Cobell, Elouise v. Norton, Gale

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 15, 2004 Decided December 10, 2004

No. 03-5314

ELOUISE PEPION COBELL, ET AL.,
APPELLEES

v.

GALE A. NORTON, SECRETARY OF THE INTERIOR, ET AL.,
APPELLANTS

Appeal from the United States District Court
for the District of Columbia
(No. 96cv01285)

Mark B. Stern, Attorney, U.S. Department of Justice,
argued the cause for appellants. With him on the briefs were
Peter D. Keisler, Assistant Attorney General, Kenneth L.
Wainstein, U.S. Attorney, Gregory G. Katsas, Deputy Assistant
Attorney General, Robert E. Kopp, Thomas M. Bondy, Charles
W. Scarborough, Alisa B. Klein, Lewis S. Yelin, and Tara L.
Grove, Attorneys.

Elliott H. Levitas argued the cause for appellees Elouise
Pepion Cobell, et al. With him on the brief were G. William
Austin, III, Mark I. Levy, Dennis M. Gingold, and Keith M.
Harper. Jamin B. Raskin entered an appearance.
 2

Before: SENTELLE, TATEL , Circuit Judges and
WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.

WILL I A M S, Senior Circuit Judge: Five named plaintiffs,
members of Indian tribes and present or past beneficiaries of
Individual Indian Money (“IIM”) accounts, filed a class action
in district court in 1996, alleging that the defendants--the
Secretaries of the Interior and the Treasury, and the Assistant
Secretary of the Interior for Indian Affairs--had “grossly
mismanaged” those accounts. The bulk of the funds in the
accounts are the proceeds of various transactions in land allotted
to individual Indians under the General Allotment Act of 1887,
known as the “Dawes Act,” ch. 119, 24 Stat. 388 (codified as
amended at 25 U.S.C. § 331 et seq. (§§ 331-333 repealed
2000)). The money-producing transactions in question evidently
involved such matters as sales of timber and leases of rights to
grazing, farming, or extraction of oil, gas, or other minerals.
Complaint, ¶¶ 2, 3, 5, 7-11, 17. See also Cobell v. Babbitt, 91
F. Supp. 2d 1, 9-12 (D.D.C. 1999) (“Cobell V”). (The accounts
also contain funds from a variety of other sources, see 25 C.F.R.
§ 115.702, but the allotment land transactions apparently
predominate.)

Plaintiffs’ suit draws significantly on Congress’s
findings of hopelessly inept management of the IIM accounts
and its action to remedy the resulting chaos. A 1992
Congressional report, Misplaced Trust: The Bureau of Indian
Affairs’ Mismanagement of the Indian Trust Fund, H.R. Rep.
No. 102-499 (1992), catalogued Interior’s “dismal history of
 3

inaction and incompetence,” id. at 5, and concluded that the
agency had “repeatedly failed to take resolute corrective action
to reform its longstanding financial management problems,” id.
at 3. In 1994 Congress moved from findings to legislation,
passing the Indian Trust Fund Management Reform Act, Pub. L.
No. 103-412, 108 Stat. 4239 (codified as amended at 25 U.S.C.
§ 162a et seq. & § 4001 et seq.) (the “1994 Act”). The 1994 Act
imposed a variety of duties on the Secretary of the Interior, most
of them relating directly to trust funds such as the IIM accounts.
See, e.g., 25 U.S.C. § 162a(d).

Even apart from the 1994 Act, the IIM funds have quite
a different legal status from the allotment land itself. Section 5
of the Dawes Act nominally made the United States trustee of
those lands, but did so solely in order to limit alienation by
Indians and to assure immunity of the lands from state taxation.
See United States v. Mitchell, 445 U.S. 535, 540-44 (1980)
(“Mitchell I”). It gave the Indian beneficiaries the right to
possess and manage the lands except insofar as alienation was
involved. Id. at 542-46. See also United States v. Navajo
Nation, 537 U.S. 488, 504 (2003) (describing Mitchell I and
applying its principles to certain unallotted lands). Accordingly,
the Supreme Court held in Mitchell I that the Dawes Act did not,
alone, establish a fiduciary duty on the part of the United States
to manage the allotted lands. 445 U.S. at 544, 546. In contrast,
the IIM funds are by statute under the full control of the United
States, to be invested for the benefit of individual Indians in
public debt of the United States or deposited in banks. See 25
U.S.C. §§ 161a(b), 162a(a).

As the label Cobell V suggests, this litigation has
generated many legal opinions, including three of this court. In
 4

Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001) (“Cobell VI”),
we affirmed the district court’s holding that the officials had
breached their fiduciary duties and remanded for further
proceedings. In Cobell v. Norton, 334 F.3d 1128 (D.C. Cir.
2003) (“Cobell VIII”), we vacated a contempt citation of
successor defendants Interior Secretary Gale Norton and
Assistant Secretary of Indian Affairs Neal McCaleb, and
reversed the district court’s appointment of a court monitor.
And finally, in Cobell v. Norton, No. 03-5262, 2004 WL
2753197 (D.C. Cir. Dec. 3, 2004), we vacated an order of the
district court directing Interior to disconnect its computers from
the Internet pending a security determination, excepting only
certain essential systems and ones that would not provide access
to Indian trust data. Those opinions, as well as the many
opinions of the district court, provide an array of background
data.

Here we address a district court injunction issued
September 25, 2003. Cobell v. Norton, 283 F. Supp. 2d 66
(D.D.C. 2003) (“Cobell X”). The decree, see id. at 287-95,
imposes obligations on the defendants in two main categories.
Duties related to “Historical Accounting” are intended to
unravel the tangle resulting from past accounting failures, see id.
at 70-211; those related to “Fixing the System” are intended to
compel the issuance of a plan for future trust administration as
a whole, see id. at 239-87. To assure fulfillment of both sets of
duties, the court appointed a court monitor to oversee
compliance and said it would retain jurisdiction until December
31, 2009. These two different sets of commands raise quite
different issues.
 5

“Historical Accounting,” we find, is governed by Pub. L.
No. 108-108, a provision adopted after the district court opinion
issued, which radically changes the underlying substantive law
and removes the legal basis for the historical accounting
elements of the injunction. We therefore vacate those elements.

