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

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

WALTER B. FREEMAN, Plaintiff, vs. UNITED STATES, Defendant.

) ) ) ) ) ) ) ) ) )

No. 01-39L Honorable Bohdan A. Futey

REPLY IN SUPPORT OF MOTION FOR RELIEF FROM SUSPENSION OF PROCEEDINGS

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TABLE OF CONTENTS INTRODUCTION ..................................................................................................................... 1 ARGUMENT ............................................................................................................................. 1 I. RESPONSE TO DEFENDANT'S CHARACTERIZATION OF THE BACKGROUND ........................................................................................................... 1 THE COURT SHOULD GRANT SOME RELIEF FROM THE SUSPENSION OF PROCEEDINGS ...................................................................................................... 5 A. Granting Relief from Suspension of Proceedings Does Not Raise a Jurisdictional Issue ............................................................................................ 5 Freeman Never Agreed with the Court's Decision to Remand the Case.......... 7 Granting Freeman's Motion Does Not Result in a Waste of Time and Resources .......................................................................................................... 8

II.

B. C.

III.

AFTER GIVING THE INTERIOR DEPARTMENT THE CHANCE TO DETERMINE THE VALIDITY OF FREEMAN'S CLAIMS, PRIMARY JURISDICTION DOES NOT REQUIRE WAITING TO FIND OUT WHETHER ONE PART OF THE INTERIOR DEPARTMENT REVERSES ITSELF................... 9 A. The Department of Interior Has Refused to Determine the Validity of Freeman's Claims................................................................................................9 Freeman Has Been Treated Unfairly.................................................................10 Skaw Supports Freeman's Argument ................................................................13

B. C. IV.

FREEMAN'S REQUEST FOR CONDITIONS ON THE SUSPENSION ARE APPROPRIATE AND SHOULD BE GRANTED...................................................... 17

CONCLUSION ........................................................................................................................ 20

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TABLE OF EXHIBITS Exhibit 1: Notice of Motion filed in Court of Federal Claims and Request for Order Concerning Board Timeframe for Ruling Contestee's Response to Notice of Motion and Request for Order Concerning Board Timeframe for Ruling Letter dated April 22, 2008 from the Office of Hearings and Appeals regarding timeframe for decisionmaking Motion for Reconsideration in United States v. Aloisi, CACA 41272 Order dated May 25, 2007 re: Contest Dismissed, Hearings Cancelled Pages 16, 17, and 18 from Freeman's answer to Government's interrogatories Page 147 of Hearing Transcript (testimony of Terry Maley) dated March 14, 2007 Pages 1105, 1106, 1109-1114, 1162, and 1163 of Hearing Transcript (testimony of Otto Schumacher) dated April 16, 2007 Page 2109 of Hearing Transcript (testimony of Walter B. Freeman) dated April 24, 2007 Pages 1896 to 1908 of Hearing Transcript (testimony of Walter B. Freeman) dated April 23, 2007

Exhibit 2:

Exhibit 3:

Exhibit 4: Exhibit 5: Exhibit 6: Exhibit 7:

Exhibit 8:

Exhibit 9:

Exhibit 10:

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TABLE OF AUTHORITIES Cases Afro-Lecon, Inc. v. U.S., 820 F.2d 1198 (Fed. Cir. 1987)............................................................................................ 18 Anderson v. City of Bessemer City, 470 U.S. 564 (1985) ............................................................................................................. 16 Atchison, T. & S. F. Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800 (1973) ............................................................................................................. 17 Aulston v. U.S., 823 F.2d 510 (Fed.Cir. 1987)................................................................................................. 2 Bailey v. U.S., 78 Fed.Cl. 239 (2007) ............................................................................................................ 3 Gauthier v. Morrison, 232 U.S. 452 (1914) ............................................................................................................... 7 Hansen v. U.S., 65 Fed.Cl. 76 (2005) ............................................................................................................ 18 Holden v. U.S., 38 Fed. Cl. 732 (1997) ........................................................................................................... 1 James v. Caldera, 159 F.3d 573 (Fed.Cir.1998)................................................................................................ 18 Kerr v. Dep't of Game, 542 P.2d 467 (Wash. App. 1976)........................................................................................... 6 Landis v. North American Co., 299 U.S. 248 (1936) ................................................................................................. 18, 19, 20 New York Power Authority v. U.S., 42 Fed.Cl. 795 (1999) .......................................................................................................... 19 O'Connell v. Secretary of Health and Human Services, 63 Fed.Cl. 49 (2004) ............................................................................................................ 19

