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

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UNITED STATES COURT OF FEDERAL CLAIMS _____________________________________ ) SHELDON PETER WOLFCHILD, et al., ) ) Plaintiffs, ) No. 03-2684L AND 01-568 ) (consolidated) vs. ) Hon. Charles F. Lettow ) THE UNITED STATES, ) ) Defendant. ) ) _____________________________________ ) PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION TO CERTIFY ORDERS FOR INTERLOCUTORY APPEAL Erick G. Kaardal William F. Mohrman MOHRMAN & KAARDAL, P.A. 33 South Sixth Street Suite 4100 Minneapolis, MN 55402 Attorneys for Plaintiffs
Douglas R. Kettering Kettering Law Office 714 Douglas Avenue PO Box 668 Yankton, SD 57078

Co-Representing with Mohrman & Kaardal Plaintiffs listed on Exhibit B to the parties' July 16, 2006 filing

Sam S. Killinger Rawlings, Nieland, Probasco, Killinger, Ellwanger, Jacobs & Mohrhauser 522 Fourth Street, Suite 300 Sioux City IA 51101 Co-Representing with Mohrman & Kaardal Plaintiffs listed on Exhibit C to the parties' July 16, 2006 filing Dated: July 30, 2007

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TABLE OF CONTENTS TABLE OF AUTHORITIES ..................................................................................................i INTRODUCTION.................................................................................................................. 1 ARGUMENT............................................................................................................................ 1 I. II. A. 1. DEFENDANT'S MOTION FOR INTERLOCUTORY APPEAL SHOULD BE DENIED AS UNTIMELY........................................................ 1 DEFENDANT'S MOTION FOR INTERLOCUTORY APPEAL SHOULD BE DENIED ON THE MERITS................................................. 11 Defendant's Motion per Certification under 28 USC § 1292 2(d)(2) does not Present Any "Controlling Questions of Law." ............................ 14 This Court's Determination that the Appropriation Acts Created a Trust is not a "Controlling Question of Law" in this Case Because the Issue Requires Examination of a Voluminous 90 Year Factual Record and Reversal of Thid Court's Summary Judgment Would Not Terminate The Action But Only Result in a Remand For Further Factual Development. ......................................... 16 This Court's Determination that the "1980 Act" Did Not Terminate the Trust is Likewise Not a "Controlling Question of Law." ............................................................................................................... 22 This Court's Determination that the Communities Acted as Defendant's Agents In Administering The Trust Lands After Passage of the 1980 Act is Not a "Controlling Question of Law." ............................................................................................................... 24 Defendant's Motion for Certification under 28 U.S.C. § 1292 (d)(2) does not Present Any "Substantial Ground for Difference of Opinion" on any Issues This Court has Decided. .................................. 26 1. This Court Relied On U.S. Supreme Court Precedent, Standard Trust Law and Unequivocal Historical Record in Determining that the Appropriation Acts Created a Trust ­ There Simply Is No "Substantial Ground for Difference of Opinion."........................... 27 This Court Relied On The "Actual Language" of the 1980 Act to Determine It Was Not A Trust Termination Act ­ There

2.

3.

B.

2.

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Simply Is No "Substantial Ground for A Difference of Opinion."........................................................................................................ 31 3. This Court Has Not Legally Determined Federal Agency Status for the Communities ­ So There Can Be No Difference of Opinion Because the Court Hasn't Stated Its Opinion.......................... 33 Defendant's Motion for Certification under 28 U.S.C. § 1292 (d)(2) does not Materially Advance the Ultimate Termination of the Litigation. ..................................................................................................... 34

C.

CONCLUSION...................................................................................................................... 36

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TABLE OF AUTHORITIES Cases AD Global Fund, LLC ex rel. North Hills Holding, Inc. v. United States, 68 Fed. Cl. 663 (2005).................................................................................................................................... 13 Ahrenholz v. Board of Trustees of Univ. of Illinois, 219 F.3d 674 (7th Cir. 2000) .................. 15 American Airlines v. United States, 71 Fed.Cl. 744 (2006) ....................................... 28, 35, 36 American Mgmt. Sys. v. United States, 57 Fed.Cl. 275 (2003) ................................................. 8 Ashmore v. Northeast Petrol. Div., 855 F.Supp. 438 (D.Me.1994)...........................35 Camacho v. Puerto Rico Ports Auth., 369 F.3d 570 (1st Cir.) ................................................ 13 Caterpillar Inc. v. Lewis, 519 U.S. 61, (1996) ........................................................................ 14 Coast Fed. Bank, FSB v. United States, 49 Fed.Cl. 11 (2001)...............................35 Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978).............................................................. 14 Cromer v. Berger, 245 F.Supp.2d 552 (S.D.N.Y. 2003)........................................................ 26 Fabricant v. Sears Roebuck & Co., 2001 U.S. Dist. Lexis 24518 (S.D.Fla.)......................... 7 Ferraro v. Secretary of HHS, 70 F. Supp. 978 (E.D.N.Y. 1992) ............................................ 8 Fisichelli v. City Known as Town of Methuen, 84 F2d 17 (1st Cir. 1989). ................................ 6 In re Buspirone Patent Litigation, 210 F.R.D. 43 (S.D.N.Y.2002) .......................................... 8 In re Cybernetic Services, Inc., 252 F.3d 1039 (9th Cir. 2001) ................................................. 17 In re Investors Funding Corp. Sec. Litigation, 36 B.R. 1019 (D.C.N.Y. 1983) ...................... 14 Ins. Co. of the West v. United States, 1999 WL 33604131(Fed.Cl.1999) ............................. 27 Johnson v. Jones, 515 U.S. 304 (1995)................................................................................18, 19 Klamath Irrigation District v. United States, 69 Fed. Cl. 160 (2005)........................................27

