                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-2185
                                    ___________

Virgil Wilkinson; Charles Wilkinson;    *
Alva Rose Hall; Wilbur D. Wilkinson,    *
for themselves and as heirs of Ernest   *
Wilkinson, Mollie Wilkinson, Harry      *
Wilkinson and Virginia Wilkinson,       *
                                        *
            Plaintiffs - Appellants,    *
                                        * Appeal from the United States
      v.                                * District Court for the District
                                        * of North Dakota.
United States of America,               *
                                        *
            Defendant - Appellee.       *
                                   ___________

                              Submitted: June 20, 2005
                                 Filed: March 13, 2006
                                  ___________

Before MELLOY, HEANEY, and GRUENDER, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

       The plaintiffs allege that they held current or prospective possessory interests
in allotted Indian Trust Land. They also allege that a Bureau of Indian Affairs (BIA)
officer improperly leased the allotted land without legal authority and diverted a
portion of the income from those unauthorized leases to the Farm Service
Administration (FSA)1, a mortgage creditor. The plaintiffs present claims for damages
under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), based on conversion and
trespass. They also present direct claims against several federal employees under
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971), alleging procedural and substantive due process violations under the Fifth
Amendment of the United States Constitution. The district court dismissed all claims
on jurisdictional grounds, finding that the plaintiffs lacked standing. Because we
conclude upon de novo review that the plaintiffs have standing, we reverse and
remand for consideration of the claims on their merits.

I. Facts

      A. The Underlying Debt

       Ernest and Mollie Wilkinson, husband and wife, were registered members of
the Three Affiliated Tribes of the Fort Berthold Reservation in North Dakota. They
owned descendable possessory interests in allotted Indian Land held in trust for them
by the BIA. Included among these lands were Allotments 3016 (a.k.a. Allotment
176A), 1366, 1357, and 371. Ernest and Mollie, through a family farming enterprise
with their children, farmed these lands together with land that the children owned.
Starting in the 1970s, Ernest and Mollie borrowed against their own land with
mortgage loans from the FSA, and the Secretary of the Interior approved the mortgage
loans.2 Ernest and Mollie also executed assignments of income from trust land for all
land that they owned on the Fort Berthold Reservation. Ernest and Mollie repeatedly

      1
      Under a 1994 reorganization, the FSA succeeded the Farmers Home
Administration. Some of the loan agreements and letters referenced in this opinion
preceded the 1994 reorganization. Nevertheless, we refer to the two organizations as
the FSA.
      2
     As discussed infra, 25 U.S.C. § 483a permits individual Indian owners to
encumber their allotted trust land with mortgages.

                                         -2-
rescheduled their mortgage debt. They also received a substantial write-down of the
outstanding balance on their mortgage debt in 1990. It is undisputed that, at all times
relevant to this case, the amount of the outstanding mortgage debt exceeded the value
of the land. It is also undisputed that the mortgages gave the FSA the right, through
the proper legal channels, to “take possession of, operate or rent the property” or to
foreclose upon the mortgage.

      B. Succession of Interests in the Land

       Mollie died in 1991. The Department of the Interior probated her estate and,
in 1993, ordered the Superintendent of the Fort Berthold Reservation to distribute her
real property in part to her husband Ernest and in part to two of her children, Harry
and Virginia Wilkinson. Ernest was to receive Allotment 1366 consisting of five
acres. Harry was to receive Mollie’s interest in Allotment 176A consisting of 133.42
acres. Virginia was to receive Allotments 371 and 1357 collectively consisting of 80
acres. Virginia and another child, Charles D. Wilkinson, were to receive the rest and
residue of Virginia’s estate. The plaintiffs allege that the Superintendent failed to
carry out the final probate order and that distribution under Mollie’s estate never
occurred. The defendants do not appear to contest this fact. An Individual Indian
Money account held by the BIA in Mollie’s name remains open.

       In 1994, Harry died. His estate was probated in 1997, and it was determined
that Ernest was Harry’s sole heir. Accordingly, Harry’s land passed to Ernest. Also,
land that Harry did receive or should have received from Mollie’s estate passed or
should have passed to Ernest.