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Reiter v. Cooper, 507 U.S. 258 (1993) ............................................................................................................... 2 Rineer v. U.S., 79 Fed.Cl. 765 (2007) .......................................................................................................... 18 Skaw v. U.S., 740 F.2d 932 (Fed. Cir. 1984)....................................................................................... passim St. Paul Fire and Marine Ins. Co. v. U.S., 24 Cl.Ct. 513 (1991) ............................................................................................................ 19 United States v. 237.500 Acres of Land, More or Less, Counties of Inyo and Kern, State of Cal., 278 F.2d 584 (9th Cir. 1960)................................................................................................... 7 U.S. v. Aloisi, CACA 41272................................................................................................................. passim U.S. v. Bagwell, 961 F.2d 1450 (9th Cir. 1992)................................................................................................. 6 U.S. v. Mulligan, 177 F. Supp. 384 (D.Or.1959)................................................................................................ 7 U.S. v. Nogueira, 403 F.2d 816 (9th Cir. 1968)................................................................................................... 7 U.S. v. Schultz, 31 F.2d 764 (D.C. Cal. 1929)................................................................................................. 7 U.S. v. Story, Idaho 15674................................................................................................................ 8, 12, 13 U.S. v. Zweifel, 508 F.2d 1150 (10th Cir. 1975)............................................................................................... 6 Regulations 43 C.F.R. § 4.451-1.................................................................................................................... 4

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INTRODUCTION Plaintiff, Walter Freeman, files this Reply in Support of Motion for Relief from Suspension of Proceedings. ARGUMENT I RESPONSE TO DEFENDANT'S CHARACTERIZATION OF THE BACKGROUND The first page of Defendant's Response to Plaintiff's Motion for Relief from Suspension of Proceedings or, in the Alternative, for Conditions (Defendant's Response), quotes from a Joint Preliminary Status Report (JPSR), dated September 28, 2001, wherein the parties state that they "agree that this case should be deferred if the Court believes the proceedings should be stayed pending an administrative determination regarding the validity of plaintiff's mining claims." Defendant's Response at 1-2 (quoting Dkt. #17). It repeats that reference no less than three times later. Defendant's Response at 8, 10, and 19. The insinuation at this point, made explicit later in its brief, is that Freeman agreed to the lengthy process he has been stuck in for the last seven years. This is simply not true, which is apparent on the face of the JPSR. The consensus among the parties in the JPSR is that "if the Court believes the proceeding should be stayed pending an administrative determination," then this case should be deferred. Dkt. #17, quoted in Defendant's Response at 1 (emphasis added). This is far from any agreement by Freeman that the case should be stayed pending an administrative determination. Moreover, the point of the reference to the present case being "deferred" is to distinguish from dismissal. Freeman was concerned because other cases in this Court involving unpatented mining claims have been subjected to a motion to dismiss. See e.g., Holden v. United States, 38 Fed. Cl. 732 (1997). Freeman was agreeing that this Court should 1

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not dismiss his case pending review by the DOI.1 Freeman was in no way agreeing to this administrative process as a substitute for having the Court decide all issues in his case. The Government also asserts that the "parties conferred and stipulated that the Interior Department would make its validity determination as of the dates of the two events Mr. Freeman alleges in his complaint resulting in a taking of property." Defendant's Response at 2. It is important to realize that the complaint in this matter does not allege dates that the taking occurred. It does allege that Freeman applied for a patent in 1992, that he was notified by BLM that his patent would not be processed in December of 1994, that he filed a Plan of Operations (POO) to mine in December of 1992, that he was notified of a decision to subject his POOs to an Environmental Impact Statement (EIS) in March 1994, that a decision on the EIS and his POO was first issued in August of 1999 and that his appeal within the Forest Service was denied in October of 2000. Complaint at 2, ¶6; 3-4, ¶12; 4, ¶ 15; 4-5, ¶ 16; 6, ¶ 24; and 8, ¶ 30. Various other dates involving the processing of the EIS were also included in the Complaint. See Complaint at 5-6. The Complaint also alleges: It would be futile for Mr. Freeman to file another Plan of Operations because the Forest Service has unequivocally expressed its objection to mining of Mr. Freeman's claims. Complaint at 8, ¶ 33. As Freeman explained to the BLM, he was told by the ultimate decisionmaker in the Forest Service in 1993 that there was "no way in hell" he would ever be allowed to mine. Exhibit 1, at 5 to Defendant's Response. The bottom line is that the Complaint seeks compensation for property rights taken without any specific allegation of when that taking

1

Under the doctrine of primary jurisdiction, courts normally may retain jurisdiction or dismiss. Reiter v. Cooper, 507 U.S. 258 (1993). The distinction between dismissal and deferral is important because dismissal raises problems with the statute of limitations. See Aulston v. United States, 823 F.2d 510, 513-24 (Fed.Cir. 1987).

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occurred. Complaint at 14.2 Freeman recognizes that the date of taking is likely to be disputed as in most regulatory takings cases and ultimately this Court will need to resolve that issue. Because of the possibility that BLM might evaluate the claims in light of a time period less important to the takings claim as happened in Skaw v. United States, 740 F.2d 932 (Fed. Cir. 1984), Freeman encouraged the BLM to look at the validity of his claims in light of potential taking dates.3 The difficulty in the present case is that no date of taking has yet been determined. Hence, the parties were seeking to come up with dates that were potential taking dates or at least relatively close in time to potential dates of a taking. The relatively easy date was October 2000, because that was when the Forest Service formally decided not to approve Mr. Freeman's POO. BLM was unwilling to structure the mineral examination based on the "no way in hell" assertion when Freeman believes the decision to not allow him to mine may have been made. Nevertheless, BLM indicated it would also evaluate the claims based on an October 1994 timeframe on the justification that this was the date that Congress imposed the moratorium on processing patent applications. Considering the fact that date was close to potential dates at which the taking occurred and that Freeman was in no position to demand that the BLM evaluate his claims from any particular date, Freeman raised no objection to the dates selected by the BLM. 4

