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

Case 1:06-cv-00940-EJD

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EXHIBIT 1 TO PARTIES' JOINT MOTION FOR LIFTING OF TEMPORARY STAY OF LITIGATION FOR LIMITED PURPOSE, AND FOR APPROVAL AND ENTRY OF PARTIES' JOINT STIPULATION AND [PROPOSED] ORDER REGARDING COMMUNICATION, REPORT, OR WORK PRODUCT PURSUANT TO CERTAIN COOPERATIVE AGREEMENT AND ANY AMENDMENT THERETO

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

JOINT STIPULATION AND [PROPOSED ORDER] REGARDING COMMUNICATION, REPORT, OR WORK PRODUCT PURSUANT TO A CERTAIN COOPERATIVE AGREEMENT AND ANY AMENDMENT THERETO WHEREAS Plaintiff the Coeur d'Alene Tribe ("Plaintiff," "Coeur d'Alene Tribe," or "Tribe") commenced this action on December 29, 2006, and the parties have sought and received from this Court an order temporarily staying the litigation of the case until February 27, 2008; WHEREAS the parties have agreed to participate in the administrative process described below or otherwise engage in discussions that may lead to a possible settlement of Plaintiff's trust accounting and trust fund mismanagement claims herein; WHEREAS the Secretary of the Interior has created the Office of Historical Trust Accounting ("OHTA") within the United States Department of the Interior ("Interior"), for the purpose of providing historical statements of account of individual Indian money ("IIM") accounts and Tribal trust fund accounts. OHTA's mission includes, among other things,

compiling, checking, and providing historical accounting records to individuals and Tribes in the form of Historical Statements of Accounts; WHEREAS the InterTribal Monitoring Association ("ITMA") is a national tribal consortium consisting of over sixty federally recognized Indian Tribes. ITMA's mission

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includes monitoring the United States government's trust reform efforts and providing a forum for tribal consultation on trust issues; WHEREAS, in December 2004, OHTA and ITMA entered into a Cooperative Agreement to undertake a project ("Project") that would be funded by OHTA to create a methodology that could be used to help Interior and participating Tribes reach agreement about the balances of the Tribes' trust fund accounts, among other things; WHEREAS Plaintiff the Coeur d'Alene Tribe has participated, and is continuing to participate, in activities pursuant to the Cooperative Agreement, which activities include but are not limited to written and oral communications; the preparation of analyses, reports, and other work products; and collaborative undertakings between the Tribe, Interior (including OHTA), their officials, employees, agents, and contractors; WHEREAS the Tribe reserves the right not to accept or agree with the accuracy or completeness of any such analyses, reports, or work products; WHEREAS the parties believe that the activities pursuant to the Cooperative Agreement, as well as any amendment thereto, may lead to a settlement of this case, in whole or in part; and WHEREAS the parties believe that such a settlement of this case, in whole or in part, would avoid placing the undue burden of litigation and the resulting expense of time, resources, and effort on the Court and the parties, THE PARTIES HEREBY STIPULATE AND AGREE TO THE FOLLOWING: I. Definitions 1. "Party" includes the party's elected officials, employees, agents, representatives,

counsel, experts, consultants, contractors, and anyone acting on the party's behalf.

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2.

"Covered proceeding" means any judicial or administrative proceeding (including

those created or established after the date of execution of this Joint Stipulation) that involves Plaintiff (or any department or instrumentality thereof) and Defendant (specifically, the Secretary and the Department of the Interior; the Secretary and the Department of the Treasury; or any subdivision, agency, or instrumentality thereof) and that addresses, either in whole or in part, any legal or equitable claims, assertions, or defenses concerning the management, accounting, reconciliation, audit, or other analyses by Defendant of the funds that Defendant holds in trust for Plaintiff's benefit (including any determinations by Defendant regarding the account balances of Plaintiff's trust funds). The legal or equitable claims, assertions, or defenses regarding the management by Defendant of the funds that Defendant holds in trust for Plaintiff's benefit include, but are not limited to, those based on Defendant's alleged failure to properly collect trust revenues derived from Plaintiff's non-monetary trust assets or resources. II. Terms and Conditions 3. A party shall not offer for admission, seek to admit, or have admitted into

evidence, in this case or in any other Covered Proceeding, either of the following: (a) the fact of the other party's participation pursuant to the Cooperative Agreement (as well as any amendment thereto), or (b) any communication, report, or work product (or any portion of the communication, report, or work product) that the party has received from the other party pursuant to the Cooperative Agreement (as well as any amendment thereto), except as provided in Paragraph 4 below. 4. A party may offer for admission, seek to admit, or have admitted into evidence in

this case or in any Covered Proceeding, any communication, report, or work product (or any portion of the communication, report, or work product) that the party has received from the other

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party, pursuant to the Cooperative Agreement (as well as any amendment thereto), only in the following circumstances: (a) The parties have conferred and agreed, in writing, that the communication,

report, or work product (or any portion of the communication, report, or work product) may be filed, submitted, or offered for admission into evidence; (b) The party that is offering for admission, seeking to admit, or having

admitted into evidence a communication, report, or work product (or any portion of the communication, report, or work product), has made, generated, or produced such communication, report, or work product (or any portion of the communication, report, or work product) independently of the other party, and such independently made, generated, or produced communication, report, or work product (or any portion of the communication, report, or work product) does not rely on any communication, report, or work product (or any portion of the communication, report, or work product) that is precluded by this Joint Stipulation and Order; (c) OHTA and ITMA have consented to the communication, report, or work

product (or any portion of the communication, report, or work product), as the case may be, and deemed such communication, report, or work product (or any portion of the communication, report, or work product) to be "final," under the Cooperative Agreement, as well as any amendment thereto; (d) The communication, report, or work product (or any portion of the

communication, report, or work product) is otherwise admissible under applicable law or Rule 408(b) of the Federal Rules of Evidence; or

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(e)

The communication, report, or work product (or any portion of the

communication, report, or work product) existed prior to December 6, 2004, i.e., the date of execution of the original Cooperative Agreement by ITMA and OHTA. 5. A party may offer for admission, seek to admit, or have admitted into evidence in

this case or in any Covered Proceeding, any document or any data from which any material protected by the Joint Stipulation and Order has been redacted. 6. To the extent that the terms of this Joint Stipulation and Order conflict with Fed.

R. Evid. 408(a), the terms of this Joint Stipulation and Order shall control. Respectfully submitted this 9th day of November, 2007, RONALD J. TENPAS Acting Assistant Attorney General /s/ John P. Racin, by /s/ E. Kenneth Stegeby, pursuant to written authorization on November 8, 2007 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 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

Attorney of Record for Plaintiff

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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

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