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SJC-11863

         RANDALL TRAPP & another1   vs.   GARY RODEN2 & others.3



         Worcester.     October 5, 2015. - November 23, 2015.

  Present:     Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
                             & Hines, JJ.


Commissioner of Correction. Imprisonment. Religion.         Contract,
     Settlement agreement, Performance and breach.



     Civil action commenced in the Superior Court Department on
September 30, 2010.

     The case was heard by Cornelius J. Moriarty, II, J.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Richard C. McFarland for the defendants.

     1
         Robert Ferreira.
     2
       Individually and in his official capacity as
superintendent of the Massachusetts Correctional Institution at
Norfolk (MCI-Norfolk).
     3
       Cynthia Sumner, individually and in her official capacity
as deputy superintendent of MCI-Norfolk, and Harold W. Clarke,
individually and in his official capacity as Commissioner of
Correction.
                                                                    2


     Jarrett M. Scarpaci for the plaintiffs.
     The following submitted briefs for amici curiae:
     Maggie Ellen Filler for Prisoners' Legal Services.
     Joel West Williams, of Pennsylvania, & Gabriel S. Galanda,
of Washington, for Huy.
     Yale Yechiel N. Robinson, pro se.


     DUFFLY, J.   Randall Trapp and Robert Ferreira, who are

adherents of Native American religious practices, are both

incarcerated at Department of Correction (DOC) facilities.     In

2010, Trapp and Ferreira filed an amended complaint in the

Superior Court contending, among other things, that the DOC's

closure of the purification lodge4 at the Souza-Baranowski

Correctional Center (SBCC) violates the Religious Land Use and

Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc-1 et

seq. (2012) (RLUIPA); art. 2 of the Massachusetts Declaration of

Rights; and a settlement agreement reached in 2003 to resolve a

prior lawsuit brought by Trapp against the DOC.   The complaint

named Gary Roden, Commissioner of Correction, and two DOC

employees at the Massachusetts Correctional Institution at

Norfolk (MCI-Norfolk) as defendants.   After a jury-waived trial

in July, 2012, a Superior Court judge concluded that the closure

of the lodge at SBCC violated the plaintiffs' rights under all

three asserted theories, and entered a declaratory judgment in


     4
       The parties use the term "purification lodge," while the
term "sweat lodge" also is used by other Native American
practitioners. For simplicity, we use the more general term
"lodge" to encompass all such structures.
                                                                    3


favor of the plaintiffs on those claims.5   The DOC appealed, and

we transferred the case to this court on our own motion.     We

conclude that the closure of the lodge at SBCC violates RLUIPA

and the settlement agreement.   Accordingly, we do not reach the

constitutional question.6

     Background.    The dispute at the crux of this case dates

back two decades.    In 1995, Trapp and four other inmates

(Ferreira was not among them) filed a complaint in the Superior

Court asserting that the DOC had violated their rights to

exercise their religion.    After extensive litigation over a

number of years, in 2003 the parties entered into a settlement

     5
       The plaintiffs' amended complaint asserted seven claims
against the Department of Correction (DOC), among them State and
Federal constitutional claims and several statutory claims
arising out of the closure of lodges at MCI-Norfolk and the
Souza-Baranowski Correctional Center (SBCC); the DOC's refusal
to permit the plaintiffs to use kinnick-kinnick, which includes
tobacco as an ingredient; and the DOC's refusal to permit the
plaintiffs to use prayer beads of the color of their choice.

     With respect to the claims regarding SBCC, the Superior
Court judge entered declarations for the plaintiffs on the
constitutional claim under art. 2 of the Massachusetts
Declaration of Rights, the statutory claim under the Religious
Land Use and Institutionalized Persons Act of 2000, 42 U.S.C.
§§ 2000cc-1 et seq. (2012) (RLUIPA), and the contract claim for
breach of the settlement agreement. The judge entered
declarations in favor of the defendants on all the other claims
in the complaint; the plaintiffs have not filed cross appeals on
those counts. Thus, the issues before us concern only the DOC's
closure of the lodge at SBCC.
     6
       We acknowledge the amicus briefs of Huy and Prisoners'
Legal Services on behalf of the plaintiffs, and the amicus brief
of Attorney Yale Yechiel N. Robinson.
                                                                    4


agreement that required the DOC to construct a lodge at SBCC and

another facility not at issue in this appeal.7   Under the terms

of the agreement, the named plaintiffs and others who

participate in Native American religious practices were promised

the right to participate in ceremonies that were to be conducted

at the lodges once each month.   The settlement agreement

contained protocols setting forth the manner in which the lodges

were to be constructed and the ceremonies conducted, all based

on the traditions of the Wampanoag Tribe.   Further, the

settlement agreement provided that the protocols could be

altered if necessary as security needs dictated, but that such

changes were to be made in consultation with the Massachusetts

Commission on Indian Affairs.

