Free Response to Motion - District Court of Federal Claims - federal

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Electronically Filed May 1, 2008 IN THE UNITED STATES COURT OF FEDERAL CLAIMS HOOPA VALLEY TRIBE, on its own behalf, and in ) its capacity as parens patriae on behalf of its members; ) Elton Baldy; Oscar Billings; Benjamin Branham, Jr.; ) Lila Carpenter; William F. Carpenter, Jr.; Margaret ) Mattz Dickson; Freedom Jackson; William J. ) Jarnaghan, Sr.; Joseph LeMieux; Clifford Lyle ) Marshall; Leonard Masten, Jr.; Danielle Vigil-Masten ) ) Plaintiff, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) Case No. 08-72 L Judge Thomas C. Wheeler DECLARATION OF THOMAS P. SCHLOSSER REGARDING DEFENDANT'S MOTION TO STAY

Thomas P. Schlosser being first duly sworn upon oath deposes and states as follows: 1. I am the attorney of record for Plaintiffs in this action. I have personal knowledge

of the matters set forth below and, if called as a witness, could testify competently to them. 2. On March 24, 2008, Devon McCune called me to announce that she would file an

appearance on behalf of the United States in this case. She also requested consent to an enlargement of time of 60 days for the United States to answer or otherwise respond to Plaintiffs' complaint. I consented to the extension. Ms. McCune also indicated that defendant's counsel were considering bringing the Yurok Tribe into the case because of the possibility of that Tribe's liability. 3. On April 22, 2008, defendant's counsel Devon McCune contacted me regarding a

possible stay of the briefing on plaintiffs' motion. I suggested instead an enlargement of time for counsel to respond and noted that defendant's answer or motion in lieu of answer is currently due June 2, 2008. I further suggested that the June 2 date could be enlarged if necessary to enable defendant to find additional counsel and combine its response to Plaintiffs' Motion with

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defendant's jurisdictional or other arguments. Ms. McCune informed me on April 25 that defendant's counsel would prefer not to proceed in that manner and would seek a stay. 4. I met several times with Interior Department representatives concerning whether

the Department would change the position taken in its March 15, 2002 report to Congress pursuant to Section 14(c) of the Hoopa-Yurok Settlement Act. The meetings and other communications included Interior Department Solicitor David Bernhardt, Indian Affairs attorney Scott Bergstrom, U.S. Department of Justice attorneys Edward J. Passarelli, Chief, Natural Resources Section, Craig Alexander, Chief, Indian Resources Section, and others during the period of March 1, 2006 through June 30, 2006. For example, attached as Exhibit 41 is my memorandum to Solicitor Bernhardt dated March 23, 2006, concerning whether the Yurok Interim Council's failure to satisfy 25 U.S.C. § 1300i-1(c)(4) can be cured. 5. The Department's Section 14(c) Report recommended congressional action to

authorize division and distribution of the Hoopa-Yurok Settlement Fund remainder. The Mediation Agreement that resulted from the Interior Department-sponsored negotiations between the Hoopa Valley Tribal Council and the Yurok Tribal Council produced proposed legislation which was introduced in the Senate in 2004. When that legislation was not reintroduced in the 109th Congress, the Interior Department conducted an internal review of its options. 6. On March 30, 2006, Mr. Carl Artman, then the Interior Department Associate

Solicitor-Indian Affairs, showed to my co-counsel and other Hoopa tribal representatives, a lengthy memorandum that had been prepared by the Department concerning Settlement Fund options. Also, three members of the California congressional delegation asked the Department, among other things, whether legislation was necessary prior to distribution of the Settlement

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Fund remainder. The Hoopa representatives did not receive and were not allowed to read the Department's memorandum. 7. On April 18, 2006, Mr. Carl Artman informed me that the Department's draft

memorandum would have to be reviewed by the Department of Justice. On May 5, 2006, Mr. Bergstrom informed me that the Justice Department review of it had begun. Accordingly, throughout May and June 2006, I corresponded repeatedly with Mr. Passarelli and Mr. Alexander at the Justice Department. They indicated they were reviewing the memorandum from the Interior Department. The impact of the Short litigation and provisions of the Hoopa-Yurok Settlement Act were the subjects of our discussions. Attached as Exhibit 42 is my e-mail message to Edward Passarelli and Craig Alexander concerning the effect of the Short litigation and underlying administrative determinations by the Department on the identity of the Indian beneficiaries for whom the Settlement Fund was held in trust. (In the electronic version of that document, the underlined references are links to statutes, Interior documents and cases. Those linked materials are omitted from Exhibit 42, but are found in Exhibits 1, 2, 3, 7 and 14 of Hoopa Plaintiffs' Motion for Partial Summary Judgment.) The substance of the Justice Department's comments to the Interior Department was not revealed to us. 8. On March 1, 2007, Ross O. Swimmer, Special Trustee for American Indians,

informed plaintiffs that: "after careful consideration and for the reasons set out briefly above, the Department has concluded that, through administrative action, the remaining funds set aside pursuant to the Act can still be distributed to the Yurok Tribe. . . . after the Department has received an unconditional waiver from the Yurok Tribe consistent with the Act." 9. Attached as Exhibit 43 is the letter of Clifford Lyle Marshall, Chairman to Dirk

Kempthorne, Secretary of the Interior, concerning the Department's policy decision to release

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the Hoopa-Yurok Settlement Fund and to block a Hoopa appeal. This is the letter to which the Assistant Secretary--Indian Affairs responded on June 29, 2007; the response is Exhibit 39 to Hoopa Plaintiffs' Motion for Partial Summary Judgment. I testify under penalty of perjury under the laws of the United States that the foregoing is true and correct. Dated this 1st day of May, 2008, in Seattle, Washington.

s/ Thomas P. Schlosser________________ Thomas P. Schlosser

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CERTIFICATE OF SERVICE

I hereby certify that on May 1, 2008, a copy of, Declaration of Thomas P. Schlosser Regarding Defendant's Motion to Stay, was electronically sent via the CM/ECF system by the United States Court of Federal Claims on the following party: Devon Lehman McCune Email: [email protected]

s/ Thomas P. Schlosser____________________ Thomas P. Schlosser, Attorney of Record MORISSET, SCHLOSSER, JOZWIAK & McGAW 801 Second Avenue, Suite 1115 Seattle, WA 98104-1509 Tel: (206) 386-5200 Fax: (206) 386-7322 [email protected]
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