Free Response to Motion - District Court of Federal Claims - federal

Case 1:98-cv-00314-EJD

Document 103

Filed 04/13/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) Plaintiffs, ) ) vs. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) ) ) ________________________________________ ) CENTRAL PINES LAND COMPANY, ET AL.

No. 98-314 L

Chief Judge Edward J. Damich

DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO FILE SUR-REPLY Defendant, United States of America, respectfully submits this opposition to Plaintiffs' motion for leave to file a sur-reply. On March 21, 2007, Plaintiffs filed a sur-reply to Defendant's reply in support of its motion for summary judgment. This sur-reply was not permitted by the Rules of the Court of Federal Claims and was stricken by the Court on March 26, 2007. Plaintiffs now seek live to file a sur-reply. Plaintiffs argue that they are entitled to a sur-reply because Defendant's reply in support of its motion for summary judgment "for the first time, briefed issues relevant to its Motion for Summary Judgment." Motion for Leave at 2. Because each argument set forth in favor of summary judgment in Defendant's Reply was indeed made in Defendant's opening brief, Plaintiffs' argument is without merit and Plaintiffs' motion for leave should be denied. As set forth in Defendant's motion for summary judgment ("Opening Brief"), this case has a long and protracted history, but it has been greatly simplified by rulings from this Court and

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Case 1:98-cv-00314-EJD

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by the United States District Court for the Western District of Louisiana in a related action, Central Pines Land Co. v. United States, No. 2:96-2000, slip. op. (W.D. La. July 28, 2000), aff'd, 274 F. 3d 881 (5th Cir. 2001). See Opening Brief at 3, August 12, 2004 Order at 4-5. Defendant previously filed a motion for judgment on the pleadings arguing that Plaintiffs' remaining claim - Count II - was barred by the applicable statute of limitations. Plaintiffs responded that the statute of limitations did not apply because of the "continuing claim doctrine." Opening Brief at 1-2. The Court ultimately denied Defendant's motion for judgment on the pleadings, but found that "the application of the continuing claim doctrine will determine whether Count II is time barred." August 12, 2004 Order at 24. The Court anticipated a motion for summary judgment following discovery and instructed the parties to focus on attempts by Plaintiffs to access the "Group C lands" and what, if anything, Defendant did in response. Id. at 32. In its Opening Brief, Defendant argued that the United States was entitled to summary judgment on Plaintiffs' remaining claim because Plaintiffs are unable to satisfy the Court's request to identify any attempts to access the Group C lands -- and therefore the continuing claim doctrine does not apply. Defendant also argued that, because Plaintiffs made no such attempts, Count II fails to state a claim. See Opening Brief. Defendant's Reply merely responds to Plaintiffs' Opposition brief and makes these same arguments -- that because Plaintiffs cannot identify any attempts to access Group C, Count II is barred by the statute of limitations and must fail as a matter of law. See Defendant's Reply. Accordingly, Plaintiffs' fail to identify a valid reason entitling them to file a sur-reply and

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Plaintiffs' motion should be denied.1/ Dated: April 13, 2007 Respectfully submitted, MATTHEW J. MCKEOWN Acting Assistant Attorney General Environment and Natural Resources Division /s/ Alex Kriegsman ALEX KRIEGSMAN Trial Attorney Natural Resources Section U.S. Department of Justice P.O. Box 663 Washington, D.C. 20044-0663 Tel: (202) 305-3022 Fax: (202) 305-0506

CAPT. JAMES N. HEWITT Litigation Attorney U.S. Army Environmental Law Division 901 N. Stuart Street, Suite 400 Arlington, VA 22203-1837 Tel: (703) 696-1596 Fax: (703) 696-2940 MATTHEW A. TILDEN, ESQ. Office of the General Counsel U.S. Department of Agriculture 1718 Peachtree Road, NW - Suite 576 Atlanta, GA 30309-2409 Tel. 404-347-1086 Fax. 404-347-1065 DENNIS DAUGHERTY

/ In the alternative, should the Court grant Plaintiffs' motion for leave, Defendant respectfully submits that Defendant, as the moving party, should be permitted to file a brief response to Plaintiffs' sur-reply. 3

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Assistant Solicitor Department of the Interior Office of the Solicitor Division of Mineral Resources Branch of Petroleum Resources 1849 C St., N.W., Rm 6312 Washington, DC 20240 Tel: (202) 208-5038 Fax: (202) 208-2225 ATTORNEYS FOR DEFENDANT

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