Free Joint Status Report - District Court of Federal Claims - federal

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

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

FOURTH JOINT STATUS REPORT Pursuant to the Court's April 2, 2008 Order, Dkt. 16, Plaintiff Coeur d'Alene Tribe ("Plaintiff" or "Tribe") and Defendant United States respectfully submit this Fourth Joint Status Report ("JSR"). Relevant Procedural History 1. As this Court is aware, Plaintiff filed this case on December 29, 2006. See

Complaint, Dkt. 1. Also on December 29, 2006, 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-cv-02242-JR (D.D.C.) (hereinafter, "Companion Case"). Plaintiff makes allegations in both cases relating to the trust accounting and other trust duties and responsibilities allegedly owed by Defendant to Plaintiff. 2. On February 20, 2007, the parties filed in this case a Joint Motion for Temporary

Stay of Litigation. See Dkt. 6. In that Joint Motion, the parties noted that their counsel had conferred and agreed that (a) the trust mismanagement issues and claims raised by Plaintiff in this case are secondary, at this particular juncture, to the trust accounting issues and claims asserted by Plaintiff in the Companion Case; (b) the disposition of the issues and claims in the Companion Case would likely have a significant influence and impact on the disposition of

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issues and claims in this case; and (c) the outcome of the Tribal Trust Fund Settlement Project ("TTFSP" or "Project") currently under way between the Inter-Tribal Monitoring Association ("ITMA") and the Office of Historical Trust Accounting ("OHTA"), which is part of the United States Department of the Interior (in which process Plaintiff and six other Indian tribes are participating) might affect the issues and claims in this case. The Court granted the Joint Motion on February 28, 2007. Dkt. 7. 4. In the Companion Case, Defendant filed on March 9, 2007, an Unopposed Motion

for Enlargement of Time Within Which to File Answer or Otherwise Respond to Complaint. See No. 1:06-cv-02242-JR (D.D.C.), Dkt. 6. The District Court granted Defendant's motion, and Defendant filed its answer in that case on June 11, 2007. See Dkt. 8. 5. At the direction of the District Court, Dkt. 9, Defendant filed a motion on August

10, 2007, in the Companion Case and in the 36 other tribal accounting cases on the District Court's docket for a remand of the plaintiff tribes' trust accounting claims to the Department of the Interior, Dkt. 13. In addition to joining with the other plaintiff tribes in a Principal Brief in opposition to Defendants' motion that was filed on October 1, 2007, Plaintiff filed its own supplemental opposition brief on October 22, 2007, Dkt. 17. 6. On December 19, 2007, the District Court denied Defendants' motion for a

remand, Dkt. 21, and ordered the plaintiff tribes to file proposals to govern further proceedings in their respective cases within 30 days of the Order. On January 18, 2008, Plaintiff filed its Proposal for Further Proceedings, Dkt. 22 ("Proposal for Further Proceedings"). Citing the Plaintiffs' participation in the TTFSP, Plaintiff suggested to the District Court, among other things, that Plaintiff continue its participation in the TTFSP and that the parties file a joint report with the Court that details the status of Phase I of the Project by July 11, 2008. Id.

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7.

The parties filed their Third Joint Status Report in this case on February 22, 2008.

The Third Joint Status report proposed extending the temporary stay of litigation through July 25, 2008, based on the Tribe's participation in the TTFSP. The Court ordered a telephonic status conference with counsel for the parties on April 1, 2008, and entered an Order on April 2, 2008, that extended the stay of proceedings in this case through July 25, 2008. Background on the Project 8. As previously reported in the parties' prior filings and as described by counsel

during the April 1 status conference, ITMA is a national nonprofit tribal consortium, the membership of which is comprised of 65 Indian tribes. ITMA's mission, among other things, includes monitoring the Department of the Interior's trust reform efforts and providing a forum for tribal consultation on trust-related issues. Plaintiff is a member of ITMA. 9. In May 2003, the Department of the Interior approached ITMA to explore the