The core of “Fixing the System,” by contrast, requires
the Interior defendants to produce a “plan” that would fix the
IIM trust management system, and requires the Interior
defendants to explain how the Department will comply with
various constraints or objectives identified by the court, such as
sixteen specific common law trust duties and tribal law.
Although we agree that Interior is subject to many of the
common law trust duties identified by the court, we find that
much of the “Fixing the System” injunction exceeds the court’s
remedial discretion because the court failed to ground it in the
defendants’ statutory trust duties and in specific findings that
Interior breached those duties. Aside from the requirement that
Interior complete its so-called “To-Be Plan,” as promised in its
Comprehensive Plan, we thus vacate the district court’s
injunction and remand for further proceedings consistent with
this opinion.

Historical Accounting

In Cobell VI we ruled that the 1994 Act, 25 U.S.C.
§ 4011(a), conferred a right on IIM beneficiaries to “a complete
historical accounting of trust fund assets,” explaining that “‘[a]ll
funds’ [as used in that provision] means all funds, irrespective
of when they were deposited (or at least so long as they were
deposited after the Act of June 24, 1938).” 240 F.3d at 1102. In
Cobell X the district court ruled that Interior must account for all
 6

funds deposited since 1887 and issued rules permitting some
accounting methods and prohibiting others--e.g., rejecting any
use of statistical sampling. Cobell X, 283 F. Supp. 2d at 288-90.

Defendants raise a variety of objections to the district
court’s historical accounting order, but the objection based on
Pub. L. No. 108-108 trumps the others. Adopted November 10,
2003, less than two months after the issuance of Cobell X, Pub.
L. No. 108-108 appropriates funds and provides as follows:

For the operation of trust programs for
Indians by direct expenditure, contracts,
cooperative agreements, compacts, and grants,
$189,641,000, to remain available until
expended: Provided, That of the amounts
available under this heading not to exceed
$45,000,000 shall be available for records
collection and indexing, imaging and coding,
accounting for per capita and judgment accounts,
accounting for tribal accounts, reviewing and
distributing funds from special deposit accounts,
and program management of the Office of
Historical Trust Accounting, including litigation
support: Provided further, That nothing in the
American Indian Trust Management Reform Act
of 1994, Public Law 103-412, or in any other
statute, and no principle of common law, shall
be construed or applied to require the
Department of the Interior to commence or
continue historical accounting activities with
respect to the Individual Indian Money Trust
until the earlier of the following shall have
 7

occurred: (a) Congress shall have amended the
American Indian Trust Management Reform Act
of 1994 to delineate the specific historical
accounting obligations of the Department of the
Interior with respect to the Individual Indian
Money Trust; or (b) December 31, 2004.

Pub. L. No. 108-108. A later sentence of the same section
provides that the statute of limitations will not begin to run on
any claim for losses or mismanagement of trust funds “until the
affected tribe or individual Indian has been furnished with an
accounting of such funds from which the beneficiary can
determine whether there has been a loss.” Id.

Thus Pub. L. No. 108-108 appears to give Interior
temporary relief from any common law or statutory duty to
engage in historical accounting for the IIM accounts. The
provision’s legislative history makes clear that Congress passed
it in response to Cobell X, to clarify Congress’s determination
that Interior should not be obliged to perform the kind of
historical accounting the district court required. The conference
committee explained that “[i]nitial estimates indicate that the
accounting ordered by the Court would cost between $6 billion
and $12 billion . . . .” H.R. Conf. Rep. 108-330, at 117. The
committee “reject[ed] the notion that in passing the American
Indian Trust Management Reform Act of 1994 Congress had
any intention of ordering an accounting on the scale of that
which has now been ordered by the Court. Such an expansive
and expensive undertaking would certainly have been judged to
be a poor use of Federal and trust resources.” Id. at 118.
“Indian country would be better served by a settlement of this
litigation than the expenditure of billions of dollars on an
 8

accounting.” Id. at 117. Congress thus gave itself until the end
of 2004 to come up with a legislative solution. See id. at 118.

In addition, individual legislators said in effect that the
disparity between the costs of the judicially ordered accounting,
and the value of the funds to be accounted for, rendered the
ordered accounting, as one senator put it, “nuts”: “If this is a
$13 billion fund, or somewhere in the neighborhood of $13
billion, would the Native Americans want us to begin a process
in which we spend up to $9 billion to hire accountants and
financial folks and others to sift through these accounts? I think
that is just nuts. That doesn’t make any sense at all to anybody.”
149 Cong. Rec. at S13,786 (2003) (statement of Sen. Dorgan).
See also id. at S13,785 (statement of Sen. Burns) (“If there is
one thing with which everybody involved in this issue seems to
agree, it is that we should not spend that kind of money on an
incredibly cumbersome accounting that will do almost nothing
to benefit the Indian people.”).

Plaintiffs make a vague claim that we should simply
disregard Pub. L. No. 108-108, allowing the district court to
address its effect in the first instance. But apart from an allusion
to the possibility of considering it in conjunction with post-
decree developments, they offer no reason overcoming the usual
principle that a court is to apply the law in effect at the time the
court rules. See Landgraf v. USI Film Products, 511 U.S. 244,
264 (1994). As the provision deprives the decree’s “historical
accounting” mandates of any legal basis, it is hard to see how
post-decree developments could affect the matter. As a fallback
position, plaintiffs argue that the law violates separation of
powers principles and the takings and due process provisions of
the Fifth Amendment. We reject both claims.
 9

First, plaintiffs assert that Pub. L. No. 108-108 amounts
to a “legislative stay” of a final judicial judgment. They cite
language in Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792), to the
effect that Article III judicial decisions cannot “be liable to a
revision, or even suspension, by the legislature.” Id. at 413
(emphasis added) (quoting decision of the circuit court for the
district of North Carolina, consisting of Iredell, Justice, and
Sitgreaves, district judge). In Plaut v. Spendthrift Farm, Inc.,
514 U.S. 211 (1995), the Court explained that Hayburn’s Case
“stands for the principle that Congress cannot vest review of the
decisions of Article III courts in officials of the Executive
Branch,” id. at 218, and held that Congress could not require a
federal court to reopen a completed case for money damages, id.
at 240. But the Court also said that an appellate court must
apply any law enacted after the judgment under review and
clearly intended to have retroactive effect. See id. at 226.