The Complaint also alleges facts related to the Forest Service's refusal to allow Freeman to mine during a lengthy process which is consistent with a temporary taking theory. Complaint, at 4, ¶ 15, et seq.; see Bailey v. U.S., 78 Fed.Cl. 239 (2007). 3 In Skaw, the BLM found the claims invalid as of the date of its examination due to failure to pay maintenance fees. Skaw successfully argued that his claims could be valid at the time of the taking, even if they were not valid later. 4 See Exhibit 3, at 2 to Defendant's Response, in which Freeman explains his position on the various dates. . In regard to the date of taking, we agree that October 6, 2000 is one possible appropriate date. We may, however, assert to the Court that 1993 is another potential date of taking since it was the date of an unqualified statement by the person who everyone knew would make the ultimate decision. We believe the decision was made in 1993 and only formalized in 2000. I understand why you would not want to agree with this point. Nevertheless, we believe this dispute in the date of taking may not turn out to be significant

2

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The Government notes that when the issue arose as to whether the Office of Hearings and Appeals (OHA) has jurisdiction to determine the validity of mining claims as of dates in the past, Freeman urged Judge Sweitzer to find that he had jurisdiction. Freeman was concerned about having to relitigate the case and at the time, the lack of jurisdiction had not been decided. However, once Judge Sweitzer ruled it became apparent that the authority of ALJs within the OHA was limited by regulation to determining the present validity of mining claims, given the use of the present tense in the critical regulation. 43 C.F.R. § 4.451-1 provides: The Government may initiate contests for any cause affecting the legality or validity of any entry or settlement or mining claim. Judge Sweitzer correctly concludes that 43 C.F.R. § 4.451-1's reference to "any cause" is tied to "any cause affecting the legality or validity of any ... mining claim." The regulation's reference to "legality or validity" is in the present tense. In the absence of any language to suggest to the contrary, the plain meaning clearly is that jurisdiction is limited to determining the legality or validity in the present. Freeman agreed with Judge Sweitzer's ruling that a contest complaint which does not seek a determination of present legality or validity is not within the scope of this regulation. Finally, Defendant's Response is notable for what was missing. After receiving Freeman's motion, the Government filed in the IBLA a Notice of Motion Filed in the Court of Federal Claims and Request for Order Concerning Board Timeframe for Ruling, attached hereto as Exhibit 1. In that document, the Government notifies the IBLA of the pending motion,

since Dr. Maley will also be using the October 4, 1994 date which is relatively close in time to our alternative taking date. Id. Despite the Government's insinuations to the contrary, there was no agreement as to when the taking occurred or that the 2000 and 1994 dates were the only relevant dates.

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notifies the IBLA that its due date for responding to the pending motion is April 16, 2008 and asks for "an Order setting forth the Board's expected timeframe for issuing a ruling on the interlocutory appeal." The same day, Freeman filed in the IBLA his Response, attached hereto as Exhibit 2, and urged the IBLA to give some timeframe for ruling on the interlocutory appeal. Id. Although filed prior to the Defendant's Response in this case, the Government decided not to notify the Court of its attempts to get a timeframe until a response arrived. Consistent with Freeman's understanding of the workload of the IBLA and the likelihood of significant delay, an attorney with the IBLA sent a letter dated April 22, 2008, which is attached hereto as Exhibit 3, indicating that the IBLA cannot give a timeframe for ruling, but suggests that an IBLA ruling might be coming within a few months. Even if this indefinite response causes the Court to wait on deciding to end the stay, it should not affect this Court's resolution of the request for conditions on the stay.5 II THE COURT SHOULD GRANT SOME RELIEF FROM THE SUSPENSION OF PROCEEDINGS A. Granting Relief from Suspension of Proceedings Does Not Raise a Jurisdictional Issue The final paragraph of its Background section, Defendant's Response at 5-6, suggests that an "administrative determination" is necessary to have a property right in mining claims. Defendant's Response at 5-6. This argument is continued under the first section of the Argument Section of Defendant's Response at 6. Perhaps the Government hopes the Court will forget its Order dated May 8, 2003. At that time, this Court recognized the distinction between the necessity of having a valid mining claim and the typical, but not necessary, administrative

5

Freeman uses the terms "stay" and "suspension" interchangeably, without intending any distinction between them.

