Free Motion to Amend Schedule - District Court of Federal Claims - federal

Case 1:79-cv-00458-ECH

Document 436

Filed 10/05/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

THE SHOSHONE INDIAN TRIBE OF THE WIND RIVER RESERVATION, WYOMING, Plaintiff, v. THE UNITED STATES, Defendant. Nos. 458-79 L Judge Hewitt

THE ARAPAHO INDIAN TRIBE OF THE WIND RIVER RESERVATION, WYOMING, Plaintiff, v. THE UNITED STATES, Defendant. Nos. 459-79 L Judge Hewitt

JOINT MOTION TO MODIFY SCHEDULE REGARDING JUDGMENT ON INTEREST ISSUE The parties through their undersigned counsel jointly move for an order establishing a revised schedule regarding final judgment on the interest issue in the "Oil and Gas Phase One" portion of this litigation. In brief, the order would establish a deadline of October 14, 2005, for the Government to produce certain documents requested in discovery relevant to the interest issues in this phase of the case, and would extend to January 20, 2006, the deadline (currently October 18, 2005) for the parties either to reach agreement on a final judgment regarding interest in "Oil and Gas Phase One," or for the plaintiff Tribes to file a motion for entry of judgment addressing the interest issue. The parties believe these modifications of the schedule are appropriate for several reasons. First, the Tribes have conducted a number of Rule 34 open inspections of various Government offices seeking documents responsive to discovery, including documents useful for the interest issue. Because these efforts did not yield as much material as anticipated, since July, 1

Case 1:79-cv-00458-ECH

Document 436

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the parties have been working together to determine means by which the relevant records and information can be located and produced, and have conferred on a weekly basis in connection with those efforts. Although counsel for the Government has been diligent, and a number of interest-related documents have been furnished by the Government to the plaintiff Tribes, it has proven more difficult than anticipated for the Government to locate and turn over certain documents showing actual interest earnings on trust funds invested by the Government for the Tribes, including documents evidencing such performance in recent years. The parties agree that the current goal is to find records or information reporting, on a monthly basis, the interest rates or investment yields earned on the Tribes' trust funds while those funds were invested by the Government.1 Counsel for the Government believes it will be able to obtain such documents by October 14, 2005, and further that many of these documents should be available before then, and will be produced to the plaintiff Tribes through a co-operative pattern of "rolling" disclosure. All parties believe that maximizing disclosure of documents evidencing actual interest earnings on trust funds invested by the Government for the Tribes will increase the likelihood of partial or complete settlement of the interest issue, or, if settlement cannot be fully achieved, will clarify outstanding issues for the Court. Once the Government produces the information, both parties and their experts must examine and analyze it, and satisfy themselves that the produced information is sufficiently complete. To assist in that effort, the parties plan to schedule a meeting in early November (possibly November 3 or 4), after the records have been produced, at which the Government's experts will present information to the Tribes' experts about the accounting records related to the investment of Tribal trust funds and be available to answer questions about those records. The Tribes' experts will then require adequate time to advise and prepare the Tribes regarding interest issues so that the Tribes will be able to conduct adequate settlement negotiations with the Government based on the above-described and other available market information. Further, if such settlement efforts fail, after a reasonable time, to bear fruit, the Tribes' experts will require adequate time to prepare a declaration and report to assist the Court in resolving outstanding interest issues. The parties believe that it would be reasonable and in the interests of a just, speedy and inexpensive resolution of this matter to extend the current deadline from October 18, 2005, to January 20, 2006, for the parties either to reach agreement regarding interest or for plaintiff Tribes to file a motion for entry of judgment regarding interest in "Oil and Gas Phase One." The parties understand that the Court is interested in resolving this matter expeditiously. The parties are available for, and would welcome, a telephone conference with the Court, if the Court has any concerns regarding this Joint Motion.

Dated: October 5, 2005.

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This reflects a cooperative effort to promote orderly disclosure of information which is needed most immediately by both parties. By this motion, the parties are not seeking a ruling regarding the Plaintiffs' formal discovery requests.

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Case 1:79-cv-00458-ECH

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Filed 10/05/2005

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Respectfully submitted,

s/Harry R. Sachse by Richard M. Berley w/ auth'n HARRY R. SACHSE Sonosky, Chambers, Sachse Enderson & Perry, LLP 1425 K Street, NW, Suite 600 Washington, DC 20005 (202) 682-0240 (Telephone) (202) 682-0249 (Facsimile) [email protected] Counsel of Record for Eastern Shoshone Tribe

Kelly A. Johnson Acting Assistant Attorney General Environment and Natural Resources Division s/Terry M. Petrie by Richard M. Berley w/auth'n TERRY M. PETRIE Environment and Natural Resources Division U.S. Department of Justice 999 18th Street, Suite 945 Denver, CO 80202 (303) 312-7327 (Telephone) (303) 312-7379 (Facsimile) [email protected] Counsel of Record for United States

s/Richard M. Berley RICHARD M. BERLEY Ziontz, Chestnut, Varnell, Berley & Slonim 2101 4th Avenue, Suite 1230 Seattle, WA 98121 (206) 448-1230 (Telephone) (206) 448-0962 (Facsimile) [email protected] Counsel of Record for Northern Arapaho Tribe

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