granting a Rule 56(d) motion where, as

here, “no discovery ha[d] been conducted . . . , initial disclosures ha[d] not been

exchanged, and a Rule 26([d]) discovery planning conference ha[d] not occurred”).

The only exception to this liberal Rule 56(d) standard is that a court “does not




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abuse its discretion by denying further discovery if (1) the movant has failed

diligently to pursue discovery in the past . . . or (2) if the movant fails to show how

the information sought would preclude summary judgment.” Cal. Union Ins. v. Am.

Diversified Sav. Bank, 914 F.2d 1271, 1278 (9th Cir. 1990) (citations omitted); see

also Wichita Falls Office Assocs. v. Banc One Corp., 978 F.2d 915, 919 (5th Cir.

1992) (Rule 56(d) “continuance of a motion for summary judgment for purposes of

discovery should be granted almost as a matter of course unless the non-moving

party has not diligently pursued discovery of the evidence.”)); Convertino v. U.S.

Dep’t of Justice, 684 F.3d 93, 99 (D.C. Cir. 2012) (“[S]ummary judgment is

premature unless all parties have had a full opportunity to conduct discovery. A

Rule 56([d]) motion requesting time for additional discovery should be granted

almost as a matter of course . . . .”) (quotation omitted). Plaintiff has satisfied his

burden of showing both his diligence and the necessity of the requested discovery.

B. Plaintiff’s Motion Is Timely The present case has not progressed beyond the pleading stage. Discovery

has not yet begun. Plaintiff has “diligently pursued discovery” at every stage in this

proceeding. Id. at 99. On March 30, 2012, Defendants argued that the Cobell

litigation would present “a substantial defense on the merits.” ECF No. 62 at 13 n.5

(emphasis added). On April 19, 2012 – an entire year ago – Plaintiff sought the

exact discovery now required to justify his opposition to that argument. ECF No.




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93-1. That discovery request was quashed because Defendants refused to conduct a

Rule 26(f) conference.5 ECF No. 111-1. Defendants still refuse to cooperate with

respect to the orderly progression of discovery in this matter. See Dreveskracht

Decl., Ex. A. An Order denying/deferring a ruling on Defendants’ Motion for

Summary Judgment is now required so that Plaintiff can justify his opposition to

Defendants’ Motion to Dismiss.6

C. Plaintiff Sufficiently Identifies Relevant Information In Existence. The Cobell Historical Accounting Class was certified pursuant to FED. R.

CIV. PROC. 23(b)(1) and (2). “[D]rafters of Rule 23 found it unnecessary to provide

(b)(1) and (b)(2) class members with the absolute right to notice or to opt-out of the

class.” Allison v. Citgo Petroleum, 151 F.3d 402, 412 (5th Cir. 1998). Plaintiff

does not dispute his inclusion in the Historical Accounting Class.

The Cobell Trust Administration Class was certified pursuant to FED. R. CIV.

5 Contrary to Defendants’ arguments in ECF No. 111-1, “Rule 26(f) does not

require the parties to delay conferring until after a scheduling conference has been

held or a scheduling order has been issued.” Scott v. Graphic Commc’n Int’l Union,

92 Fed.Appx. 896, 901 (3rd Cir. 2004) 6 Plaintiff has deferred filing a Motion to Compel the Rule 26(f) conference so that

the Court might herein determine whether the limited discovery sought is

warranted. See Garrett, 818 F.2d at 1518 (Rule 56(d) motion granted where it

“made clear the information sought [and did] not seek broad additional discovery”).




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PROC. 23(b)(3). The “procedural safeguards” of notice to opt-out to this class are

“mandatory under (b)(3) for class members who might wish to pursue their claims

for money damages in individual lawsuits and to not be bound by membership in a

class action.” Allison, 151 F.3d at 412; see e.g. Phillips Petroleum v. Shutts, 472

U.S. 797, 811-12 (1985); Churchill Village v. Gen. Elec., 361 F.3d 566, 572 (9th

Cir. 2004); Brown v. Ticor Title Ins., 982 F.2d 386, 392 (9th Cir. 1992). The Cobell

class action Notice Program was approved on June 27, 2011. Cobell v. Salazar, No.

96-1285 (D.D.C. July 27, 2011), ECF No. 3850 [hereinafter “Final Approval”]. In

approving the “procedural safeguards” of the Notice Program, the Court was to

determine whether “the class as a whole had notice adequate to flush out whatever

objections might reasonably be raised to the settlement.” Torrisi, 8 F.3d at 1375

(emphasis added). The Court determined that the Notice Program, as a whole, met

this standard. Final Approval, at 4. Plaintiff does not argue that the Court erred in

making this determination or dispute that the class action Notice Program provided

the mandatory due process requirements demanded by FED. R. CIV. PROC. 23(b)(3).

