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Exhibit E
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'{J
UNITED STATES COURT OF FEDERAL CLAIMS
THE OSAGE NATION Plaintiff,
v. UNITED STATES, Defendant. ) Docket No 99-550L
FILED
l 6 2003
U.S. COURT OF FEDERAL CLAIMS
Pages: Place: Date:
1 through 27 Washington, D.C. March 13, 2003
HERITAGE REPORTING CORPORATION
Official Reporters 1220 L Street, N.W., Suite -600 Washington, D.C. 20005-4018 (202) 628-4888 hrc@concentric. net
ORIGINAL
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IN
THE
UNITED
STATES
COURT ) ) ) ) ) ) ) ) )
OF
FEDERAL
CLAIMS
THE OSAGE NATION Plaintiff, v. UNITED STATES, Defendant.
Docket No.:
99-550L
Courtroom 8 National Courts Building 717 Madison Place, N.W. Washington, D.C. Thursday, March 13, 2003 The parties met, pursuant to notice of the Court, at 2:30 p.m. BEFORE: HONORABLE JOHN P. WIESE Judge
APPEARANCES: For the Plaintiff: (Via Telephone)
BRADLEY D. BRICKELL, Esquire Brickell & Associates, P.C. 950 Hightower Building 105 N. Hudson Oklahoma City, Oklahoma 73102 (405) 236-0008
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APPEARANCES: (Cont'd) For the Defendant: EDWARD PASSARELLI, Esquire U.S. Department of Justice 601 D Street, NW Washington, D.C. 20044 (202) 305-0468 ALAN R. WOODCOCK, Esquire (Via Telephone) Office of the Solicitor 7906 East 33rd Street Tulsa, Oklahoma 74145 (918) 669-7730 STEPHEN L. SIMPSON, Esquire Department of Interior 1849 C Street N.W. MS 6956-MIB Washington, D.C. 20240 (202) 219-1659
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3
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE CLERK:
P R O C E E D I N G S (2:30 p.m.) The United States Court of Federal
Claims is now in session, the Honorable John P. Wiese presiding. THE COURT: Madam Reporter, let us open our record
this afternoon and indicate that we are convening for a status conference in The Osage Nation v. The United States. That case is docketed here as number 99-550L. Mr. Brickell, I'll begin with you. As you know by
now, the reporter needs an introduction that includes your full name, your business address, and your business telephone number. After Mr. Brickell, I'll go to Mr. Woodcock, and then to Mr. Passarelli and Mr. Simpson. MR. BRICKELL: Thank you, Your Honor. Brad My law
Brickell, that's spelled like brick and then E-L-L. firm is called Brickell & Associates.
We're at 105 North
Hudson, Suite 950, Hightower Building, Oklahoma City, Oklahoma 73102, and I represent the plaintiff The Osage Nation. THE COURT: afternoon to you. MR. BRICKELL: THE COURT: Thank you. Thank you, Mr. Brickell, and good
I need a telephone number.
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4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Woodcock. " MR. B R I C K E L L : THE C O U R T : (405) 2 3 6 - 0 0 0 8 . M r . Woodcock, how
Thank you, sir.
about introducing yourself? MR. W O O D C O C K : Y e s , Your H o n o r . I'm A l a n My
I'm with the Office of the Field Solicitor. My
address is 7906 East 33rd in Tulsa, Oklahoma 74145. phone number is (918) 6 6 9 - 7 7 3 0 . T H E COURT: afternoon to y o u , sir. M r . Passarelli. MR. P A S S A R E L L I :
Thank y o u , M r . Woodcock, and good
Your Honor, my name is Edward J.
Passarelli, and I'm w i t h the Department of Justice and defending the interest of the United S t a t e s . 601 D Street, NW, W a s h i n g t o n , D.C. THE C O U R T : M r . Simpson. MR. SIMPSON: Stephen L. Simpson. Thank y o u , Y o u r H o n o r . My name is Thank y o u , M r . Passarelli. My address is
I am w i t h the Solicitor's Office, I am
with the D i v i s i o n of Indian A f f a i r s at the Department of the Interior at 1849 C Street, NW, in W a s h i n g t o n . THE C O U R T : Thank y o u , sir, and to M r . Passarelli
and M r . Simpson, good afternoon. MR. SIMPSON: THE COURT: Thank y o u , Y o u r H o n o r . W e spoke last, I believe, on the 25th I'm not sure w h i c h date it w a s ,
or the 26th of February.