       Ernest died on November 28, 1997. Probate proceedings regarding Ernest’s
estate were not commenced until 2003, after the filing of this action. Although the
parties agree that probate is still open on Ernest’s estate, the plaintiffs allege that
Ernest’s heirs are Virgil, Charles, and Wilbur Wilkinson.

                                         -3-
       Virginia Wilkinson died November 27, 1998. The final probate order for
Virginia’s estate issued in 2003. This final order directed the distribution of her
property in equal shares to six relatives, including plaintiffs Wilbur, Charles, and
Virgil Wilkinson and plaintiff Alva Rose Hall.

      C. The FSA’s Demands and the BIA’s Actions

       In 1980-82, 1984-88, and 1991-92, the FSA sent letters to the BIA requesting
payment under the assignments of income from trust property that Ernest and Mollie
had executed. The plaintiffs do not allege that the BIA took action to assist the FSA
until approximately November 1992, when the BIA placed holds on Ernest’s and
Mollie’s Individual Indian Money accounts. Although the FSA communicated with
the BIA, it does not appear that the FSA declared any of the loans to be in default,
accelerated the balance due, or made demands to the borrowers.

      On January 10, 1994, the FSA again sent a letter to the BIA requesting payment
under the assignments of income from trust property that Ernest and Mollie had
executed. The January 10, 1994 letter from the FSA to the BIA listed the debtors as
“Ernest Wilkinson and Mollie Wilkinson Est.” The FSA sent the 1994 letter after the
Department of the Interior had issued the final probate order in Mollie’s estate. The
FSA had not made a claim against Mollie’s estate during the probate proceedings.

       On August 5, 1996, the FSA sent a letter to the BIA asking for assistance in the
collection of payments on the mortgage loans. The August 5 letter did not state that
the Wilkinsons were in default on any mortgage nor demand that the BIA lease the
mortgaged land to generate income. On February 19, 1997, the BIA’s Superintendent
for the Fort Berthold Reservation, Adeline Brunsell, advertised certain tracts of the
mortgaged land for lease, with sealed bids to be opened on March 19, 1997.




                                         -4-
       On March 13, 1997, Superintendent Brunsell sent a letter addressed to Ernest
and Mollie stating that the BIA intended to lease the land because the FSA had not
been receiving payments to apply to the mortgage loans. On March 18, Ernest asked
Superintendent Brunsell to remove the land from the lease offering and notified her
that the land she advertised for lease included the homestead as well as land that the
family was actively farming. On March 24, BIA employee Angus Fox, acting on
behalf of Superintendent Brunsell, informed Ernest that the land would not be
removed from the lease offering because the FSA had not been receiving payment on
the mortgages.

       On April 3, 1997, Ernest filed a notice of appeal with Superintendent Brunsell.
Superintendent Brunsell refused to stay her decision to lease the land. On April 8,
Ernest filed a notice of appeal with BIA Area Director Gary Foell. On June 20, 1997,
Area Director Foell denied the appeal. On August 6, 1997, Ernest, along with the
plaintiffs in this case, filed a notice of appeal with the Interior Board of Indian
Appeals (“Interior Board”).

      In their brief to the Interior Board, the plaintiffs argued that Superintendent
Brunsell had no legal authority to lease the lands or place holds on Ernest’s and
Mollie’s money accounts, that Superintendent Brunsell failed to stay her decision as
required under leasing regulations, and that her actions comprised a constructive
foreclosure of the Wilkinsons’ family farm. The plaintiffs also requested damages.
No personnel from the BIA responded to the plaintiffs’ brief to the Interior Board.

       The FSA claims that it sent a notice of acceleration and demand for payment
to Ernest and Mollie on October 9, 1997. Mollie had been dead for six years by this
time and the final order in her probate estate was four years old. The plaintiffs claim
that Ernest did not receive the notice.