     Under the protocols set forth in the settlement agreement,

a lodge is constructed of sixteen saplings arranged in a circle

and then bent and joined together to form a dome, which is

covered by blankets or canvas.   A pit is dug in the ground in

the middle of a lodge, to make space for rocks that are placed

in it after they have been heated by a wood fire outside the

lodge.   During a ceremony, water is poured onto the heated rocks

to create the steam and heat necessary for the ceremony.    The

settlement agreement required the lodges to be constructed


     7
       The settlement agreement also required the DOC to
construct a lodge at MCI-Norfolk.
                                                                      5


within a secured perimeter inaccessible to the general inmate

population.

     The DOC built a lodge at SBCC in 2004   Within six months,

however, it halted all ceremonies at the SBCC lodge, citing

health concerns that resulted from smoke filtering into the main

building from the wood fires used to heat the rocks.    According

to the DOC, the SBCC facility has a closed ventilation system

that does not permit windows to be opened; rather, air is pumped

into the building in accordance with the amount of air required

per person by law.   The DOC maintains that asthmatics working or

residing within the facility complained of respiratory distress,

compelling closure of the lodge.

     Trapp commenced this action in September, 2010; Ferreira

was added as a plaintiff in November of that year.     At all times

relevant to this litigation, Trapp has been incarcerated at MCI-

Norfolk.   Ferreira was incarcerated at MCI-Norfolk until

February, 2012, when he was transferred to SBCC.

     In January, 2011, a Superior Court judge,8 ruling on the

DOC's motion to dismiss, determined that because Ferreira was

not a party to the 2003 settlement agreement he could not pursue

any contract-based claims against the DOC based on breach of

that agreement.   The motion judge also concluded that the


     8
       The motion to dismiss and the ultimate merits of the
action were decided by different Superior Court judges.
                                                                    6


plaintiffs could not recover damages because they had failed to

exhaust their administrative remedies, and that therefore they

could seek only equitable relief.   A jury-waived trial was held

on the merits of the plaintiffs' statutory, constitutional, and

contract claims in July, 2012; the trial involved numerous

claims not at issue here. The trial judge issued his decision in

September, 2012. As relevant to the DOC's appeal, the trial

judge concluded that the closure of the lodge at SBCC violated

RLUIPA, the settlement agreement, and art 2.

     The trial judge rested his conclusions on two findings of

fact.    First, the judge found the closure of the lodge at SBCC

was not based on security-related concerns but, rather, "on

unconvincing references to health concerns" that "consisted of

hearsay statements, which themselves offered dubious self-

diagnoses, such as asthma, without any medical foundation."

Second, the judge found that the DOC "provided no reason to

believe that the only feasible means of remedying the smoke

inhalation problem was . . . by stopping the purification

ceremonies altogether."    Specifically, the judge found that the

DOC "said nothing to explain" why filtering the air inside the

building or placing the lodge in a location that would disperse

the smoke were not reasonable alternatives.9


     9
       The DOC has provided a sparse record on appeal. It is
thus unclear how, if at all, the DOC responded to these
                                                                   7


    Discussion.    The DOC challenges the trial judge's factual

findings that it failed to provide adequate evidence in support

of its asserted health concerns as the basis for closing the

lodge.    The DOC also argues that the trial judge erred in

concluding that the DOC failed to meet its burden, under 42

U.S.C. §§ 2000cc-1(a), to show that closing the lodge was in

furtherance of a compelling government interest and was the

least restrictive means possible.   Finally, the DOC argues that

the trial judge erred when he concluded that the DOC committed a

breach of the 2003 settlement agreement by closing the lodge.