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5 but at that time we had an extensive discussion about the |
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necessity of reconstituting the suit as_ a__cl_ass action, and
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the Court at that time had pointed out that based upon language and quotations in Plaintiff:'_s proposedamended
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complaint that it seemed to be the case that the Osage tribal counsel had representative authority and could therefore stand in lieu of individual claimants^in.,..this
, Mil. "
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
litigation. And I asked Mr. Passarelli, and Mr. Simpson, and Mr. Woodcock to examine whether this would not be workable approach to the case, that is to say, to keep the case captioned as it now is and avoid the necessity of constituting this as a class suit. With that brief introduction, Mr. Passarelli, I await your comments and thoughts about my suggestion. MR. PASSARELLI: Well, we thought long and hard
about it, Your Honor, and I did look at case law and statutes cited by the plaintiff and the language cited by the plaintiff involving management, and we maintained the position and talked about it with our other folks in the department. We have continued the position taken in the litigation before Judge Hewitt that the tribe does not have standing to maintain and represent the claims that would be owned by the individual claimants who are head-right owners Heritage Reporting Corporation (202) 628-4888
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6 1 2 3 4 5 6 7 8 9 10 fill i 12 13 14 "515
i
A n d the tribe h a s standing for its o w n injury, but it d o e s not have standing to secure a remedy o n behalf of the other e n t i t i e s . W e looked at the l a n g u a g e related to the tribe, that the tribe is a p a r t y to t h e lease a n d that the tribe h a s t o approve the lease, a n d -THE COURT: T h e tribe o r t h e tribal counsel? T h e tribal counsel h a s to approve
MR. PASSARELLI:
the lease, operating w i t h t h e authority g i v e n to them from the t r i b e . They a r e the leadership of the tribe. That would suggest t o u s that in a n action against a lessee, if they are the lessor and a party, it's very arguable that they can go after the contractor, and they could sue the contractor directly in an action, you know, in a Federal District Court, in a court that would have jurisdiction. But this action is a n action based u p o n s t a t u t e s a n d r e g u l a t i o n s that the tribe claims fairly construed m a n d a t e s a remedy t o them f o r t h e m o n e y d u e . A n d that is
16 17 18 19 20 21 22 23 24
correct t o t h e extent that t h e y o w n -- at least t h e claim is correct that they h a v e t h e right t o p u r s u e a claim for headright m o n e y that is owing d i r e c t l y t o them from head r i g h t s . That is not t o s a y that t h e statutes a n d regulations, especially given their management authority, necessarily means that they have a meritorious claim that Heritage Reporting Corporation (202) 628-4888
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7 1 2 3 4 :: 5 ' £ 6 ' 7 · · ; 8 19 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of claim. the statutes will indeed mandate compensation. But they would have standing to pursue that kind They would not have standing to pursue, in our
view, a claim that is owned by separate individual headright owners who are the owners of it, and the Court sought -- say, well, we probably need some constitutional a u t h o r i t y f o r that - - o r S u p r e m e Court c a s e , I b e l i e v e y o u said. W e think that such case law e x i s t s from a standing m a n n e r in W a r t h v . Seldon, a l t h o u g h it's not d i r e c t l y o n point. THE COURT: I'm sorry, that n a m e is a g a i n ? Warth v. Seldon.
MR. PASSARELLI: THE COURT:
W-O-R-T-H? W - A - R - T - H v. S e l d o n , 4 2 2 U . S .
MR. PASSARELLI:
4 90, a n d Y o u r H o n o r , i t ' s a 1 9 7 5 case, a n d I'm g o i n g t o give y o u a slip c i t e , b u t I h a v e n ' t look at that, at t h e 500 slip cite d i r e c t l y . I just can't recall what it i s , b u t at 500
it w a s being cited b y t h e Court of Federal C l a i m s i n O n t a r i o Power G e n e r a t i o n v . U n i t e d S t a t e s , 54 F e d e r a l C l a i m s 630 at p a g e -THE COURT: B e i n g c i t e d f o r w h a t , M r . Passarelli? F o r t h e p r o p o s i t i o n that - - i n
MR. PASSARELLI:
that case, it w a s b e i n g c i t e d f o r t h e p r o p o s i t i o n t h a t , indeed, n o t o n l y d o y o u h a v e c o n s t i t u t i o n a l s t a n d i n g , w h i c h Heritage Reporting Corporation (202) 628-4888
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1 * 2 j 3 * 4 5 6 7 8 9 ,10 |11 dl2
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is what we're really talking about, but it's citing it for the side in what -- the settlement of Prudential standing. That suggests that in a case in Ontario Power Generation as well as Emerald International Corporation v. The United States, 54 Fed. Claims 674. That case involved
certainly an Emerald International Corporation in, I believe, Ontario, statutes or regulations that had to mandate compensation; not our kind of compensation. But in Ontario Power, they said that Prudential standing is a question of whether the constitutional or statutory provision on which the claim rests properly can be understood as granting a person in a plaintiff's position
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the right to judicial relief. And we think that the only way, if you can construe the statutory and regulatory framework, to construe money damage remedies, that money damage remedies is owed to the head-right owners who have the right to judicial relief, not to the tribe. THE COURT: Okay. I don't have any problem with
what you're saying, but my inquiry of you when we last spoke was whether we could not substitute or add to the complaint the tribal counsel, the tribal counsel being the party that executed these contracts on behalf of the individuals. MR. PASSARELLI: Again, from that standpoint, the
tribal counsel doesn't have a right to the judicial remedy, Heritage Reporting Corporation (202) 628-4888
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the money, of the other head-right owners.