                                         -5-
       In an order dated July 6, 1998, the Interior Board reversed the earlier decisions
of Superintendent Brunsell and Area Director Foell and held that Superintendent
Brunsell had no legal authority to lease the Wilkinson’s land. The Interior Board
stated that neither Superintendent Brunsell nor Area Director Foell had indicated their
source of authority to lease the lands. The Interior Board stated that the only possible
authority would have been 25 C.F.R. § 162.2(a)(3) or (5) (1998).3 Those subsections
provide, respectively, that the BIA may lease individually owned land for the benefit
of undetermined heirs of an estate or for Indians who have given the Secretary of the
Interior written authority to execute leases on their behalf. The Interior Board
determined that because the 1993 probate order in Mollie’s estate determined her
heirs, subsection (a)(3) did not apply. Also, the Interior Board determined that
subsection (a)(5) did not apply because the assignments of income “authorize[d the]
BIA only to pay FSA from income from the trust property; it [did] not authorize [the]
BIA to lease that property in order to generate income.” Finally, the Interior Board
held that it had no jurisdiction to award damages and remanded to the Area Director
to address the issue of holds on the money accounts.

       No party sought judicial review of the Interior Board’s decision.4 On remand,
the Area Director held that because the BIA lacked the authority to advertise and lease
the lands, the BIA also lacked the authority to place a hold on Mollie’s account and
lacked the authority to pay the FSA from the proceeds of the unauthorized leases. The
Area Director ordered Superintendent Brunsell to carry out the orders from the


      3
       The text of 25 C.F.R. § 162.2 (1998), as cited by the Interior Board, remains
unchanged but was moved to 25 C.F.R. § 162.601 (2005). See 66 Fed. Reg. 7068-01
at 7123 (Jan. 22, 2001).
      4
        In general, decisions of the Interior Board are final decisions of the Secretary
of the Interior and are appealable in the district court. See, e.g., Oglala Sioux Tribe
of Pine Ridge Indian Reservation v. Hallett, 708 F.2d 326, 333 (8th Cir. 1983)
(affirming a district court’s grant of summary judgment that upheld a final decision
of the Secretary of the Interior as expressed in an Interior Board decision).

                                          -6-
Interior Board and Area Director. Subsequently, Superintendent Brunsell failed to
carry out the orders, continued the hold on Mollie’s account, and, through 2003,
continued to lease the lands and pay the FSA.

        The plaintiffs filed an administrative claim under the Federal Tort Claims Act.
The Department of the Interior denied the claim. On January 3, 2003, the plaintiffs
filed this action in the district court. The plaintiffs alleged that Superintendent
Brunsell’s negligent acts caused a constructive foreclosure of the family farm, and the
loss of their home and homestead, land, and farm equipment. They also alleged that
stress from these events caused Ernest’s death. The plaintiffs specifically alleged state
law claims of conversion and trespass as well as Bivens claims against Superintendent
Brunsell, Area Director Foell, and BIA employee Angus Fox. Because the plaintiffs
only sued the defendants in their official capacities, the district court substituted the
United States as the defendant pursuant to 28 U.S.C. § 2679(d)(2).

     On August 18, 2003, the FSA filed a claim against Ernest’s estate for the
amounts due under the loans.

       On April 14, 2004, the district court granted summary judgment in favor of the
United States, finding that the plaintiffs lacked standing. En route to making this
determination, the district court found that the mortgage agreements permitted the
FSA to lease the land and that the plaintiffs had never held an interest in the land
superior to the FSA. The district court did not treat the Interior Board’s decision as
binding, finding that the Interior Board’s decision rested on the interpretation of the
leasing regulations whereas the district court’s decision rested on the interpretation of
the mortgage agreements. Notwithstanding the fact that the FSA was neither a party
to the Interior Board proceedings nor to this action, and notwithstanding the fact that
no party had appealed the Interior Board’s decision, the district court stated, “The
Court finds that the July 1998 decision of the [Interior Board] failed to take into
account the undisputed mortgage rights of the Farm Service Agency. Upon default,

                                          -7-
the mortgage allows the FSA to take possession of the trust land and to rent the
property.” Ultimately, the district court concluded that the plaintiffs had no Article
III standing because they held no property interest and could not prove an injury in
fact.

                                           II.

      Before we address the issue of standing in detail, we are compelled to note a
few serious concerns raised by the BIA’s underlying actions in this matter and by the
government’s position on appeal.

