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

Case 1:05-cv-01042-CFL

Document 70

Filed 02/29/2008

Page 1 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS THE DALLES IRRIGATION DISTRICT, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 05-1042C (Judge Lettow)

MOTION FOR LEAVE TO FILE DEFENDANT'S OBJECTION TO THE COURT'S CONSIDERATION OF APPENDICES A-D OF PLAINTIFF'S CLOSING ARGUMENT Defendant moves for leave to file this objection to the Court's consideration of the District's appendices A-D to its post-trial closing argument, which it filed on January 17, 2008, pursuant to Rule 7 of the Rules of the United States Court of Federal Claims. On November 16, 2007, the Court closed the evidentiary record and its consideration of these appendices constitutes additional evidence outside the record which should not be considered.1 The Government objects to this material because the District had ample opportunity to seek admission of these documents at the trial. Appendix A is the 1990 BPA annual report and appendix B is a 1994 Reclamation document ­ both of which could have been presented to the Court during the trial. And appendices C and D appear to come from Reclamation manuals similar to plaintiff's exhibit 69, which is a Reclamation document that was admitted over Government objection.

While the Court expressed its desire that the parties provide it with any references to non-evidentiary materials, which might be helpful, such as cases and publications, plaintiff seeks to introduce these appendices as evidence in support of its closing argument. Tr. 822:812.

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Case 1:05-cv-01042-CFL

Document 70

Filed 02/29/2008

Page 2 of 3

In any event, the evidence is irrelevant pursuant to Federal Rule of Evidence 401. Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director s/ Franklin E. White, Jr. FRANKLIN E. WHITE, JR. Assistant Director OF COUNSEL CLARK MILLER U.S. Department of the Interior Attorney-Advisor Field Solicitor's Office 960 Broadway Ave., Suite 400 Boise, ID 83706 Tel: (208) 334-1906 Fax: (208) 334-1918 s/ Armando A. Rodriguez-Feo ARMANDO A. RODRIGUEZ-FEO Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tel: (202) 307 3390 Fax: (202) 514-8624 Attorneys for Defendant February 29, 2008

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Case 1:05-cv-01042-CFL

Document 70

Filed 02/29/2008

Page 3 of 3

CERTIFICATE OF FILING I hereby certify that on this 29th day of February, 2008, a copy of the foregoing A MOTION FOR LEAVE TO FILE DEFENDANT'S OBJECTION TO THE COURT'S CONSIDERATION OF APPENDICES A-D OF PLAINTIFF'S CLOSING ARGUMENT@ was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court=s electronic filing system. The parties may access this filing through the Court=s system. s/Armando A. Rodriguez-Feo