Free Motion for Extension of Time - District Court of Federal Claims - federal

Case 1:79-cv-00458-ECH

Document 432

Filed 08/09/2005

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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. THE ARAPAHO INDIAN TRIBE OF THE WIND RIVER RESERVATION, WYOMING, Plaintiff, v. THE UNITED STATES, Defendant. JOINT MOTION FOR EXTENSION OF TIME REGARDING JUDGMENT ON INTEREST ISSUE The parties through their undersigned counsel jointly move for an order extending by 60 days the current deadline for the parties either to reach agreement on a final judgment regarding interest in the "Oil and Gas Phase One" portion of this litigation, or for the plaintiff Tribes to file a motion for entry of judgment addressing the issue of interest. The current deadline established by the Court is August 19, 2005. The parties seek an order extending the deadline to October 18, 2005. The parties believe an extension is appropriate for several reasons. First, it will increase the likelihood that the parties will reach agreement, by stipulation or otherwise, on at least some of the interest issues remaining in the case. Second, it will give the Government more time to locate and provide interest-related information requested by the plaintiff tribes in discovery served last year, but which has thus far proven difficult to locate. Third, it will give the parties' experts more time to complete, and hopefully agree upon, interest calculations. 1 Nos. 459-79 L Judge Hewitt Nos. 458-79 L Judge Hewitt

Case 1:79-cv-00458-ECH

Document 432

Filed 08/09/2005

Page 2 of 3

As background to this request, the parties resolved multiple interest issues in their Stipulation for Dismissal of Claims Regarding "Oil and Gas Phase One Issues" filed June 23, 2004, and their Settlement Agreement Regarding "Oil and Gas Phase One" referenced in that Stipulation. Certain interest issues were specifically reserved, pending completion of the parties' appeals regarding interest. The key reserved issues pertained to interest rate, and whether one portion of the Tribes' damages is interest-bearing. The Supreme Court denied certiorari regarding the Government's interest appeal on April 18, 2005. Since that time, the parties have had several discussions of interest issues, but also moved forward with other portions of the case. The parties were able to reach agreement regarding a final decision in the sand and gravel phase of this litigation, and have completed preliminary document discovery in "Oil and Gas Phase Two," largely within the timeframes established by the Court. The remaining interest issues, while not conceptually complex, may have large consequences in terms of dollar amounts, and relate to damages which began accruing over 30 years ago. Some data showing actual earnings in tribal trust accounts since that time have proven more difficult to locate than expected. While the parties may ultimately disagree on which of three legal standards should apply regarding interest rate (4% simple, actual trust fund earnings rate, or rates which should have been earned with proper investment), the requested extension should promote agreement on resulting totals under each standard. The parties also retain hope that an extension will increase the likelihood of broader agreement on interest. If the requested extension is granted, but overall agreement on interest is not achieved, and the Tribes file a motion by the extended deadline, the Government's response and the Tribes' reply should be filed in accordance with the regular time limits provided by RCFC 7.2. Dated: August 9, 2005. Respectfully submitted,

s/Susan M. Williams by Richard M. Berley w/auth'n SUSAN M. WILLIAMS Williams & Works, P.A. P.O. Box 1483 Corrales, New Mexico 87048 (505) 899-7994 (Telephone) (505) 899-7972 (Facsimile) [email protected] Counsel of Record for Eastern Shoshone Tribe

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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Case 1:79-cv-00458-ECH

Document 432

Filed 08/09/2005

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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

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