40.17.410 General Policy on Settlement

The general Policy is to not settle cases for an amount less than the economic benefit of noncompliance. However, there are four general areas where settling the total penalty amount for less than the economic benefit may be appropriate. The four exceptions are:

(a) the economic benefit component consists of an insignificant amount;

(b) there are compelling public concerns that would not be served by taking a case to trial;

(c) it is unlikely, based on the facts of the particular case as a whole, that the Tribe will be able to recover the economic benefit in litigation; or

(d) the company has documented an inability to pay the total proposed penalty. If a case is settled for less than the economic benefit component, a justification must be included on the Penalty Compulsion Worksheet.