The tribal
counsel may theoretically have the ability to sue the lessor, but that remedy is not the remedy that the tribe has. And I'm not certain on the standing ground, but certainly the best that they could do is they could sue the lessor in a Federal District Court. They couldn't sue --
the remedies that we have here is statutes and regulations mandating compensation, some action that we have done that has somehow been less than -THE COURT: But if the compensation that is being
-10
jl ;l ; 12 . if
sought here flows ultimately to the individuals through a contract executed o n behalf of the individuals b y the tribal c o u n s e l , w h y w o u l d n ' t t h e tribal counsel b e the p r o p e r representative t o collect that m o n e y o n behalf of the individuals in t h e same m a n n e r in w h i c h it is collecting the royalties o r a u t h o r i z e d the payment of royalties o n behalf of the i n d i v i d u a l s . MR. PASSARELLI: It would seem to m e that in that
^13 14 J!15 16 17 18 19 20 21 22 23 24 25
context what the Court of Federal C l a i m s -- what the T u c k e r A c t does is g i v e t h e m a damage remedy, a n y of the individuals w h o a r e w r o n g e d b y the injury, a n d that damage remedy must issue in t h e n a m e of t h e h e a d - r i g h t owner. But secondly, real p a r t y in interest even, u n d e r R u l e 1 7 , m a y a l l o w someone w h o signs a contract t o represent Heritage Reporting Corporation (202) 628-4888
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10 1 2 3 4 j 5 6 7 someone in the contract action. If this was a contract
action against the United States, that arguably, again, might resolve part of the issue on real party in interest. But it does not appear that -- they aren't the contractor. We are not a party to the contract, and -The contract was entered into with the
THE COURT:
approval of the United States. MR. PASSARELLI: most -THE COURT: And doesn't the contract incorporate That's correct, but even in the
ii
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that -THE COURT: Okay, and doesn't the United States
the regulations that stipulate the amount of royalty that is to be paid by the lessees? MR. PASSARELLI: It references the lease and says
have a trustee obligation, obligations as a trustee»_jtfijfch^_ respect t o t h e monitoring of these contracts? MR. PASSARELLI: We have certainly regulatory -In light of
certain regulatory responsibilities that exist.
the more recent Navaio case, there's some question as to whether or not that would result in full control given that in that particular case, in the Navaio case, they also actually approved, the tribe approved, the leases. sorry. I'm The
The tribe negotiated and approved the leases.
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11 1 2 3 4 5 6 7 8 "9 10 Ul as we do here. THE COURT: Okay. But the question then becomes --
MR. PASSARELLI:
where the breach comes from in our view, and if there is a breach, it is a breach of statutes and the regulations. THE COURT: problem with that. But -- that's true, and I have no
My only question is why wouldn't the
tribal counsel be the proper party to prevent arguments with respect to the violation of these statutes and regulations? After all, Mr. Pas_sarelli , _ _ _ ' g f-he tribal counsel that ._i£ executed these contracts on behalf of the individuals. You're not reaching me, Mr. Passarelli. MR. PASSARELLI: I have found no authority --
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THE COURT:
I know, but I'm asking you to examine
this in terms of basic principles of law -MR. PASSARELLI: THE COURT: And --
A contract is executed on behalf of
head-right owners by a duly constituted body called the tribal counsel. The tribal counsel executes contracts as
authorized by regulations issued by the Secretary of the Interior, contracts that are, I presume, checked for compliance with rules and regulations by the Secretary of the Interior and entered into between the tribal counsel and the individual companies that are leasing the oil rights on these lands. Heritage Reporting Corporation (202) 628-4888
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12 1 2 3 4 5 6 7 8 9 .10 "11 ^12 113 114 |15 ;i6 17 18 19 20 21 22 23 24 25 endorse. MR. PASSARELLI: THE COURT: Yes. You know, the judgment for the But just as in Helen Mitchell -I can't see under those circumstances why the tribal counsel isn't the most logical party to come in and say, Mr. Secretary, you haven't been paying us for what our contract, the one that we executed on behalf of these individuals, calls for. I really -- there's no recovery here that's going to flow to the tribal counsel, it's going to flow to the individuals through their stated representative, the tribal counsel. It seems to me not a difficult proposition to
MR. PASSARELLI:
individuals had to be made for those individuals. THE COURT: Well, we could bring the tribal We would deal with
counsel in as a proper party plaintiff.
the tribal counsel as a representative, and at such time as a judgment were to be paid, we would require the tribal counsel to identify all individuals who are entitled to collect; that being all individuals who hold interest in · contracts executed by the tribal counsel. Then we would
supervise the distribution of those proceeds in quite the same fashion as was done in Grenault. I really see no need to bring in all of these Heritage Reporting Corporation (202) 628-4888
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13 1 2 3 4 5 6 7 8 - 9 10 individuals and the thousands of pieces of paper we're going to be generating when w e have somebody here now who entered into these contracts. MR. PASSARELLI: expediency. Your -N o , it's not efficiency. -- desire for efficiency. I think we I understand your desire for
THE COURT:
MR. PASSARELLI: THE COURT:
But it's more than that.
have a legally sufficient entity in the form of the tribal counsel. After a l l , if they were not legally competent t o
then thpgp i-nnt-rarhc a r a yn-jd from -p
execute these c o n t r a c t s ,
1 2
the start.