possibility of entering into a cooperative undertaking that could assist in resolving tribal trustrelated claims. Following 19 months of negotiation, ITMA and OHTA entered into a Cooperative Agreement ("Cooperative Agreement") to establish the TTFSP in December 2004. Plaintiff and six other federally recognized Indian tribes agreed to participate as the "pilot project" tribes for the TTFSP. The other six participating tribes are the Sac and Fox Nation (Oklahoma), Fort Belknap Indian Community (Montana), Pueblo of Picuris (New Mexico), Confederated Tribes and Bands of the Yakama Indian Nation of the Yakama Reservation (Washington), the Confederated Tribes of the Colville Reservation (Washington), and the Nez Perce Tribe (Idaho). These tribes were selected, in part, to ensure that the Project included a geographically diverse range of Indian tribes with varying land bases, natural resources, and trust

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accounts to better ensure that any methodology developed under the TTFSP would be as inclusive and representative of Indian tribes nationwide as possible. 10. The main goals of the TTFSP are to provide Indian tribes with a voluntary

mechanism to determine the possibility of reaching settlement of certain tribal trust fund-related issues and claims, and to provide tribes and Defendants with a framework for resolving broader trust-related issues. The scope of the TTFSP is limited to 1972 through 1992--the years covered by the tribal trust fund reconciliation project conducted by the Interior Department using the contractor services of Arthur Andersen, LLP in the 1990s. Nevertheless, ITMA, OHTA, and Plaintiff have expressed openness and receptivity to the possibility that, if the tribal participants are satisfied with the outcome of the TTFSP, they might be able to agree upon an extrapolation or some form of adaptation of the TTFSP methodology to address other time periods and other types of trust-related claims. 11. The Cooperative Agreement encompasses two phases to the TTFSP. Phase I

consists of developing a methodology for utilizing the information contained in the reports prepared by Arthur Andersen LLP for the seven tribes participating in the Project. In Phase II, the Phase I methodology will be made available for use by any interested Indian tribes on a voluntary basis. As previously reported, in order for the Phase I methodology to be complete or "final," it must be approved by (a) Plaintiff and the other TTFSP participating tribes, (b) ITMA, through its Board of Directors, and (c) OHTA. Current Status of the Project and Upcoming Meetings 11. The Phase I methodology is now complete and pending approval by four of the

seven pilot tribes and the ITMA Board of Directors. The last meeting between ITMA and its consultants and OHTA occurred on June 17 and 18, 2008, in Albuquerque, New Mexico. At that

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meeting, the final draft of the Phase I methodology was presented to representatives of the seven pilot tribes for their review. Two of Plaintiff's elected tribal officials (together with Plaintiff's legal counsel) attended this meeting, as did elected tribal officials or representatives from the six other pilot tribes. Representatives of ITMA and OHTA, together with their respective consultants and legal counsel, provided a detailed explanation of the methodology and answered questions from the tribal representatives. 12. On July 10, 2008, Plaintiff's Tribal Council unanimously approved the Phase I

methodology. In addition to Plaintiff, two other pilot project tribes have approved the methodology: the Fort Belknap Indian Community approved the Phase I methodology on July 1, 2008, and the Confederated Tribes of the Colville Reservation approved it on July 10, 2008. 13. ITMA has scheduled a meeting of its Board of Directors on July 30 and 31, 2008,

for the Board's consideration of the final Phase I methodology. Assuming all requisite approvals are obtained by the pilot tribes and the OHTA, Phase I of the Project will be complete at this time. 14. Once the Phase I methodology is fully approved, Plaintiff anticipates engaging in

further discussions with Defendants to explore the feasibility of applying the Phase I methodology, or a portion thereof, to Plaintiff's trust accounts as a means to facilitate settlement of Plaintiff's claims in this action. Developments Since the April 1, 2008, Status Conference 15. Since the April 1, 2008, status conference, counsel for the parties have had

ongoing discussions regarding the Phase I methodology and the status of its approval by the seven pilot tribes. Also, counsel for the parties have had preliminary discussions regarding the potential application of the methodology if approved and agreed upon.

