Masayesva v. Hale

FLETCHER, Circuit Judge,

concurring in part and dissenting in part.

I concur substantially in the majority’s opinion.

I respectfully dissent, however, from the majority’s refusal to reverse the district court’s holding that the United States is not liable for failure to protect the HPL from overgrazing prior to partition in 1979.

The majority concludes as do I that the district court applied the wrong standard in assessing the government’s liability. The district court held the government to a negligence standard, holding the Hopi responsible for proof that “the damage to the HPL was caused by unreasonable government action or inaction,” rather than to the duty of a reasonable trustee, who is under an affirmative duty “to the beneficiary to use reasonable care and skill to preserve the trust property.” (Restatement (Second), Trusts, § 176(1959)) (emphasis added).

*1386 The government’s obligation as trustee required it to take those protective measures that would have prevented the spoliation of the trust land by overgrazing-the very conduct by the Navajo that proper oversight by the government should have prevented. The government as trustee had affirmative duties of oversight-an obligation to investigate and to be informed and to act affirmatively to assure the protection of the grazing land-a fragile ecosystem-from overgrazing. The government’s obligation, in short, was to prevent the Navajo from doing the very acts that imposed liability on the Navajo.

My disagreement stems from the majority’s conclusion that despite the district court’s error, its holding should stand because the Hopi have not challenged on appeal the district court’s finding that the government acted reasonably. 1 But that finding of reasonableness was in the context of the inappropriate negligence standard-what is reasonable conduct for a non-fiduciary is not necessarily reasonable conduct for a trustee since the trustee has an affirmative duty to protect and preserve the trust res. That is the very point the Hopi make: they assert that the government breached its fiduciary duty to protect the HPL from overgrazing. They offer the proof of the breach in the condition of the land, a condition directly traceable to the overgrazing.

“Reasonableness” as a standard is only meaningful when defined in context; a “reasonable” trustee must clearly do more than a “reasonable” person would to prevent the destruction of trust property.

I would therefore remand to the district court so that it could determine the government’s liability by properly applying the reasonableness standard to which a trustee is held. Since the Hopi did not challenge the factual findings below as clearly erroneous, whether the government fulfilled its obligations as trustee should be determined in light of those findings.

I do not ignore the fact that the relationship of the United States to the Navajo and the Hopi is unique. It owes trust duties to each; if it failed in its duties, its failures were to both (failure to protect the trust property to the detriment of the land and to both the Hopi and the Navajo; failure to oversee and impose proper controls on the grazing practices of the Navajo).

Upon remand, I would require the district court to determine and assess the government’s liability and fiscal obligations and determine the effect, if any, on the amount owed to the Hopi by the Navajo.

Accordingly, I dissent.

. After oral argument in these appeals, the United States settled with the Hopi for $2,400,000, and the Hopi moved to abandon this portion of their appeal. We granted that motion, but allowed the Navajo to rely on the Hopi’s arguments with regard to joint liability.