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MR. BRICKELL: of the Osage. THE COURT:
Your Honor, Brad Brickell on behalf
Y e s , sir. If I could interject just a brief
MR. BRICKELL:
bit of language that's contained in each of the leases that have been signed by the various chief representatives of the tribal counsel over -- for a period of 100 y e a r s . T H E COURT: Please. Each of these leases -- and so far
MR. BRICKELL: !2 !3 !4 ·5
as I know, up to the current day, although I don't have any that have been signed here in front of me in the last five years, but they state the following: "The act of June 28th, 1906, 34 statutes at large, Heritage Reporting Corporation (202) 628-4888
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53 9 to 5 4 3 , as a m e n d e d , r e s e r v e s to the O s a g e Tribe the o i l , g a s , coal o r o t h e r m i n e r a l s covered b y said land until the 8th d a y of A p r i l , 1 9 3 3 , a n d t h e r e a f t e r until o t h e r w i s e provided by Congress." W h e n y o u g o into the m o r e recent l e a s e s , then they will come in and i n d i c a t e that it's r e s e r v e d until the 8th d a y of A p r i l , 1 9 8 3 , and so o n . a m e n d m e n t s that c o n t i n u e t h i s . So the s t a t u t e s , I believe -- a n d to w h i c h w e discussed some of them at our last hearing -- clearly show that the intent of Congress was, back when the Osage county was actually purchased by the tribe through monies that came to the tribe from the cessation of their lands in Kansas, that the oil, gas, coal or other minerals are to be owned by the tribe. Then, of course, we get into who the tribe is and that sort of thing, but in addition, the leases set forth the language that states that "the Osage tribal counsel is the duly elected governing body of the Osage Nation or Tribe of Indians vested" -- and it says vested, and that's in all of these leases as well -- "vested with the authority to lease or take other actions on oil and gas mining pertaining to the Osage mineral estate." Each of these leases with that language have all been approved and signed off by the representative of the Heritage Reporting Corporation (202) 628-4888 There w e r e v a r i o u s
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15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 ; ·1 8 9 0 1 Secretary of the Interior and, in fact, they're the ones that came up with the form. So I just thought I would add that to what I feel like was the authority showing that the real estate in question here, the actual valuable mineral, the legislative intent, obviously, was that those were to be owned by the tribe. The legislature - - o r Congress, excuse me, had the foresight or the thought that the surface, however, could be divided at that time, in 1906, among various individual members, and in fact, they did so and various surface interests were allotted and parceled out or partitioned out by various sized tracts of land to the various 2,000 members at the time. However, the minerals always remained as an undivided whole owned by the tribe. Now, it's obviously
true that the benefit of revenues received through the operation of the government in its actions as trustee over these lands goes to the various head-right owners or their successors by well succession, you know, several thousands of them, three or four times a year. But the minerals, the thing that we're really talking about here that was leased by these leases are and always have been since 1906 owned undivided by the tribe. And I don't know if anyone had really focused in Heritage Reporting Corporation (202) 628-4888
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16 1 2 3 4 5 6 7 8 9 10 11 12 13 | 14 15 16 - 17 ; ; ; 18 19 20 21 22 23 24 25 agree. Honor. on that, and I just wanted to mention that is contained in each of these leases. THE COURT: Okay. Well, that certainly goes along
with my thinking, Mr. Brickell, that we don't need to have this suit go forward as a class action when we have before us the tribe and you could join in the tribal counsel who as a matter of law would be those entities that have the legal interests that are necessary to pursue this litigation. MR. BRICKELL: And I would agree with that, Your
My only proviso would be because the ownership of
the minerals themselves as so ingrained in the statutes in the tribe itself, my request would be to leave the tribe as one of the party plaintiffs. THE COURT: Yes, I would too. I would too. I
In fact, that's what I meant to say if I didn't say
it, that I would simply bring the tribal counsel in as legal representatives r mnt.rartina authority and legal representatives, of the individual head-right owners. And if we were to do that, I think we would have collected all of the interests that arise under the contracts that were issued and that are, in fact, the bases for this lawsuit. Mr. Passarelli, I really -- I don't want to go a long Dennis road of the class action given what I've learned about these contracts. I would hope that I could convince
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17 1 2 3 4 5 6 7 8 9 10 11 12 ' 13 j14 15 16 ;: 17 '·] 1 8 ^19 I 20 21 f22 23 24 25 with that. you not to insist upon it, but if you do insist upon it, then I think we're going to have to get it resolved formally through a motion. But we know from our experience in Grenault. you and I, Mr. Passarelli, nobody else, you and I, know that the opt-in class, perhaps, maybe necessary there, I don't know, but certainly it was a burden. And I'm not about to open up
that type of administrative chore here particularly where I feel it to be totally unnecessary. So once again, I think I'm going to ask you, and Mr. Simpson, and Mr. Woodcock to reconsider this. If you
won't, if you don't want to back away from your position, then you're going to have to file a motion challenging the status of -- well, what I think I would have Mr. Brickell do is move to amend his complaint. Mr. Brickell, I haven't acted, as you know, on _the presently pending motion to intervene and ^mpnd. T'ri a^lc
that you simply withdraw that and refile it so that the intervention would be limited to the joinder of the tribal counsel. MR. BRICKELL: Your Honor, I would have no problem
May I inquire, and I have this other companion
case going and I cannot recall off the top of my head -- did the government ever file a response to the motion to intervene here? Heritage Reporting Corporation (202) 628-4888
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THE COURT: about now?