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16.

Also, counsel for the parties have been and continue to be negotiating the terms

and conditions of a joint stipulation and proposed order to protect the confidentiality of certain documents and data to be provided by Defendant to Plaintiff in this case. Counsel for the parties believe that they are nearing the conclusion of their negotiations, and they expect to submit to the Court (a) a joint stipulation and proposed order, or (b) a joint stipulation and proposed order about the terms and conditions about which they can agree, with separate proposals regarding the term(s) and condition(s) about which they cannot agree. 17. In response to a question by the Court at the April 1 telephonic status conference,

counsel for Plaintiff indicated Plaintiff's belief that the parties were close to an agreement on this joint document and data confidentiality stipulation and proposed order and that the joint stipulation and proposed order would be filed for the Court's consideration in the coming weeks. According to Plaintiff's counsel, he had made this statement based on the draft of the joint document and data confidentiality stipulation and proposed order that Defendant had provided for Plaintiff's review and on discussions with Defendant's counsel regarding that draft. Also according to Plaintiff's counsel, Plaintiff had understood that the draft that Defendant had provided for Plaintiff's review had been filed in more than two dozen tribal trust cases in this Court and other federal courts. Further according to Plaintiff's counsel, subsequent to the April 1 status conference, Defendant provided Plaintiff with an entirely new set of proposed changes, and that the new changes were not in response to any changes that Plaintiff had proposed and that some of them were and are unacceptable to Plaintiff. 18. In Defendant's view, Defendant has been and continues to be engaging in good-

faith negotiations with Plaintiff about the terms and conditions of the joint document and data confidentiality stipulation and proposed order; the discussions between the parties are on-going,

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as noted by the parties above; the latest modifications to the joint stipulation and proposed order that Defendant proposed to Plaintiff are reasonable and they address and respond to recent developments regarding productions of confidential materials; and, to the extent that the parties are unable to come to an agreement regarding the modifications, the parties will determine whether to submit the matter to the Court for its review and adjudication. 19. Given that the Phase I methodology is now complete and in light of the upcoming

meetings to consider the final Phase I methodology for approval, the parties respectfully propose the following: (a) That the parties file a fifth joint report with the Court by October 17, 2008,

that details the final approval status of the Phase I methodology and any discussions, plans, or proposals by the parties to apply the methodology to Plaintiff's claims or otherwise resolve Plaintiff's claims in this case and in the Companion Case. The joint report shall also include any additional proposals for further proceedings and, if appropriate, a corresponding schedule. (b) That the Court continue the temporary stay of proceedings in this case

under the same terms as the Court's April 2, 2008 Order, Dkt. No. 16, through October 27, 2008, or until further Order of the Court.

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Respectfully submitted this 11th day of July, 2008, RONALD J. TENPAS Assistant Attorney General /s/ John P. Racin, by /s/ E. Kenneth Stegeby, pursuant to written authorization on July 11, 2008 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 OF COUNSEL: ANTHONY P. HOANG JODY SCHWARZ United States Department of Justice Environment and Natural Resources Division P.O. Box 663 Washington, D.C. 20044-0663 Tel: (202) 305-0241 Fax: (202) 353-2021 MICHAEL BIANCO Office of the Solicitor United States Department of the Interior Washington, D.C. 20240 THOMAS KEARNS Office of the Chief Counsel Financial Management Service United States Department of the Treasury Washington, D.C. 20227

Attorney of Record for Plaintiff OF COUNSEL: BRIAN L. GUNN Drinker Biddle & Reath LLP 1500 K Street, N.W. Washington, D.C. 20005-1209 Tel: (202) 230-5172 Fax: (202) 230-5300

ERIC R. VAN ORDEN Office of Legal Counsel The Coeur d'Alene Tribe 850 A Street Plummer, ID 83851 Tel: (208) 686-1800 Fax: (208) 686-1182

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