       First, we are troubled by the government’s insistence that we focus exclusively
on the FSA and its position as lienholder over the allotments. The original named
defendants in this case were employees of the BIA, not employees of the FSA. The
BIA has a fiduciary obligation to Indian landowners to hold allotted Indian Lands in
trust. The BIA’s authority as trustee is limited by statute. The fiduciary obligation
does not disappear when the Secretary of the Interior approves a mortgage covering
the allotted land, and the BIA does not become a trustee on behalf of mortgage
creditors. Rather, the BIA is first and foremost the trustee for the Indian landowners.
The BIA is not related to the FSA, owes no general fiduciary obligation to the FSA,
is not controlled by regulations that govern the FSA, and is subject to its own set of
governing regulations. The BIA is no more entitled to deal with the FSA on an
informal basis to satisfy the FSA’s claims outside judicial proceedings than a trustee
at a bank is entitled to casually transfer property from the trust department to the loan
department when a loan officer becomes nervous or loses confidence in a debtor’s
ability to pay.

      Second, on appeal and apparently at all stages prior to appeal, the government
has taken an overly simplistic, “ends justifies the means” view of the facts. The
government characterizes this case as a dispute over the disposition of rental proceeds.

                                          -8-
This case, however, is not merely a dispute about the disposition of rental proceeds.
This case involves the dispossession of real property. The Interior Board made this
point clear in its opinion. Supervisor Brunsell ignored this fact below, and the
government ignores this fact on appeal. The government recites the assignment of
rents language from the agreement, notes that the FSA perfected the assignment of
rents under North Dakota law, and claims that this process gave the BIA authority to
seize and lease the land. The government’s position amounts to an assertion that
because the debt exceeded the value of the mortgaged land, the plaintiffs did not have
a legally cognizable interest, the BIA was free to ignore its duties as trustee, the
applicable leasing regulations were irrelevant, and the land could be taken without
honoring applicable state law procedural safeguards that were intended to protect
mortgagors.5


      5
        Although the government argues that the loan and assignment documents
provided for this “self-help” remedy, the controlling federal law that authorizes
mortgages on allotted Indian lands makes clear that tribal law (if any) or state law
limits the availability of foreclosure or sale. 25 U.S.C. § 483a provides:

      (a) The individual Indian owners of any land which either is held by the
      United States in trust for them or is subject to a restriction against
      alienation imposed by the United States are authorized, subject to
      approval by the Secretary of the Interior, to execute a mortgage or deed
      of trust to such land. Such land shall be subject to foreclosure or sale
      pursuant to the terms of such mortgage or deed of trust in accordance
      with the laws of the tribe which has jurisdiction over such land or, in the
      case where no tribal foreclosure law exists, in accordance with the laws
      of the State or Territory in which the land is located. For the purpose of
      any foreclosure or sale proceeding the Indian owners shall be regarded
      as vested with an unrestricted fee simple title to the land, the United
      States shall not be a necessary party to the proceeding, and any
      conveyance of the land pursuant to the proceeding shall divest the United
      States of title to the land. All mortgages and deeds of trust to such land
      heretofore approved by the Secretary of the Interior are ratified and
      confirmed.

                                         -9-
       This view is flawed for many reasons. Primary among those reasons is the fact
that self-help is rarely an available remedy for a creditor when the collateral at stake
is real property. The government has identified no authority that would permit a
mortgagee to take possession of encumbered real property outside of judicial
proceedings to generate rents. In short, the government has presented no authority to
show that the possession provisions of the assignment of rents could be enforced
outside the judicial process.

       The problem in this case is compounded by the fact that certain BIA employees
ignored orders from their own agency. Had the BIA not been burdened with a
trustee’s fiduciary obligations and had the collateral been personal property rather
than real property, this case might be different. As it stands, however, the unappealed



Id. (emphasis added).

       There is no applicable tribal foreclosure law in this instance, so North Dakota
law applies. Under North Dakota law, a mortgagee is entitled to a right of redemption
during a redemption period. N.D. Cent. Code §§ 28-24-02 & 32-19-01 (1997). Also,
the government has identified no authority under North Dakota law authorizing a
mortgagee to take possession under an assignment of rents outside judicial
proceedings. As a matter of public policy intended to prevent desperate borrowers
from waiving valuable rights when trying to secure a loan, North Dakota does not
permit borrowers to waive redemption rights prior to foreclosure. See, e.g., First State
Bank of New Rockford v. Anderson, 452 N.W.2d 90, 92 (N.D. 1990) (explaining that
a mortgagor may not “bargain away” his or her redemption rights). Accordingly, as
a matter of law, no provisions in the loan documents or assignments of trust income
that Ernest and Mollie executed could have suspended the application of North
Dakota’s law governing redemption rights nor waived a debtor’s protection against
extrajudicial appropriation of mortgaged land. As such, the government’s argument
that the loan and assignment of income documents granted the FSA the right to take
possession of the land fails. Further, the government’s arguments in this regard are
entirely misplaced as the plaintiffs have alleged that the BIA, not the FSA,
constructively foreclosed on the family’s land.