In our case, the one we're talking
MR. BRICKELL: THE COURT:
Yes, Your Honor. I've been
You know, I don't know. I don't know.
holding it for some time.
I don't think so,
Mr. Brickell, but Mr. Passarelli is here to -MR. PASSARELLI: Your Honor, when it came up, you
called to find out what our position would be. THE COURT: Oh, okay. We have taken that position to be
MR. PASSARELLI:
one that you wanted orally, and we requested it orally. THE COURT: Okay. Your Honor, if that is the case,
MR. BRICKELL:
and I believe under Rule 15 I could amend it without leave of Court to go ahead and drop the intervention and request the motion to amend to add the counsel along with the original plaintiff to the case and attach a copy of the streamlined complaint that I would propose the parties go forward on. THE COURT: be -MR
I think that's excellent.
That would
- BRICKELL:
I've already spoken to Mr.
23 24 25
Passarelli about bein THE COURT: Yes. - - i n the? complaint inwnfar as
MR. BRICKELL:
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19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ,'23 »24 H25 | actual wrongs regarding r o y a l t y -THE COURT: Yes. -- p a y m e n t s that w e ' r e alleging,
MR. BRICKELL:
and I have been working o n a draft of that already. THE COURT: Okay. Let's do that, M r . Brickell,
and then if M r . Passarelli, and M r . Woodcock, and M r . Simpson still feel that they're right, then they can file a motion to challenge the standing of the tribal counsel and insist upon the joinder of the individual head-right owners, and the Court will rule on that. But M r . P a s s a r e l l i , on the basis of what -- the little I know so far, y o u ' r e not going to p r e v a i l on that motion. MR. P A S S A R E L L I : THE COURT: I'll try my b e s t , Y o u r Honor.
All right. Y o u only heard a little bit of
MR. P A S S A R E L L I : what I had to say. THE COURT:
All r i g h t .
Okay.
N o w , I perfectly
understand that the tribe itself has a distinct interest in this oil and g a s and that, in your view, the m o n e t a r y b e n e f i t s of these contracts flow to i n d i v i d u a l s . saying anything o t h e r w i s e . I'm only saying w h o is best p o s i t i o n e d to advocate those individual b e n e f i c i a l interests, and I'm sayi.nf? that ^ it is the p a r t y that signed the contracts w h o m the Secretary Heritage Reporting Corporation (202) 628-4888 I'm not
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of the Interior has recognized as a legal representative of the individuals apd wh^vn f h > f-r-ih" i ^T-lf-iiiT^H"^ gnntrii n^ if the legal representative of these individuals. And if that isn't enough to let the tribal counsel be the party here, then I don't know what would be enough. So Mr. Woodcock and Mr. Simpson to have not shared your experience with the Grenault case and the seemingly endless motions we're getting for joinder, some of them years down the road, as you recall - - w e have a file drawer full of hundreds of Grenault's and -- well, they weren't all Grenault Indians. and other tribes. But nonetheless, it may well have been the case that it would not have been possible to proceed in Grenault in other than the fashion that we did there because there was nothing bringing all of those individual interests together under the frame work of a single contract whose violation was the substance of a complaint. There we all know, we had individual timbered interests, we had fishing interests, but they had all been allotted. That is not our case here. We have -- everything Some of them were Chahaylas and Talmuts
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focuses on this contract, and what we say about the contract, what we say about any one contract, we are saying also of all of the contracts because if they incorporated rules set out by regulation, it has to be the case that the Heritage Reporting Corporation (202) 628-4888
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21 1 2 3 4 5 6 7 8 9 10 11 12 13 I 14 15 16 17 18 19 20 21 ;22 23 24 25 Honor. THE C O U R T : Yes. Brad Brickell h e r e . need. regulation, h o w e v e r interpreted, g o v e r n s the contract wherever the language of the regulation o c c u r s . We really only need one contract. That's all we
But I'm assuming that there's a factual difference
among -- in the situation, so we probably have to have a representative set of contracts, but -MR. BRICKELL: That's true in this case, Your
MR. B R I C K E L L : THE C O U R T :
But I'm thinking only, M r . B r i c k e l l ,
in terms if the Court were called u p o n to declare the meaning of a g i v e n regulation. MR. B R I C K E L L : THE COURT: I see.