    We conclude that the trial judge's findings of fact were

not clearly erroneous, see Sheriff of Suffolk County v. Jail

Officers & Employees of Suffolk County, 465 Mass. 584, 588

(2013), and that the judge was correct in determining that the

closure of the lodge violates RLUIPA and the settlement

agreement.

    1.    Whether the DOC's closure of the SBCC lodge violates

RLUIPA.   The parties agree that only Ferreira's rights are

implicated under RLUIPA because he was the only plaintiff who,

at the time of trial, was incarcerated at SBCC and, thus, could

be burdened by the closure of the lodge.   Under RLUIPA's well-

established burden-shifting analysis, Ferreira bore the initial


alternatives in the proceedings in the Superior Court. On
appeal, the DOC offers no comment on whether these alternatives
discussed by the trial judge are reasonable.
                                                                    8


burden to prove that DOC's closure of the lodge at SBCC

"substantially burdens" his religious exercise.   See Holt v.

Hobbs, 135 S. Ct. 853, 862 (2015) (Holt).   Once he met this

initial burden, the burden shifted to the DOC to show that its

closure of the lodge was "in furtherance of a compelling

governmental interest" and was "the least restrictive means of

furthering that compelling governmental interest."   Id. at 863,

quoting 42 U.S.C. § 2000cc-1(a).

    There is no dispute that Ferreira met his burden to

establish that participation in Native American ceremonies at

the lodge constitutes religious exercise as defined by the

statute.   RLUIPA protects "any exercise of religion, whether or

not compelled by, or central to, a system of religious belief,"

42 U.S.C. § 2000cc-5(7)(A), as long as the exercise is based on

"a sincerely held religious belief."   Holt, supra at 862, citing

Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).

The DOC does not challenge the sincerity of Ferreira's exercise

or belief.

    Rather, the DOC argues that Ferreira has failed to prove

that the inability to use the lodge for ceremonies is a

substantial burden on his religious exercise because he still

has alternative ways of "engaging in Native American practices."
                                                                      9


Specifically, the DOC points to the availability of smudging10

and pipe ceremonies at SBCC, along with other ceremonies such as

"talking circles, singing, chanting, and the playing of musical

instruments, including drums, rattles and a flute."

Additionally, the DOC asserts that Ferreira has access to Native

American "ceremonial items" to facilitate the exercise of his

religion, including a headband, prayer beads, and a pipe.     In

short, the DOC contends that it has not substantially burdened

Ferreira's exercise of religion by closing the lodge because he

has other ways to practice his religion.

     The United States Supreme Court's recent decision in Holt,

supra at 862, forecloses the DOC's argument, as counsel conceded

during argument before us.   In Holt, the petitioner, a devout

Muslim inmate, challenged a decision of the Arkansas Department

of Correction refusing to grant him an exception to its no-beard

policy by permitting him to grow a one-half inch beard in

accordance with his religious beliefs.     Id. at 859.   The United

States District Court for the Eastern District of Arkansas

concluded that the no-beard policy did not substantially burden

Holt's exercise of religion because he had been given a prayer

rug and a list of distributors of Islamic material, he was


     10
       According to a DOC religious services handbook, smudging
"is a process of using smoke to clear away negative energies and
to attract positive energies," using sage, sweetgrass, and other
plants to produce smoke.
                                                                  10


permitted to correspond with a religious advisor, and he was

permitted to observe holidays and maintain his desired diet.

Id. at 862.    Rejecting the District Court's analysis, the United

States Supreme Court explained that "RLUIPA's 'substantial

burden' inquiry asks whether the government has substantially

burdened religious exercise . . . , not whether the RLUIPA

claimant is able to engage in other forms of religious

exercise."    Id.

    Here, as in Holt, the alternate means Ferreira may have to

practice his religion are irrelevant to the analysis of whether

the DOC's closure of the lodge substantially burdens his

religious exercise.   The DOC offers no additional argument in

support of its position.   Thus, we have no trouble concluding

that the DOC's absolute closure of the lodge at SBCC

substantially burdens Ferreira's exercise of religion.   See

Cutter v. Wilkinson, 544 U.S. 709, 721 (2005) ("RLUIPA . . .

protects institutionalized persons who are unable freely to

attend to their religious needs and are therefore dependent on

the government's permission and accommodation for exercise of

their religion").