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Land Grantors in Henderson, Union and Webster Counties, Ky. v. U.S., 71 Fed.Cl. 614 (2006).................................................................................................................................... 19 Marriott Int'l Resorts v. United States, 63 Fed.Cl. 144 (2004)............................................8, 13 McFarlin v. Conseco Services, LLC, 381 F.3d 1251 (11th Cir. 2004) ....................... 13, 15, 35 Mitchell v. Forsyth, 472 U.S. 511 (1985) ................................................................................... 6 Morton College Bd. of Trustees v. Town of Cicero, 25 F.Supp.2d 882 (N.D.Ill.1998) .............. 7 Mueller v. Reich, 54 F.3d 438, 441 (7th Cir. 1995),vacated on other grounds, 519 U.S. 114 (1997).................................................................................................................................... 26 Paschall v. Kansas City Star Co., 605 F.2d 403 (8th Cir. 1979). ............................................ 16 Richardson Electrics, Ltd. v. Panache, Board. of Pennsylvania, Inc., 202 F.3d 957 (7th Cir. 2000) ....................................................................................................................................... 8 Scholl v. United States, 68 Fed. Cl. 58 (2005).................................... 3, 6, 7, 8, 10, 13, 14, 16 Testwuide v. United States, 56 Fed.Cl. 755, 766 (2003). ........................................................ 13 United States v. Connolly, 761 F.2d 882, 885 (Fed. Cir. 1983) cert. denied, 465 U.S. 1065 (1985).................................................................................................................................... 12 United States v.White Mountain Apache Tribe, 537 U.S. 465 (2003)..................................... 30 U.S. Fideility & Guar. Co. v. Thomas Solvent Co., 683 F.Supp. 1139 (W.D. Mich. 1988) 35 Vereda, LTDA v. United States, 46 Fed.Cl. 569 (2000)......................................................... 8 Virginia Elec. & Power Co., 539 F.2d 357 (4th Cir. 1976)....................................35 Weir v. Propst, 915 F.2d 283 (7th Cir. 1990)........................................................... 3, 4, 5, 6, 8 Wolfchild v. United States, 62 Fed.Cl. 521 (2004)("Wolfchild I") .......................30, 31, 33, 34 Wolfchild v. United States, 68 Fed.Cl. 779 (2005)("Wolfchild II")......................10, 17, 18, 29 Wolfchild v. United States, 72 Fed.Cl. 551 (2006)("Wolfchild III") ....................................... 10 Wolfchild v. United States, 77 Fed.Cl. 22 (2007), Or. at __, (April 27, 2007) ("Wolfchild IV")... .......................................................................................................19, 21

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Statutes 28 U.S.C. § 1292.............................................................................................................. passim 28 U.S.C. § 1292(b)(2).................................................................................................... passim 28 U.S.C. § 1292(d)(2).................................................................................................... passim Rules Fed. R. App. P. 4..................................................................................................................2 Fed. R. App. P. 5............................................................................3
Fed. R. Civ. P. 12...................................................................................20 Fed. R. Civ. P. 56...................................................................................20 Other Authorities 19 James Wm. Moore, et al., Moores Federal Practice, § 203.31[2] (3d ed. 2007)...........................15 16 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure, §3930 (West Publishing 2d ed. 1996) ............................................................................................... 15, 35 Report of the Committee on Appeals from Interlocutory orders of the District Courts, September 23, 1953, reprinted in 1958 U.S. Code Cong. & Admin. News, 85th Cong., 2nd Sess., at 5260-61.............................................................................................................................12 Restatement (Third) of Trusts .................................................................................................................29

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INTRODUCTION Defendant moves for this Court to certify certain issues in its October 27, 2004, December 16, 2005 and August 25, 2006 Orders for interlocutory appeal to the United States Court of Appeals for the Federal Circuit. Defendant's Motion to Certify should be denied because (i) the Motion is untimely given that over 32 months have transpired since this Court's issuance of the October 27, 2004 Order; (ii) none of the issues Defendant identifies will result in the termination of this litigation and therefore are not "controlling questions of law;" (iii) there is no "substantial ground for difference of opinion" with respect to the issues Defendant identifies; and (iv) certifying any of these issues for interlocutory appeal only serve to further delay this case which has already been pending for almost four years. ARGUMENT I. DEFENDANT'S MOTION FOR INTERLOCUTORY APPEAL SHOULD BE DENIED AS UNTIMELY. Defendant's Motion to Certify Orders for Interlocutory Appeal failed to address in any way the "elephant in the living room" underlying the Defendant's Motion -- Defendant's lack of timeliness in waiting over 32 months to move this Court to amend its October 27, 2004 Order granting Plaintiffs' Motion for Summary Judgment.1 Pursuant to Federal Circuit and United States Court of Federal Claims

