Free Motion in Limine - District Court of Federal Claims - federal

Case 1:99-cv-00550-ECH

Document 134

Filed 01/26/2006

Page 1 of 4

IN THE UNITED STATES COURT OF FEDERAL CLAIMS THE OSAGE TRIBE OF INDIANS OF OKLAHOMA, ) ) ) Plaintiff, ) ) v. ) ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________)

Electronically Filed: January 26, 2006 No. 99-550 L (into which has been consolidated No. 00-169L) Judge Emily C. Hewiit

DEFENDANT'S MOTION IN LIMINE TO PRECLUDE PLAINTIFF FROM CHALLENGING INTERIOR'S INTERPRETATION OF OSAGE REGULATIONS IN OKIE CRUDE CO. v. MUSKOGEE AREA DIRECTOR Defendant the United States moves in limine, pursuant to RCFC 16, for an order prohibiting plaintiff from introducing testimony, evidence, or argument regarding the proper interpretation of the regulatory term "offered price." This Court should not allow such evidence (including but not limited to expert reports and expert testimony) to be introduced, nor should it entertain the Tribe's claims arising from the allegedly incorrect interpretation of the regulations regarding such terms, because determinations regarding "offered price" were subject to administrative appeal and review under the Administrative Procedure Act, 5 U.S.C. § 702, et seq. (1976)("APA"). It is undisputed that the Interior Board of Indian Appeals ("IBIA") adjudicated the issue of the correct interpretation of "offered price" in Okie Crude Co. v. Muskogee Area Director, 23 IBIA 174 (1993). In that decision, the IBIA also determined the correct interpretations of "bona fide selling price" and "actual price", within the meaning of the Osage Regulations. As the 1

Case 1:99-cv-00550-ECH

Document 134

Filed 01/26/2006

Page 2 of 4

United States explains in the accompanying memorandum, this Court has no jurisdiction to review those adjudicatory determinations by the IBIA. Instead, the proper (and only) route to obtain review of the administrative agency's interpretations was to appeal the IBIA's decision in a federal district court, under the APA. This the Osage did not do; and they may not challenge those determinations now, in this court of limited jurisdiction. Because the Osage did not appeal the IBIA's adjudicatory decision about the interpretation of "offered price," they are bound by that interpretation. "[F]oregoing an APA challenge ha[s] the same effect as if the district court had upheld the agency determination in all respects." Appolo Fuels, Inc. v. United States, 54 Fed. Cl. 717, 739 (2002), citing Florida Rock Indus., Inc. v. United States, 791 F.2d 893 (Fed. Cir. 1986). The grounds and authorities in support of this motion are set forth in greater detail in the accompanying Memorandum. Respectfully submitted, on January 26, 2006,

SUE ELLEN WOOLDRIDGE Assistant Attorney General

s/ Brett D. Burton BRETT D. BURTON United States Department of Justice Environment and Natural Resources Division P. O. Box 663 Washington, D.C. 20044-0663 Telephone: (202) 305-0212 Fax: (202) 353-2021 Counsel of Record for Defendant MARTIN J. LALONDE 2

Case 1:99-cv-00550-ECH

Document 134

Filed 01/26/2006

Page 3 of 4

KEVIN WEBB LAURA MAROLDY United States Department of Justice Environment and Natural Resources Division P. O. Box 663 Washington, D.C. 20044-0663 Telephone: (202) 305-0247 Fax: (202) 353-2021 Attorney for Defendant

OF COUNSEL: Brenda Riel Elisabeth Brandon Attorneys Office of the Solicitor Division of Indian Affairs U.S. Department of the Interior MS 6456 Washington, D. C. 20240 Telephone: (202) 208-4218/3714 Fax: (202) 208-3490 Teresa E. Dawson Senior Counsel Office of Chief Counsel Financial Management Services U.S. Department of the Treasury 401 14th Street, S.W. Room 552A Washington, D.C. 20227 Telephone: (202) 874-2567 Fax: (202) 874-6627

3

Case 1:99-cv-00550-ECH

Document 134

Filed 01/26/2006

Page 4 of 4