UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SHOSHONE-BANNOCK TRIBES OF THE FORT HALL RESERVATION,

Plaintiff, Civil Action No. 02-0254 (TFH) v.

DAVID BERNHARD, Acting Secretary of the Interior, et al.,

Defendants.

MEMORANDUM OPINION

Pending before the Court is the Shoshone-Bannock Tribes’ (“the Tribes”) Motion for

Clarification of the Settlement Agreement that the Tribes signed with the United States in 2012,

[ECF No. 90], along with their Motion to Enforce the Settlement Agreement, [ECF No. 103].

The United States opposes the motions. [ECF Nos. 95 & 104].

I. Background The Tribes sued the Departments of Interior and Treasury in February 2002 seeking an

“accounting and reconciliation of its trust fund accounts and non-monetary trust assets or

resources” held in trust by the United States. Proposed Joint Stip. of Settlement [ECF No. 84]

(the “Settlement” or “Settlement Agreement”). The parties settled their dispute for $60 million

via a Settlement Agreement that the Court approved on May 16, 2012. Minute Order, May 16,

2012.

In 2018, the Tribes sued the United States, federal officials, the Union Pacific Railroad

Company and the City of Pocatello in the United States District Court for the District of Idaho

1 over several plots of land in Pocatello, Idaho. Shoshone-Bannock Tribes of Fort Hall Res. v.

United States, No. 18-cv-285-DCN (D. Idaho 2018). According to the Tribes, the 1868 Treaty of

Fort Bridger guaranteed the Fort Hall Indian Reservation, which originally included Pocatello, to

the Tribes as their permanent home. Mem. in Supp. Mot. for Clar. at 2 (“Mot. for Clar.”).

In 1882 and 1888, the Tribes granted the United States an interest in land around Pocatello to

allow the United States to establish easements for railroads. Id. at 3. According to the Tribes,

Congress ratified the easements and granted the Tribes a reversionary interest in the land when it

was no longer used for railroad purposes. Id. The Tribes allege that they now have a present

possessory interest in five parcels of land in Pocatello that the Union Pacific Railroad is no

longer using for railroad purposes.1 Id. at 2; id. Ex. D (Am. Compl. ¶ 25, ¶ 310). Amongst their

claims against the United States, they seek a declaratory judgment that the Tribes have a present

possessory interest in the parcels, Am. Compl. ¶ 310 (Count 1); they seek to quiet title to the

parcels, Am. Compl. ¶¶ 316-409 (Counts II-VI); and they seek a writ of mandamus to compel the

United States to transfer the parcels to the property inventory of the Bureau of Indian Affairs to

hold in trust for the Tribes, Am. Compl. ¶¶ 410-424 (Counts VII).

The federal defendants moved to dismiss the complaint on the grounds that, inter alia, the

Tribe’s claims are barred by the Settlement Agreement’s waiver provisions. Opp’n to Mot. for

Clar. at 5 [ECF No. 95]. Because the Settlement provides that this Court retains jurisdiction to

interpret and enforce it, on March 12, 2019, the Tribes filed a Motion for Clarification of

Settlement Agreement in this Court. [ECF No. 90]. Since that time, the Idaho district court found

that because the Agreement’s language retained jurisdiction in this Court “‘for the limited

purpose of interpreting and enforcing’” the Settlement, the language “denotes that the D.C.

1 The parcels are a bus depot and parking area, a credit union, a parking lot, a 49.92 acre parcel, and a 3.27 acre parcel of land. Mot. for Clar. Ex. D (Am. Compl. ¶ 25).

2 District Court retains exclusive control over both interpretation and enforcement.” Shoshone-

Bannock Tribes v. United States, No. 18-cv-285,

at *1 (D. Idaho Oct. 15,

2018) (quoting the Settlement Agreement). The Idaho district court then stay the litigation

pending this Court’s interpretation of the Settlement Agreement. Id. at *2-3. Back in this Court,

the Tribes subsequently filed their Motion to Enforce the Settlement Agreement [ECF No. 103].