Plaintiffs simply cannot believe that Defendant was not aware of the timeliness issues when it prepared its Motion. In fact, Plaintiffs' counsel specifically asked Defendant's counsel during the joint status conference when Defendant had made the decision to seek interlocutory review in this case because of the delay. Defendant's counsel refused to answer this question. See, William F. Mohrman Declaration. As a matter of procedural fairness, Defendant should be prohibited
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decisions, Defendant's failure to timely move this Court to certify its prior Orders for interlocutory appeal is fatal to its Motion. First, prior to analyzing Defendant's lack of timeliness in seeking to have this Court certify its October 27, 2004, December 16, 2005, and August, 2006 Orders for interlocutory appeal, it is critical to view the procedural mechanisms by which a party may seek interlocutory review under federal law. First, as this Court is well aware, a party does not have an absolute right to seek appellate review of interlocutory orders. The policy underlying this prohibition on interlocutory appeals is simple and straightforward -- it is to prevent piecemeal litigation and unnecessary delay and costs. However, Rule 5 of the Federal Rules of Appellate Procedure gives a party the right to petition the U.S. Court of Appeals for interlocutory review of trial court orders. However, similar to Rule 4, when the United States seeks interlocutory review of a trial court order the United States must petition the U.S. Court of Appeals within 60 days of the trial court filing the order. Second, if a party fails to file a Rule 5 petition with the U.S. Court of Appeals within the time limits of Rule 4, Congress also enacted 12 U.S.C. § 1292 to provide

the trial court judge the right to certify in the trial court judge's interlocutory Order
that the trial court judge believes that the interlocutory Order should be immediately appealed. If the trial court judge provides such certification in the interlocutory Order, the losing party has ten days within which to further petition the U.S. Court of Appeals to undertake jurisdiction over the interlocutory Order and hear the appeal. from presenting any evidence to this Court on Reply attempting to explain its delay of over 32 months in making this Motion.
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However, while there is no time limit on the trial court amending an earlier interlocutory Order to provide for the certification language, U.S. Court of Appeals case law, as well as the case law of the U.S. Court of Federal Claims, provides that a party requesting that the trial court amend a prior order to add the certification language must do so within a short time after the trial court initially issues the interlocutory Order. Weir v. Propst, 915 F.2d 283 (7th Cir. 1990); Scholl v. United States, 68 Fed. Cl. 58 (2005). Thus, while Defendant had an absolute right to petition the U.S. Court of Appeals for the Federal Circuit for interlocutory review of this Court's October 27, 2004, December 16, 2005, and August 16, 2006 Orders under Rule 5 of the Federal Rules of Appellate Procedure, Defendant failed to file such a Petition with the U.S. Court of Appeals for the Federal Circuit within 60 days after this Court's filing of those interlocutory Orders. The United States thereby lost its right to petition the U.S. Court of Appeals to review these interlocutory Orders under Rule 5. As a result, Defendant must now petition this Court to amend this Court's previous interlocutory Orders to include the certification language under 28 U.S.C.§ 1292(d)(2) authorizing the Defendant to petition the U.S. Court of Appeals to review these interlocutory orders within ten days after the Court amends these orders. Because Defendant delayed for 32 months in bringing its Motion to Certify this Court's Interlocutory Orders, its Motion must be denied. As set forth above, while there is no time limit under 28 U.S.C. § 1292(d)(2) restricting a party from requesting the trial court to amend a prior Order to add the

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certification language, federal case law provides that the trial court should deny a party's motion to amend a prior Order to add the certification language if such motion is not made "quick on the heels of the order to be appealed." Judge Richard Posner specifically addressed why §1292 does not contain a time limit restricting the trial court's ability to amend an earlier Order in order to certify such earlier interlocutory Order for appellate review in Weir v. Propst.. Judge Posner first noted that a literal reading of §1292 would require the trial court judge to insert the certification language required under §1292 in the interlocutory Order when the trial court judge initially issues the interlocutory Order: The statute, read literally, would exclude even the latter course. It states that "when a district court judge . . . shall be of the opinion that such order involves a controlling question of law [etc.] . . . he shall so state in writing in such order" (emphasis added), rather than in an order issued (in this case) five months after the order said to involve the controlling question of law. Weir, 915 F.2d at 285-86. Judge Posner then described why it makes sense to allow trial courts to later amend their interlocutory Orders and add the certification language under § 1292: The objection to reading "in such order" literally is that the district judge naturally looks to the parties to advise him on whether to certify an order for an immediate appeal, and they can hardly do that until they have seen the order - until it has been issued, in other words. Moreover, the controlling character of the question decided in the order may not emerge until subsequent developments in the litigation. For both reasons, it is commonplace for the district judge to be asked to certify in order for an immediate appeal under § 1292(b) after -and not necessarily immediately after -- he has issued the order. Weir, 915 F.2d at 286.

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But, Judge Posner further held that a party seeking to have a district judge amend the district judge's order to include the certification language must do so "quick on the heels of the order to be appealed." The requirement that the district court include the required certification in the order to be appealed and that the appellant seek our permission to take the appeal within ten days after the order, indicates that celerity was to be the touchstone of appealability under that section. The reason is not hard to see. An interlocutory appeal normally interrupts the trial even though it does not suspend the trial court's jurisdiction, and the parties ought to know at the earliest possible opportunity whether such an interruption is going to occur. The delay here was as gratuitous as it was protracted. Nothing happened between the denial of the defendants' motion to dismiss them from the case and the filing of their motion for reconsideration and certification to justify their having failed to appeal the denial as a matter of right as they could have done by virtue of Mitchell v. Forsyth, 472 U.S. 511 (1985). And the time limits in

§1292(b) may not be circumvented by the facile device of asking for reconsideration of the order sought to be appealed under that section. Fisichelli v. City Known as Town of
Methuen, 84 F2d 17 (1st Cir. 1989). Id. (emphasis supplied).