Even more critical is the distinction between statutes that
in effect reverse final judgments in suits for money damages, as
in Plaut, and ones that alter the substantive obligations of parties
subject to ongoing duties under an injunction, as in
Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. 421
(1855). Indeed, Plaut explicitly distinguished the latter. See
514 U.S. at 232. In Wheeling Bridge a court had entered a
decree requiring removal of a bridge pursuant to a statute
rendering it unlawful. Congress then amended the law to
legalize the bridge. The Court held that because the act of
Congress modified the law “so that the bridge is no longer an
unlawful obstruction, it is quite plain the decree of the court
cannot be enforced.” 59 U.S. at 432. For purposes of the rule
limiting congressional reversal of final judgments, an injunction
is not “final.” As we said in National Coalition To Save Our
 10

Mall v. Norton, 269 F.3d 1092 (D.C. Cir. 2001), applying
Wheeling Bridge, “[A]lthough an injunction may be a final
judgment for purposes of appeal, it is not the last word of the
judicial department because any provision of prospective relief
is subject to the continuing supervisory jurisdiction of the court,
and therefore may be altered according to subsequent changes
in the law.” Id. at 1096-97 (quoting Miller v. French, 530 U.S.
327, 347 (2000)) (internal quotation marks omitted).

At oral argument plaintiffs seemed more to stress the
idea that Pub. L. No. 108-108, rather than changing the
substantive law, directed the courts how to interpret or apply
pre-existing law. In Save Our Mall we assumed that under
United States v. Klein, 80 U.S. (13 Wall.) 128 (1871), such an
interpretive direction would invade the powers of the judicial
branch. 269 F.3d at 1097. Here as there, however, we do not
read the statutory language as such a directive. Some of the
phrasing--especially the statement that nothing in the 1994 Act
or any statute or the common law “shall be construed or applied
to require the Department of the Interior to commence or
continue historical accounting activities” (emphasis added)--
might be said to support such a reading. But “as between two
possible interpretations of a statute, by one of which it would be
unconstitutional and by the other valid, our plain duty is to adopt
that which will save the act.” NLRB v. Jones & Laughlin Steel
Corp., 301 U.S. 1, 30 (1937).

We believe Pub. L. No. 108-108 is most plausibly read
simply to say that the Department of Interior shall not, under any
statute or common law principle, be required to engage in
historical accounting in the specified period, i.e., all statutes and
common law rules requiring any such accounting are
 11

temporarily and partially repealed or modified. Compare
Robertson v. Seattle Audubon Soc., 503 U.S. 429 (1992)
(rejecting claim that statute should be construed as mandate of
judicial findings under unchanged substantive law rather than as
a change in the law). Indeed, the Supreme Court has interpreted
very similar wording--that “nothing . . . shall be construed” to
allow--as simply repealing prior legislation to the contrary. See
Carroll v. United States, 354 U.S. 394, 408-415 (1957); see also
Total TV v. Palmer Communications, Inc., 69 F.3d 298, 302-03
(9th Cir. 1995).

Finding neither an effort to mandate a particular
interpretation of the substantive law nor an impermissible
legislative modification of a final judgment, we reject plaintiffs’
separation of powers theories.

Second, plaintiffs say that Pub. L. No. 108-108 is an
unconstitutional deprivation of property, in violation of the due
process and takings clauses of the Fifth Amendment. The claim
is obscure, as plaintiffs do not explicitly identify the property
right that they believe enforcement of Pub. L. No. 108-108
would take. They do, however, mention the right to “interest
earned on trust accounts,” if only in a parenthetical to a case
citation. Plaintiffs’ Brief at 53.

But we see no reason to think Pub. L. No. 108-108 will
affect plaintiffs’ entitlement to interest. As trust income
beneficiaries are typically entitled to income from trust assets
for the entire period of their entitlement to income, and for
imputed yields for any period of delay in paying over income or
principal, see G. G. BOGERT & G.T. BOGERT , LAW OF TRUSTS
AND TRUSTEES § 814, pp. 321-25 (rev. 2d ed. 1981), we do not
 12

see--and plaintiffs make no effort to explain--how the
accounting delay allowed by Pub. L. No. 108-108 could deprive
them of interest or any comparable returns.

Plaintiffs’ references to temporary takings suggest that
they regard a delay in the accounting itself as a taking. But the
accounting is a purely instrumental right--a way of finding out
the size of their claims. If the moratorium imposed by Pub. L.
No. 108-108 actually delays conclusion of the accounting
(which it may not, as Congress may provide a simpler scheme
than the district court’s, while nonetheless assuring that each
individual receives his due or more), the ordinary trust principles
referred to above will automatically give the plaintiffs
compensation for the delay.

Accordingly we find no constitutional obstacle to
enforcement of Pub. L. No. 108-108 as written.

* * *

In Pub. L. No. 108-108 Congress in effect gave itself
until December 31, 2004 “to develop a comprehensive
legislative solution to what has become an intractable problem.”
H.R. Conf. Rep. 108-330, at 118. Absent Congressional action
by that date, obviously Pub. L. No. 108-108 will cease to bar the
historical accounting provisions of the injunction. We do not
address the issues that would be relevant if the district court then
reissued those provisions. At the present time, however, they
are without legal basis.
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Fixing the System

Although the defendants argue that Pub. L. No. 108-108
“deprives the injunction of any arguable legal basis”
(Defendants’ Br. at 40), the statute suspends only “historical
accounting activities.” Because certain portions of the district
court’s injunction are at least conceptually separable from the
historical accounting duty, we must address these aspects of the
order on the merits.