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determination by the Department of the Interior (DOI) that his mining claims are valid. "The court agrees with plaintiff that a BLM validity determination is not a jurisdictional prerequisite." Order, dated May 8, 2003, at 3. (emphasis added) Despite its insinuations to the contrary, Defendant does not dispute this Court's characterization of the primary jurisdiction as only requiring the agency to initially evaluate the validity of Freeman's claims. Order dated May 8, 2003, at 4. "The application of the doctrine is not mandatory in any given case, but rather is within the discretion of the court." Order, dated May 8, 2003, at 3 (quoting Kerr v. Dep't of Game, 542 P.2d 467, 468-69 (Wash. App. 1976)). If the agency refuses to decide the question, there is no requirement that this Court continue to hold this case in suspension. The Government overstates its case by asserting that the determination of validity of unpatented mining claims "lies generally outside the jurisdiction of this Court." Defendant's Response, at 8 (noting that the only exception is the situation in Skaw v. United States, 740 F.2d 932). Of course, the case parallel to Freeman, Aloisi v. United States, CACA 41272, is currently proceeding in the Court of Federal Claims in the absence of a determination of claim validity by the DOI. There are a whole host of other situations in which Courts have determined the validity of unpatented mining claims without requiring the matter to go to the Department of the Interior first. See, e.g., United States v. Bagwell, 961 F.2d 1450 (9th Cir. 1992). It is also true that federal courts have determined claim validity on their own when ancillary to the federal court's jurisdiction. See, e.g., United States v. Zweifel, 508 F.2d 1150 (10th Cir. 1975); United States v. 237.500 Acres of Land, More or Less, Counties of Inyo and Kern, State of Cal., 278 F.2d 584 (9th

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Cir. 1960) (condemnation case); United States v. Mulligan, 177 F. Supp. 384, 385 (D.Or.1959) (validity determined by court). As explained by the Ninth Circuit Court of Appeals in United States v. Nogueira, 403 F.2d 816 (9th Cir. 1968): The Courts are always open to private litigants to determine possessory rights in public land. Not to determine title, however, because they have not title. But the United States having title, the tribunals are always open to it to vindicate its rights therein, either that of the Land Department or that of the courts, at is election if proceedings are initiated by it. Id. at 823 (quoting United States v. Schultz, 31 F.2d 764 (D.C. Cal. 1929) and citing Gauthier v. Morrison, 232 U.S. 452, 461 (1914)). The Government's assertion that ending the suspension would create a jurisdictional issue is false. The jurisdictional issue is settled by this Court's earlier order and supported by the cases discussed above. While primary jurisdiction calls for giving the DOI the opportunity to initially evaluate the validity of the claims, the Court has jurisdiction to decide such question when ancillary to the Court's own jurisdiction. Of course, primary jurisdiction is no bar to granting conditions on the stay as requested in Freeman's motion. B. Freeman Never Agreed with the Court's Decision to Remand the Case. The Government's assertion that Freeman agrees with the Court's decision to remand the case is incorrect. As noted supra at 1-2, Freeman did not ask for the remand and agreed only that if the Court was going to require an administrative determination that the Court should defer the present case, rather than dismiss it. It is a complete mischaracterization of the facts to assert that Freeman "now voices dissatisfaction with his choice." Defendant's Response at 8 (emphasis added). Equally false is the assertion that Freeman had an "earlier concurrence that this case be remanded." Defendant's Response at 10. 7

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The Government goes a step further and asserts that Freeman agreed that the ALJ had jurisdiction to determine the validity of his claims as of the dates of 1994 and 2000 and asserts that "Freeman now attempts to shift the legal landscape and argue as if it were clear all along that the ALJ did not have jurisdiction." Defendant's Response at 11. Freeman does not claim it was clear all along to him. The decision of Judge Mesch in United States v. Story, Idaho 15674 is not published. Anywhere. As a practical matter, only attorneys for the Government or the party in Story would have access to it. Similarly, the decision of Judge Holt in United States v. Aloisi is not published anywhere and that decision was issued in the middle of the hearing in Freeman. It did not become clear to Freeman that the OHA does not have jurisdiction to issue the relief sought by the Government until after Judge Sweitzer ruled and made that perfectly clear. But the Court should expect that an agency which handles a particular subject matter would be aware of its own rulings, especially on the fundamental position that it has no jurisdiction. C. Granting Freeman's Motion Does Not Result in a Waste of Time and Resources The Government argues that granting the motion needlessly wastes time and expense incurred by both parties. While it is true that the contest proceeding was expensive for both parties, that effort is not necessarily "wasted." Litigation of the issues before this Court are likely to be far more refined and expedited than they were before Judge Sweitzer. Additionally, the Government asserts that the hearing record is established and "after closing briefs are submitted," the case is ready for decision by Judge Sweitzer. While technically true, final resolution of this case is not imminent. First, the IBLA needs to decide the interlocutory appeal. If the IBLA affirms Judge Sweitzer, the issue comes back to this Court anyway. If IBLA reverses Judge Sweitzer, then briefing is likely to take several months and the remainder of a year for Judge Sweitzer to issue a 8