Finally, Judge Posner specifically held that while the district judge had the power to amend a prior order to include the §1292 certification language, such power was not unbridled: Although the district judge has by virtue of Rule 5(a) the power to amend his interlocutory ruling at any time, it does not follow that the power was properly exercised in this case. The grant of a power is not a license to abuse it. The 10-day limitation in §1292 (b) is not to be nullified by promiscuous grants of motions to amend. An amendment that will have the effect of extending the limitation is proper only if there's a reason for the delay, as there would be for example if developments since the interlocutory order had been entered demonstrated, as had been unclear earlier, that the order resolved a controlling

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question of law about which there was substantial ground for a difference of opinion. Neither the parties nor the district judge have presented any reason for the delay in certification in this case; the delay as we have said was gratuitous. Therefore for us to permit an immediate appeal would undermine the statutory ten-day limitation without promoting the goals of Rule 5(a), and we therefore decline to exercise our discretion to accept an immediate appeal under § 1292(b). Weir, 915 F.2d at 287 (emphasis supplied). This Court agreed with the Weir analysis in rejecting an effort by the United States to certify a previously issued Order for appeal. Scholl v. United States, 68 Fed. Cl. 58 (2005). In Scholl, Judge Baskir denied the United States' Motion to Dismiss for failure to state a claim upon which relief can be granted on December 4, 2002. On May 27, 2003, the United States filed a second motion to dismiss based on subject matter jurisdiction. Judge Baskir denied this second motion on June 23, 2004. Four months after the issuance of this second Order, the United States filed a Motion for Judge Baskir to amend his prior two Orders to add the §1292 certification language in order that the United States could seek immediate appellate review of the interlocutory Orders. Judge Baskir denied the motion to certify. In his opinion, Judge Baskir addressed the timeliness issue first before getting to the factors involved in certification. Judge Baskir noted that the United States failed to request certification of either Order within a short time after the issuance of those Orders: "[While the] statute governing interlocutory appeals does not set an explicit time limit within which a party must file a motion to certify ... it does refer to an "intermediate appeal" and mandates an application to appeal -- following a trial court's order that includes the trial judge's certification -- must be filed in the circuit court within ten days after the entry of the Order. The statutory
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expectation that the appeals process will be implemented with dispatch should not be circumvented without reason. Accordingly, granting a motion to amend beyond the ten-day limitation period is only proper where there is reason for the delay. Weir v. Propst, 915 F.2d 283 (7th Cir. 1990); Ferraro v. Secretary of HHS, 70 F. Supp. 978, 979 (E.D.N.Y. 1992). Unreasonable delay constitutes sufficient cause to deny a motion and a judge `should not grant an excusably dilatory request.' Richardson Electrics, Ltd. v. Panache, Board. of Pennsylvania, Inc., 202 F.3d 957, 958 (7th Cir. 2000). Scholl, 68 Fed. Cl. 59-60. Judge Baskir then denied the motion to certify his December 4, 2002 Order as untimely. Defendant's motion for certification in this case goes well beyond the timeliness requirements set forth in Weir and Scholl. In this case, Defendant delayed for 32 months before petitioning this Court for review of its October 27, 2004 Order granting Plaintiff's Motion for Summary Judgment. In addition, this Court should note the Defendant's seeks to certify the Court's December 2005 Order that denied the Defendant's motion for reconsideration of the October 2004 Order. As both Judge Posner in the Weir and Judge Baskir in Scholl stated, Defendant cannot resurrect the timeliness of its motion under 28 U.S.C. § 1292 to amend an order by making a motion to reconsider the previous order and then seeking to certify the Order denying the Motion to Reconsider. Consistent with the Weir and Scholl cases, other cases have denied motions to amend prior orders for certification based on delays of as little as two months. See, e.g., Morton College Bd. of Trustees v. Town of Cicero, 25 F.Supp.2d 882, 885 (N.D.Ill.1998) (one month); Fabricant v. Sears Roebuck & Co., 2001 U.S. Dist. Lexis 24518 (S.D.Fla.)
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(forty-six days); Weir, 915 F.2d at 283 (sixty-three days); Ferraro v. Sec. of HHS, 780 F.Supp. 978, 979 (E.D.N.Y.1992) (two and a half months); In re Buspirone Patent Litigation, 210 F.R.D. 43, 50 (S.D.N.Y.2002)(three months). The Scholl Court went on to note that none of the cases which the United States cited in support of the timeliness of its §1292 certification motion supported certification beyond three months. Marriott Int'l Resorts v. United States, 63 Fed.Cl. 144 (2004) (three months); American Mgmt. Sys. v. United States, 57 Fed.Cl. 275, 275-76 (2003) (two months); Vereda, LTDA v. United States, 46 Fed.Cl. 569, 569-70 (2000) (three months). In addition, Plaintiffs' research has not located any cases where a court has granted a motion to amend an order issued more than a year earlier to add the § 1292 certification language. Finally, the particular manner in which the Defendant has handled this proceeding demonstrates the problems with the timeliness issue. First, as this Court noted at the January 25, 2007 hearing, Defendant's prior counsel, Mr. Longstreth, had specifically represented to the Court that Defendant was not interested in seeking interlocutory review and the Court honored that arrangement. See, page 79 of the January 25, 2007 hearing transcript attached to the William F. Mohrman Declaration as Exhibit 1.2 Second, this Court inquired of Defendant's current counsel at the