What we will call Part III(IV) of the injunction
(mislabeled Part III by the district court because there is already
a Part III), “Compliance with Fiduciary Obligations,” is
primarily an order that Interior complete its To-Be Plan within
90 days. Cobell X, 283 F. Supp. 2d at 290-91. The To-Be Plan,
which Interior sketched out broadly in its Comprehensive Plan,
is intended “to provide a comprehensive statement of the
manner in which trust management will be conducted after
Interior’s proposed internal changes.” Id. at 250. Given that the
Comprehensive Plan only described Interior’s intention to create
the To-Be Plan, the court said that the Comprehensive Plan was
“really only a plan to make a plan.” Id. at 284. Part III(IV) also
orders the Interior defendants to implement the Comprehensive
Plan (including the To-Be Plan). Id. at 290.

Part III(IV) of the injunction goes on to direct that
Interior’s To-Be Plan identify any portions of the plan that might
be deemed inconsistent with the common law trust duties
previously identified by the district court, and explain why the
identified portion or portions should not be considered
inconsistent with these duties. Id. at 291.
 14

Additionally, the court’s injunction required Interior to
file with the Court, within 120 days, a “list of tribal laws and
ordinances that the Interior defendants deem applicable to the
administration of the Trust,” including “a full statement of the
manner in which the Interior defendants consider these laws and
ordinances to affect such administration.” Id. The court also
ordered Interior to file within 90 days a detailed plan of
measures it will take to correct certain “problems with the
leasing, title, and accounting systems of the Trust,” and a plan
identifying how Interior will “distinguish principal from income
during [its] historical accounting of the Trust.” Id.

In Part IV(V) the court set forth a detailed timetable for
implementing its order. The timetable not only covers
requirements set forth elsewhere in the injunction, but also
imposes several additional requirements on Interior, including
several steps outlined in Interior’s Fiduciary Obligations
Compliance Plan of January 6, 2003. Id. at 292-93. (The
Compliance Plan was an early version of Interior’s plan to fulfill
its fiduciary obligations and was subsequently replaced by the
Comprehensive Plan. See id. at 243-44.) The court ordered that
all of these requirements be completed within roughly three to
six months. Id. at 292-93.

In Part V(VI) the court appointed a Judicial Monitor,
endowed with “all authority bestowed on special masters
pursuant to Rule 53” of the Federal Rules of Civil Procedure, “to
report on the Interior defendants’ compliance with the
provisions of this Order.” Id. at 294. According to the court,
the monitor must have “unlimited access to the Interior
defendants’ facilities and to all information relevant to the
implementation of this Order.” Id. Finally, in Part VI(VII) the
 15

district court retained jurisdiction over the case until December
31, 2009. Id. at 295.

The government offers a number of reasons why we
should vacate these provisions in their entirety (even to the
extent that they are completely separate from “historical
accounting”), as well as targeted arguments for vacating
individual elements. We first reject two government arguments
that, if sound, would call for vacating all “Fixing the System”
aspects of the injunction. We then address the government’s
argument that those elements violate the Supreme Court’s
holdings in Lujan v. National Wildlife Federation, 497 U.S. 871
(1990), and Norton v. Southern Utah Wilderness Alliance, 124
S. Ct. 2373 (2004), which read the Administrative Procedure
Act as limiting APA review to attacks on specific “agency
action[s]” (or the unlawful withholding of such an action), and
precluding its use for claims of broad programmatic failure. In
light of this last argument, we reverse and remand for further
action consistent with this opinion.

Government contentions applying to all elements of the
injunction apart from historical accounting. Against the
“Fixing the System” elements of the injunction, the government
argues that (1) any consideration of trust deficiencies outside the
realm of historical accounting represents an improper expansion
of the lawsuit; and (2) under Mitchell I the government is not
subject to any trust duties other than the statutorily created duty
to account. We reject both contentions.

1. Expansion of the lawsuit. Interior claims that the
district court cannot “expand[] its jurisdiction to include the
entire field of trust management” because our decision in Cobell
 16

VI held “that the only actionable duty was the duty to perform
an accounting.” Defendants’ Brief at 77. We made no such
ruling.

First, we are puzzled by the idea that the “fixing” issues
represent an expansion of the lawsuit. The complaint’s prayer
for relief asked for an order “construing the trust obligations of
defendants to the members of the class, declaring that
defendants have breached, and are in continuing breach of, their
trust obligations to such class members, and directing the
institution of accounting and other practices in conformity [with
the defendants’ trust] obligations.” Complaint at 26. It also
claimed a wide range of past trust violations independent of
accounting failures, e.g., that the government “[f]ailed to
exercise prudence and observe the requirements of law with
respect to investment and deposit of IIM funds, and to maximize
the return on investments within the constraints of law and
prudence,” and “[e]ngag[ed] in self-dealing and benefiting from
the management of the trust funds.” Complaint at 10. And at
an early stage the district court responded to this range of attacks
by bifurcating the case into the parts now before us--“fixing the
system” and “correcting the accounts.” Scheduling Order at 2
(May 4, 1998).

Interior misconstrues Cobell VI in arguing that our
holding there limited the issue in this case to the provision of a
historical accounting. We held that the duties identified by the
district court, such as the duty to create specific written policies
and procedures pursuant to the 1994 Act, 25 U.S.C. 162a(d)(6),
were “subsidiary” to the duty to account, Cobell VI, 240 F.3d at
1105, not that the duty to account was the only fiduciary
obligation in this case. “The 1994 Act did not create those
 17

obligations any more than it created the IIM accounts. . . . [The
Act] . . . recognized and reaffirmed what should be beyond
dispute--that the government has longstanding and substantial
trust obligations to Indians, particularly to IIM trust
beneficiaries, not the least of which is a duty to account.” Id. at
1098 (emphasis added).

2. Statutory basis for fiduciary obligations. The
government quotes United States v. Navajo Nation, 537 U.S.
488 (2003), for the proposition that a purported trust beneficiary
must “identify a substantive source of law that establishes
specific fiduciary or other duties.” Id. at 506. The difficulty
facing the government, however, is that, for the IIM accounts,
such a duty is not far to seek.

