Blue Legs et al v. United States Bureau of Indian Affairs et al

Filing 279

ORDER granting 269 Motion to extend term of independent consultant. Signed by Chief Judge Karen E. Schreier on 12/5/2012. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
MEREDITH BLUE LEGS,
Executor of the Estate of
Mattie Blue Legs, deceased;
MARGARET JENKINS; and
RODDY THOMPSON,
Plaintiffs,
vs.
UNITED STATES BUREAU OF
INDIAN AFFAIRS;
UNITED STATES INDIAN HEALTH
SERVICE; and the
OGLALA SIOUX TRIBE,
Defendants.

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Civ. 06-5001

ORDER

Plaintiffs, Meredith Blue Legs, Executor of the Estate of Mattie Blue Legs,
deceased, Margaret Jenkins, and Roddy Thompson, move this court for a fiveyear extension of the independent consultant’s term. Defendants the United
States Bureau of Indian Affairs and Indian Health Services do not oppose the
five-year extension. Defendant Oglala Sioux Tribe (OST) opposes a five-year
extension, but it does not oppose a one-year extension of the independent
consultant.
A consent decree was entered into between the parties in December of
2007. The court approved the consent decree on December 13, 2007.
Paragraph 3 of the consent decree provides as follows:

3.
OST shall retain an independent consultant, to be
agreed upon by the parties. The independent consultant will be
responsible for certifying and documenting whether the 2008
cleanup has been completed and will submit a report to the Court
and the parties by June 9, 2008. While the independent
consultant’s report is not due until June 9, 2008, the independent
consultant will examine and document each site after the
independent consultant has been notified by OST or Federal
Defendants that a particular site has been cleaned up, without
waiting for all of the sites to be cleaned up. The independent
consultant shall also be available for an initial period of 5 years to
receive complaints in the future from these parties or others about
the solid waste facilities on the Pine Ridge Reservation after the
2008 cleanup. This 5-year period may be extended for 2 additional
5-year periods for good cause shown to the Court by any party.
The independent consultant shall review such complaints. If the
independent consultant determines that future cleanup actions are
necessary, he shall so inform the OST and the parties through
their designated representatives. If any such recommended
cleanups are not performed within a reasonable time frame, not to
exceed ninety (90) days except for good cause shown as determined
by the independent consultant, the independent consultant shall
inform the Court and a designated representative of each party. In
making any certifications, determinations and recommendations
under this Consent Decree, both with respect to the 2008 cleanup
and with respect to any future site conditions, the independent
consultant shall apply the criteria of 40 C.F.R. §§ 240.101,
243.200-1, 243.201-1, 243.203-1, 243.204-1 and the Oglala Sioux
Tribe Integrated Solid Waste Management Code. While, as set forth
below, the Court retains jurisdiction to enforce the terms of this
Consent Decree, it is the parties’ explicit agreement that no party
may seek a Court-ordered cleanup under this Consent Degree
without first bringing the matter to the attention of the
independent consultant for a recommended resolution in
accordance with this Paragraph.
We are approaching the end of the initial five-year period, which will occur on
December 13, 2012. The court finds that plaintiffs have shown good cause for
the first five-year period extension. The independent consultant, Michael A.

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Fairbanks, has monitored compliance with the consent decree during the first
five year-period. In 2009, he certified the sites as clean. In 2010, however, eight
sites were not in compliance, while three were in compliance. During 2011 and
2012, the sites were in and out of compliance at various times. Finally, by
November 29, 2012, all sites had been brought into compliance. Because OST
has not maintained compliance with the terms of the consent decree during the
first five-year period, the court finds that plaintiffs have shown good cause for a
five-year extension of the independent consultant’s term.
OST raises several questions regarding the terms of paragraph 3 of the
consent decree. First, OST contends that the consent decree does not direct the
independent consultant to make unsolicited inspections of the site, but rather
to receive complaints form the parties to this case and others about the solid
waste facilities on the Pine Ridge Indian Reservation and to address violations
of a specifically defined set of federal standards. The court agrees with OST’s
position. From this point forward, the independent consultant should only
investigate complaints from the parties or others and act on those complaints
as set forth in paragraph 3 of the consent decree. Unsolicited inspections of the
property are not provided for in the consent decree.
Second, OST objects to the independent consultant filing reports with the
court unless OST has failed to perform the required clean up after notice and a
90-day cleanup period. Pursuant to an order of this court dated June 4, 2010,

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the original terms of paragraph 3 of the consent decree apply to the
independent consultant’s reporting requirements. The court agrees with OST’s
position that reports are not required to be filed with the court unless the
independent consultant has determined that future cleanup actions are
necessary, he has informed OST of the alleged deficiency, and the cleanup has
not been performed by OST within a reasonable time frame, not to exceed 90
days unless good cause is shown. Thus, it is
ORDERED that plaintiffs’ motion (Docket 269) to extend the terms of the
independent consultant for five years through December 13, 2017, is granted.
Dated December 5, 2012.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

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