Although Plaintiffs could not find case law on point, Plaintiffs argue that Mr. Longstreth's assertion to the Court that Defendant had no intention of seeking interlocutory review amounts to a waiver of Defendant's right to seek interlocutory review. It simply frustrates and obfuscates the purposes of the orderly and efficient prosecution of civil cases to allow a party to represent to the Court that the party has no intention on seeking interlocutory review only to change its mind two years later. In reliance on Defendant's representation, this Court ordered Plaintiffs' counsel to
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January 25, 2007 hearing whether Defendant had changed its mind regarding interlocutory appeal. At that time, Defendant's counsel stated that the Defendant was now looking into the matter. Of course, this occurred over six months ago ­ more than the four months Judge Baskir found untimely in Scholl. Moreover, it is important to point out that Defendant has already delayed this case through its Motion for Reconsideration. The Court will recall that after issuing its October 27, 2004 Order, Defendant sought reconsideration of this Court's entry of summary judgment in Plaintiffs' favor on liability. This Court allowed Defendant to make that Motion and the Court did not rule on that Motion until December 16, 2005 -- 14 months after this Court's issuance of its October 27, 2004 Order. During the intervening 14 months, Plaintiffs were prevented from doing any work on this case whatsoever -- no discovery proceeded, no further motions were allowed, and no mechanisms were put in place for notice to be given to other potential Plaintiffs. At the time Defendant brought its Motion for Reconsideration, Defendant could have moved in the alternative for this Court to amend its October 27, 2004 Order to certify that Order for appeal to the U.S. Court of Appeals for the Federal Circuit. Defendant chose not to do so.3

undertake significant and expensive efforts to notify potential plaintiffs of the right to intervene, served a summons on the Communities which was later quashed and participated in the preparation of an extensive Joint Status Report.
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Plaintiffs assert that Defendant's decision to seek reconsideration of this Court's October 27, 2004 Order constitutes a waiver of its ability to seek interlocutory appeal of that Order now. Obviously, motions for reconsideration should only be reserved for those situations where a party is completely convinced the court has issued a wrong decision. To allow such motions to be brought after every motion would
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Finally, Defendant's decision to seek interlocutory review 32 months after this Court issued its October 27, 2004 Order completely frustrates the orderly and efficient prosecution of this action and prejudices Plaintiffs. As this Court previously noted in Wolfchild II4, the law of the case doctrine is designed to "protect the settled expectations of the parties and promote orderly development of the case." Suffice it to say, Defendant's Motion does not "protect the settled expectations of the parties and promote orderly development of the case." For instance, and most importantly, Defendant was well aware of events following the Court's December 16, 2005 Order. The Court adopted Plaintiffs counsel's recommended notification procedure, such as publishing the notice, to alert potential lineal descendants of this lawsuit, and required Plaintiffs counsel to do so at their expense. The firm in turn incurred thousands of hours of man-hours and thousands of dollars in costs to effect the Court's ruling. See, William F. Mohrman Declaration. Defendant cites absolutely nothing in its Motion to justify why it did not move this Court for §1292 certification of the October 27, 2004 and December 16,

simply cause unnecessary delay in litigation. If the Defendant had concluded that the Court's October 27, 2004 Order justified reconsideration by the Court, the Defendant should have also petitioned this Court for interlocutory review at that time. In fact, as set forth in the Scholl case, Defendant could have requested certification in the alternative to its Motion for Reconsideration. However, Defendant failed to make such a Motion at that time and in fact its counsel represented to the Court that Defendant had no interest in seeking interlocutory appellate review. The Plaintiffs cite to the Court's prior published opinions serially: Wolfchild v. U.S. , 62 Fed.Cl. 521 (2004) ("Wolfchild I"); : Wolfchild v. U.S. , 68 Fed.Cl. 779 (2005) ("Wolfchild II"); Wolfchild v. U.S. , 72 Fed.Cl. 511 (2006) ("Wolfchild III"); : Wolfchild v. U.S. , 77 Fed.Cl. 22 (2007) ("Wolfchild IV").
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2005 Orders shortly after their filing. Defendant's Motion for Certification under 28 U.S.C. §1292 (d)(2) should be denied as untimely. II. DEFENDANT'S MOTION FOR INTERLOCUTORY APPEAL SHOULD BE DENIED ON THE MERITS. Defendant's motion for interlocutory appeal should be denied under 28 U.S.C. § 1292(d)(2) because (i) none of the issues Defendant identifies are a "controlling question of law;" (ii) there is no "substantial ground for difference of opinion" with respect to the issues Defendant identifies; and (iii) certifying any of these issues for interlocutory appeal only serves to further delay this case which has already been pending for almost 4 years and, according to the Plaintiffs and Intervenors in the Joint Status Report dated July 20, 2007, can be completed in the next 14 months. The three prong test to certify an order for an interlocutory appeal is outlined under 28 U.S.C. § 1292(d)(2): When any judge of the United States Court of Federal Claims, in issuing an interlocutory order, includes in the order a statement that a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion and that an immediate appeal from that order may materially advance the ultimate termination of the litigation, the United States Court of Appeals for the Federal Circuit may, in its discretion, permit an appeal to be taken from such order, if application is made to that Court within ten days after the entry of such order. Since the operative language and functions of 28 U.S.C. § 1292(d)(2) are identical to the statutory standard for certification used by District Courts under 28 U.S.C. § 1292(b), any use of the legislative history of the § 28 U.S.C. § 1292(b) is "persuasive" concerning 28 U.S.C. § 1292 (d)(2). United States v. Connolly, 761 F.2d 882, 885 (Fed. Cir. 1983) cert. denied, 465 U.S. 1065 (1985). Portions of the Report of