In two matched pairs of cases the Supreme Court has
stated what is needed to infer creation of conventional fiduciary
duties with respect to Indian interests, sufficient to sustain
claims for monetary damages under the Indian Tucker Act, 28
U.S.C. § 1505. (The modifier “conventional” is critical, to
distinguish such duties from the concept that a trust relationship
between the government and the Indians requires that statutory
ambiguities be resolved in favor of Indians. See, e.g., Montana
v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985).) We
described at the outset how in Mitchell I the Court found no
enforceable fiduciary duty in the “trust” established for
allotment lands themselves, given the limited purposes of the
authority retained by the government. Conversely, in United
States v. Mitchell, 463 U.S. 206 (1983) (Mitchell II), the Court
found that where allotment land was subject to “elaborate
[government] control” over property belonging to Indians, “a
fiduciary relationship necessarily arises.” Id. at 225. Instead of
 18

the “bare” trust arising from the operation of the Dawes Act
alone, id. at 224, the land involved in Mitchell II was subject to
statutes and regulations asserting government control and
responsibility, and compelling the inference of a genuine trust
over the resources so controlled. A similar pair of cases applies
the same principle to non-allotment land: see Navajo Nation,
537 U.S. at 507 (rejecting inference of enforceable fiduciary
relationship because the statutes and regulations failed to give
the government full responsibility to manage the resources in
question for the benefit of the Indians), and United States v.
White Mountain Apache Tribe, 537 U.S. 465 (2003) (finding
such a responsibility in the government).

The IIM accounts fall emphatically on the “full
responsibility” side. Section 161a(b) directs that “[a]ll funds
held in trust by the United States and carried in principal
accounts on the books of the United States Treasury to the credit
of individual Indians shall be invested by the Secretary of the
Treasury, at the request of the Secretary of the Interior, in public
debt securities with maturities suitable to the needs of the fund
. . . .” 25 U.S.C. § 161a(b). The statutory mandate, added in the
1994 Act, appears in large part to codify Interior’s prior practice,
which involved the exercise of complete control over the IIM
funds. See H.R. Rep. No. 103-778, at 11-12 (1994). Thus the
statute assumes a set of funds “held” by the United States and
directs its officials’ investment of these funds.

Another provision, 25 U.S.C. § 162a(a), authorizes an
alternative investment for funds held in trust for the benefit of
individual Indians--namely, deposits in banks selected by the
Secretary of the Interior. And at the request of an individual
Indian for whom funds are held, investments may also be made
 19

in obligations unconditionally guaranteed by the United States,
or in mutual funds holding only such obligations. 25 U.S.C.
§ 162a(c). Although this extremely narrow band of permissible
investments takes off the table many potential disputes over
prudent investment, it plainly assigns the government full
managerial responsibility.

Under the four cases just discussed, these statutory
mandates compel an inference of enforceable fiduciary duties.
Indeed, the district court so held early in this litigation, see
Cobell v. Babbitt, 52 F. Supp. 2d 11, 22 (D.D.C. 1999) (“Cobell
III”) (“The basic contours of defendants’ fiduciary duties under
this trust are established by the statutes [applicable to the IIM
trust] and, as in Mitchell II, construed in light of the common
law of trusts.”). Thus the trust duties that in Cobell VI we said
the 1994 Act reaffirmed, 240 F.3d at 1100, see also id. at 1098,
are the fully enforceable variety found in Mitchell II and White
Mountain Apache Tribe.

That does not mean, however, that the district court may
simply copy a list of common law trust duties from the
Restatement and then order Interior to explain how it will satisfy
them. Putting aside the litigation innovation (requiring
defendants to explain how they will cure a long list of defaults
as to which the court has made no evidence-based finding), the
court has abstracted the common law duties from any statutory
basis. Though the district court cites White Mountain Apache
Tribe to support this incorporation of common law trust duties,
see Cobell X, 283 F. Supp. 2d at 265-67, it ignores the Supreme
Court’s actual approach, which was to look to trust law to find
that a particular common law duty--“to preserve and maintain
trust assets”--was implied in a 1960 statute that, by permitting
 20

government occupation, made property “expressly subject to a
trust,” White Mountain Apache Tribe, 537 U.S. at 475. Thus,
once a statutory obligation is identified, the court may look to
common law trust principles to particularize that obligation.

The district court itself so held in Cobell V, 91 F. Supp.
2d at 38, finding that it could not grant plaintiffs’ prayer for a
declaration of all trust duties arising from the IIM trust solely on
the basis of plaintiffs’ common law trust claims. The court
subsequently reversed itself on the point, saying that our
decision in Cobell VI “supercedes” the district court’s prior
observation that plaintiffs were wrong to think that once a trust
relationship was established they could automatically “invoke
all the rights that a common law trust entails.” Cobell X, 283 F.
Supp. 2d at 260 n.12. Insofar as plaintiffs may have said that,
they were wrong. In Cobell VI we actually held that the
government’s duties must be “rooted in and outlined by the
relevant statutes and treaties,” 240 F.3d at 1099, although those
obligations may then be “defined in traditional equitable terms,”
id.

Programmatic review under the APA. Plaintiffs invoke
the APA as the basis for securing review of defendants’ conduct.
Complaint at 26 (“Plaintiffs are entitled to review [of
defendants’ various breaches of trust] under 5 U.S.C. § 702.”).
Defendants argue that the district court’s “fixing the system”
orders exceed the court’s jurisdiction because they are
insufficiently pinned to discrete agency action (or inaction).

