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

Case 1:06-cv-00940-EJD

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Filed 11/09/2007

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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

MEMORANDUM IN SUPPORT OF 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 Pursuant to Rule 7(b) of the Rules of the Court of Federal Claims ("RCFC"), the parties respectfully request that the Court to lift the temporary stay of litigation currently in effect in this case for the limited purpose of reviewing, approving of, and entering the parties' Joint Stipulation and [Proposed] Order Regarding Communication, Report, or Work Product Pursuant to a Certain Cooperative Agreement and Any Amendment Thereto (Exhibit ("Exh.") 1 hereto) as an Order of the Court. The grounds of the joint motion are set forth below. I. RELEVANT BACKGROUND A. Relevant Litigation Background

Plaintiff filed this case on December 29, 2006. Dkt. 1. Also on December 29, Plaintiff filed a parallel case in the United States District Court of the District of Columbia, Coeur d'Alene Tribe v. Kempthorne, Civ. No. 06cv02242-JR (D.D.C.). On February 21, 2007, after discussions between counsel for the parties, the parties filed a joint motion for temporary stay of litigation to and including February 27, 2008. Dkt. 6. The

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Court granted the joint motion on February 22, 2007, and ordered that joint status reports be filed on June 15, 2007; October 12, 2007; and February 15, 2008. Dkt. 7. In compliance with the Court's order, the parties submitted joint status reports on June 15 and October 12, 2007. Dkts. 8 and 9. The next joint status report is due February 15, 2008. B. Relevant Background About Tribal Trust Fund Settlement Project

The Tribal Trust Fund Settlement Project ("TTFSP") is a cooperative undertaking currently under way between the Intertribal Monitoring Association on Indian Trust Funds ("ITMA") and the Office of Historical Trust Accounting ("OHTA"), an office within the United States Department of the Interior. Coeur d'Alene Tribe, Civ. No. 06cv02242-JR, Dkt. 12.1 Founded in 1990, ITMA is a national nonprofit tribal consortium, the membership of which is comprised of 65 Indian tribes. Id. 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. Id. The Coeur d'Alene Tribe is a member of ITMA. Id. In May 2003, the Interior Department approached ITMA to explore the possibility of entering into a cooperative undertaking that could assist in resolving tribal trust-related claims. Id. Following 19 months of negotiation, ITMA and OHTA entered into a Cooperative

Agreement ("Cooperative Agreement") to establish the TTFSP in December 2004. See Coeur d'Alene Tribe v. Kempthorne, Civ. No. 06cv02242-JR (D.D.C.), Decl. of Mary Zuni in Supp. of Pl.'s Unopposed Mot. to Extend Stay of Proceedings, Dkt. No. 12, at Ex. 1 (Cooperative Agreement, as amended).

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Plaintiff's unopposed motion to extend the temporary stay of proceedings and its supporting papers, Dkt. 12, in Coeur d'Alene Tribe v. Kempthorne, Civ. No. Error! Main Document Only.06cv02242-JR, provides a comprehensive explanation of the TTFSP, along with applicable citations to the record. 2

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Plaintiff and six other federally recognized Indian tribes2 agreed to be the "participating" Tribes in Phase 1 of the TTFSP. Id. These Tribes were selected, in part, to ensure that the TTFSP would include a geographically diverse range of Indian tribes, with varying land bases, natural resources, and trust accounts, and that any methodology developed under the TTFSP would be as inclusive and representative of Indian tribes nationwide as possible. Id. 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 trustrelated issues. Id. The Cooperative Agreement encompasses two phases to the TTFSP. Id. Phase I consists of developing a methodology for using and evaluating the information and analyses set forth in the Tribal trust fund reconciliation reports prepared in the 1990s by the Interior Department (using the contractor Arthur Andersen, LLP). Id. Completion of Phase I requires the concurrence of ITMA, each participating tribe, and OHTA. Phase II consists of interested Indian tribes making use of the Phase I methodology on a voluntary basis. Id. ITMA and OHTA have extended the Cooperative Agreement into Fiscal Year ("FY") 2008 and are currently developing the next steps to be taken in the TTFSP, a schedule for those steps, and additional funding requirements for completing the Phase I methodology during FY 2008. At ITMA's recent 17th Annual Conference in Las Vegas, NV, in October 2007, ITMA and OHTA announced their plan to present, in March 2008, the Phase I methodology to ITMA's Board of Directors for its review and approval.

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The other six Phase I participating Tribes are the Sac and Fox Nation (Oklahoma), the Fort Belknap Indian Community (Montana), the Pueblo of Picuris (New Mexico), the 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). Id. 3

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II.

ARGUMENT The parties respectfully request that the Court lift the current temporary stay of litigation

for the sole purpose of reviewing their Joint Stipulation and [Proposed] Order Regarding Communication, Report, or Work Product Pursuant to a Certain Cooperative Agreement and Any Amendment Thereto (Exh.1). Further, they respectfully request that, based on its review, the Court approve of the Joint Stipulation and [Proposed] Order, id., and enter it as an Order of the Court. The Court's approval and entry of the Joint Stipulation and [Proposed] Order, id., as an Order of the Court is crucial to the parties' ability to continue participating in the TTFSP. Such an action will provide the parties with a measure of meaningful protection and assurance by setting forth clear definition and guidance about such issues as the admissibility or inadmissibility of any evidence relating to Plaintiff's past and present participation in the TTFSP and of any communications, reports, or work products that have been or will be created, generated, or exchanged in, during, or as part of the TTFSP. Id. The parties consider the Joint Stipulation and [Proposed] Order to be an important element to ensure the continued vitality and progress of the Project. Plaintiff has made clear that its continued good faith participation in the TTFSP is contingent on the execution and entry of the Joint Stipulation and [Proposed] Order as an Order of the Court. The work being undertaken in the TTFSP by ITMA, OHTA, Plaintiff, and the other Phase I participating Tribes may result in the formulation and development of an agreed-upon methodology that may be used to resolve all of the claims in this case and in Plaintiff's parallel case in the United States District Court for the District of Columbia (as well as the other 101 Tribal trust case accounting and trust mismanagement cases), without the need for protracted litigation.

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The parties are submitting the identical Joint Stipulation and [Proposed] Order, Exh 1., to the United States District Court for its review, approval, and entry as an Order in Coeur d'Alene Tribe v. Kempthorne, Civ. No. 06cv02242-JR. Also, the Joint Stipulation and [Proposed] Order is virtually identical to the one filed, approved, and entered as an Order in Confederated Tribes of the Colville Reservation v. Kempthorne ("Colville"), Civ. No: 1:05cv02471-JR (D.D.C.) (Dkt. 31, minute order). The Joint Stipulation and [Proposed] Order was the product of more than 16 months of negotiations by counsel in Colville (many of whom are the same as many of the counsel in this case). On the one hand, granting this joint motion to lift the temporary stay of litigation and entering the Joint Stipulation and [Proposed] Order as an Order of the Court 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, denying the joint motion to lift the stay and rejecting the Joint Motion and [Proposed] Order would unduly interfere with, delay, or jeopardize the parties' ability to confer with each other, ITMA, and the other Phase I participating Tribes in the TTFSP, as well as their efforts to resolve Plaintiff's and the other Tribes' trust accounting and trust mismanagement claims without extended litigation. For the foregoing reasons, this Court should lift the temporary stay of litigation and review, approve of, and enter the Joint Stipulation and [Proposed] Order, Exh. 1, as an Order of the Court. Respectfully submitted on this 9th day of November, 2007, RONALD J. TENPAS Acting Assistant Attorney General

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/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 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

Attorney of Record for Plaintiff

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