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the Committee on Appeals from Interlocutory Orders of the District Courts is instructive about interlocutory use: [W]e have reached the conclusion that provision should be made for allowance of appeals from the interlocutory orders in those exceptional cases where it is desirable that this be done to avoid unnecessary delay and expense and that the danger of opening the door to groundless appeal and piecemeal litigation can be avoided by proper limitations to be included into the amendatory statute. *** Your Committee is of the view that the appeal from interlocutory orders thus provided should and will be used only in exceptional cases where a decision of the appeal may avoid protracted and expensive litigation, as in antitrust and similar protracted cases, where a question which would be dispositive of the litigation is raised and there is serious doubt as to how it should be decided .... It is not thought district judges would grant the certificate in ordinary litigation which could otherwise be promptly disposed of or that mere question as to the correctness of the ruling would prompt the granting of the certificate.5 See, Report of the Committee on Appeals from Interlocutory orders of the District Courts, September 23, 1953, reprinted in 1958 U.S. Code Cong. & Admin. News, 85th Cong., 2nd Sess., at 5260-61 (emphasis added). The U.S. Court of Appeals case law interpreting § 1292 has likewise held that recourse to permissive interlocutory appeals should be rare and reserved only for exceptional cases: The proper division of labor between the district courts and the court of appeals and the efficiency of judicial resolution of cases are protected by the final judgment rule, and are threatened by too expansive use of the § 1292(b) exception to it. Because permitting piecemeal appeals is bad policy, permitting liberal use of §1292(b) interlocutory appeals is bad policy.

Report of the Committee on Appeals from Interlocutory orders of the District Courts, September 23, 1953, reprinted in 1958 U.S. Code Cong. & Admin. News, 85th Cong., 2nd Sess., at 5260-61 (emphasis added).
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McFarlin v. Conseco Services, LLC, 381 F.3d 1251 (11th Cir. 2004); see also, Camacho v. Puerto Rico Ports Auth., 369 F.3d 570, 573 (1st Cir.) ("Section 1292(b) is meant to be used sparingly, and appeals under it are, accordingly, hen's-teeth rare."). The U.S. Court of Federal Claims has similarly held that the certification of an interlocutory appeal should be exercised with great care: "It is well-accepted that interlocutory appeals under [28 U.S.C. §1292 (d)(2)] are reserved for "exceptional" or "rare" cases and should be authorized only with great care." See, AD Global Fund, LLC ex rel. North Hills Holding, Inc. v. United States, 68 Fed. Cl. 663, 665 (2005); Marriott Int'l Resorts, L.P. v. United States, 63 Fed.Cl. 144, 145 (2004); Testwuide v. United States, 56 Fed.Cl. 755, 766 (2003). This Court has cited the U. S. Supreme Court's determination as recently as 2005 reaffirming the principle of using "great restraint ... in granting such appeals." Scholl v. United States, 68 Fed. Cl. 58, 61 (2005):6 "'Routine resort to § 1292(b) requests would hardly comport with Congress' design to reserve interlocutory review for `exceptional' cases while generally retaining for the federal courts a firm final judgment rule." Id. citing Caterpillar Inc. v. Lewis, 519 U.S. 61, 74 (1996) (citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978). Finally, courts should not certify interlocutory orders for appeal pursuant to §1292 if the interlocutory appeal will result in further delay and costs as opposed to saving time and costs. In In re Investors Funding Corp. Sec. Litigation, 36 B.R. 1019, 1022

The Defendant presumably failed to cite Scholl v. United States since it is on point regarding arguments on "timeliness" - an issue not discussed in its interlocutory appeal moving papers.
6

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(D.C.N.Y. 1983), the Court determined § 1292(b) "is designed to permit an interlocutory appeal where it may operate to minimize the overall cost of litigation on the parties and the judicial system, ... and should be used only where the court is persuaded that unusual circumstances justify a departure from the ordinary rule of postponing judicial review until after entry of a final judgment." Thus, under §1292 (d)(2), this Court should only certify issues for appeal in exceptional cases where the party seeking appeal is not "[merely questioning] the correctness of the ruling." This case is not exceptional as that term is used in cases under 28 U.S.C. §1292 and Defendant is "merely questioning the correctness of this court's rulings." Defendant's Motion should be denied on the merits. A. Defendant's Motion per Certification under 28 USC § 1292 2(d)(2) does not Present Any "Controlling Questions of Law."

In an effort to define a "controlling question of law" under 28 U.S.C. § 1292 (d) (2), Defendant merely asserts that a "controlling question of law" exists for purposes of § 1292(d)(2) "if reversal of the trial court's order would terminate the action," if reversal would " materially affect issues remaining to be decided in the trial court" and review "might" "save time for the [trial] court and time and expense for litigants." See, Defendant's Motion at p. 4 citing 16 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure, §3930 at 423, 426. The Defendant however, has not presented to the Court a complete definition of a "controlling question of law" as that term is construed by the federal courts under §1292.