Thus, Plaintiff did not file a FED. R. CIV. PROC. 60(b) motion in the D.C. District

Court or appeal of the Court’s approval of the Notice Program in the D.C. Circuit

Court of Appeals.7

7 Plaintiff did file a pro se Notice of Complaint in the D.C. Circuit Court of




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That the Notice Program met the “procedural safeguards” of Rule 23(b)(3),

though, has nothing to do with whether the Notice Program was executed correctly

as to Plaintiff. Were the District Court’s approval of the Notice Program the end of

the inquiry, “individual class members who do not receive timely notice” pursuant

to an approved Notice Program would be left “without recourse.” Fidel v. Farley,

534 F.3d 508, 515 (6th Cir. 2008). But this is not the law. To the contrary, the law

is clear that an unnotified class member “may pursue an individual remedy in a

separate action.” Friedman v. Cal. State Emp. Ass’n, No. 00-0101, 2010 WL

2880148, at *6 n.4 (E.D. Cal. July 21, 2010). As the issue was discussed in

DeJulius v. New England Health Care Emp. Pension Fund:

We note that the instant case deals only with class-wide determinations of fairness and due process. Appellants here do not seek individually to opt-out of the settlement or in any other way attempt to avoid its binding effect. If this were Appellants’ objective, the lack of actual notice as to them may have some due process implications.

429 F.3d 935, 947 n.14 (10th Cir. 2005) (emphasis in original); see also In re

Integra Realty Resources, 262 F.3d 1089, 1111 n.18 (10th Cir. 2001) (“We express

no view . . . as to whether individual members of the defendant class might be able

to establish a lapse in due process because they lacked actual notice of the action,

Appeals, but subsequently dismissed the appeal after it became clear that the relief

he was seeking was not available in that forum. It is instead available here.




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such that they might successfully challenge the binding effect of the settlement as to

themselves in a collateral action.”).

In the Ninth Circuit, the issue was definitively decided in Torrisi, where it

was held that “[i]f an individual [class member] later claims he did not receive

adequate notice and therefore should not be bound by the settlement, he can litigate

that issue on an individual basis when the settlement is raised as a bar to a lawsuit

he has brought.” 8 F.3d at 1375; see also Cummings v. Connell, No. 99-2176, 2006

WL 3951867, *4 n.9 (E.D. Cal. Nov. 27, 2006) (unnotified class member “may

pursue an individual remedy in a separate action”).

Here, Plaintiff “did not receive adequate notice and therefore should not be

bound by the settlement.”8 Id. In order to justify his opposition to Defendants’

argument to the contrary, Plaintiff seeks to determine, via limited discovery: who

8 Defendants have admitted that they did not have Plaintiff’s correct address,

despite his numerous past communications to the Bureau of Indian Affairs where he

notified them of his correct address. See generally ECF No. 89 at 36. Upon

information and belief, Defendants have not complied with this aspect of the Notice

Program as to other Indian trustees as well. See Rob Capricciso, Cobell Payments

Being Sent to Wrong Addresses; Special Master Appointed, INDIAN COUNTRY

TODAY, Dec. 21, 2012, available at

http://indiancountrytodaymedianetwork.com/article/cobell-payments-being-sent-

wrong-addresses-special-master-appointed-146498.




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was responsible for notifying Mr. Villegas of the Cobell litigation; what the process

was for doing that in compliance with the Notice Program; and what efforts made to

make contact with Plaintiff, if any. See generally Dreveskracht Decl. Nobody did

notify him, and there is sufficient reason to believe those responsible did not have

Plaintiff’s best interests in mind.9

At this point, Plaintiff seeks only written discovery from Defendants and

Garden City, akin to that served last April. Id. If that leads Plaintiff to other

avenues, it may be necessary to expand the scope to other parties tasked with

carrying out the Notice Program. But at this point Plaintiff does not anticipate

needing anything other than written discovery to determine the issues identified

above. Id. This evidence is highly relevant to prove that the Notice Program was

not executed correctly as to Plaintiff (and Plaintiff only); that Plaintiff did not

receive adequate notice; and that, therefore, Plaintiff should not be bound by the

Cobell settlement as it relates to his Trust Administration claims.

