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

Case 1:06-cv-00940-EJD

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) ____________________________________) COEUR D'ALENE TRIBE,

Case No. 06-cv-00940L Judge Edward J. Damich

PARTIES' JOINT MOTION FOR TEMPORARY STAY OF LITIGATION AND [PROPOSED] ORDER Pursuant to Rule 6.1 of the Rules of the Court of Federal Claims ("RCFC"), the parties respectfully request that this Court issue a temporary stay of the litigation of this case, effective immediately, to and including February 27, 2008. The grounds for this joint motion are as follows: 1. Plaintiff filed this case on December 29, 2006. See Complaint, Doc. 1. Also on

December 29, Plaintiff filed a companion case for declaratory and injunctive relief in the United States District Court for the District of Columbia, Coeur d'Alene Tribe v. Kempthorne, No. 1:06-cv02242-JR (D.D.C.). Plaintiff makes allegations in both cases relating to the trust accounting and other trust duties and responsibilities allegedly owed by Defendant to Plaintiff. 2. Under RCFC 12, the deadline for Defendant to file its Answer or otherwise respond

to the Complaint in this case is currently February 27, 2007. 3. At the end of January and the beginning of February, 2007, counsel for Plaintiff in

this case, as well as the companion case, Coeur d'Alene Tribe, No. 1:06-cv-02242-JR, conferred with counsel for Defendant about the two cases, and, among other things, they discussed and agreed that (a) the trust mismanagement issues and claims raised by Plaintiff here are secondary, at this particular juncture, to the trust accounting issues and claims asserted by Plaintiff in its companion

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case, Coeur d'Alene Tribe, No. 1:06-cv-02242-JR; (b) the disposition of the issues and claims in Coeur d'Alene Tribe, No. 1:06-cv-02242-JR, would likely have a significant influence and impact on the disposition of issues and claims in this case; (c) the outcome of an administrative accounting process currently under way between the Inter-Tribal Monitoring Association and the Office of Historical Trust Accounting (OHTA) of the United States Department of the Interior (in which process Plaintiff and other Tribes are participating) might affect the issues and claims in this case; and (4) the parties would seek a temporary stay of litigation, to and including February 27, 2008, so that they could be informed and guided in their determination about whether and how to proceed in this case, by the outcomes, developments, and dispositions of the events and activities described above. 4. Counsel for the parties also discussed the fact that, by counsel's computation, there

are presently about 103 Tribal trust accounting and trust mismanagement lawsuits pending in this Court,1/ in the United States District Court for the District of Columbia,2/ and in the United States District Courts in Oklahoma.3/ See Exhibit (Exh.) 1. Given the number of cases and the significant potential for overburdening already limited resources, counsel for the parties agreed that it would be sensible for the Tribes in litigation (including Plaintiff) and Defendant to work together to formulate and execute an appropriate joint and cooperative response to or method for handling or

1/

There are currently 57 Tribal trust cases, including this one, in the Court of Federal Claims. See Exhibit (Exh.) 1. There are currently 37 Tribal trust cases, including Plaintiff's companion case, Coeur d'Alene Tribe, No. 1:06-cv-02242-JR, in the United States District Court for the District of Columbia. Exh. 1. Most of the Tribes bringing these lawsuits (like Plaintiff) have also filed companion cases in the Court of Federal Claims. Id.
3/ 2/

There are currently nine Tribal trust cases in the United States District Courts in Oklahoma. Exh. 1. Most of the Tribes bringing these lawsuits have also filed companion cases in the Court of Federal Claims. Id.

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resolving the cases without the need for litigation, if possible. 5. To that end, Defendant's counsel has been and continues to be working diligently

with attorneys from the Solicitor's Office for the Interior Department and from the Chief Counsel's Office for the Financial Management Service of the United States Department of the Treasury (i.e., the federal agencies principally involved in the Tribal trust accounting and trust mismanagement issues and claims raised by the Tribes, including Plaintiff in this case and in its companion case, Coeur d'Alene Tribe, No. 1:06-cv-02242-JR) and with counsel for the Tribes in the cases (including counsel for Plaintiff herein and counsel for Plaintiff in Coeur d'Alene Tribe, No. 1:06-cv-02242-JR), to determine the feasibility of developing a joint, cooperative approach for resolving the Tribes' issues and claims as an alternative to litigation. 6. Based on the foregoing, the parties hereby respectfully request that the Court grant

the following relief: a. 2008; b. Make the temporary stay effective immediately, thus deferring, among other Temporarily stay the litigation of this case, to and including February 27,

things, the time and obligation for Defendant to file its Answer or otherwise respond to the Complaint, until after the termination of the temporary stay; c. Order that the parties file a joint status report on or before February 27, 2008,

informing the Court of the status of their efforts to resolve the issues and claims of this case (if any) and of Plaintiff's companion case, Coeur d'Alene Tribe, No. 1:06-cv-02242-JR, and making a proposal to the Court about whether and how to proceed with this case; and d. Direct that, in the event that the parties seek to reinstate and proceed with the

litigation of this case, the parties set forth, in their joint status report and proposal, their

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recommendations regarding the deadlines for such items as the filing by Defendant of its Answer or response to the Complaint and the filing of the parties' Joint Preliminary Status Report (JPSR) pursuant to RCFC Appendix A, ¶ 4. 7. On the one hand, the granting of this joint motion would serve the public interest by

promoting judicial economy and conserving the parties' limited resources. Further, it would not cause any undue prejudice or harm to the rights and interests of the parties herein. On the other hand, the denial of the joint motion would unduly interfere with the parties' ability to confer among themselves and with the Tribes in the other Tribal trust accounting and trust mismanagement lawsuits and possibly devise an efficient, cost-effective, and resource-conserving way for addressing and handling the 103 cases (or some portion of those cases) that have been filed by Plaintiff and other Tribes in this Court and in the United States District Courts. WHEREFORE, the parties respectfully request that their motion for temporary stay of litigation be GRANTED. Respectfully submitted this 21st day of February, 2007, MATTHEW McKEOWN Acting Assistant Attorney General

s/ E. Kenneth Stegeby for John P. Racin JOHN P. RACIN 1721 Lamont Street, N.W. Washington, D.C. 20010 Tel: (202) 265-2516 Fax: (202) 483-7895

s/ E. Kenneth Stegeby E. KENNETH STEGEBY United States Department of Justice Environment and Natural Resources Division P.O. Box 663 Washington, D.C. 20044-0663 Tel: (202) 616-4119 Fax: (202) 353-2021 Attorney of Record for Defendant

Attorney of Record for Plaintiff

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OF COUNSEL: ANTHONY P. HOANG MARTIN J. LALONDE United States Department of Justice Environment and Natural Resources Division P.O. Box 663 Washington, D.C. 20044-0663 Tel: (202) 305-0241 Tel: (202) 305-0247 Fax: (202) 353-2021 KENNETH DALTON Office of the Solicitor United States Department of the Interior Washington, D.C. 20240 TERESA E. DAWSON Office of the Chief Counsel Financial Management Service United States Department of the Treasury Washington, D.C. 20227