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First, the U.S. Courts of Appeal have unequivocally held that a "controlling question of law" must be a "pure" question of law, free from factual dispute. Ahrenholz v. Board of Trustees of Univ. of Illinois, 219 F.3d 674, 676-77 (7th Cir. 2000); 19 James Wm. Moore, et al., Moores Federal Practice, § 203.31[2] (3d ed. 2007). [A "controlling question of law"] does not mean the application of settled law to fact. ... It does not mean any question the decision of which requires rooting through the record in search of the facts or of genuine issues of fact....[w]hat the framers of §1292(b) had in mind is more of an abstract legal issue or what might be called one of `pure' law, matters the court of appeals can decide quickly and cleanly without having to study the record. McFarlin v. Conseco Services, LLC, 381 F.3d 1251, 1258 (11th Cir. 2004), citing Ahrenholz v. Board of Trustees of Univ. of Illinois, 219 F.3d 674, 676-77 (7th Cir. 2000). Interlocutory review is not appropriate when the record must be more fully developed so that we can make a precise decision upon a precise record -- not an abstract answer to an abstract question. Paschall v. Kansas City Star Co., 605 F.2d 403, 407 (8th Cir. 1979). Obviously, an interlocutory appeal requiring the appellate court to analyze a factual record which by definition is incomplete will frustrate rather than enhance the purpose underlying 28 U.S.C. § 1292 of "avoid[ing] unnecessary delay and expense." In addition, this Court has specifically held that Defendant's argument that a "question of law" is controlling if it will result in the termination of litigation simply "cuts too deeply:" Successful appeals of denials of the Government's motions to dismiss under 12(b)(1) or 12(b)(6) always result in termination of all or at least that part of Plaintiff's case. Something more is needed to justify an interlocutory appeal of unsuccessful motions to dismiss."

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Scholl, 68 Fed. Cl. at 61. As set forth below, Defendant cannot establish that the three issues on which it seeks interlocutory appeal constitute "controlling questions of law" under the standards set forth above. 1. This Court's Determination that the Appropriation Acts Created a Trust is not a "Controlling Question of Law" in this Case Because the Issue Requires Examination of a Voluminous 90 Year Factual Record and Reversal of The Court's Summary Judgment Would Not Terminate The Action But Only Result in a Remand For Further Factual Development.

Defendant first argues that this Court's determination that the 1888, 1889 and 1890 Appropriation Acts (the "Appropriation Acts") created a trust with Defendant acting as the trustee is a "controlling question of law." Defendant's arguments are simply wrong. First, this Court's determination that the Appropriation Acts created a trust with Defendant acting as the trustee was not a "pure" question of law. Rather, this Court analyzed -- and at Defendant's request on the Motion for Reconsideration thoroughly re-analyzed -- over 90 years of Department of the Interior interpretation and administration under these Appropriation Acts. This Court's analysis and reanalysis of 90 years of Department of the Interior history for purposes of interpreting the Appropriation Acts was completely proper. "[W]hen we must interpret an archaic statute, the historic practice of the agency that was created to help implement that statute can shed light on its meaning." In re Cybernetic Services, Inc., 252 F.3d 1039 (9th Cir. 2001). In fact, Defendant fully admits that the interpretation of the Appropriation
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Acts required an analysis of 90 years of Department of the Interior's administration of the lands subject to the Appropriation Acts: The government had submitted with the motion for reconsideration a sizeable three-volume appendix of documents, some of which were newly provided and some of which had been previously submitted. *** Moreover, the government further suggested that the newly provided documents raised, and yet additional records would raise, triable issues of disputed fact regarding the existence of a trust. Hr'g Tr. 42:8-11, 103:3-9. In this respect, the government also proposed that "we would be presenting additional evidence [through witnesses]. We would have historians, who have viewed the various evidence of the Department of Interior's positions, who would offer their expert opinions as to whether or not the lands-whether or not the actions the Department took demonstrate that it's in trust." Hr'g Tr. 103:3-9. Wolfchild II at 784. Despite this voluminous documentation, however, this Court found: [C]ontrary to the government's contentions, the records of the Department of Interior that have been provided to the court regarding implementation of the Appropriation Acts do not raise a genuine dispute of material fact respecting the existence of a trust. Finally, the government's expressed desire to call historians as witnesses to offer opinions as to whether a trust was created, see supra, at 784, does not serve to create a genuine dispute where none appears from the documents themselves. The government's argument in this regard was not an actual proffer of evidence because the argument was not supported by any affidavits or declarations from particular historians, nor were specific areas of potential dispute identified. Thus, the government's vague, amorphous suggestion adds nothing to the case and is wholly unavailing. Id. Therefore, the issue of whether or not the Appropriation Acts created a trust necessarily requires an extensive examination of a 90 year factual record ­ disqualifying the matter for interlocutory appeal. Second, the interpretation of the Appropriation Acts can not be a "controlling question" because an appeal at this point would have the Federal Circuit involved in