As Southern Utah notes, §§ 702, 704 and 706 of the
APA “all insist upon an ‘agency action.’” 124 S. Ct. at 2378.
This of course includes § 706(1)’s provision of authority to
 21

“compel agency action . . . unreasonably delayed.” See id. at
2379 n.1. Because of the requirement of specific agency action,
the Court held initially in Lujan and again in Southern Utah that
APA review was not available--even in the face of allegations
of “rampant” violations of law--for claims seeking “wholesale
improvement of [a] program by court decree, rather than in the
offices of the Department or the halls of Congress, where
programmatic improvements are normally made.” Lujan, 497
U.S. at 891; see also Southern Utah, 124 S. Ct. at 2380. The
APA’s requirement of “discrete agency action,” Southern Utah
explained, was

to protect agencies from undue judicial
interference with their lawful discretion, and to
avoid judicial entanglement in abstract policy
disagreements which courts lack both expertise
and information to resolve. If courts were
empowered to enter general orders compelling
compliance with broad statutory mandates, they
would necessarily be empowered, as well, to
determine whether compliance was achieved--
which would mean that it would ultimately
become the task of the supervising court, rather
than the agency, to work out compliance with the
broad statutory mandate, injecting the judge into
day-to-day agency management . . . . The
prospect of pervasive oversight by federal courts
over the manner and pace of agency compliance
with such [broad] congressional directives is not
contemplated by the APA.

Id. at 2381.
 22

The district court itself, earlier in this litigation,
acknowledged the risk of taking on what were really legislative
or executive functions: “The court has no present intention to
entertain a request to sit as a pseudo-congressional oversight
body that tells defendants everything that they must do to meet
their obligations programmatically. That is a role that only
Congress can fulfill.” Cobell III, 52 F. Supp. 2d at 31.

The application of Lujan and Southern Utah is
complicated here by the availability of common law trust
precepts to flesh out the statutory mandates, and, indeed, as we
said in Cobell VI, at least partially to limit the deference that we
would normally owe the defendants as interpreters of the
statutes they are charged with administering. See Cobell VI, 240
F.3d at 1101. See also id. at 1104 (noting defendants’ obligation
to “pass scrutiny under the more stringent standards demanded
of a fiduciary”) (internal citation and quotation marks omitted).

The government accepts and even endorses our
observation that interpretation of statutory terms is informed by
common law trust principles, see Defendants’ Reply Brief at 26-
27 (citing Cobell VI, 240 F.3d at 1099), but makes two key
points as to why those precepts do not eliminate the risks that
Lujan and Southern Utah saw in broad programmatic remedies.
First, it notes that while the expenditures that plaintiffs seek are
to be made out of appropriated funds, trust expenses for private
trusts are normally met out of the trust funds themselves.
Defendants’ Reply Brief at 27. Thus plaintiffs here are free of
private beneficiaries’ incentive not to urge judicial compulsion
of wasteful expenditures. Second, private trustees, even though
held to high fiduciary standards, are generally free of direct
judicial control over their methods of implementing these duties,
 23

and trustee choices of methods are reviewable only “to prevent
an abuse by the trustee of his discretion.” Id. at 28 (citing
Restatement (Second) of Trusts §§ 186-87 (1959)).

While a court might certainly act to prevent or remedy
a trustee’s wrongful intermingling of trust accounts, this does
not imply that the normal remedy would be an order specifying
how the trustee should program its computers to avoid
intermingling, as opposed to, for example, barring the use of a
program that had caused forbidden intermingling or was clearly
likely to do so. See BO G E R T & BOGERT , LAW OF TRUSTS AND
TRUSTEES § 861, p. 22 (“If the trustee has been given discretion
with respect to the act in question, . . . the court will not interfere
by ordering him to take a certain line of conduct unless there is
proof of an abuse of the discretion . . . .”). “[A] court of equity
will not interfere to control [trustees] in the exercise of a
discretion vested in them by the instrument under which they
act.” Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101,
111 (1989) (internal quotation marks and citation omitted). The
availability of the common law of trusts cannot fully neutralize
the limits placed by the APA and the Court’s Lujan and
Southern Utah decisions. Compare Cobell VI, 240 F.3d at 1104
(approving district court’s expression of intent to leave issue of
choice of accounting methods, including statistical sampling, to
administrative agencies), with Cobell X, 283 F. Supp. 2d at 289
(forbidding use of statistical sampling).

That said, the question remains what specific elements
of the “Fixing the System” decree run afoul of those decisions
or are otherwise ill-founded. For the reasons explained below,
we uphold the requirement to submit a plan and otherwise
vacate and remand the case for further proceedings.
 24

Plan. The core of Part III(IV) of the district court’s
injunction is its order that Interior complete a detailed plan to
fulfill its fiduciary obligations--specifically to fill in the as-yet
inchoate To-Be Plan promised in the Comprehensive Plan. This
command rests on the court’s prior order to file a
Comprehensive Plan (issued in Cobell v. Norton, 226 F. Supp.
2d 1, 162 (D.D.C. 2002) (“Cobell VII”), and on the district
court’s finding here that the incompleteness of the To-Be Plan
rendered the Comprehensive Plan only an interim step, see
Cobell X, 283 F. Supp. 2d at 284. The order thus in some
respects continues or logically extends the original order to file
the Comprehensive Plan. In Cobell VIII we upheld that order as
a device to gather information for the court, “akin to an order . . .
relat[ing] only to the conduct or progress of litigation.” 334
F.3d at 1138 (internal citation and quotation marks omitted).
Thus, standing alone, the order to file the To-Be Plan simply
enforces the prior order, which in effect required discovery of
Interior’s plans consistent with the district court’s broad case
management authority. To that extent we uphold it.

But Part III(IV) frames the plan by reference to the
Interior defendants’ bringing themselves “into compliance with
the fiduciary duties imposed upon trustees at common law, as
identified by this Court in its memorandum opinions issued this
date,” Cobell X, 283 F. Supp. 2d at 291 (referring to sixteen
specific common law trust duties enumerated by the court, id. at
267-71). And it requires Interior to “identify any portion of the
To-Be Plan that might be deemed to be inconsistent with any of
these fiduciary duties, and include a full explanation of why the
identified portion or portions should not [be] considered to be
inconsistent with any of these fiduciary duties.” Id. at 291.
 25

Finally, the district court ordered Interior to implement its plan.
Id. at 290.

Thus the court evidently proposes to use the “plan” as a
device for indefinitely extended all-purpose supervision of the
defendants’ compliance with the sixteen general fiduciary duties
listed. There are three difficulties with this approach.