    The DOC contends that even if the closure of the lodge at

SBCC substantially burdens Ferreira's exercise of religion, it

still should prevail because the closure was in furtherance of a

compelling governmental interest and was the least restrictive
                                                                   11


means of furthering that interest.

    The DOC has not identified evidence in the record to

counter the trial judge's factual finding that the DOC failed to

provide credible evidence in support of its asserted health

justification.   Rather, the DOC emphasizes, as it did at trial,

the statements of two witnesses, each of whom provided testimony

in support of the health concerns on which the DOC's argument

relies.   The first witness, Lynn Chernesky, a DOC employee,

testified that, as a result of smoke from the wood fires used

for the lodge ceremonies entering the building, "all our

asthmatic staff and inmates became in distress."   Chernesky's

testimony does not explain how she came to know of the supposed

distress of the "asthmatic staff and inmates," such as whether

they complained directly to her, whether she read complaints

they had filed with someone else, or whether some third source

relayed the information to her.   The DOC fails to point to any

evidence in the record to support Chernesky's conclusory

generalizations or counter the factual finding that her

testimony was unpersuasive.   Further, we note in this regard

that the DOC did not call a single inmate or DOC employee to

testify about any distress, even minor, he or she may have

personally experienced as a result of the wood fires burning

outside during the monthly ceremonies.

    The second witness whose testimony the DOC identifies in
                                                                    12


support of the compelling nature of its health interest is Todd

Gunglach, a DOC engineer, whose expertise is in heating and

ventilation systems.    Gunglach testified to the operation of the

closed ventilation system at SBCC.   When asked whether he was

familiar with the attempts to operate the lodge at SBCC,

Gunglach responded that he was only familiar with a report

commissioned by the DOC that, he stated, had concluded that it

was "virtually impossible" to operate the lodge without smoke

from the wood fires entering the facility.    The report Gunglach

referenced was not introduced in evidence, and is not part of

the record before us.   In any event, the DOC fails to identify

any portions of Gunglach's testimony that support the contention

that the smoke from the fires caused health concerns.    Rather,

when asked whether he knew of any physical harm to people's

health caused by indoor smoking at SBCC, not the wood fires

burned outside, Gunglach responded, "Well, I'm not a

physiologist.   I mean, we hear oftentimes about second-hand

smoke and its effects on people.   So just from basic knowledge

of the news and media reports of second-hand smoke, that's what

I would be aware of."

    Based on the testimony of Chernesky and Gunglach, who

provided the sole support for the DOC's argument, the trial

judge concluded that the DOC's evidence supporting any

compelling interest of health concerns was unpersuasive.     We
                                                                   13


cannot conclude that this finding was clearly erroneous.    We

agree that the DOC has failed to meet its burden by

demonstrating that its decision to close the lodge at SBCC was

motivated by a compelling government interest.

    We do not, however, read the trial judge's opinion to have

concluded that health concerns may never serve as a compelling

government interest under RLUIPA, as the DOC maintains it does.

It is uncontroverted that the DOC has an interest in caring for

the health of inmates in its custody.   See, e.g., Helling v.

McKinney, 509 U.S. 25, 33 (1993) ("We have great difficulty

agreeing that prison authorities may . . . ignore a condition of

confinement that is sure or very likely to cause serious illness

and needless suffering the next week or month or year"); Good v.

Commissioner of Correction, 417 Mass. 329, 335 (1994)

("Recognizing that prison inmates are entitled to safe drinking

water, the Department of Public Health requires that

correctional facilities in the Commonwealth must provide at all

times safe and sanitary drinking water"); Cryer v. Massachusetts

Department of Correction, 763 F. Supp. 2d 237, 243 (D. Mass.

2011) (prison ban on smoking in cells furthers compelling

government interest of health and safety).

    The fatal flaw in the DOC's position is not that its

asserted interest falls under the banner of health rather than

security.   Rather, in this case, the DOC cannot prevail because
                                                                   14


it failed to meet its burden to show that the claimed compelling

interest was actual rather than speculative.   Prison officials

may not "declare a compelling governmental interest by fiat."