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decision, in light of the five week hearing and hundreds of exhibits. The passage of time also increases the risk that the one who heard the testimony may not be around to evaluate the weight to be given and make the necessary determinations of credibility. Assuming that the IBLA changes course by reversing Judge Sweitzer and assuming that Judge Sweitzer is still an ALJ (given he is well past the age that many retire), there remains the subsequent appeal to the IBLA where the case may sit for many more years.6 Litigating this case before an administrative body which has no jurisdiction to decide the issue presented has been the waste of time and resources for everyone. This is especially egregious because the Government is seeking to use Freeman's case to overturn earlier rulings where ALJs ruled they had no jurisdiction to decide validity as of dates in the past, even when the case is referred by the Court of Claims or the Court of Federal Claims. The waste of time and resources should come to an end by setting this case for trial as soon as is possible on the Court's calendar, or granting conditions to alleviate the unfair burden to Freeman. III AFTER GIVING THE INTERIOR DEPARTMENT THE CHANCE TO DETERMINE THE VALIDITY OF FREEMAN'S CLAIMS, PRIMARY JURISDICTION DOES NOT REQUIRE WAITING TO FIND OUT WHETHER ONE PART OF THE INTERIOR DEPARTMENT REVERSES ITSELF A. The Department of Interior Has Refused to Determine the Validity of Freeman's Claims. The Government asserts DOI has not refused to determine the validity of Freeman's claims. However, the judge to whom the Government's contest complaint regarding the validity of Freeman's claims was assigned, has ruled he cannot. True, the Government has filed an

Freeman expects that an appeal on the merits would unlikely fit within the IBLA's averages given the numerous issues imbedded in five weeks of testimony of predominantly expert testimony and hundreds of exhibits.

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interlocutory appeal with the IBLA. Rather than being "conspicuously absent from Plaintiff's argument," as the Government accuses (Defendant's Response at 12), it is very plain from Freeman's motion that an appeal has been filed, but that this Court should not wait indefinitely for resolution of the appeal. As the Federal Circuit reasoned in Skaw, the ALJ in that case failed to determine the validity as of dates relevant to the takings case. That was enough. There was no need for an IBLA appeal in Skaw. The ALJ refusal and the three year delay were sufficient for the Federal Circuit to mandate that the case be resolved in the Court of Claims. Skaw v. United States, 740 F.2d 932. Apparently, the same is true with Aloisi; there is no need for the IBLA to decide whether the DOI has jurisdiction to determine claim validity for dates unrelated to present validity. The Government asserts that "[t]he more recent orders from Judge Sweitzer in Freeman and Judge Holt in Aloisi could be overturned." Defendant's Response at 13. The assertion is only half true. While it is true that Judge Sweitzer's decision in Freeman could theoretically be overturned, Judge Holt's identical decision in Aloisi cannot be overturned. The Government chose to let Judge Holt's decision in Aloisi become final without an appeal. This motion seeks relief from a lengthy process in which the decisionmaker ruled that the Government should never have filed the complaint as it did against Freeman. The possibility of reversal does not eliminate the need for relief. B. Freeman Has Been Treated Unfairly. It is beyond dispute that Freeman filed his Complaint in this Court in 2001 and has waited more than seven years for the DOI to determine the validity of his mining claims. The ALJ to whom the question was assigned has ruled that he has no jurisdiction to determine the validity of Freeman's claims as of the dates requested by the Government. It is also beyond 10

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dispute that Freeman is required to pay the DOI more than $20,000 a year in order to keep his claims. This financial burden of delay falls exclusively on Freeman. In response to Freeman's argument that it is unfair to place Freeman into the seemingly endless IBLA appeal process, but to allow the claimant in Aloisi to return to federal court, the Government asserts that Aloisi is different. Some of the differences between this case and Aloisi, which inure at least in part to the different approaches by the government, include the fact that Aloisi could not be practicably appealed because Administrative Law Judge Holt declined to stay the imminently scheduled hearing (see Ex.7, Order dated May 18, 2007 in United States v. Aloisi, CACA 41272 at 5) and did not certify the decision for interlocutory appeal. Defendant's Response at 14. The Government's response is startling for two reasons. First, the unfairness is in the fact that the Government's litigation strategies differ in Freeman and Aloisi. In Aloisi, the ALJ decision of "no jurisdiction" was allowed to stand and the case proceed in the Court of Federal Claims. The Government should not be able to argue Court jurisdiction is lacking in Freeman when it concedes this Court's jurisdiction in Aloisi by failing to appeal to the IBLA. Nor should the Government insist on completion of an administrative process (which it contends here is mandatory where it has not for a similarly situated mining claimant) because it fits a litigation strategy that employs delay.7 Second, while it is true that Judge Holt in Aloisi did not certify his decision for interlocutory appeal, no motion was made asking him to do so. Attached hereto as Exhibit 4 is a copy of the Government's Motion for Reconsideration in Aloisi where it indicates it will seek an interlocutory appeal. Id. at 19. But it never did. Nor was there any appeal to the IBLA of the
7

Very early in the mineral examination process at a meeting with BLM and Forest Service personnel, Mr. Freeman was warned by counsel for the Forest Service, Arno Reifenburg, about the endless proceedings to which Freeman would be subjected. See Exhibit 6 attached hereto (pages from Freeman's answer to Government's interrogatories).

