Free Response to Motion - District Court of Federal Claims - federal

Case 1:06-cv-00934-FMA

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

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

KAW NATION'S RESPONSE TO DEFENDANT'S MOTION TO MODIFY DOCUMENT PRESERVATION ORDER Plaintiff Kaw Nation ("Nation"), a federally recognized Indian tribe, respectfully responds to Defendant's Motion to Modify Document Preservation Order, Docket (Dkt.) #23, and requests the court deny Defendant's Motion to Modify. In support of its Response, the Nation states the following: 1. On September 11, 2007, pursuant to the Court's directive at a joint status conference, the Parties began negotiation of a mutually agreeable Document Preservation Order ("DPO"). In connection with its directive, the Court expressed a preference for the DPO in Navajo Nation v. United States, Case No. 06-945L. 2. Because the Parties were not successful in reaching mutually agreeable terms for a DPO, the Parties submitted separate proposed DPOs. The Nation proposed following the model of the DPO from Navajo Nation v. United States, Case No. 06-945L. 3. On October 24, 2007, the Court entered a DPO based on the DPO from Navajo Nation. In using the Navajo Nation DPO as a model, however, the location designated for the record review site was inadvertently left unchanged, i.e. the entered order designates the Gallup BIA Warehouse in Gamerco, New Mexico ("Gamerco") as the record review site rather than a

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location in the state of Oklahoma, specifically the Pawnee Agency (BIA) in Pawnee, Oklahoma. The Pawnee Agency is a logical site which is within one hour of the Kaw Nation Headquarters. 4. On October 25, 2007, counsel for the Parties participated in a telephone conference with Court staff regarding the need to amend the order to correct the record review site. Court staff advised counsel to file a motion to amend the October 24th Order. 5. Counsel for the Defendant thereafter provided the Nation with proposed modifications to the entered DPO. The proposed modifications went far beyond correcting the record review site and included substantive changes to the Order that were wholly unrelated to the record review site and to which Plaintiff could not agree. 6. Plaintiff negotiated with Defendant in good faith regarding the proposed modifications. The Parties were not, however, able to reach an agreement on the modifications to the DPO. 7. The Nation's position is that the Court's preferred form of DPO, as entered in the Navajo case, is sufficient and addresses the Nation's concerns. Accordingly, the Nation cannot agree to substantive changes other than the correction of the record review site. 8. On November 30, 2007, following the parties' inability to reconcile their proposed modifications, the Nation informed Defendant that the Parties would need to submit separate Motions to Modify as a Joint Motion would not be possible given the changes requested by the Defendant. The Nation and Defendant did not reach any agreement as to which party would file its Motion first or when such Motion would be filed. The Nation did not agree to file first as implied by the Defendant's Motion to Modify. 9. The Nation disagrees with the Defendant's assertion that certain "differences," ­ differences that are left entirely unspecified by the Defendant ­ exist between the Navajo Nation

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case and this case that justify the Defendant's request for major amendments to the October 24, 2007, Order. 10. The Nation OPPOSES the modifications proposed by Defendant in Section 2(a) and 2(f) as Defendant's modifications to Section 2(a) materially alter the terms of the DPO such that the Defendant is no longer required to provide the requisite documentation at the location named in the DPO. a. In its Motion, the Defendant seeks to reduce its obligation from producing records to merely "maintain[ing]" such records at their present locations. This is a substantive change for which the Defendant has failed to show good cause. b. Defendant's responsibility as trustee of the Nation's tribal trust funds includes providing the Nation with the requisite documentation subject to the DPO. Defendant's modifications to the DPO trivializes such trust responsibilities. Defendant argues it does not believe this was the intent of the DPO to impose such a burden. The Nation, however, believes this was in fact the intent of the DPO as such provisions remain intact in the model Navajo Nation DPO. Furthermore, the purpose of discovery is for the Defendant to provide the Nation with the requested documentation in its possession. In order to respond to discovery, Defendant must move the records to a location easily accessible to the Nation. 11. The Nation DOES NOT oppose the Defendant's proposed amendments only to the extent that the amendments designate the record review site as the Pawnee Agency Office (BIA), Pawnee, Oklahoma. To the extent the Defendant proposes to make any other amendments not

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specifically related to the designation of the record review site, the Nation OPPOSES such proposed amendments. Therefore, the Nation respectfully asks the Court to deny the Defendant's Motion to Modify Document Preservation Order and to amend the DPO only to designate the record review location as the Pawnee Agency Office (BIA) in Pawnee, Oklahoma. Dated this 2nd day of January, 2008. Respectfully Submitted, s/ Kennis M. Bellmard II KENNIS M. BELLMARD II, OBA #13965 Andrews Davis, P.C. 100 North Broadway Avenue, Suite 3300 Oklahoma City, OK 73102 Telephone: (405) 272-9241 Fax: (405) 235-8786 Attorney of Record for Plaintiff [email protected] OF COUNSEL: TIMOTHY M. LARASON, OBA #5239 MICHAEL D. MCMAHAN, OBA #17317 SANDRA B. HARRISON, OBA #18647 JACQUELYN V. DUFFY, OBA #21630 Andrews Davis, P.C. 100 North Broadway Avenue, Suite 3300 Oklahoma City, OK 73102 Telephone: (405) 272-9241 Fax: (405) 235-8786 www.andrewsdavis.com

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CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing KAW NATION'S RESPONSE TO DEFENDANT'S MOTION TO MODIFY DOCUMENT PRESERVATION ORDER was served on January 2, 2008, by Electronic Case Filing, on the following counsel: TERRY M. PETRIE Attorney of Record Environment & Natural Resources Division United States Department of Justice 1961 Stout Street, 8th Floor Denver, CO 80294 Tel: (303) 844-1369 Fax: (303) 844-1350 [email protected] Attorney of Record for Defendant OF COUNSEL: ANTHONY P. HOANG United States Department of Justice Environment & Natural Resources Division PO Box 663 Washington, DC 20044-0663 Tel: (202) 305-0241 Fax: (202) 353-2021 [email protected]

s/ Kennis M. Bellmard II KENNIS M. BELLMARD II

205115.2

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