Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:06-cv-00945-FMA

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Filed 07/11/2007

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UNITED STATES COURT OF FEDERAL CLAIMS NAVAJO NATION f.k.a. NAVAJO TRIBE OF INDIANS, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) )

No. 06-945 L Judge Francis M. Allegra

PLAINTIFF'S UNOPPOSED EXPEDITED MOTION FOR LEAVE TO FILE NOTICE OF RECENTLY DISCLOSED FACTS RELEVANT TO PLAINTIFF'S MOTION FOR ENTRY OF RECORD RETENTION ORDER Plaintiff hereby moves the Court for leave to file the attached Notice of Recently Disclosed Facts relevant to Plaintiff's pending motion for entry of a record retention order ("Plaintiff's Notice of Recently Disclosed Facts"). As grounds for this motion, Plaintiff states as follows: 1. On May 21, 2007, Plaintiff filed its Motion for Entry of Record Retention Order

("RRO Motion") along with a proposed order and a brief in support thereof. 2. On June 21, 2007, after entry of an order granting additional time to file, Defendant

filed its opposition to Plaintiff's RRO Motion. 3. On June 28, 2007, the Court ordered that oral argument on Plaintiff's RRO Motion

be held on July 20, 2007. 4. 5. On July 5, 2007, Plaintiff filed its reply in support of its RRO Motion ("RRO Reply"). On July 9, 2007, in two separate cases before this Court that are indirectly related to

this case, namely, Jicarilla Apache Nation v. United States, No. 02-25L and Pueblo of Laguna v. United States, No. 02-24L, Defendant filed identical Notices of Filing of Report Concerning Inadvertent Document Destruction ("Defendant's Notices of Document Destruction").

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6.

Defendant's Notices of Document Destruction reveal for the first time to the Court

and Plaintiff the facts pertaining to the document destruction in April 2007 of 15 boxes of government records including documents relating to financial transactions of the United States Department of Treasury ("Treasury") involving the Department of the Interior and the United States Bureau of Indian Affairs. See Defendant's Notices of Document Destruction, attached as Exhibits A and B to Plaintiff's Notice of Recently Disclosed Facts. While Treasury was notified of that document destruction in June 2007, counsel for Defendant was apparently only notified of it on July 9, 2007. See id. 7. A central issue in Plaintiff's pending RRO Motion is the necessity for court protection

of irreplaceable Indian trust records critically relevant to adjudication of this case. Probative of this issue is the manner in which Defendant's existing record retention policies, procedures, and controls have allowed the recent and ongoing loss and destruction of Indian trust records. Given this, Defendant's Notices of Record Destruction in the Jicarilla and Laguna cases should be considered by the Court in ruling on Plaintiff's RRO Motion in this case. 8. Plaintiff was not previously able to notify the Court of the recent document

destruction disclosed to Plaintiff for the first time in Defendant's Notices of Document Destruction because Plaintiff was not aware of that document destruction before the filing of Defendant's notices and Defendant's notices were not filed and served until after Plaintiff filed its RRO Reply. 9. This motion is expedited because the oral argument on Plaintiff's RRO Motion is

scheduled for nine days after the filing of this motion. 10. Plaintiff has conferred with Defendant regarding this motion and determined that

Defendant does not oppose this motion.

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WHEREFORE, Plaintiff respectfully moves this Court for leave to file the attached Notice of Recently Disclosed Facts Relevant to Motion for Entry of Record Retention Order.

Respectfully submitted, /s/ Alan R. Taradash Alan R. Taradash Nordhaus Law Firm, LLP 405 Dr. Martin Luther King, Jr. Ave. NE Albuquerque, NM 87102 telephone: 505-243-4275 facsimile: 505-243-4464 Dated: July 11, 2007 Attorney of Record for Plaintiff

Of Counsel for Plaintiff:

Thomas J. Peckham Daniel I.S.J. Rey-Bear Deidre A. Lujan Dana L. Bobroff Nordhaus Law Firm, LLP 405 Dr. Martin Luther King, Jr. Ave. NE Albuquerque, NM 87102 telephone: 505-243-4275 facsimile: 505-243-4464 Donald H. Grove Nordhaus Law Firm, LLP 1401 K Street NW, Suite 801 Washington, DC 2006 telephone: 202-530-1920 facsimile: 202-530-1270

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