Then we o n l y need one contract because
whatever meaning we say it is this contract, it has the same meaning in all the c o n t r a c t s . But I appreciate we go o n
from there in terms of measuring the amount d u e , and so there we will h a v e to b e c o m e m o r e d i s c r e t e . But that is not a reason for saying we need to have the beneficiaries here. We'll be perfectly able to
measure out the damages without their being in court. We're not going to give away the government's money, Mr. Passarelli, if that's your grave concern. You I
will be given every protection as you were in Grenault. Heritage Reporting Corporation (202) 628-4888
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22 1 2 3 I 4 5 6 7 8 9 10 11 12 13 i 14 15 16 17 18 19 20 21 22 23 ; 24 i 25
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simply want to avoid bottle necks that all hundreds of individuals coming into the law suit is going to cause us for no purpose whatsoever, n o n e . Okay. That was the m a i n thing I wanted to cover,
and it may b e , Mr. Brickell, that that's all I wanted to cover given how we have proposed to resolve this. I had
other questions that really only arose if we were to proceed with the class action, but for the moment we're not going to. Y o u are going to amend, simplify, the complaint and then join -- well, you're going to give us a new complaint into which you also add the tribal counsel as the authorized representative of the individual alotees. MR. BRICKELL: Y e s , Your Honor, what my plan would
b e , unless the Court orders otherwise -THE COURT: I won't. -- would be to file a motion with
MR. BRICKELL:
the attached proposed complaint appended to the motion, and then if the m o t i o n is then granted, then the attached complaint would then be signed and filed upon the granting of the m o t i o n . THE COURT: Yes. Y o u know, I'm thinking now, even
though I didn't act on the p r e v i o u s l y filed motion to intervene, I'm going to have to have from you, M r . Brickell, a document formerly withdrawing t h a t . Heritage Reporting Corporation (202) 628-4888
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23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 I 24 of speed. MR. BRICKELL: THE COURT: That would be fine, Your Honor.
Yes, and then in lieu thereof
substituting the newly proposed amended complaint. MR. BRICKELL: I can probably get that up there to
you -- in Judge Hewitt's case, we have on occasion used email to transmit some of these documents. THE COURT: Mr. Brickell, we don't need that kind
If I didn't get it for a couple of weeks, you
know what, I wouldn't run out of work. MR. BRICKELL: initial concern. THE COURT: Oh, okay. But Mr. Passarelli, once Well, Your Honor, that wasn't my
more -- Mr. Simpson, Mr. Woodcock, and Mr. Passarelli, please get back together again on this thing and think about what interest is it that you believe that the class-action treatment would secure for the government that j s ^not now . fully protected were we t^^brJ-j^^^e^r^al^co^s^l^J^^s
J;he lejgjQ^rjejprjaseRfea^^^s-^e^^t^ the -- it represeji^s==only^Ji,he^l£gaJ__inter^sjLS^fe^^not^ the beneficial interg_stjg_^__,,.:,, Okay. That's all I have. Your Honor, this is A l a n Woodcock.
MR. WOODCOCK: May I ask a question? THE COURT:
Y e s , sure. We had at some time ago discussed
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25 ! MR. WOODCOCK: Heritage Reporting Corporation (202) 628-4888
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24 1 2 3 4 5 6 7 8 9 10 11 12 · 13 ' i 14 15 16 17 18 19 20 21 22
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notice to the oil companies -THE COURT: Yes. -- because of this, and I assume
MR. WOODCOCK:
that we will discuss or arrange for notice to the oil companies after receipt of the amended complaint? THE COURT: Yes, I don't want to get that -- I
don't want that out there until we have fixed boundaries of the complaint that we're talking about. Yes, so I do want
Mr. Brickell's amended complaint to be on file. Then I want Mr. Passarelli, and Mr. Brickell, and Mr. Woodcock, and Mr. Simpson to call up the Court and say, Judge, we need a conference or, no, Judge, we've seen the light. We're not going to press this class-action But I need to get some signal back to you, Mr.
treatment. Passarelli.
Obviously if you decide that you want to challenge the standing of the tribal counsel, then we'll have to have a formal motion for that, and we'll have to have a schedule for the proposed submission of a motion. I'd like to get all of those standing/jurisdictional issues resolved before I cause the issuance of the nqtic_e^to_the_o±l companies. them t o st_ep_l.nJ:-Q_a-.-p£Lt-tLh.at/s b o i l i n g . MR. BRICKELL: of t h e p l a i n t i f f . Heritage Reporting Corporation (202) 628-4888 Y o u r H o n o r , Brad Brickell o n behalf I don't want
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25 1 2 3 4 5 6 7 8 9 10 11 12 13 ( 14 15 16 17 18 19 20 21 22 23 24 ' 25 THE COURT: Yes. Just to apprise you of one other
MR. BRICKELL:
fact, the case that we've made reference to once- or twice in our hearing today that's pending before Judge Hewitt -THE COURT: Yes. The government's arguments there on
MR. BRICKELL:
jurisdictional standing are fully briefed, currently set for oral argument on the third day of April, next month. THE COURT: Oh, okay. I'm glad you told me that.
She may resolve it for us, or we may find ourselves with a disagreement between judges. MR. BRICKELL: I know that the reply brief of the
government, we've had it for a couple of days now, and she'll be addressing all those issues in that case on the third of April. I don't know when a decision might be
rendered by Judge Hewitt, but I just wanted to let you know that was out there. THE COURT: I appreciate that very much.