II. The Settlement Agreement The parties contest the meaning of the Settlement’s waiver provision, which provides the

following:

4. Full Settlement, Waiver, Release, and Covenant Not to Sue.

In consideration of the payment required by Paragraph 2 above, Plaintiff hereby waives, releases, and covenants not to sue in any administrative or judicial forum on any and all claims, causes of action, obligations, and/or liabilities of any kind or nature whatsoever, known or unknown, regardless of legal theory, for any damages or any equitable or specific relief, that are based on harms or violations occurring before the date of this Court's entry of this Joint Stipulation of Settlement as an Order and that relate to Defendants' management or accounting of Plaintiff's trust funds or Plaintiff's non-monetary trust assets or resources.

Settlement ¶ 4. The Settlement also includes a list of exceptions to the waiver, including its

exception for the wrongful use of railroad rights-of-ways:

6. Exceptions to Plaintiffs Release, Waiver, and Covenant Not to Sue.

Notwithstanding the provisions of Paragraph 4 above, nothing in this Joint Stipulation of Settlement shall diminish or otherwise affect in any way: . . .

i. Plaintiff’s claims against third parties for the wrongful use of railroad rights- of-ways located off the Fort Hall Reservation; . . .

Settlement ¶ 6(i) (“Paragraph 6(i)”). According to the Settlement, the Court retains “continuing

jurisdiction only for the limited purpose of interpreting and enforcing the terms and conditions of

this Joint Stipulation of Settlement.” Settlement ¶ 23.

3 III. Motion for Clarification In their motion for clarification, the Tribes ask that the Court clarify that Paragraph 6(i)

of the Settlement does not waive their claims against the United States arising from the wrongful

use of railroad rights-of-way. If it does waive them, the Tribes ask the Court to find that their

claims arose after May 16, 2012, when the Court accepted the Settlement. Mem. In Supp. of

Mot. for Clar. at 1 (hereinafter “Mot. for Clar.”).

A. Legal Standard “As a general rule, ‘a party may ask the district court to issue an order clarifying . . . a

consent decree.’” United States v. Volvo Powertrain Corp.,

(D.C. Cir. 2014)

(quoting Nehmer v. U.S. Dep’t of Veterans Affairs,

(9th Cir. 2007)) (edit

accepted). “The general purpose of a motion for clarification is to explain or clarify something

ambiguous or vague, not to alter or amend.” United States v. All Assets Held,

(D.D.C. 2018) (quoting United States v. Philip Morris USA, Inc.,

(D.D.C. 2011)). “[C]ourts in this circuit have encouraged parties to file motions for clarification

when they are uncertain about the scope of a ruling.”

(citing Volvo Powertrain Corp.,

).

Courts “interpret a settlement agreement under contract law.” Gonzalez v. Dep’t of

Labor,

(D.C. Cir. 2010). The parties agree that federal common law governs

their agreement. The federal common law of contracts “largely ‘dovetails’ with ‘general

principles of contract law.’” Deutsche Bank Nat’l Tr. Co. v. Fed. Deposit Ins. Corp.,

(D.D.C. 2015) (quoting NRM Corp. v. Hercules, Inc.,

(D.C.

Cir. 1985)). “Where the language of a contract is clear and unambiguous on its face, a court will

assume that the meaning ordinarily ascribed to those words reflects the intention of the parties.”

Mesa Air Grp., Inc. v. Dep’t of Transp.,

, 503 (D.C. Cir. 1996) (quoting NRM Corp.,

4

). “Only if the court determines as a matter of law that the agreement is

ambiguous will it look to extrinsic evidence of intent to guide the interpretive process.” NRM

Corp.,

. “[A] contract does not become ambiguous merely because the parties

disagree on its interpretation.” Johnson v. Reno, No. 93-cv-206,

, at *6

(D.D.C. Apr. 17, 1996).