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final decision. See Exhibit 5 attached hereto. The Government's argument on this point is plainly misleading. The Government then asserts that Aloisi is different because the Government has a motion to dismiss pending in the Court on various grounds. That the Government may make motions in Aloisi as it undoubtedly will in the present case does not dispute the critical fact that this Court is going to determine the validity of the Aloisi Group's mining claims in the context of a takings claim after an ALJ, and not the IBLA, ruled that there was no jurisdiction in the OHA to decide validity there. Finally, on this point, the Government recites the ways in which Freeman tried to distinguish Aloisi prior to Judge Sweitzer ruling he had no jurisdiction. While the Government quotes Freeman's statement that Aloisi is quite different from the present case, it conveniently omits any explanation of the differences and quickly moves on to discuss Story. Defendant's Response at 15. Aloisi was different in that the Government was asking the ALJ to determine which dates would be relevant in the Court of Claims litigation, which the ALJ rightfully refused to do. See Exhibit 1 to Plaintiff's Motion (Stephens Declaration), at Exhibit E at 1. But he also ruled that even if the dates were decided, he could not determine validity as of any date other than the date of the hearing. Id. at 3. The other basis Freeman originally proferred to Judge Sweitzer for the distinction between both Aloisi and Story and the present case was that the prior two were decided before an evidentiary hearing was held. Hence, the burden to the parties in Freeman is much greater than the burden to the parties in either of the prior cases. Although generally sympathetic to the parties here, Judge Sweitzer essentially ruled that even though the burdens to the parties in

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Freeman are greater than in the earlier two cases, the extent of burden does not create jurisdiction. Freeman reluctantly agrees with Judge Sweitzer. C. Skaw Supports Freeman's Argument The Government notes that Freeman (unsuccessfully) urged Judge Sweitzer to consider the situation in Skaw differently than the present case. Freeman did emphasize that "it would not be a good use of resources to return to the Court of Federal Claims without first having the Department rule on validity since the hearing already occurred." Defendant's Response, at 16. Freeman still believes that it true. It is not a good use of resources to have gone through an extensive hearing with no decision on the merits. But that does not answer the question as to whether the parties, Freeman being the only party here with a human life span and an inability to raise money involuntarily through taxes, should wait for a decision by the IBLA on the chance that it might reverse, Judge Sweitzer might rule, and the IBLA might uphold that ruling on a subsequent appeal on the merits without some alleviation of the burden of delay. This case is now analogous to Skaw. In both cases, the ALJs ruled that they had no jurisdiction to determine the validity of mining claims as of dates unrelated to the present validity (i.e., date of hearing). Where they are different is that the Government did not appeal the ALJ decision to the IBLA in Story/Skaw and it did in the Freeman case. Also they are different in the amount of delay. Three years in Skaw; seven in Freeman. Critically, however, there was no need for the Federal Circuit in Skaw to insist on an IBLA decision on whether the ALJ could consider validity of mining claims as of historical dates. The ALJ's decision was sufficient to conclude that the doctrine of primary jurisdiction was satisfied and all issues would be resolved in the Court of Claims.

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Next the Government complains that the delay is not its fault. Whether the Government has "good reasons" for the delay or is faultless is beside the point. Freeman had to wait more than seven years since the filing of his complaint in this Court. If the IBLA reverses and rules that the OHA has jurisdiction, he still has several years ahead before the ALJ and then the IBLA reviews the merits of an ALJ decision. Nevertheless, the Government's argument that the delay was in reality caused by Freeman is false. It cites a portion of the hearing transcript during the direct examination of Government witness, Otto Schumacher. Exh. 6 to Defendant's Response. Mr. Schumacher states that Freeman did not provide data to back up the estimates he provided to the mineral examination team. Therefore, the Government attorneys argue that because of the "poor quality of the data" which Freeman provided, Freeman is the cause of the delay. Defendant's Response at 18. Only by reviewing the whole testimony can one appreciate the Government's gamesmanship for what it is. There were two general categories of information which Freeman provided to the BLM. The first was the data from extensive sampling (800 trenches with multiple assay results from each) on these mining claims conducted in the 1980s. As described by Government witness, Terry Maley Freeman provided that information "readily," very early in the process and BLM verified the nickel and iron values in the ore. See Exhibit 7 hereto. The second category of information to which the Government is referring is Freeman's economic analysis of his claims. The BLM's mineral report is replete with criticism, echoed by Government witnesses at the hearing, that Freeman did not provide supporting documentation for all of his calculations and estimates. But when cross-examined, they admitted that they never notified Freeman that they expected or even wanted additional information. See Exhibits 8 and 14

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10, attached hereto. At some point, the decision was made to have very little communication with Freeman (Exhibit 8, at 1113), despite the fact that he was cooperative. Exhibit 8, at 111011:8. Asking him for information they believed would answer their questions would risk forfeiting the opportunity to later lament that his data was "poor." The BLM's mineral examination team essentially played a game of telling Freeman "gives us all the data you are relying upon" without revealing that they thought certain supporting documentation would be important. By so doing, they could criticize Freeman for the "poor quality of the data" well after the mineral report was completed.8 The four-plus years from the October 2001 remand to the finalization of the mineral report in January 2005 cannot be traced to Freeman as the cause. Similarly, the Government complains that "it took Mr. Freeman until January 2003 to submit an economic analysis to the BLM mineral examiners showing how he plans to process minerals on his claims." Defendant's Response at 19. The allegation of delay by Freeman in submitting information (which he had no obligation to do) was raised at the hearing, but the following was never rebutted or denied by any Government witness. Mr. Freeman testified: I asked Dr. Maley if I needed to hurry up, and he said no, that they had so much other information that they were collecting, that it was not important for me to deliver that to them at any particular point in time. Exhibit 9 attached hereto.

