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

Case 1:05-cv-00381-CFL

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Exhibit C

Case 1:05-cv-00381-CFL

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IN THE UMTED STATES COURT OF FEDERAL CLAIMS

ARKANSAS GAME & FISH COMMISSION, Plaintiff,
V.

No. 05-381 L Judge Charles F. Lettow

UNITED STATES OF AMERICA, Defendant.

DEFENDANT'S RULE 34 REQUEST TO INSTALL WATER-LEVEL GAGES ON THE DAVE DONALDSON-BLACK RIVER WMA Pursuant to Rule 34 of the Rules of the United States Court of Federal Claims, Defendant requests to install approximately seven to ten water-level gages on the Dave Donaldson-Black River Wildlife Management Area (WMA). Because Plaintiffwill be initiating winter flooding on the WMA in the immediate future, or perhaps has already initiated this flooding, Defendant requests that the water-level gages be installed as soon as possible, but not later than October 27, 2006. The water-level gages will be removed once the winter flooding on the WMA has subsided, which Defendant would expect to be February 2007 at the earliest, but no later than April 2007. Plaintiff's experts are welcome to accompany Defendant's experts during the installation of the water-level gages. Defendant previously made this request by telephone on September 22, 2006, and then by letter dated September 25, 2006. Ex. A. Plaintiff denied this request by letter dated October 5, 2006. Ex. B.

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Defendant formally renews this request to install water-level gages, which will be used by Defendant's experts in measuring and testing the property, under Rule 34. Such testing and measuring by experts does not constitute fact discovery. Due to the limited time available for installation of the water-level gages because of the impending winter flooding, Defendant requests that Plaintiffreply to this request by Friday, October 13, 2006. If Defendant does not receive a response from Plaintiffby that date, then Defendant will assume that Plaintiff's previous response, in its letter dated October 5, 2006, stands.

Dated: October 1 I, 2006

SUE ELLEN WOOLDRIDGE Assistant Attorney General United States Department of Justice Environment and Natural Resources Division

HELENANNE LISTERMAN Trial Attorney Natural Resources Section Environment and Natural Resources Division United States Department of Justice P.O. Box 663 Washington, D.C. 20044 (202) 305-0239

Of Counsel: Jennifer Dalton United States Corps of Engineers Little Rock District Office of Counsel

2

Case 1:05-cv-00381-CFL

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Exhibit A

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®
90-1-23-11556
Nata~l l~esourc~s Section P.~ Box 663 Ben Frank~n Station WasMngton, DC 20044-0663

¯ U.S. Department of Justice Environment and Natural Resources Division

Telephone ('202) 305-0239 Fa~Imlle (202) 305-0506 Hel~n,4nne, Listarman~edoj, gov

September 25, 2006 Via Electronic Mail and U.S. Mail Julie D. Greathouse Perkins & Trotter, PLLC P.O. Box 251618 Little Rock, AN. 72225-1618 Re: Dear J'ulie: As the parties previnusly discussed on Friday, September 22, 2006, Defendant's experts would like to install approximately seven to ten water-level gages on the Dave Donaldson-Black River Wildlife Management Area (WMA) in the next few weeks. The water-level gages will be removed once the winter flooding on the WMA has subsided, which we would expect to be no later than April 2007. We do not object to your request that Plaintiff s experts aecompany our experts during the installation o f the water-level gages. Please let us know whethex our experts may move forward with the installation of the water-level gages on the WMA. We would appreciate a response by Friday, September 29, 2006. Sincerely, Arkansas Game & Fish Commission v. United States, 05-381-L (Fed. C1.)

HelenAnne Listerman

CC:

Iames F. Goodhart, Arkansas Game & Fish Commission G. Alan Perkins, Perkins & Trotter, PLLC Jennifer Dalton, U.S. Army Corps of Engineers

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Exhibit B

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PERKINS & TROTTER, PLLC
A PROF~SlONAL ~ LIABILrrY COMPANY Attorn~a and Courts*Iota Po~r OF~C~ BOX 261618 Lm'L~ ROCK. ~A.q 72225-a 618 TEL 501..603-9000 FAX 501-603-0556 wv¢~v.perldn~otter.om October 5, 2006 Via Email and Regular Mail HelenAnue Listerman U.S. Department of Juice Enviroament and Natural Resources Division P.O. Box 663 Ben Franklin Station Washington, DC 20044-0663 Re: Arkansas Game & Fish Commission v. United States; Ct. Fed. CI., No. 05-381L JULIE D. GREATHOUSE j grcathouse~perldmu'ouer.com Stm¢t dda~ 1 Information Way, Suite 200 Little Rock, Atkan~ 722~

Dear HelenAmze: By telephone on September 22, 2006, you stated that Defendant's experts wish to install water gauges on the WMA in the next few weeks. You also stated that your experts would read the gauges for a few months, and would remove the gauges in the spring of 2007. I asked that you put the request in writing so that I could talk with my cheat and our experts about this request. You did so by letter of September 25, 2006. I mentioned to you during the week of September 25, 2006, during a deposition break, that AGFC believes the installation of the gauges and gathering of information related to those gauges constitutes fact discovery. Upon further research and discussion, AGFC objects to the installation of the gauges because fact discovery ha~ eaded. Tois fact dlscove~y will delay the ease for many mon*.hs as we cabot b~gin expert discove~ until your experts have an opportunity to collect, review and opine about the data collected. Although I understand you were not ~v attorney of record in this case at its inception, this case has been pending for over a year and half. We have already litigated through one winter flooding season. Your predecessor attorney never made such a request, and the current request simply comes too late. Sincerely, pERKINS & TROTTER, PLLC

~e~D. C-reathouse JDO/scr co: James F. Gooc~art

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CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy oft_he foregoing DEFENDANT'S RULE 34 REQUEST TO INSTALL WATER-LEVEL GAGES ON THE DAVE DONALDSON-BLACK RIVER WMA was served by overnight mail and by electronic mail on this 1 lth day of October, 2006, to the following counsel:

Julie Greathouse Perkins & Trotter, PLLC P.O. Box 251618 Little Rock, AR 72225-1618 j [email protected] G. Alan Perkins Perkins & Trotter, PLLC P.O. Box 251618 Little Rock, AR 72225-1618 aperkins~perkinstrotter.com James F. Goodhart Arkansas Game & Fish Commission 2 Natural Resources Drive Little Rock, AR 72205 j fgoodhart@a~fc.state.ar.us

HELENANNE LISTERMAN