Anything else that we need to take care of, Mr. Passarelli? MR. PASSARELLI: THE COURT: Nothing, Your Honor.
Mr. Woodcock? No, I don't have anything else,
MR. WOODCOCK: Your Honor. THE COURT:
M r . Brickell?
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26 1 2 3 4 5 6 7 8 9 10 11 12 13 I 14 15 16 17 18 19 20 21 22 23 24 25 Honor. word, sir. MR. SIMPSON: I have no further issues, Your MR. BRICKELL: No, Your Honor. I would mention
that we really appreciate, on behalf of the plaintiff, your time and efforts in this case, and I note the government's reference to the recent higher court decision in the Navajo matter, and it will be our contention further in this litigation that, in fact, the Navaio decision does favor the plaintiffs and this case, and we'll be, obviously, further addressing that later. THE COURT: Okay. Mr. Simpson, you have the last
The government also appreciates your time in this,
and I have to admit as agency counsel for the Navaio case, I eagerly await what Mr. Brickell is going to say about it. THE COURT: Okay. All right. Madam Reporter, we
can go off the record now. (Whereupon, at 3:07 p.m. the hearing was concluded.) // // // // // // // Heritage Reporting Corporation (202) 628-4888
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27 1 2 3 4 5 6 7 8 9 10 11 12 I hereby certify that the proceedings and evidence are contained fully and accurately on the tapes and notes reported by me at the hearing in the above case before the United States Court of Federal Claims. DOCKET NO.: CASE TITLE: HEARING DATE: LOCATION: 99-550L The Osage Nation v. United States March 13, 2003 Washington, D.C. RE PORTER'S CERTIFICATE
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Date:
March 13, 2003
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Charity Davis Official Reporter Heritage Reporting Corporation Suite 600 1220 L Street, N.W. Washington, D.C. 20005-4018
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Intfje Winitth i£>tate£ Court ofJfeberal Claims!
NOTICE
THE OSAGE NATION
No. 99-550L
V. THE UNITED STATES
CLERK'S OFFICE Washington, D.C., April 16, 2003
To Attorney of Record, Assistant Attorney General and Judge John P. Wiese: Please take notice that in the above cause there has been filed this day, on behalf of the parties, Transcript of proceedings (1 volume) taken at Washington, D.C., on March 13, 2003.
MargarefM. Earnest, Clerk
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Exhibit F
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS THE OSAGE NATION AND/OR TRIBE OF INDIANS OF OKLAHOMA Plaintiff, v. THE UNITED STATES OF AMERICA Defendant. No. 00-169 Judge Emily C. Hewitt
FILED
MAR 1 4 2003
US. COURT OF ..FEDERAL CLAIMS
WITHDRAWAL OF MOTION TO INTERVENE AND AMEND COMPLAINT COME NOW the undersigned movant parties and pursuant R.C.F.C. 15, amend their original Motion to Intervene and Amend Complaint previously transmitted to the Court for filing about February 10, 2003, by withdrawing it as follows: 1. The basis for the above referenced Motion to Intervene was a finding entered
by Honorable John T. Weise in Case No. 99-550-L, the companion to the instant proceeding; 2. During a more recent hearing in Case No. 00-550L, the Court announced a
renewed review of the authorities cited in Plaintiffs pleadings, and based upon arguments of counsel for the Plaintiff1 reversed the previous finding and found the Osaae Tribe, as an entity, could prosecute the case on behalf of, and as "representative" of the beneficial interest of all headright owners or "members" of the Osage. 3. Inasmuch as the original basis for the Movant's Motion herein(Judge Weise's
original ruling) has now been reversed, the Motion to Intervene and Amend Complaint filed by the undersigned Movants, is hereby amended by withdrawing it in toto under R.C.F.C. 15, as no response has been filed.
The statues at large and laws of the United States specific to the Osage and undisputed facts concerning the administration of mineral assets of the Osage Tribe.