That the Notice Program was executed by somebody – presumably the

Garden City, but maybe others – is enough to show that “[c]ertainly there is some

9 See e.g. Villegas Decl., Ex. C (letter from Cobell class counsel to a Trust

Administration Class member, providing a six-figure “preliminary estimate of the

amount [they] would receive from the $1.4 billion fund” – essentially urging that

class member to remain in the class).




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basis for believing that this information actually exists.” Mitchell v. City of

Pittsburg, No. 09-0794, 2011 WL 3877081, at *4 (N.D. Cal. Sept. 2, 2011).

(quotation omitted). Until Plaintiff has an opportunity to conduct limited discovery

into this areas, summary judgment is simply premature.

IV. RESPONSE TO DEFENDANTS’ MOTION TO DISMISS Plaintiff has extensively briefed the issue of waiver under the APA, and will

rely chiefly upon the briefing and authority cited in ECF Nos. 118 and 150 to defeat

Defendants’ arguments to the contrary.

Plaintiff must, however, oppose Defendants’ attempt to mischaracterize his

claims.10 According to Defendants, Plaintiff’s first cause of action cannot stand

because there has been no “final agency action.” ECF No. 154 at 13. But

Plaintiff’s first cause of action does not assert an APA claim for which a “final

agency action” is necessary. ECF No. 118 at 23-24 (citing cases); Trudeau v. Fed.

Trade Com’n, 456 F.3d 178, 184 (D.C. Cir. 2006). Rather, Plaintiff is seeking

“non-statutory review” of agency inaction. Cobell v. Babbitt, 91 F.Supp.2d 1, 30

(D.D.C. 1999). Specifically, Plaintiff is seeking to enforce the fiduciary duty to

provide an equitable accounting that courts have unambiguously held was created

10 Defendants attempt to employ the same mischaracterizations were rejected in

Cobell v. Babbitt, 30 F.Supp.2d 24, 30-32 (D.D.C. 1998).




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by the statutes and regulations cited in Plaintiff’s First Amended Complaint.11 See

ECF No. 153 at 20-21 (citing statutes); ECF No. 118 at 24-34 (fiduciary

relationship created by cited statutes); see generally U.S. v. White Mtn. Apache, 537

U.S. 465 (2003). “[T]hese statutory mandates12 compel an inference of enforceable

fiduciary duties” that do not arise under the APA. Cobell v. Norton, 392 F.3d 461,

471 (D.C. Cir. 2004); Manchester Band of Pomo Indians v. U.S., 363 F. Supp.

1238, 1242 (N.D. Cal. 1973). The APA does provide the immunity waiver for this

non-APA claim, however, because the enforcement of these duties does not involve

11 The failure of statutes to specify the precise nature of the fiduciary obligation or

to enumerate duties does not absolve the Defendants of their responsibilities.

Cobell v. Norton, 240 F.3d 1099 (D.C. Cir. 2001). Rather, courts “must infer that

Congress intended to impose on trustees traditional fiduciary duties unless Congress

has unequivocally expressed an intent to the contrary.” Nat’l Labor Relations Bd. v.

Amax Coal, 453 U.S. 322, 330 (1981). An accounting is one of the government’s

fiduciary duties. Cobell, 240 F.3d at 1103. 12 It bears reiteration that Plaintiff is asserting a statutory claim for breach of

statutorily created trust duties – not a common law breach of trust claim – and that

the Supreme Court has repeatedly recognized the viability of such a claim. See e.g.

White Mtn. Apache, 537 U.S. at 472; see also Cobell, 240 F.3d at 1100-1101.




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an award of “money damages.”13 5 U.S.C. § 702; Assiniboine & Sioux Tribes v. Bd.

of Oil & Gas Conservation, 792 F.2d 782, 793 (9th Cir. 1986); Cobell v. Babbitt, 30

F. Supp.2d 24, 31 (D.D.C. 1998); ECF Nos. 118 at 23-24; 150.

Defendants also argue that Plaintiff’s APA claim is barred because he has not

alleged a “final agency action” or administratively exhausted. ECF No. 154 at 13-

14. Defendants are incorrect.

As to agency action, Plaintiff has alleged that, “[d]espite numerous requests,

Federal Defendants have failed to provide Plaintiff with an accounting.” ECF No.