Yellowbear v. Lampert, 741 F.3d 48, 59 (10th Cir. 2014).     The

DOC was obligated to put forth something more than conclusory

assertions regarding health concerns, and it failed to do so.

The trial judge concluded that, on this record, a wood fire that

burned outdoors once a month, near a facility that has a closed

ventilation system, was not shown to pose a risk to the health

of anyone within the facility.   The record supports this

conclusion.   In reaching this result, we do not determine that

the risk does not exist.   We conclude only that the evidence

here was lacking and thus falls short of what RLUIPA requires.

See Holt, supra at 867 (Sotomayor, J., concurring), quoting 106

Cong. Rec. 16699 (2000) ("Indeed, prison policies 'grounded on

mere speculation' are exactly the ones that motivated Congress

to enact RLUIPA").

    Finally, even if we were to conclude that the DOC's

asserted health concerns constituted a compelling government

interest in these circumstances, the DOC must prove that it used

the least restrictive means to further that interest.   This is

an "exceptionally demanding" standard that requires the DOC to

demonstrate "that it lacks other means of achieving its desired

goal without a substantial burden" on Ferreira's religious
                                                                   15


exercise.   See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct.

2751, 2780 (2014).   "A prison cannot meet its burden to prove

least restrictive means unless it demonstrates that it has

actually considered and rejected the efficacy of less

restrictive measures before adopting the challenged practice"

(quotation and citation omitted).   Spratt v. Rhode Island Dep't

of Corrections, 482 F.3d 33, 41 (1st Cir. 2007).

    The DOC argues that it tested three different locations at

SBCC to determine whether there was a location in the yard from

which smoke would not enter the ventilation system, "but without

success."   Chernesky's testimony supports the DOC's assertion

that it conducted three test fires, but omits any credible

explanation of how she knew smoke entered the building.   Rather,

when asked what happened to the staff and inmates when the test

fires were conducted, Chernesky repeated her conclusory refrain

that "asthmatics became in distress," leading her to conclude

that "we could not have a purification lodge."

    Assuming that the DOC had some reliable method to determine

whether smoke entered the facility following the test fires in a

quantity sufficient to cause adverse health consequences to

those inside, this isolated effort fails to satisfy its burden.

As the trial judge found, the DOC failed to consider whether it

could filter the air within the facility, or whether it could

disperse the air outside to prevent smoke from entering the
                                                                  16


facility.   The DOC offers no explanation why neither of these

alternatives was considered, or if they were considered, why

they were rejected.   See Spratt v. Rhode Island Dep't of

Corrections, supra at 41 n.11 ("[T]o meet the least restrictive

means test, prison administrators generally ought to explore at

least some alternatives, and their rejection should generally be

accompanied by some measure of explanation").   See also

Yellowbear v. Lampert, 741 F.3d at 63.

    For all of the foregoing reasons, we conclude that the

DOC's closure of the lodge at SBCC was impermissible under

RLUIPA.

    2.    Whether the closure of the SBCC lodge violates the 2003

settlement agreement.    As an initial matter, we consider the

DOC's argument that the claim is not properly before us because

both Trapp and Ferreira lacked standing to pursue a breach of

contract claim based on the 2003 settlement agreement, and the

plaintiffs failed to amend their complaint expressly to include

a claim relating to the closure of the lodge at SBCC.

    The DOC argued in its motion to dismiss that Ferreira

lacked standing to enforce the 2003 settlement agreement because

he was not a party to it.   The motion judge agreed. Because

Ferreira has not raised this issue in a cross-appeal, we have no

occasion to review it.

    The DOC argues that Trapp lacks standing to enforce the
                                                                   17


settlement agreement with respect to the closure of the lodge at

SBCC because he has never been, and was not at the time of

trial, confined to that facility.   This argument fails.      "A

settlement agreement is a contract and its enforceability is

determined by applying general contract law."11   Sparrow v.