First, the sole findings of unlawful behavior (other than
accounting defaults) are stipulations acknowledging specific
failures measurable against specific statutory mandates. See
Cobell V, 91 F. Supp. 2d at 32-34. See also Cobell VII, 226 F.
Supp. 2d at 66 (relying on the stipulations). The various plan
filings can serve as the jumping-off point for judicial monitoring
of Interior only to the extent that the monitoring is anchored
either in these specific stipulations or in some future adjudicated
findings. While in Cobell VI we upheld a requirement that the
government produce periodic reports, we relied on specific
findings by the district court “that appellants had unreasonably
delayed the discharge of the[ir] duties by failing to ensure the
provision of a complete historical accounting.” Cobell VI, 240
F.3d at 1107; see also Cobell V, 91 F. Supp. 2d at 40 (finding
commission of four specific accounting-related breaches of the
1994 Act). The district court cannot issue enforcement
remedies--by any means--for trust breaches that it has not found
to have occurred. The sixteen common law trust duties are
pertinent only to the extent that they illuminate breaches already
found (i.e., those named in the stipulations) or adjudicated in the
future.

Second, the court’s innovation of requiring defendants
to file a plan and then to say what “might” be wrong with it
 26

turns the litigation process on its head. However broad the
government’s failures as trustee, which go back over many
decades and many administrations, we can see no basis for
reversing the usual roles in litigation and assigning to defendants
a task that is normally the plaintiffs’--to identify flaws in the
defendants’ filings.

Third, in the absence of specific findings of unreasonable
delay in Interior’s performance of its fiduciary duties, the
court’s order that the defendants implement the entire
Comprehensive Plan, including the full To-Be Plan, amounts to
an order to obey the law in managing the trusts. Under this
implementation order defendants would be subject to contempt
charges for every legal failing, rather than simply to the civil
remedies provided in the APA. See, e.g., NLRB v. Express Pub.
Co., 312 U.S. 426, 435-36 (1941) (“[T]he mere fact that a court
has found that a defendant has committed an act in violation of
a statute does not justify an injunction broadly to obey the
statute and thus subject the defendant to contempt proceedings
if he shall at any time in the future commit some new violation
unlike and unrelated to that with which he was originally
charged.”).

Finally, we note that the district court used language
suggesting an intent to take complete charge of the details of
whatever plan Interior might submit: “If the court [concludes
that the plan will not satisfy defendants’ legal obligation], it may
decide to modify the institutional defendant’s plan, adopt a plan
submitted by another entity, or formulate a plan of its own that
will satisfy the defendant’s liability.” Cobell X, 283 F. Supp. 2d
at 142. This is in sharp contrast with Southern Utah’s point that
Ҥ 706(1) empowers a court only to compel an agency . . . to
 27

take action upon a matter, without directing how it shall act.”
124 S. Ct. at 2379 (internal citation and quotation marks
omitted).

In sum, while we uphold the district court’s order that
Interior complete the To-Be Plan, we vacate the injunction
insofar as it directs Interior, rather than the plaintiffs, to identify
defects in its proposal and requires the agency to comply with
the Comprehensive Plan.

Tribal laws and ordinances. The district court issued
two directions about the trusts’ relations to such laws. In its
“General Provisions,” it ordered the Interior defendants to
“administer the Trust in compliance with applicable tribal law
and ordinances.” Cobell X, Part II.D., 283 F. Supp. 2d at 287.
In a later section, it ordered them to compile a list of tribal laws
and ordinances that they deemed applicable, with “a full
statement of the manner in which the Interior defendants
consider these laws and ordinances to affect such
administration.” Part III(IV).C., id. at 291.

The first of these edicts--to apply tribal law to the extent
applicable--appears meaningless, except as a general mandate to
obey the law. It gains meaning, of course, because it is
embodied in an injunction. Thus any violation is punishable by
contempt, and the mandate is impermissible on the grounds
stated above.

The instruction to list tribal laws deemed applicable
poses a different issue. On its face it seems a specification not
of Interior’s trust duties but of the court’s preferred
methodology for assuring Interior’s fulfillment of those duties.
 28

As such it collides with the APA, Lujan, and Southern Utah. It
may be helpful for defendants in fulfillment of their trust duties
to compile such a list (perhaps including tribal provisions on
title, ownership, leasing, and contract for the purposes identified
by the district court, Cobell X, 283 F. Supp. 2d at 275, or
provisions on inheritance, see FELIX S. COHEN , HANDBOOK OF
FEDERAL INDI A N LAW 634 (1982 ed.)). But a list of applicable
tribal laws is no more essential to ensure that Interior
“accelerate[s]” rather than “delay[s]” fulfillment of its fiduciary
obligations, see Cobell X, 283 F. Supp. 2d at 275, than would be
a list of all federal and state laws with which Interior must
comply in administration of the IIM trusts. Although the district
court may declare the government’s legal obligations--whether
rooted in federal or tribal law--pursuant to the Declaratory
Judgment Act, 28 U.S.C. § 2201, see Cobell V, 91 F. Supp. 2d
at 38, it may not prescribe the specific steps the government
must take to comply with these obligations unless it has found
that government actions (or inactions) breached a legal duty and
that the steps ordered by the court constituted an essential
remedy.

Appointment of a court monitor. In Part V(VI), the court
“appoint[ed] a Judicial Monitor to report on the Interior
defendants’ compliance with the provisions of this Order.”
Cobell X, 283 F. Supp. 2d at 294. “The Judicial Monitor shall
be appointed pursuant to Rule 53 of the Federal Rules of Civil
Procedure, and shall possess all authority bestowed on special
masters pursuant to Rule 53.” Id. (emphasis added). Thus the
label “Monitor” is inaccurate; the authority purportedly
bestowed is really that of a “Master.” Whereas a monitor’s
“primary function is to monitor compliance,” a master’s role is
broader: to “report[] to the court and, if required, make[]
 29

findings of facts and conclusions of law.” Special Project, The
Remedial Process in Institutional Reform Litigation, 78 Colum.
L. Rev. 784, 827-28 (1978) [hereinafter “Special Project”]; see
also id. at 829 (“[A] monitor’s activities are so unlike those of
a rule 53 master that the court should not [designate a monitor
a master]. . . . Monitoring rarely, if ever, proceeds by the quasi-
judicial hearings envisaged by rule 53.”). The district court also
specified that “Interior defendants shall provide the Judicial
Monitor and his or her agents with unlimited access to the
Interior defendants’ facilities and to all information relevant to
the implementation of this Order, in order that the Judicial
Monitor and his or her agents may be made cognizant of any
failures to comply with the provisions of this Order.” Cobell X,
283 F. Supp. 2d at 294.