153 at 22. Indeed, Defendants have yet even to put in place plans to obtain the

necessary records to conduct said accounting, as was mandated by Pub. L. No. 103-

412. In Cobell, it was held that Defendants’ “extensive delay in discharging their

fiduciary duties” in this respect “is tantamount to denying review altogether,” such

that “federal courts may exercise jurisdiction to compel agency action.” Cobell,

240 F.3d at 1096. This Court should hold likewise.

As to exhaustion, a trust beneficiary is entitled to obtain from its trustee a

broad array of information, which includes information reasonably necessary to

enable it to enforce its rights under the trust. See Restatement (Second) of Trusts § 13 Defendants have admitted that the APA provides this waiver. Response to

Plaintiffs’ Memorandum in Support of Equitable Restitution and Disgorgement,

Cobell v. Kempthorne, No. 96-1285 (Apr. 9, 2008), ECF No. 3519 at 5, n.2.




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173 (1959); Cobell, 240 F.3d at 1103. Defendants owe this duty to Plaintiff, as a

beneficiary, even in the absence of a request. Restatement (Second) of Trusts §

173, cmt. d. But more importantly, an administrative remedy is wholly lacking.

Title 25 C.F.R. §§ 150.1-150.11 is a mere run-of-the-mill regulation for providing

“title status reports” to “those persons authorized by law to receive such

information.” 25 C.F.R. § 150.8. The disclosure obligation of these regulations is

not a means for obtaining a comprehensive accounting of non-monetary assets in a

trust. Rather, the regulation merely obligates Defendants to provide a “title status

report” containing the most rudimentary level information – information not at all

equal to the comprehensive accounting of trust assets that Plaintiff seeks.14

V. CONCLUSION Defendant’s Motion to Dismiss must be denied. Further, this litigation

concerns “an undivided interest in what was once some of the most valuable real

estate in America.” ECF No. 153, at 2. Before Plaintiff is denied the right to

14 Title 25 C.F.R. §§ 2.6 & 2.8 have no application here, as an administrative appeal

from a failure to provide information under 25 C.F.R. § 150.8 could not possibly

satisfy Plaintiffs-Tribes’ claims, as a matter of law. Cf. Gilmore v. Weatherford,

694 F.3d 1160 (10th Cir. 2012).




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pursue this action due to a technicality,15 Plaintiff deserves to explore all angles that

would preclude his inclusion in the Cobell litigation. This includes, necessarily,

limited discovery to determine who was responsible for notifying Mr. Villegas of

the Cobell litigation; what the process was for ensuring compliance with the Notice

Program; and what efforts were made to make contact with Plaintiff, if any. What

is known with certainty is that Plaintiff did not receive notice of the Cobell

litigation, or his inclusion in the Trust Administration Class, until at least April 26,

2011. ECF No. 89, at 5. Plaintiffs have put this very factual subject at issue in their

Motion for Summary Judgment. ECF No. 154 at 10. Their decision to do so

necessitates limited discovery.

DATED this 8th day of May, 2013.

__s/ Ryan D. Dreveskracht_______ Gabriel S. Galanda, WSBA# 30331 Anthony S. Broadman, WSBA #39508

15 Plaintiff was given misinformation about how to effectively “opt out” of the Trust

Administration Class and pressure to stay in the Trust Administration Class from

class counsel. See Villegas Decl., Exs. A-C. Upon information and belief, this type

of misinformation and general failure to comply with the Notice Procedure was

rampant during the opt-out period, when Plaintiff should have been – but was not –

informed of his right not to participate in the Cobell settlement. See generally id.

As a result, Plaintiff was a mere 34 days late in filing his opt-out. Notice, Cobell v.

Salazar, No. 96-1285 (D.D.C. Aug. 22, 2011), ECF No. 3861.




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Ryan D. Dreveskracht, WSBA #42593 Attorneys for Plaintiff GALANDA BROADMAN, PLLC 8606 35th Ave NE, Suite L1 P.O. Box 15146 Seattle, WA 98115 (206) 691-3631 Fax: (206) 299-7690 Email: [email protected] Email:[email protected] Email: [email protected]




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CERTIFICATE OF SERVICE

I, Ryan D. Dreveskracht, declare as follows:

1. I am now and at all times herein mentioned a legal and permanent

resident of the United States and the State of Washington, over the age of eighteen

years, not a party to the above-entitled action, and competent to testify as a

witness.

2. I am employed with the law firm of Galanda Broadman PLLC, 8606

35th Ave NE, Suite L1, Seattle, WA 98115.

3. On May 8, 2013, I caused the foregoing document to be filed via ECF which

will provide service to the following via email:

Jody Helen Schwarz William J. Schroeder Gregory C. Hesler The foregoing statement is made under penalty of perjury and under the laws

of the State of Washington and is true and correct.

Signed at Seattle, Washington, this 8th day of May, 2013.

s/Ryan D. Dreveskracht


dv decl in support of rule 56(d) motion

Documents