Free Motion to Lift 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 COEUR D'ALENE TRIBE, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) ____________________________________)

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

[PROPOSED] ORDER This matter is before the Court on the parties' joint motion that the temporary stay of litigation be lifted for a limited purpose and that the Court review, approve, and enter the parties' Joint Stipulation and [Proposed Order] Regarding Communication, Report, or Work Product Pursuant to a Certain Cooperative Agreement and Any Amendment Thereto, as an Order of the Court. Upon consideration of the joint motion and for good cause shown, it is hereby ORDERED that the joint motion should be and hereby is GRANTED. To the extent that 1. 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; 2. 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; 3. 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

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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; 4. The InterTribal Monitoring Association ("ITMA") is a national tribal consortium ITMA's mission includes

consisting of over sixty federally recognized Indian Tribes.

monitoring the United States government's trust reform efforts and providing a forum for tribal consultation on trust issues; 5. 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; 6. Plaintiff 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; 7. The Tribe reserves the right not to accept or agree with the accuracy or

completeness of any such analyses, reports, or work products; 8. 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

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9.

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, IT IS HEREBY ORDERED, FOR GOOD CAUSE SHOWN, THAT: 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. 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

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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 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,

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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 (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. SO ORDERED. Date: ______________________________ ___________________________________ HON. EDWARD J. DAMICH United States Court of Federal Claims

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