Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:06-cv-00934-FMA

Document 32-2

Filed 01/30/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS KAW NATION OF OKLAHOMA, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) ) Defendant. ) ____________________________________)

No. 06-cv-00934 L Judge Francis M. Allegra

DEFENDANT'S SUR-REPLY TO KAW NATION'S REPLY TO DEFENDANT'S RESPONSE TO KAW NATION'S MOTION TO CHANGE RECORD REVIEW SITE TO PAWNEE AGENCY OFFICE (BIA) Defendant respectfully files this sur-reply to the "Kaw Nation's Reply to Defendant's Response to Kaw Nation's Motion to Change Record Review Site to Pawnee Agency Office (BIA)" (hereinafter, "Kaw Nation Reply"). Paragraph 12 of the Kaw Nation Reply charges Defendant with violating paragraph 2(b) of the document preservation order ("DPO") entered by the Court on October 24, 2007. Paragraph 2(b)(i) of the DPO requires Defendant to provide all indices and inventories available for documents addressed in paragraph 2(a) to Plaintiff within thirty-five (35) days ­ or November 28, 2007 ­ after entry of the DPO. As discussed below, Plaintiff's claim that Defendant has violated the DPO is unfounded, unwarranted, and baseless. Plaintiff's charge ignores a number of facts. First, Plaintiff does not mention that Defendant sent a letter dated November 28, 2007, to counsel for the Kaw Nation. This letter specifically calls attention to the paragraph 2(b) requirement, comments that a question between the parties had arisen about the DPO's requirements, and informs Plaintiff that Defendant was providing in the letter the information required for indices and inventories in keeping with Defendant's understanding of the DPO. Defendant's Exhibit 1. Second, Plaintiff recognizes that

Case 1:06-cv-00934-FMA

Document 32-2

Filed 01/30/2008

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the DPO is ambiguous. Kaw Nation Reply at paragraph 4. The mere fact that the DPO is ambiguous, and recognized as such by Plaintiff, underscores the reasonableness and good-faith effort by the Defendant to comply with the DPO in its November 28, 2007, letter. Third, Plaintiff recognized Defendant's view about the requirement for indices and inventories differed from the Kaw Nation's view and had no issue with Defendant providing other information later. See Defendant's Exhibit 2 (copy of email exchanges between counsel for the parties), email from Kennis Bellmard to Terry Petrie, dated November 29, 2007 at 1:30 p.m. This fact undercuts any implication of harm or detriment incurred by Plaintiff. Finally, by providing the indices and inventory information to Plaintiff on November 28, 2007, Defendant's conduct evidences compliance with the DPO consistent with a reasonable interpretation of an ambiguous DPO. Dated: January 30, 2008 Respectfully submitted, RONALD J. TENPAS Assistant Attorney General Environment & Natural Resources Division

s/ Terry M. Petrie TERRY M. PETRIE United States Department of Justice Environment & Natural Resources Division 1961 Stout Street, 8th Floor Denver, CO 80294 Tel: (303) 844-1369 Fax: (303) 844-1350 [email protected] Attorney of Record for Defendant

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Case 1:06-cv-00934-FMA

Document 32-2

Filed 01/30/2008

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OF COUNSEL: ANTHONY P. HOANG United States Department of Justice Environment & Natural Resources Division P.O. Box 663 Washington, D.C. 20044-0663 Tel: (202) 305-0241 Fax: (202) 353-2021 [email protected] SHANI N. WALKER 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

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