Free Motion to Dismiss - Rule 12(b)(1) - District Court of Federal Claims - federal

Case 1:99-cv-00550-ECH

Document 106

Filed 12/02/2005

Page 1 of 3

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: December 2, 2005 Nos. 99-550L & 00-169L Judge Emily C. Hewitt

DEFENDANT'S MOTION TO DISMISS, IN PART, PLAINTIFF'S INVESTMENT CLAIMS AS SET FORTH IN PLAINTIFF'S BRIEF CLARIFYING LEGAL BASES FOR ITS INVESTMENT CLAIM Pursuant to the Rules of the Court of Federal Claims ("RCFC") 12(b)(1) or, in the alternative, pursuant to RCFC 12(b)(6), and RCFC 12(h)(3), Defendant respectfully moves this Court to dismiss the following investment claims set forth in Plaintiff Osage Nation's Brief Clarifying Legal Bases for Its Investment Claims: Plaintiff's claim that the Government has a duty (1) to maximize investment yields; (2) to earn for the Osage Trust funds investment returns equal to the average yields it obtained from other Indian Trust funds; (3) to earn interest for the Osage trust fund between the time a check is issued from Treasury and the time when the check is paid or cancelled; and (4) Plaintiff's claim, as currently constituted, to lost investment income. A memorandum in support of this motion and in reply to Plaintiff's Brief Clarifying Legal Bases for Its Investment Claims filed pursuant to the Court's October 27, 2005, Opinion and Order follows. In filing this motion, Defendant notes that, although the Court denied Defendant's motion to dismiss, in part, Plaintiff's Trance One claims, in its October 27, 2005, Opinion and Order, the Court indicated that "the legal issues and facts regarding plaintiff's investment claim have not been sufficiently briefed . . . plaintiff has not adequately articulated the contours of its investment claim. . . ." Osage Tribe of Indians of Oklahoma v. United States, 68 Fed.Cl. 322, 335-36 (Fed.Cl. 2005). Further, the Court held that dismissal of Plaintiff's claim was "unwarranted at this juncture." Id. at

Case 1:99-cv-00550-ECH

Document 106

Filed 12/02/2005

Page 2 of 3

336. In light of the subsequent briefing by both parties regarding Plaintiff's investment claims, Defendant believes that this is an appropriate juncture for the Court to dismiss Plaintiff's investment claims, in part, either pursuant to RCFC 12(b)(1) or, in the alternative, pursuant to RCFC 12(b)(6). Respectfully submitted, on December 2, 2005, SUE ELLEN WOOLRIDGE 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 s/ Martin J. LaLonde MARTIN J. LALONDE KEVIN WEBB 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 Attorneys for Defendant OF COUNSEL: Elisabeth Brandon Brenda Riel Attorneys Office of the Solicitor Division of Indian Affairs U.S. Department of the Interior MS 6456 Washington, D. C. 20240 Telephone: (202) 219-1659 Fax: (202) 208-3490 -2-

Case 1:99-cv-00550-ECH

Document 106

Filed 12/02/2005

Page 3 of 3

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

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