Free Response - District Court of Federal Claims - federal

Case 1:06-cv-00945-FMA

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United States Court of Federal Claims
NAVAJO NATION f.k.a. NAVAJO TRIBE OF INDIANS, Plaintiff, v. UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) No. 06-945L Judge Francis M. Allegra

DEFENDANT'S RESPONSE TO THE COURT'S ORDER OF APRIL 16, 2008 REGARDING DEPARTMENT OF INTERIOR'S DISCOVERY OF DOCUMENT DAMAGE On April 15, 2008, Defendant filed a notification to the Court concerning the fact that in the course of a privilege review taking place at the Gallup, New Mexico Federal Building of documents responsive to the Court's September 10, 2007 Order in this case, U.S. Department of Interior, Solicitor's Office attorneys discovered certain mold and water damage to Bureau of Indian Affairs ("BIA") documents. These documents were originally stored at the Navajo Regional Office in Window Rock, Arizona. Subsequently, they were relocated pursuant to a move plan approved by the Court to the Gallup, New Mexico Federal Building for the actual privilege review. Defendant's April 15, 2008 Notification to the Court included a report from the U.S. Department of the Interior, Office of the Solicitor, describing the facts known to the Solicitor's Office as of April 15, 2008. On April 16, 2008, the Court entered an Order requesting additional information, including: 1) the nature of the destruction and/or damage to the documents; 2) the best estimate of when the destruction and/or damage to the documents occurred; 3) the circumstances regarding the destruction and/or damage to the documents and the discovery of the damage, and; 4) the steps that the Agency has taken, or will take, to ensure no further damage to documents In response to the Court's April 16, 2008 Order, Defendant herein files the May 8, 2008 report from the U.S. Department of the Interior, Office of the Solicitor ("Solicitor's Report"), attached as Exh. 1, and, as attachments to Exh. 1, the Declaration of George Padilla ("Padilla

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Decl."), and the Declaration of Ethel Abeita ("Abeita Decl."). The report and declarations address the questions raised by the Court and describe the types of documents which were damaged in the eleven boxes identified thus far as follows:

1. The Nature of the Damage to the Documents. As noted in the Solicitor's Report, the damage to the documents involves mold or water damage, or both, to varying degrees. See Solicitor's Report at pg. 1. The Solicitor's Report also identifies the types and categories of documents impacted, the location of the damage on the documents, and the severity of damage. Id. at pgs. 1-2. The results of the mold testing completed through the present date is described in the Padilla Decl. at pgs 3-4 and the appended Assaigai Lab Report to the Padilla Decl. According to Ethel Abeita, there are a total of eleven boxes impacted by mold or water damage through the current date. Abeita Decl. at pg. 4.

2. The Best Estimate of When the Document Damage Occurred. According to Ms. Padilla, a BIA regional environmental scientist, it is not possible to state how the mold came into the boxes with any certainty, or when the mold actually developed. See Padilla Decl. at pg. 4. Ms. Padilla states that mold typically needs a combination of organic material, "accommodating degrees of temperature," and moisture in order to grow. Id. She further states that the absence of any data concerning when these factors may have come together in relation to the inactive documents prejudices the possibility of dating. Id.

3. The Circumstances and Discovery Regarding Document Damage. As noted in the Solicitor's Report, on April 3, 2008, damage to some of the documents in one box of records was discovered in the course of a privilege review by a Solicitor's Office attorney. See Solicitor's Report at pg. 3. The Solicitor's Report goes on to note that by April 7, 2008 more damaged documents were discovered in up to four other boxes by attorneycontractors doing privilege reviews at the Gallup Federal Building. See id. The Solicitor's Report goes on to note that the mold and/or water damage was not evident until individual files were actually opened by the attorneys doing the privilege review. Id.

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4. Agency Action to Ensure There Is No Further Document Damage Ethel Abeita is the Director of the Office of Trust Records at the Office of the Special Trustee for American Indians. According to her declaration, several steps have been taken to ensure that there is no further damage to the documents at issue. These steps include the retention of a conservation expert to examine the documents currently identified as showing signs of mold or water damage. See Abeita Decl. at pg. 4. Ms. Abeita also states that she is currently negotiating with the General Services Administration for space in a warehouse on 12th Street in Albuquerque, New Mexico where screening and remediation can take place. Id. at pg. 5. All boxes in the Window Rock box collection where the damaged documents were found are to be screened, and any further damage identified will be remediated. In regards to the bigger picture, Ms. Abeita's declaration describes continuing efforts to move all inactive BIA documents to the American Indian Records Repository for archiving. See id. at pgs. 1-3; see also Solicitor's Report at pgs. 3-4.

The Defendant will file, as appropriate, any additional report(s) of the existence of further damaged documents as the complete collection of seven hundred and nine Window Rock documents is examined, along with any supplementation to its responses to the Court's questions of April 16, 2008. By telephone call on May 8, 2008, the undersigned counsel has advised opposing counsel of the matters described in the attached report and associated declarations. Respectfully submitted this 8th day of May, 2008,

RONALD J. TENPAS Assistant Attorney General s/ Robert W. Rodrigues Robert W. Rodrigues E. Kenneth Stegeby Ayako Sato United States Department of Justice Environment and Natural Resources Division Natural Resources Section P.O. Box 663 Washington, D.C. 20044-0663 Telephone: 202-353-8839

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Facsimile: 202-353-2021 Attorneys for Defendant