B. The Settlement Unambiguously Waives the Tribe’s Pre-2012 Right-of-Way Claims Against the United States. Although Paragraph 6(i) retains the Tribes’ “claims against third parties for the wrongful

use of railroad rights-of-ways located off the Fort Hall Reservation,” Settlement ¶ 6(i) (emphasis

added), the Tribes argue that the paragraph was not meant to foreclose the Tribes from asserting

these claims against the United States. The Tribes point to extrinsic evidence to support their

interpretation. The first document is a January 2012 letter from the Area Director for the

Northwest Regional Office of the Department of Interior’s Bureau of Indian Affairs to the Union

Pacific Railroad. Mot. for Clar. at 3, Ex. A (the “DOI Notice”) [ECF No. 90-1]. The letter

informed the Union Pacific Railroad that parcels of land that it no longer used for railroad

purposes had reverted to the United States in trust for the Tribes. See id. at 2 (stating that “due to

this automatic reversion, we believe that the areas within the [Congressional land] grant that are

being used for purposes not authorized by the grants have reverted to the United States in trust

for the Shoshone-Bannock Tribes.”). According to the Tribes, the DOI Notice demonstrates that

in 2012, the United States held the position that the land reverted to the United States in trust for

the Tribes.

The second document is a letter sent by counsel for the Tribes during the settlement

negotiations to counterparts at the Department of Justice. Id. Ex. B at 4 [ECF No. 90-2]. The

letter includes a list of proposed exclusions from the Settlement’s waiver, including a section

5 addressing railroad rights-of-way. Referencing the DOI notice, the Tribes’ counsel wrote that

“[w]e do not wish the settlement agreement to interfere or be interpreted to foreclose any rights

or remedies the Tribes and the United States on our behalf may have relating to the railroad

rights-of-way.” Id. at 6. The Tribes contend that the United States accepted their proposed

exclusion in its entirety, and that Paragraph 6(i)’s reference to claims against third parties

“exempted what the parties then understood to be all of the Tribes’ claims arising from their

rights in the reverted rights-of-way” and that it was not intended to “foreclose tribal claims

against the United States arising from a federal change in position occurring after May 16,

2012.” Mot. for Clar. at 14

The Government counters that the Tribes cannot assert their right-of-way claims against

the United States because the Settlement unambiguously waived any and all claims, known or

unknown, relating to the United States’s management or accounting of the Tribes non-monetary

trust assets. Opp’n to Mot. for Clar. at 13-14. Because the Settlement is unambiguous, the

Government also argues that the parol evidence rule precludes the Court from considering the

Tribe’s extrinsic evidence to alter or supplement Paragraph 6(i), and that the Court should

disregard parol evidence of prior negotiations or agreements because the settlement is an

integrated agreement. Id. at 16; 19-20.

The Settlement Agreement waives the Tribe’s right-of-way claims against the United

States for harms or violations that occurred before May 16, 2012. It includes a clear provision

waiving “all claims, causes of action, obligations, and/or liabilities of any kind or nature

whatsoever, known or unknown, regardless of legal theory, for any damages or any equitable or

specific relief, that are based on harms or violations occurring” before May 2012 “and that relate

to Defendants’ management or accounting of Plaintiff’s trust funds or Plaintiff’s non-monetary

6 trust assets or resources.” Settlement ¶ 4. Because the Tribes assert that the railroad lands

reverted to the United States in trust for the Tribes, their claims are related to the United States’

management of the Tribes’ non-monetary trust assets. Furthermore, the Settlement explicitly

addresses third parties in the exception to the waiver provision, and does not mention the United

States.2 See Settlement ¶ 6(i) (stating that the Settlement “shall not diminish or otherwise affect

in any way . . . Plaintiff’s claims against third parties for the wrongful use of railroad rights-of-

ways located off the Fort Hall Reservation.”). Because the Settlement’s waiver is clear, the Court

will not consult extrinsic evidence to interpret the contract. See Johnson,

, *6

(“it stands to reason that [in the face of an integrated agreement,] if the contract is unambiguous,

the Court may not look to parol evidence or extrinsic circumstances to determine its meaning.”);

United States v. Sears, Roebuck & Co.,

(D.D.C. 1984), aff’d,

(D.C. Cir. 1985) (reviewing contract terms and finding “no ambiguity calling for the examination

of extrinsic evidence to interpret the contract”).

The Tribes also argue that the contract is latently ambiguous because it does not address

what would happen if the United States changed its position on the railroad rights-of-way.

