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

Case 1:02-cv-01383-MMS

Document 57

Filed 03/09/2007

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

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

MOTION FOR LEAVE TO FILE REPLY AND REPLY TO SAMISH INDIAN NATION'S RESPONSE TO THE UNITED STATES' SUPPLEMENTAL BRIEF REGARDING ITS MOTION TO DISMISS

Defendant United States respectfully requests that the Court accept this concise reply to Plaintiff Samish Indian Nation's Response to the United States' Supplemental Brief Regarding its Motion to Dismiss and accompanying Declaration of James H. McDivitt. The purpose of this reply is to clarify the facts and to dispute certain representations made by Mr. McDivitt that relate to the United States' discovery responses. Although Plaintiff does not seek relief on the basis of the allegations made in the declaration and has not filed a motion to compel, the United States wants to make it clear that it has strong disagreement with Plaintiff's contentions regarding the agencies' conduct during the discovery process. In particular, the United States takes substantial issue with Mr. McDivitt's allegations regarding the availability of and access to data in what he refers to as the Department of the Interior's automated accounting system. In light of the fact that Plaintiff did not move to compel any discovery and has the

Case 1:02-cv-01383-MMS

Document 57

Filed 03/09/2007

Page 2 of 3

information necessary to test its theory about whether the statutes and regulations pertaining to the Tribal Priority Allocation system and Indian Health Service claims are money-mandating, the United States does not believe it would be useful or appropriate to elaborate at this time on the representations made in the McDivitt declaration or arguments made by Plaintiff in its Response to the United States' Supplemental Brief Regarding its Motion to Dismiss. The United States will address those statements and arguments, if necessary, during the briefing on the motion to dismiss WHEREFORE, Defendant respectfully requests that this motion be GRANTED. Submitted this 9th day of March, 2007. MATTHEW J. McKEOWN Acting Assistant Attorney General s/ Devon Lehman McCune DEVON LEHMAN McCUNE Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Natural Resources Section 1961 Stout St., 8th Floor Denver, CO 80294 (303) 844-1487 (tel.) (303) 844-1350 (fax) [email protected]

OF COUNSEL: Jason Roberts Office of the Solicitor United States Department of the Interior Washington, D.C. 20240

CERTIFICATE OF SERVICE -2-

Case 1:02-cv-01383-MMS

Document 57

Filed 03/09/2007

Page 3 of 3

I hereby certify that on March 9, 2007, I filed the foregoing MOTION FOR LEAVE TO FILE REPLY AND REPLY TO SAMISH INDIAN NATION'S RESPONSE TO THE UNITED STATES' SUPPLEMENTAL BRIEF REGARDING ITS MOTION TO DISMISS with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all parties in this matter.

DATED this 9th day of March, 2007.

s/ Devon Lehman McCune Devon Lehman McCune, Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Natural Resources Section 1961 Stout St., 8th Floor Denver, CO 80294 (303) 844-1487 (tel.) (303) 844-1350 (fax) [email protected]

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