According to the Interior defendants, the appointment of
a monitor exceeds the scope of the district court’s authority. We
agree.

In April 2001 the government consented to the
appointment of a court monitor for one year. In April 2002,
notwithstanding the government’s objection, the district court
reappointed the court monitor, a decision we reversed in Cobell
VIII. In rejecting the monitor, we wrote: “The Monitor’s
portfolio was truly extraordinary; instead of resolving disputes
brought to him by the parties, he became something like a party
himself. The Monitor was charged with an investigative, quasi-
inquisitorial, quasi-prosecutorial role that is unknown to our
adversarial legal system.” Cobell VIII, 334 F.3d at 1142. We
distinguished the monitor in this case from the permissible
appointment of a master in Ruiz v. Estelle, 679 F.2d 1115, 1161-
62 (5th Cir.) (prison reform), amended in part, reh’g denied in
 30

part on other grounds, 688 F.2d 266 (5th Cir. 1982). We
explained:

The role of the special master in Ruiz was
not nearly as broad as the role of the Monitor in
this case. There the master was specifically
instructed “not to intervene in the administrative
management of [the department] and . . . not to
direct the defendants or any of their
subordinates to take or to refrain from taking
any specific action to achieve compliance.” [679
F.2d] at 1162. Most important, the court of
appeals clarified that the special master and the
monitors were “not to consider matters that go
beyond superintending compliance with the
district court’s decree,” thereby assuring the
special master would not be an “advocate” for
the plaintiffs or a “roving federal district court.”
Id.

334 F.3d at 1143 (emphasis added).

Unlike the monitor in Ruiz, we said, the monitor
appointed in 2002 could not “have been limited to enforcing a
decree, for there was no decree to enforce, let alone the sort of
specific and detailed decree issued in Ruiz and typical of such
cases.” Id.

In appointing a monitor in Cobell X, the district court
adopted almost verbatim the language we used to explain that
the court monitor in Ruiz was permissible because of its
circumscribed role. According to the district court:
 31

The Judicial Monitor and his or her
agents shall not intervene in the administrative
management of the Interior defendants. The
Judicial Monitor and his or her agents shall not
direct the Interior defendants or any of their
subordinates to take or to refrain from taking
any specific action to achieve compliance with
this Order. The Judicial Monitor and his or her
agents shall not consider matters that go beyond
superintending or reporting upon compliance
with this Order.

283 F. Supp. 2d at 295 (emphasis added).

Despite the similarity of the language we used to
distinguish Ruiz and the language used by the district court to
limit the monitor’s authority, there is a significant difference
between the two cases. The “Fixing the System” part of the
present injunction (especially given the excisions already
discussed) is not nearly as complex as the specific relief ordered
in Ruiz (embodied partly in two consent decrees appearing at
Ruiz, 679 F. 2d at 1127-28, 1165-68, 1174-84, partly in a hotly
contested order summarized id. at 1164). If at some future time
the non-accounting aspects of the case culminate in a true
remedial injunction with specific duties tied to specific legal
violations cognizable under the APA, the usual latitude for
masters to oversee compliance would come into play. See
United States v. Microsoft, 147 F.3d 935, 954 (D.C. Cir. 1998).
Alternatively, appointment of a true judicial monitor, with duties
focused on determining just how defendants’ management of
their trust duties is proceeding, might become appropriate.
“Monitors are appropriate if the remedy is complex, if
 32

compliance is difficult to measure, or if observation of the
defendant’s conduct is restricted.” Special Project, 78 Colum.
L. Rev. at 828. Compare Cobell X, 283 F. Supp. 2d at 218
(observing that Interior’s quarterly reports have given an overly
optimistic and inaccurate portrait of their reform efforts).

Additional provisions. The injunction imposes several
additional duties on defendants. For example, the court revived
elements of Interior’s Compliance Plan, which was replaced by
its Comprehensive Plan, Cobell X, 283 F. Supp. 2d at 244, to
require Interior to “request legislation from Congress to satisfy
part of its imbalance of Trust fund balances with” Treasury. Id.
at 292. The court also ordered Interior to “request an expansion
of the fiscal year 2004 annual audit to include all funds held in
trust by the United States for the benefit of an individual Indian”
and invested pursuant to 25 U.S.C. § 162a, id., among numerous
other requirements. Thus, rather than acting to assure that
“agency action” conforms to law, the court has sought to make
the law conform to the court’s views as to how the trusts may
best be run. The limits on the court’s remedial authority,
discussed at length above, apply equally to these additional
requirements in the injunction. The court’s authority is limited
to considering specific claims that Interior breached particular
statutory trust duties, understood in light of the common law of
trusts, and to ordering specific relief for those breaches. To the
extent Interior’s malfeasance is demonstrated to be prolonged
and ongoing, more intrusive relief may be appropriate, as we
held was the case in Cobell VI for the government’s failure to
provide a statutorily required accounting. Yet the court may not
micromanage court-ordered reform efforts undertaken to comply
with general trust duties enumerated by the court, and then
 33

subject defendants to findings of contempt for failure to
implement such reforms.

* * *

The “historical accounting” elements of the injunction
are vacated because of the mandate of Pub. L. No. 108-108, and
the remainder of the injunction, aside from the requirement that
Interior complete its To-Be Plan, is vacated and remanded to the
district court for revisions not inconsistent with this opinion.

So ordered.