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

Case 1:02-cv-01383-MMS

Document 65

Filed 06/13/2007

Page 1 of 3

UNITED STATES COURT OF FEDERAL CLAIMS SAMISH INDIAN NATION, a federally recognized Indian tribe, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant.

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Case No. 02-1383L (Chief Judge Edward J. Damich)

Samish Indian ]Vation's Motion for Leave to File a Supplemental Brief The Samish Indian Nation respectfully moves for leave to file the attached supplemental brief to respond to a limited set of issues that are addressed, for the first time, in the government's reply in support of its motion to dismiss. The Tribe respectfully submits that the filing of the attached supplemental brief is appropriate given the unique procedural posture of this case. The government's original motion to dismiss sought to dismiss all of the Tribe's claims. Because the government, in that motion, disputed the allegations contained in the Tribe's amended complaint regarding the Court's jurisdiction, the Tribe sought discovery regarding the administrative construction and implementation of some of the statutes at issue - including those under which Tribal Priority Allocations (TPA) and Indian Health Service (IHS) funding are provided - to show that federal agencies have construed these statutes to provide funds to benefit all federally recognized tribes.

Case 1:02-cv-01383-MMS

Document 65

Filed 06/13/2007

Page 2 of 3

This Court granted the Tribe's motion for limited discovery acknowledging the relevance of the government's construction of the statutes to the question of whether they are money-mandating. Order of July 21,2006, at 8. When the government failed to provide full responses to the Tribe's discovery requests, the Tribe sought to avoid protracted discovery disputes and proposed that the Court permit briefing now on two major programs - TPA and IHS funding - and further offered to respond to the motion to dismiss on TPA and IHS based on the Tribe's own research and experts. The Court ordered briefing as to TPA and IHS funding, as well as certain basic issues raised by the government. Order of April 3,2007. The Tribe filed its opposition to the government's motion to dismiss regarding the TPA and IHS programs on May 2,2007. In that motion, the Tribe presented a substantial body of evidence about agency policy, practice and construction in support of the Tribe's position that the federal agencies have construed the statutes under which TPA and IHS programs are administered to provide funds to benefit all federally recognized tribes. The government's reply brief, filed on June 1 and corrected on June 6, sets out, for the first time, the government's position regarding the Tribe's evidence of agency construction of the statutes. The Tribe seeks leave to file a short brief to respond to the government's position on that issue, and to respond to a few other matters that are newly raised by the government's reply or which contain misstatements that warrant correction. The Tribe submits that the attached brief on this very limited set of issues is appropriate given the unique circumstances of the proceedings on the motion.

Case 1:02-cv-01383-MMS

Document 65

Filed 06/13/2007

Page 3 of 3

Wherefore, the Samish Indian Nation respectfully prays that its motion for leave to file the attached supplemental brief be granted. Respectfully submitted, Dated: .June 13,2007 /s/ Craig J. Dorsay by Anne D. Noto Craig J. Dorsay, Esq. Attorney at Law 2121 S.W. Broadway, Suite 100 Portland, Oregon 9720 1 Tel: (503) 790-9060; Fax: (503) 242-9001 craig@,dorsavindianlaw.com Counsel of Record for Plainti# Samish Indian Nation Of Counsel: William R. Perry, Esq. Anne D. Noto, Esq. Sonosky, Chambers, Sachse, Endreson & Perry, LLP 1425 K Street, N. W., Suite 600 Washington, D.C. 20005 Tel: (202) 682-0240; Fax: (202) 682-0249 wperry@,sonosky.com; [email protected]