Free Joint Status Report - District Court of Federal Claims - federal

Case 1:92-cv-00675-ECH

Document 333

Filed 06/03/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________) CHIPPEWA CREE TRIBE OF THE ROCKY BOY'S RESERVATION, et al.,

No. 92-675 L Judge Emily C. Hewitt June 3, 2008

JOINT STATUS REPORT This Joint Status Report (JSR) is submitted pursuant to the Court's Order of April 15, 2008 (Doc. # 328). I. BACKGROUND

The Plaintiff Group, consisting of the beneficiaries of the 1964 and 1980 Pembina Judgment Fund ("PJF") Awards and their heirs, descendants, and successors-in-interest, and the Defendant, the United States of America, continue to be engaged in settlement negotiations with the objective of resolving Plaintiffs' PJF trust management claims. II. A. SPECIFIC MATTERS 1964 Award and 1980 Award, Phase I (March 1980 - May 1988)

These claims have been assigned to Alternative Dispute Resolution ("ADR") proceedings with Judge Eric Bruggink. See Order (¶2) of Aug. 2, 2007 (Doc. # 298). Since the last ADR Settlement Conference on these claims, which was conducted April 8, 2008 before Judge Bruggink at the Court of Federal Claims in Washington, D.C., the parties have been preparing for the next ADR Settlement Conference which will be before Judge Bruggink on June 23 and 24, 2008 at the -1-

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U.S. Courthouse in Montgomery, Alabama. See Amended ADR Scheduling Order of May 16, 2008 (Doc. # 332). This preparation includes the exchange by the parties and submission to Judge Bruggink of positions in writing. See ADR Scheduling Order of March 10, 2008 (Doc. # 323). B. 1980 Award Phase II (May 26, 1988 - September 30, 1992)

These claims also have been assigned to ADR proceedings with Judge Eric Bruggink. See Orders (¶2) of Nov. 19, 2007 (Doc. # 313) and Jan. 18, 2008 (Doc. # 318). As previously reported, the next ADR session before Judge Bruggink on these claims is scheduled for June 10, 2008 at the Court of Federal Claims in Washington, D.C. See Scheduling Order of March 10, 2008 (Doc. # 323). Per the Court's February 20, 2008 Order (¶1), the parties will be filing a JSR regarding the progress of these claims on or before June 16, 2008. (Doc. # 322). C. 1980 Award Phase III (October 1, 1992 to December 31, 1995)

As previously reported, the parties have been reviewing responsive documents provided in response to document production requests regarding 113 of the 501 jointly-identified potential baseline transactions for this time period. See JSR of April 11, 2008 (Doc. # 327). Pursuant to the Court's Order of April 15, 2008 (Doc. # 328), the parties have taken several next steps on resolving issues related to Plaintiffs' transactional claims for this time period, subject to some minor mutually agreed-upon changes in the deadlines set forth in the April 15, 2008 Order. The parties have had several conference calls (e.g., April 25th, May 15th, and May 29th ) to discuss the potential baseline transactions for this time period. In addition, on May 1, 2008, Plaintiffs submitted to Defendant their report regarding their review of the source documents provided by Defendant. On May 6, 2008, Plaintiffs submitted to Defendant a supplement to their source document review report. On May 19, 2008, Defendant responded to Plaintiffs' source -2-

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document review report. During their May 29, 2008, conference call, the parties agreed on the following next steps and deadlines regarding the potential baseline transactions for this time period, with the goal being to reach agreement on a population of valid Phase III baseline transactions for economic investment modeling purposes for settlement negotiations purposes: a. Defendants will provide Plaintiffs with source documents for the 11 disbursement transactions and 2 receipt transactions of the 113 transactions identified by Plaintiffs as having missing source documents by June 6, 2008. b. Plaintiffs will provide Defendants with a written reply to Defendant's proposals for dealing with the 7 disbursements and the 5 receipts of the 113 transactions identified by Plaintiffs as having date or amount discrepancies by June 10, 2008. c. The parties will conduct a conference call to discuss the impact of the results of the Phase II baseline transactions "timing issues" (which are scheduled to be discussed in the ADR session on June 10, 2008 in Washington, D.C.) on the Phase III timing issues (which may involve as many as 22 Phase III disbursements and 59 Phase III receipts of the 113 transactions) not later than June 20, 2008. d. Defendants will respond to Plaintiffs' concerns about how the validity of the 388 potential baseline transactions not selected for source document request and production will be determined for economic modeling purposes for settlement negotiations purposes by June 6, 2008. D. 1980 Award Phase IV (January 1, 1996 to present)

With respect to the 1980 Award Phase IV, as reported in the last JSR of April 11, 2008 (Doc. -3-

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# 327), the parties have reached an agreed-upon list of potential baseline transactions for this defined time period of 353 transactions. Pursuant to the Court's Order of April 15, 2008 (Doc. # 328), the parties have taken the following steps on resolving issues related to Plaintiffs' transactional claims for this time period. On April 18, 2008, Plaintiffs submitted to Defendant their proposal for Phase IV scoping in terms of for which of the 353 potential baseline transactions Plaintiffs will seek source documents from Defendant. On May 9, 2008, Defendant responded to Plaintiffs' scoping proposal. On May 30, 2008, Plaintiffs replied to Defendant's response. The parties are now in the process of scheduling a conference call to discuss their positions and steps toward achieving the goal as set forth in the April 15, 2008 Order that "on or before June 20, 2008, the parties shall agree on a final population of potential baseline transactions for Phase IV for which Plaintiffs shall request source documents from Defendant, and a timeline for presenting and responding to such request." Finally, as noted in last JSR of April 11, 2008 (Doc. # 327), the parties continue to confer and report on their progress in reaching agreement on addressing the "continuing" nature of Phase IV. E. Additional Matters

Defendant advocates selecting a date now for referring the Phase III and IV accounting issues to ADR later this summer. Plaintiffs agree that referral to ADR may be appropriate at a later date, but take the position that establishing a referral date at this time is premature.

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Respectfully submitted on this 3rd day of June, 2008. /s/ Melody L. McCoy MELODY L. MCCOY Attorney of Record for Plaintiffs Native American Rights Fund 1506 Broadway Boulder, CO 80302 Tel: (303) 447-8760 Fax (303) 443-7776 /s/ Carol L. Draper CAROL L. DRAPER Attorney of Record for Defendant United States Department of Justice Environment & Natural Resources Division Natural Resources Section P.O. Box 663 Washington, D.C. 20044-0663 Tel: (202) 305-0465 Fax: (202) 353-2021

Of Counsel: Elisabeth C. Brandon Joshua A. Edelstein Department of the Interior Office of the Solicitor

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