“Latent ambiguity can arise where language, clear on its face, fails to resolve an uncertainty

when juxtaposed with circumstances in the world that the language is supposed to govern.”

Carter Oil Co. v. Am. Employers’ Ins. Co.,

(D.C. Cir. 1995); see also NML

Capital, Ltd. v. Rep. of Argentina, No. 04-cv-1197,

, at *9 (D.D.C. Aug. 3,

2005) (“Latent ambiguity exists when the disputed language is susceptible to more than one

meaning.”). But there is no latent ambiguity in the Settlement; faced with the current

2 At oral argument, counsel for the Tribes advanced a novel theory that the United States became a third party to the contract when it changed its position on the Tribes’ land interests. That argument is unavailing. The United States is a party to the Settlement; it does not become a third party by allegedly breaching it.

7 circumstance, the contract is still clear. The Tribes have not waived right-of-way claims against

third parties, but have waived their claims against the United States for harms or violations that

occurred before the Settlement. To the extent the Tribes did not anticipate the United States’

changed position, the Settlement Agreement waives claims that were “known or unknown” at the

time of the Settlement, and the Court must give effect to all the contract’s provisions. See Segar

v. Mukasey,

(D.C. Cir. 2007) (“it is a ‘cardinal principle of contract construction

that a document should be read to give effect to all its provisions and to render them consistent

with each other.’” (edit accepted) (quoting Mastrobuono v. Shearson Lehman Hutton, Inc.,

(1995)).

Finally, the Settlement was drafted with the assistance of able counsel and contains a

fulsome integration clause. See Settlement ¶ 16 (providing that the Settlement is the “entire

agreement” between the parties, and that “[a]ll prior conversations, meetings, discussions, drafts

and writings of any kind are specifically superseded” by the Settlement). The Settlement

supersedes the Tribe’s correspondence with the United States and any understanding they may

have had about the railroad rights-of-way. See Johnson,

, at *5-6 (concluding

that the parol evidence rule precluded the consideration of extrinsic evidence in the face of a

fully integrated agreement).

C. The Idaho District Court Should Determine Whether the Tribes’ Claims Are Based on Harms or Violations that Occurred Before May 16, 2012. The parties do not dispute that the Tribes’ waiver is limited to claims based on harms or

violations that occurred before May 16, 2012, the date the Court approved the Settlement. Mot.

for Clar. at 11; Opp’n to Mot. for Clar. at 28. The Settlement supports this reading. See

Settlement ¶ 4 (waiv[ing], release[ing] and covenant[ing] not to sue … on any and all claims . . .

8 known or unknown . . . that are based on harms or violations occurring before the date of this

Court’s entry of this Joint Stipulation of Settlement as an Order.”).

The Tribes ask the Court to clarify that their claims arose after the parties signed the

Settlement because the United States has since reversed its position, embodied in the DOI

Notice, that the land reverted to the United States in trust for the Tribes. Reply at 14. The United

States contends that the Tribes have waived their claims because the harms and violations

underlying them arose when the Union Pacific Railroad stopped using the parcels for railroad

purposes, which occurred no later than 1998. Opp’n to Mot. for Clar. at 28.

There is no dispute that the Union Pacific Railroad ceased using the parcels for railroad

purposes long before the parties signed the Settlement. See Mot. for Clar., Ex. D (Am. Compl. ¶

25) (alleging that the 3.74 acre parcel was “relinquished by the [Union Pacific Railroad] in

1964”); id. ¶¶ 196-200 (alleging that the Union Pacific Railroad sold the bus depot building to

the City of Pocatello in 1991, and leased the land to the City to be used as a bus station in 1996

and 1999); id. ¶¶ 205-209 (alleging that the Union Pacific Railroad leased the parking lot area to

the City of Pocatello for non-railroad purposes starting in 1936, and that those leases have since

been renewed); id. ¶¶ 212-213 (alleging that the Union Pacific Railroad assigned or conveyed the

credit union building for non-railroad purposes beginning in 1976); id. ¶ 25 (alleging that the

49.92 acre parcel was relinquished in 1989). However, there is no legal bases on which to

resolve the Tribes’ motion regarding the timing of the right-of-way claims with the briefing

currently before the Court. In order to determine when the harms or violations occurred, the

Court must examine the underlying causes of action, assess the Tribes’ specific claims, such as

the quiet title claims, and determine when reversionary land interests arise and are extinguished.

