Free Supplemental Brief - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

THE SALT RIVER PIMAMARICOPA INDIAN COMMUNITY, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant.

) ) ) ) ) ) ) ) ) )

Case No. 06-943 Judge Lawrence M. Baskir (Electronically Filed December 3, 2007)

PLAINTIFF'S SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION TO SUPPLEMENT THE RECORD AND FOR SUPPLEMENTAL BRIEFING On November 8, 2007, Plaintiff, the Salt River Pima-Maricopa Indian Community ("Salt River"), filed a Motion to Supplement the Record and for Supplemental Briefing (the "Motion.") In this Motion, Salt River moved the Court to include in the record on Defendant's Motion to Dismiss Pursuant to 28 U.S.C. § 1500, the transcript of the evidentiary hearing held by Emily C. Hewitt in Ak-Chin Indian Community v. United States, No. 06-932L, on October 24, 2007 ("Hearing Transcript"), during which Alexis Applegate testified. Salt River also requested that the Court order supplemental

briefing to give the parties the opportunity to address Ms. Applegate's testimony.

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On November 9, 2007, the Court held a Status Conference and heard the parties' arguments concerning Salt River's Motion. At that Hearing, the Court ruled that it will hold an evidentiary hearing, during which Ms. Applegate will testify, that "the transcript of Judge Hewitt's hearing may properly be part of our record" and it was "inclined to admit [the Hearing Transcript] as a piece of evidence." Transcript of Proceedings, November 9, 2007 ("November 9th Hearing Tr.") p. 10. The Court also ruled that it will address the issue of supplemental briefing at the conclusion of the evidentiary hearing, which was later scheduled to occur on December 10, 2007. (Nov. 9th Hearing Tr. p. 24; November 14, 2007 Order.) Because Defendant did not file an opposition to Salt River's Motion, which it was required to do under RCFC 7.2(a) by November 26, 2007, and the Court indicated its willingness to admit the Hearing Transcript during the November 9, 2007 Status Conference, Salt River submits for the Court's consideration a proposed order granting Salt River's request that the Hearing Transcript be included in the record. See Proposed Order, attached hereto as Exhibit A. The proposed order also reflects the Court's ruling that the issue of supplemental briefing will be addressed at the conclusion of the December 10, 2007 Hearing. See id.

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This the 3rd day of December, 2007.

Respectfully submitted,

/s/ Keith Harper KEITH HARPER D.C. Bar No. 451956 E-mail [email protected] G. WILLIAM AUSTIN D.C. Bar No. 478417 E-mail [email protected] CATHERINE F. MUNSON Georgia Bar No. 529621 E-mail [email protected] KILPATRICK STOCKTON, LLP 607 14th Street, N.W. Washington, D.C. 20005 Phone: (202) 508-5800 Attorneys for Plaintiff The Salt River Pima-Maricopa Indian Community

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS THE SALT RIVER PIMAMARICOPA INDIAN COMMUNITY, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) )

Case No. 06-943L Judge Lawrence M. Baskir Electronically filed on December 3, 2007

CERTIFICATE OF SERVICE I hereby certify that the foregoing PLAINTIFF'S SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION TO SUPPLEMENT THE RECORD AND FOR SUPPLEMENTAL BRIEFING was electronically filed using the Court's ECF system and that the below-listed counsel are ECF users and will be served via the ECF System: Kevin J. Larsen, Esq. Natural Resources Section Environment and Natural Resources Division United States Department of Justice P.O. Box 663 Washington, D.C. 20044-0663

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This 3rd day of December, 2007. /s/ Keith Harper KEITH HARPER D.C. Bar No. 451956 E-mail [email protected] G. WILLIAM AUSTIN D.C. Bar No. 478417 E-mail [email protected] CATHERINE F. MUNSON Georgia Bar No. 529621 E-mail [email protected] Kilpatrick Stockton LLP 607 14th Street, N.W. Washington, D.C. 20005 Phone: (202) 508-5800 Attorneys for Plaintiff The Salt River Pima-Maricopa Indian Community

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EXHIBIT A IN THE UNITED STATES COURT OF FEDERAL CLAIMS THE SALT RIVER PIMAMARICOPA INDIAN COMMUNITY, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) )

Case No. 06-943L Judge Lawrence M. Baskir

ORDER This matter comes before the Court on Plaintiff's Motion to Supplement the Record and for Supplemental Briefing. After careful

consideration, review of the Motion and having heard the parties' arguments, the Court hereby Orders as follows: 1. The transcript of the evidentiary hearing held by Emily C. Hewitt

in Ak-Chin Indian Community v. United States, No. 06-932L, on October 24, 2007 is admitted into the record on Defendant's Motion to Dismiss Pursuant to 28 U.S.C. § 1500.

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2.

The Court will consider the issue of supplemental briefing to

address Alexis Applegate's testimony at the close of the evidentiary hearing scheduled for 10:00 a.m. on December 10, 2007.

IT IS SO ORDERED this ____ day of December, 2007.

Lawrence M. Baskir Judge

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