                                         -10-
decision from the Interior Board6 makes it clear that the BIA acted without lawful
authority. Whether the FSA had an enforceable contract right to seize the land is
beside the point. The plaintiffs brought this action against the BIA, and it is BIA
employees that the plaintiffs allege committed torts and constitutional violations.



      6
        The defendants have offered no argument to explain why the issues settled by
the Interior Board’s order should not be treated as res judicata in this case. As noted,
BIA personnel and not FSA personnel were the originally named defendants.
Accordingly, it is immaterial that the FSA might have had enforceable contract rights
under the assignment of rents. The absence or presence of the FSA’s contract rights
have no bearing on the deference that the courts owe to unappealed agency decisions.
The Interior Board’s finding that the seizure and initial leases were wrongful and
without legal authority is settled.

       It does not follow, however, that the Interior Board’s order foreclosed the BIA
from exercising control over the land at some point following the deaths of Ernest and
Virginia. By virtue of the BIA’s duty as administrator of their estates, the BIA may
have later become vested with authority to lease the lands. See 25 C.F.R. §
162.601(a)(3) (authority to lease land for undetermined heirs). However, we do not
have sufficient facts before us at this time to determine whether the Interior Board’s
order precluded all leases in this case. Probate was not commenced for Ernest’s estate
until 2003, so it does not appear that the BIA gained authority to lease his land as
administrator or executor. Probate was commenced for Virginia’s estate at an earlier
date, and the BIA may have acted lawfully when it leased lands from her estate. That
does not mean, however, that the government was free to delay and extend probate for
an unreasonable period of time.

        As noted, we do not have sufficient facts before us to determine whether the
Interior Board’s decision serves as res judicata as to the leases for all years (and the
parties have not briefed the issue). To guide the inquiry on remand, we note that the
question is no longer whether BIA personnel acted with or without legal authority in
their initial seizure and leasing of the land. The questions to be addressed are whether
the initial actions of BIA personnel, taken without legal authority, comprised a federal
tort or constitutional violation, and whether those actions remained devoid of authority
for the entire term of the BIA’s seizure.

                                         -11-
       Against this backdrop, we turn to our analysis of standing. Our review is de
novo because this case comes to us following a grant of summary judgment and
because the question of Article III standing is a question of subject matter jurisdiction
that we resolve as a matter of law. Young Am. Corp. v. Affiliated Computer Servs.,
Inc., 424 F.3d 840, 843 (8th Cir. 2005) (“If a plaintiff lacks standing, the district court
has no subject matter jurisdiction.”) (citations and quotation marks omitted).

       For a plaintiff to have Article III standing, there must be: (1) an injury in fact,
(2) a causal connection between that injury and the challenged conduct, and (3) a
likelihood that a favorable decision by the court will redress the alleged injury. Id.
“The party invoking federal jurisdiction bears the burden of establishing these
elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

        As to the first and second elements, an injury in fact and a causal connection,
it is clear that certain persons were deprived of a possessory interest in real property.
Also, it is undisputed that the deprivation in this case occurred due to the challenged
actions of the defendants. For standing purposes, then, the second element is satisfied.
The first element is satisfied if the plaintiffs in this action were the persons deprived
of an interest in real property or if they are entitled to represent persons deprived of
an interest in real property.7

       To determine whether the plaintiffs were deprived of an interest in real
property, we need only trace ownership of the leased allotments to confirm that the
plaintiffs received, or should have received, a possessory interests in those allotments.
As set forth above, the identified allotments (allotments 3016, 1366, 1357, and 371)
that were subject to the BIA’s seizure and leasing should have passed to the plaintiffs

      7
        As to the second possibility, the issue might more appropriately be
characterized as prudential standing or a question of identifying the real party in
interest rather than an issue of Article III standing. Because clear precedent guides
our resolution, however, we need not split hairs over our labeling of this issue.