Although the parties briefed some of these issues in their motion to dismiss in the Idaho

9 litigation, they have not briefed them here. Opp’n to Mot. for Clar. at 28. Adjudicating these

issues, as well as the DOI Notice’s impact, may also require resolving factual disputes through

evidentiary proceedings that are outside the scope of a motion for clarification.3 See, e.g., All. of

Artists & Recording Companies, Inc. v. Gen. Motors Co.,

, 418–20 (D.D.C.

2016) (clarifying aspects of a previous memorandum opinion). Furthermore, given that the

Tribes’ claims relate to the boundaries of their reservation, it would be imprudent for the Court

to rule without a full understanding of the land interests created through the relevant treaties and

Congressional acts. See McGrit v. Oklahoma,

, 2469 (2020) (reiterating that once

“a reservation is established, it retains that status until Congress explicitly indicates otherwise,”

and cautioning against judicial abrogation of treaties) (internal quotations omitted). The Idaho

district court is better suited to resolve these issues in context, and can do so while adjudicating

the United States’s other bases for its motion to dismiss. Opp’n Mot. for Clar. at 10.

Accordingly, the Court will deny the Tribe’s Motion for Clarification as to this issue.

IV. The Motion to Enforce the Settlement Agreement The Tribes request that the Court enforce the Settlement by enjoining the United States

from arguing in the Idaho district court that the Settlement bars their claims. Mem. in Supp. Mot.

to Enforce Settlement at 5. They argue that the United States has breached the Settlement by

changing its position on the rights of way after 2012, and contend that by seeking dismissal

based on the Settlement, the defendants “misuse[] the Court’s order in an attempt to frustrate and

interfere with the Tribes rights and remedies” relating to the lands. Reply at 4.

3 For example, the parties dispute whether the DOI Notice was the United States’s official position, and what parcels of land the DOI Notice covered. See, e.g., Opp’n to Mot. for Clar. at 22; Reply at 12.

10 A. Legal Standard “It is well established that federal district courts have the authority to enforce settlement

agreements entered into by litigants in cases pending before them.” Samra v. Shaheen Bus. &

Inv. Grp.,

(D.D.C. 2005). This authority extends to cases, such as this

one, that have been dismissed but where courts retained jurisdiction to enforce the agreements.

See, e.g., Smartnet, Inc. v. Kellman, No. 04-cv-103,

at *1 (D.D.C. Mar. 30

2009). “An action to enforce a settlement agreement is, at bottom, an action seeking the equitable

remedy of specific performance of a contract.” Hall v. George Washington Univ., No. 99-cv-

1136,

, at *3 (D.D.C. May 13, 2005). “In most cases, a district court can

enforce a settlement agreement summarily.” Samra,

.

B. The United States Has Not Breached the Settlement Agreement The Settlement does not bar the United States from raising the Settlement as a defense to

the Tribe’s claims in the Idaho district court. The Settlement’s waiver does not extend to the

United States’ ability to assert defenses in future litigation. See Settlement § 6(g) (“nothing in

this Joint Stipulation of Settlement shall diminish or otherwise affect in any way: (g) [a]ny

defenses that Defendants have or may have regarding any claims that Plaintiff may assert in

subsequent litigation or administrative proceedings.”). The Tribes’ motion to enforce the

Settlement will be denied.

11 CONCLUSION

For the foregoing reasons, the Tribes’ Motion for Clarification of the Settlement

Agreement [ECF No. 90] will be granted in part and denied in part. The Tribes’ Motion to

Enforce the Settlement Agreement [ECF No. 103] will be denied. An appropriate order

accompanies this opinion. Thomas F. Digitally signed by Thomas F. Hogan

September 10, 2020 Hogan Date: 2020.09.10 12:35:51 -04'00' ___________________________________

Thomas F. Hogan SENIOR UNITED STATES DISTRICT JUDGE

12