1
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WHEREFORE, if an order recognizing this withdrawal of the February 10, 2003 Motion to Intervene and Amend and/or striking the Motion is deemed necessary by the Court to conform with the procedural rules of the Claims Court, the undersigned Movants request that such order be entered. Respectfully submittedt/
BRADLEY DJgRfpfcEilUdBA No. 1117
Bnckell & Associates, fP
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CERTIFICATE OF SERVICE I hereby certify that on the 13th day of March, 2003, a true and correct copy of the above and foregoing was e-mailed to Judge Emily C. Hewitt c/o Shannon [email protected] and [email protected], faxed (202) 514-8865 and mailed, by U.S. Mail, to the following: R. Anthony Rogers General Litigation Section Environment and Natural Resources Division United States Department of Justice 3rd Floor 601 D Street, N.W. Washington, D.C. 20004
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Exhibit G
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Exhibit H
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS THE OSAGE NATION AND/OR TRIBE OF INDIANS OF OKLAHOMA, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendants. RESPONSE TO SUBSTITUTE COUNSEL UNDER RCFC 83.1 COMES NOW the undersigned attorney and for response to the Motion to Substitute Counsel filed by Wilson Pipestem hereby states as follows: 1. The instant litigation was filed by the undersigned counsel on the Plaintiffs behalf several years ago pursuant to a resolution duly approved by the governing council for The Osage Tribe of Indians and pursuant to an attorney fee agreement approved by the Secretary of the Interior; 2. In 2002, a new principal chief and almost all new council members were elected for the Plaintiff. The sole remaining member from the previous council, Ms. Camille Pangburn, has now passed away; 3. According to the filing of Wilson Pipestem, Mr. Pipestem is designated by the new chief and new council to "take over" the instant pending proceeding on behalf of Plaintiffs; 4. The undersigned counsel has conducted extensive discovery as well as extensive settlement negotiations with the Defendant in this case based upon unique lease language and factual circumstances concerning the Defendant's duties to collect No. 99-550 L Judge John P. Wiese
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oil and gas royalty for production of the minerals owned by the United States, in trust for the Osage "head right" owners; 5. The undersigned counsel has expended many hours and paid out of pocket expenses in pursuit of this case, some of which remain outstanding. The Department of Interior has approved a fee agreement which provides that the undersigned is to receive a certain percentage of the Plaintiffs' recovery in the instant proceeding as attorney fees and is to be reimbursed for all out of pocket costs. The United States Court of Appeals for the District of Columbia in Heller, Ehrman, White & MacAuliffe, et al v. Bruce Babbit, Secretary of the Interior, et al, 992 F. 2d 360 at 364 (1993) stated that the Claims Court is the appropriate body to determine a distribution/award of
L
appropriate attorney fees for litigation which occurred in the Claims Court. The authority of this Court to deal with the issue of recovery, apportionment and disbursement of attorney fees for judgement awards or settlements was further discussed and decided in Godfroy, et al v. The United States, 199 Ct. Cl. 487, 467 F.2d 909 (1972). As the Court was previously advised (by Defendant), the benefit of a judgement or settlement obtained herein, on the basis of underpayment of oil & gas royalty monies, is to be distributed to the holders/owners of "head rights" within the Osage Tribe of Indians. When an attorney recovers a fund for the benefit of persons, other than himself or his client, he may recover fees from the fund as a whole ("common fund doctrine"). Boeing Co. v. Van Gemert, 444 U.S. 472 at 478 (1980).
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The jurisdiction of this Court to award an attorney fees for the establishment of a "common fund" was recently further confirmed in Applegate, et al v. The United States, 52 Fed. Cl. 751 (2002). In Applegate, (at page 761) the Court, Francis M. Allegra, Judge, stated: "...common fund claims, like suits for contribution, effectuate a simple, equitable notion - that those who benefitted from the litigation should share in it's cost." (interior citations omitted) The Code of Federal Regulation, 25 CFR § 87.1 (a), defines "attorney fees and litigation expenses" as all fees and expenses incurred in litigating and processing tribal claims before the Indian Claims Commission or the United States Court of Claims. And, 25 USCS § 1401 (a), sets forth: ...not withstanding any other law, all use or distribution of funds appropriated in satisfaction of a judgement of the Indian Claims Commission or the United States Claims Court in favor of any Indian Tribe ... together with any investment income earned thereon, after payment of attorney fees and litigation expenses, should be made pursuant to the provisions of the Act" (emphasis added) Currently, the undersigned counsel is entitled to be compensated for all out of pocket expenses and his efforts expended under the attorney fee agreement approved by the Secretary of Interior, subject to this Court's review for reasonableness and apportionment, if necessary. WHEREFORE, in consideration of the above premises, the undersigned counsel does not object to the entry of appearance by Wilson Pipestem as designated by the newly elected council for the Plaintiff and by this pleading notifies the Defendant of his claim for fees and litigation expenses under (a) the above cited authorities and (b) his attorney fee agreement approved by the
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Secretary of the Interior attributable to any monies recovered/appropriated for payment of claims adjudicated in the Plaintiffs favor to be distributed to the Osage owners of "head rights" through the Tribe or by Defendant by judgment or settlement. Respectfully i
JRADLEY D. BRICKELL OBA 1117 Brickell & Associates, P.L.C 950 Hightower Building 105 North Hudson Oklahoma City, OK 73102 Telephone 405-236-0008 Facsimile 405-236-0013 ATTORNEY FOR PLAINTIFFS CERTIFICATE OF MAILING I hereby certify that on the "A*1 day of May, 2003,1 faxed and mailed, by U.S. Mail, true and correct copy of the above and foregoing, postage pre-paid to the following: Edward Passarelli Environment & Natural Resources Division United States Department of Justice 601 Pennsylvania Ave., N.W., Ste. 843 Washington, D.C. 20004 Via Facsimile: 202-305-0506 Alan Woodcock Office of the Field Solicitor U.S. Department of the Interior 7906 E. 33rd Street Tulsa, OK 74145 Via Facsimile: 918-669-7736 Wilson Pipestem Pipestem Law Firm, P.C. 1333 New Hampshire Ave., N.W. Washington, D.C. 20036 Via Facsimile (202) 659-4931
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