Additionally, the BLM spent time analyzing a metallurgical process never suggested by Freeman (making traditional ferro-nickel) and refusing to analyze the metal product that Freeman had actually made on several occasions. It spent months waiting for a metallurgical report from its expert which consisted largely of pages cut and pasted from the internet (without any attribution of the source) and a study of the economics of stainless steel which the BLM chose not to evaluate given the BLM's legal position that a discovery cannot be based on a the economics of manufactured product such as stainless steel product. BLM went to the time and expense of taking a bulk sample for metallurgical testing only to decide not to test it (and thwart Freeman's efforts in having it tested) once it became apparent that the results of the testing would be favorable for Freeman. There is neither time, nor need, at this point in time to go into all of the details as to the Government's manipulation of the mineral examination which resulted in unnecessary delay.

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In regard to the burden of the mining claim maintenance fees, the position of the Government vis-à-vis Freeman is vastly different. While $20,000 a year (or a current total just over $100,000) is peanuts to the federal Government, the only party here with the power to tax and to authorize the printing of money, it is a substantial burden to an individual such as Freeman. Additionally, Freeman agrees that the fees cannot be waived. It is because of that they represent a burden which falls only on Freeman and in fact directly (and monetarily) benefits the Government. Finally, in addressing Freeman's concerns about fading witness memories, once again the Government misses the point in two respects. First, as to witnesses who testified in the administrative hearing, the fact that their testimony is recorded is helpful if they become unavailable. It does not eliminate the prejudice. The administrative hearing in this matter involved numerous issues of fact, most of which will be resolved by a fact finder who can judge the credibility of the person testifying and their testimony. That can be done only by the person who was able to look the witnesses in the eye and hear their testimony first hand. Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985). Given the testimony at the administrative hearing, credibility is particularly important in this case. The Government would just as soon have a decision maker who did not hear the witnesses first hand. Second, witnesses relative to Freeman's taking claims were not testifying in the administrative hearing. Judge Sweitzer was not adjudicating the merits of the taking claim. Some of the events which are relevant to Freeman's takings claim occurred in the 1992 to 1994 time frame. Again, the Government is the only party to gain if someone fails to remember statements made 15 years ago because Freeman bears the burden of proof. The Court should end the stay, or at least grant relief if the stay continues. 16

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IV FREEMAN'S REQUEST FOR CONDITIONS ON THE SUSPENSION ARE APPROPRIATE AND SHOULD BE GRANTED The Government's primary argument against conditioning the suspension in this case is that this Court is not a court of equity. Defendant's Response at 21. After explaining the Court's limited jurisdiction, it concludes that "Plaintiff cites no provision under the Tucker Act that authorizes a claim for maintenance fees." Defendant's Response at 22. Similarly, in regard to the request that Freeman be awarded costs and attorneys' fees for being forced through a proceeding he did not seek, only to find that there was no jurisdiction in that proceeding, the Government makes a similar argument by couching the request as "a claim." "[T]o the extent that this constitutes a claim, then Plaintiff's "condition" fails because the Tucker Act provides no jurisdiction for it." Id. Freeman agrees, but the request that the stay in this case be conditioned is not a "claim." The issue of paying maintenance fees during a lengthy administrative process is nowhere mentioned in Freeman's complaint, obviously because they were not contemplated in advance of the filing of the complaint. Freeman also agrees that costs and fees might be appropriate under the Equal Access to Justice Act and/or the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, and motions under those statutes are premature. But Freeman does not make any motion under those statutes at this time. Instead, Freeman asks the Court to balance the hardships among the parties and impose appropriate conditions if the stay is continued. While the Government is correct that the Court of Federal Claims is not a court of general and equity jurisdiction, that does not mean that the Court has no power to consider the equities, especially in deciding whether to stay or suspend a case. After all, the doctrine of primary jurisdiction is itself an equitable doctrine. Atchison, T. & S. F. Ry. Co. v. Wichita Bd. of Trade, 17

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412 U.S. 800, 820-21 (1973). If this Court were powerless to consider equity, primary jurisdiction would not apply and the suspension of proceedings and attendant harm to Freeman would have never occurred. The Government is essentially arguing sub silentio that the Court has the equity powers that it finds advantageous (i.e., deferral under primary jurisdiction), but when it comes to insisting on equity to Freeman, the Court is powerless. The Government cannot have it both ways. Decisions of this Court and the Federal Circuit Court of Appeals make the fallacy of the Government's argument abundantly clear. This Court can grant equitable relief if it is "tied and subordinate to" a claim for money damages. James v. Caldera, 159 F.3d 573, 580-81 (Fed.Cir.1998) (citing to 28 U.S.C. § 1491(a)(2)). Here, the conditions that Freeman seeks are not relief sought in his complaint, but relief from the burdens of the litigation tactic of the Government to continue to insist on a suspension of this case while Freeman is required by law to pay fees annually as a condition of keeping his claims. Further imbalancing the equities is that Freeman must pay these fees to the very Government agency which is delaying the resolution of the case in this Court. The seminal United States Supreme Court case regarding the issuance of a stay is Landis v. North American Co., 299 U.S. 248, 254-55 (1936). This Court (or its predecessor) has cited Landis in 23 cases for determining whether to issue a stay. In the exercise of this Court' s inherent and equitable discretion on issuing a stay, that Court can and should consider several factors relevant to the conditions upon which a stay should be issued. A court, however, has the discretion to stay civil proceedings, postpone civil discovery, or impose protective orders and conditions " `when the interests of justice seem[ ] to require such action, sometimes at the request of the prosecution, * * * sometimes at the request of the defense[.]' "