Demonico, 461 Mass. 322, 327 (2012).    When a party is a

signatory to a contractual agreement, a breach of contract is an

injury sufficient to confer standing.    See Katz v. Pershing,

LLC, 672 F.3d 64, 72 (1st Cir. 2012) ("The invasion of a common-

law right [including a right conferred by contract] can

constitute an injury sufficient to create standing").       We

conclude that, as a signatory to the 2003 settlement agreement,

Trapp has a cognizable legal interest in ensuring that the DOC

uphold its end of the bargain to protect the religious exercise

of Native American inmates by providing a lodge for ceremonies

at SBCC.   The DOC has pointed to no authority to support its

position that a party to a contract alleging a breach lacks

standing to pursue the claim.   See id. ("when a plaintiff


     11
       The settlement agreement contains the following
provision:

          "This Settlement Agreement shall survive this action
     and be independently enforceable as a contract. All
     parties acknowledge that if any party fails to comply with
     said Settlement Agreement, it will be deemed a breach of
     contract and will subject the non-complying part(ies) to
     legal action . . . ."
                                                                  18


generally alleges the existence of a contract, express or

implied, and a concomitant breach of that contract, her pleading

adequately shows an injury to her rights").

    The DOC also contends that the breach of contract claim is

not properly before us because the plaintiffs failed to amend

their complaint expressly to include a claim arising from the

closure of the lodge at SBCC.   While the amended complaint,

filed in November, 2010, does not refer specifically to the

closure of the lodge at SBCC, it does more generally assert that

the DOC has "breached [its] contract with the plaintiffs by not

allowing them to practice the Wampanoag traditions as stipulated

in the contract between the parties."   Trapp asserts that the

construction of lodges according to the Wampanoag traditions at

three facilities, including SBCC, was a major component of the

settlement agreement and thus encompassed by the amended

complaint.

    We need not resolve this issue because we conclude that the

DOC consented to the trial judge's consideration of the claim.

See Mass. R. Civ. P. 15 (b), 364 Mass. 761 (1974) ("When issues

not raised by the pleadings are tried by express or implied

consent of the parties, they shall be treated in all respects as

if they had been raised in the pleadings").   See Graham v.

Quincy Food Serv. Employees Ass'n & Hosp., Library, & Pub.

Employees Union, 407 Mass. 601, 615-616 (1990).   Here, it is
                                                                   19


undisputed that the trial judge considered the issue whether the

closure of the lodge at SBCC was lawful.   The DOC does not

assert that it objected to Trapp's introduction of evidence

related to the closure of the lodge at SBCC.12   To the contrary,

the DOC introduced its own evidence, on which it now relies to

support its arguments before us. Indeed, the only excerpts of

trial testimony that the DOC has included in the record on

appeal B- the testimony of Chernesky and Gunglach concerning the

closure of the lodge at SBCC B- demonstrate its affirmative

litigation of the issue whether it was justified in closing the

lodge at SBCC.   Under these circumstances, we conclude that the

DOC consented to litigating the closure of the lodge at SBCC,

and the claim is properly before us.

     On the merits of the contract claim, the DOC argues that it

has not committed a breach of the settlement agreement because

the agreement contains a provision that permits altering its

terms in response to institutional security concerns.


     12
       The DOC claims that it objected to the introduction of
evidence at the motion to dismiss stage regarding the closure of
the lodge at SBCC in relation to its argument that Ferreira
lacked standing. But the DOC does not assert that it objected
to evidence on this issue at trial. Further, we note that the
DOC has not pointed to any statement in the record evidencing
its objection to the introduction of evidence on the closure of
SBCC, nor does the DOC contend that it raised the issue of the
failure to amend the complaint to the trial judge in its motion
for reconsideration. Issues not raised in the trial court are
considered waived on appeal. See Carey v. New England Organ
Bank, 446 Mass. 270, 285 (2006).
                                                                  20


Specifically, the DOC contends that its health concerns,

discussed above, provide a sufficient security rationale to

justify the closure of the lodge.

    This argument fails.   First, as discussed supra, the trial

judge found that the DOC's claim that it closed the lodge at

SBCC for health reasons was unsupported by the evidence.

Therefore, even if the settlement agreement permitted the DOC to

close the lodge for health reasons, the DOC has failed to

establish a factual predicate that would have permitted closure.

    Second, even if we were to conclude that the health

concerns were properly supported by evidence, the agreement

requires that the protocols may be altered "in consultation with

the Massachusetts Commission on Indian Affairs."   It is

undisputed that the DOC failed to consult with the Commission on

Indian Affairs, and thus it has violated the settlement

agreement on this ground also.

                                        Judgment affirmed.
