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Lilian Jackson, Veronda Mosho, Elaine v. United States of America By and Through the Department of Interior

December 23, 2010

LILIAN JACKSON, VERONDA MOSHO, ELAINE MCKEAN; MARGIE WHITEHORSE; BLAINE JACKSON;
LAVON JACKSON, SR.; LAVON JACKSON, JR.; ABIGAIL RAMSEY AND DEBRA BILLY, MEMORANDUM DECISION ALL INDIVIDUALS, PLAINTIFFS,
v.
UNITED STATES OF AMERICA BY AND THROUGH THE DEPARTMENT OF INTERIOR, BUREAU OF INDIAN AFFAIRS; J.W. DUNFORD & ASSOCIATES, INC.; AN IDAHO CORPORATION; JOSEPH WILLIAM DUNFORD; ZACHARY P. MOORE. DEFENDANTS.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

INTRODUCTION

The Court has before it motions for summary judgment filed by both defendants. The Court heard oral argument on December 21, 2010, and took the motions under advisement. For the reasons expressed below, the Court will grant the motions and transfer the fiduciary duty claim against the Government to the Federal Court of Claims.

FACTUAL BACKGROUND

The plaintiffs are members of the Shoshone-Bannock Tribes. They owned 160 acres of trust land. When they decided to put the land up for sale in 2006, they had to make an application with the Bureau of Indian Affairs (BIA). The BIA sent out for bid the appraisal on this land, and more than a hundred other trust land appraisals. The low bidder was defendant Dunford & Associates, Inc, owned by defendant Joseph Dunford. Defendant Zachary Moore worked in the Dunford office. The Court will refer to these defendants collectively as Dunford.

The BIA entered into a contract with Dunford to do the appraisal. At all times, Dunford dealt exclusively with the BIA and had no dealings with the plaintiffs. Dunford appraised the 160 acres of land at $24,000, finding that its highest and best use was as range land. The appraisal was sent to the Portland BIA office where it was approved. The BIA then notified the plaintiffs of the amount of the appraisal although the plaintiffs were not shown the appraisal report. The plaintiffs approved the appraised amount, and the BIA then discussed with the Tribes whether the Tribes wanted to purchase the property. Ultimately, the Tribes did purchase the property for the $24,000 figure.

Later, plaintiffs hired another appraiser who concluded that the land was worth $272,000 as farm land. The plaintiffs filed this suit against the Government and Dunford, alleging that plaintiffs were shortchanged by the appraisal.

GOVERNING STANDARD

One of the principal purposes of the summary judgment "is to isolate and dispose of factually unsupported claims . . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is "not a disfavored procedural shortcut," but is instead the "principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Id. at 327. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

The evidence must be viewed in the light most favorable to the non-moving party, id. at 255, and the Court must not make credibility findings. Id. Direct testimony of the non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001)(en banc). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the nonmoving party's case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir.2000).

This shifts the burden to the non-moving party to produce evidence sufficient to support a jury verdict in her favor. Id. at 256-57. The non-moving party must go beyond the pleadings and show "by her affidavits, or by the depositions, answers to interrogatories, or admissions on file" that a genuine issue of material fact exists. Celotex, 477 U.S. at 324.

ANALYSIS

Claims Against the United States

At the start of oral argument, plaintiffs conceded that their FTCA claims against the Government should be dismissed and the Court will so order. That ...


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