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Afro-Lecon, Inc. v. U.S., 820 F.2d 1198 (Fed. Cir. 1987)(citations omitted) (emphasis added); see also Hansen v. U.S., 65 Fed.Cl. 76 (2005); Rineer v. U.S., 79 Fed.Cl. 765 (2007). The standards in Landis for issuing a stay pending resolution of issues in another proceeding are relevant to determining under what conditions a stay should be issued or continued. First, as indicated above, the propriety and terms of a stay are with in the discretion of the court. Second, the burden of establishing entitlement to a stay of proceedings is a heavy one. Landis, 299 U.S at 255; St. Paul Fire and Marine Ins. Co. v. U.S., 24 Cl.Ct. 513 (1991). Third, an indefinite stay is unlawful. The stay is immoderate and hence unlawful unless so framed in its inception that its force will be spent within reasonable limits, so far at least as they are susceptible of prevision and description. When once those limits have been reached, the fetters should fall off. To put the thought in other words, an order which is to continue by its terms for an immoderate stretch of time is not to be upheld as moderate because conceivably the court that made it may be persuaded at a later time to undo what it has done. 299 U.S at 257. This Court has echoed the same concerns about a lengthy stay. When and how to stay proceedings is within the sound discretion of the trial court.... [but a] stay so extensive that it is `immoderate or indefinite' might be an abuse of discretion. O'Connell v. Secretary of Health and Human Services, 63 Fed.Cl. 49 (2004) (citations omitted). This is because a court has an ever-present interest in exercising jurisdiction in cases properly before it, the Federal Circuit stating that a trial court must always be mindful of its "paramount obligation to exercise jurisdiction timely in cases properly before it." New York Power Authority v. U.S., 42 Fed.Cl. 795 (1999)(citations omitted).9 Freeman contends that the approaching seven-year delay since the stay was issued is immoderate and remains indefinite unless conditions are imposed.10 Reimbursement of delay-

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related out of pocket expenses (especially since they are in the pocket of the party requesting continuation of the stay) reduces in part the disproportionate burden placed on Freeman. Fourth, the Court must "weigh competing interests and maintain an even balance." Landis, 299 U.S. at 255. Here, the only way to come close to an "even balance" is to require the United States to reimburse Freeman for fees he as has paid to the DOI for maintenance of his mining claims and to reimburse him for the cost of going through a process he did not choose if, in fact, the IBLA affirms there is no jurisdiction.

CONCLUSION The burden of preventing Freeman from having his case decided in a timely manner falls heavily, financially and directly on Freeman and equally directly inures to the benefit of the Government. Freeman respectfully requests the Court to grant relief as requested in his motion, in either ending the stay or a reimburse of the maintenance fees he must pay while his case and claims are in limbo, plus the costs and fees associated with going through an extensive hearing if the IBLA affirms and confirms that he should never been forced to go through the process. RESPECTFULLY SUBMITTED this 25th day of April, 2008. By: /s/ Richard M. Stephens Richard M. Stephens Attorneys for Walter B. Freeman GROEN STEPHENS & KLINGE LLP 11100 NE 8th Street, Suite 750 Bellevue, WA 98004 Telephone (425) 453-6206 Fax (425) 453-6224

Landis also provides that when a stay is dependent upon resolution of another case, the stay need not extend to resolution of an appeal in that case. Id. at 256. 10 Finally, it is worthy of note that this Court's own rules govern remands to federal agencies "with such direction as may be deemed proper and just." Rule 52.2(a) (1). Subsection (2) of the rule allows a remand "not to exceed 6 months," but allows further continuance of the remand upon motion. Similarly, Rule 62(b) authorizes a stay of execution upon "such conditions for the security of the adverse party as are proper."

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CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Reply In Support of Motion for Relief From Suspension of Proceedings was served upon counsel for Defendant United States by electronic filing with the United States Court of Federal Claims using the CM/ECF system, and for counsel for the Siskiyou Project and Mineral Policy Center by regular mail, postage prepaid and properly addressed this 25th day of April, 2008, at Bellevue, Washington, to the following persons: Attorney for the United States: Terry M. Petrie Environment & Natural Resources Division U.S. Department of Justice 1961 Stout St., 8th Floor Denver, CO 80294 Attorney for Siskiyou Project and Mineral Policy Center: Roger Flynn, Esq. Western Mining Action Project P.O. Box 349 412 High St. Lyons, CO 80540

/s/ Richard M. Stephens

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