                                           -12-
in this case. Delays in probate proceedings prevented these property rights from
vesting in the heirs of Ernest and Virginia. The BIA continued to lease the lands well
after probate should have been concluded and interests should have vested in the heirs.
We refuse to allow the government to delay the disposition of estates and then rely on
the consequences of those delays to claim that prospective heirs lack protectable
interests.

       Further, we have previously held that prospective Indian heirs had Article III
“injury in fact” standing even though they suffered only injury to prospective
possessory interests. See Irving v. Clark, 758 F.2d 1260, 1267 n.12 (8th Cir. 1985)
(“the injury of loss of property (though not of a vested right to property) is sufficiently
concrete since the ancestor through whom [the plaintiff] claims has died intestate and
we know [the plaintiff] would have taken absent the operation of [the escheat
provisions found in 25 U.S.C.] section 2206.”).8 The Supreme Court granted
certiorari in Irving, and in Hodel v. Irving, 481 U.S. 704, 711-12 (1987), affirmed the
finding of jurisdiction. There, the Court stated:

      For obvious reasons, it has long been recognized that the surviving
      claims of a decedent must be pursued by a third party. At common law,
      a decedent’s surviving claims were prosecuted by the executor or
      administrator of the estate. For Indians with trust property, statutes
      require the Secretary of the Interior to assume that general role. 25
      U.S.C. §§ 371-80. The Secretary’s responsibilities in that capacity,
      however, include the administration of the statute that the appellees
      claim is unconstitutional, see 25 U.S.C. §§ 2202, 2209, so that he can
      hardly be expected to assert appellees’ decedents’ rights to the extent

      8
        Irving v. Clark involved a challenge by Indian heirs to the escheat provisions
of the Indian Land Consolidation Act (the “Consolidation Act”). The Consolidation
Act was an attempt by Congress to control the fractionation of allotted Indian Land
for which ownership had become so dispersed that many interests were economically
insignificant. The plaintiffs in Irving v. Clark were heirs who sought compensation
for fractional interests taken under the Consolidation Act.

                                           -13-
      that they turn on that point. Under these circumstances, appellees can
      appropriately serve as their decedents’ representatives for purposes of
      asserting the latters’ Fifth Amendment rights. They are situated to
      pursue the claims vigorously . . . .
      In short, permitting appellees to raise their decedents’ claims is merely
      an extension of the common law’s provision for appointment of a
      decedent’s representative. It is therefore a “settled practice of the courts”
      not open to objection on the ground that it permits a litigant to raise third
      parties’ rights.

Id. (quoting Tyler v. Judges of Court of Registration, 179 U.S. 405, 406 (1900)).

       We are confident that the Supreme Court’s rationale as set forth above applies
to the present facts. The Interior Board already determined that BIA personnel acted
without legal authority. The BIA personnel refused to respect that decision and
thereby deprived Ernest and Virginia and/or their heirs of possessory interests in the
allotments or of rights provided as protection to debtors under North Dakota law.

       All that remains is the question of whether a favorable resolution could provide
redress for the alleged injuries. We have little difficulty finding this element satisfied.
The plaintiffs alleged trespass, and the alleged trespass occurred via the BIA
employees’ willful violation of a clear order. Also, because the initial leases were
without authority, a refund of lease proceeds to the heirs could provide at least partial
redress. The fact that the FSA may have held a valid claim to rental proceeds is
immaterial to the question of standing. The FSA is not a party to this action, and the
BIA was without authority to seize the land and generate income to pay the FSA. The
BIA risked liability when it seized the land and paid rents to the FSA, and repayment
by the BIA may be part of an appropriate remedy. Also, court ordered disbursement
of funds currently held in Indian Money Accounts for Ernest, Mollie, and Virginia is
another element of a possible remedy.




                                           -14-
       In conclusion, all elements necessary to establish Article III standing exist, and
as a matter of standing, prudential standing, or real party in interest, the present
plaintiffs are entitled to pursue their claims.

       The judgment of the district court is reversed, and this matter is remanded for
further proceedings consistent with this opinion.
                      ______________________________




                                          -15-