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piecemeal litigation. The U.S. Supreme Court has opined against interlocutory appeals resulting in piecemeal litigation because: [T]oo many interlocutory appeals can cause harm. An interlocutory appeal can make it more difficult for trial judges to do their basic job-supervising trial proceedings. It can threaten those proceedings with delay, adding costs and diminishing coherence. It also risks additional, and unnecessary, appellate court work either when it presents appellate courts with less developed records or when it brings them appeals that, had the trial simply proceeded, would have turned out to be unnecessary. Johnson v. Jones, 515 U.S. 304, 309 (1995). An interlocutory appeal here would cause piecemeal litigation because while the appellate court would be reviewing a voluminous factual record, the factual record is incomplete. Thus, the appellate court would be required to later review the 90-year factual record again on appeal after final judgment, when the factual record is complete.7 Additionally, the interlocutory appeal would cause the proceeding in this Court to be delayed, less manageable, add costs, and diminish coherence. Third, interpretation of the Appropriation Acts cannot be a "controlling question" because an appeal at this point would have the Federal Circuit and this Court involved in piecemeal statutory interpretation. This Court has indicated that it has not completed its interpretation of the Appropriation Acts as to the critical elements of the trust, "delineating the trust created by the 1888, 1889, and 1890 Appropriation Acts . . .addressing the current legal status of the 1886 lands . . . explicating and applying the criteria for determining whether a plaintiff or intervening

See, Johnson at 315-316 (analyzing the competing considerations underlying all questions of finality - the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other).
7

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plaintiff qualifies as a lineal descendant of a loyal Mdewakanton and thus a beneficiary of the trust." Wolfchild IV, 72 Fed.Cl. at __, Or. at 19-20 (April 27, 2007). Further, this Court has the power when completing its statutory interpretations of the Appropriation Acts to review and revise its prior statutory interpretations consistent with the law of the case doctrine. See Land Grantors in Henderson, Union and Webster Counties, Ky. v. U.S., 71 Fed.Cl. 614, 621 (2006) ("It is well established that the court has authority to reconsider prior rulings before the entry of a final judgment.") (citations omitted); Wolfchild III at 784 ("At an interlocutory stage, the common law provides that the court has power to reconsider its prior decision on any ground consonant with application of the law of the case doctrine.") (citations omitted). Piecemeal statutory interpretation between the Federal Circuit and this Court could easily lead to confusion and to conflicting and inconsistent opinions. An interlocutory appeal at this stage would only concern interpreting one aspect of the Appropriation Acts ­ i.e. whether a trust exists -- while numerous other statutory interpretative issues such as delineation of the trust, trust corpus and trust beneficiary status under the same Appropriation Acts have yet to be decided by this Court. Fourth, reversal of this Court's summary judgment ruling will not terminate this litigation. Defendant forgets the procedural context in which the Court ruled that the Appropriation Acts created a trust. In its October 27, 2004 Order, this Court granted Plaintiffs' Summary Judgment Motion under Rule 56 and denied Defendant's Motion to Dismiss under Rule 12. At best for Defendant, the U.S. Court of Appeals

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for the Federal Circuit could only reverse this Court's Order for Summary Judgment under Rule 56 and remand this matter for further factual proceedings. The U.S. Court of Appeals for the Federal Circuit could not remand this matter to this Court with instructions to dismiss this action based on Defendant's Rule 12 Motion because -- as Defendant fully admitted it its Motion for Reconsideration by submitting

a voluminous factual record, and as the law specifically requires with respect to the
interpretation of "archaic and historic statutes" administered by a federal agency -- the interpretation of the Appropriation Acts requires an examination of the factual record regarding the federal agency's administration. The only documents presented to the Court thus far regarding the Department of the Interior's administration of the trust lands pursuant to the Appropriation Acts are records Plaintiffs obtained through FOIA requests and documents Defendant doubtlessly "cherry picked" in submitting its voluminous record to the Court in conjunction with the Motion for Reconsideration. Discovery has not even commenced in this case. Presumably, Defendant has located every single document which would support its argument that the Appropriation Acts did not create a trust and certainly would have used such documents in its motion for reconsideration if such documents had existed. However, Plaintiffs are confident that discovery would reveal that there are additional documents in Defendant's possession which Plaintiffs have not obtained through their FOIA requests, but would be obtained through discovery, which would further support this Court's interpretation of the Appropriation Acts creating a trust.

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Fifth, in one sense Defendant's motion for certification is "too early." For example, pursuant to this Court's April 27, 2007 Order, this Court has held that two issues which will now be adjudicated are a determination of which Plaintiffs and Intervenors are beneficiaries of the trust and of what property constitutes the trust corpus. Wolfchild IV, 77 Fed.Cl. at __, Or. at 19-20 (April 27, 2007). Once again, these two issues will require an extensive factual examination which by necessity will produce further factual evidence demonstrating that the Appropriation Acts created a trust. Plaintiffs and Defendant will vigorously litigate the issue of beneficiary status and that litigation will further develop the factual record regarding whether the Department of the Interior interpreted the Appropriation Acts as creating a trust. In addition, Defendant will vigorously litigate the issue of the trust corpus which will further develop the factual record regarding the creation of the trust. Paraphrasing the Queen in Alice in Wonderland, Defendant wants to "appeal first, discovery afterwards." The issue of whether or not the Appropriation Acts created a trust is not a "controlling question of law" at this point because the issues on which Defendant seeks appeal are not pure questions of law and are based on admittedly incomplete statutory interpretations and an admittedly incomplete factual record ­ in fact, discovery has not even commenced. Defendant's Motion should be denied.

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2.

This Court's Determination that the "1980 Act" Did Not Terminate the Trust is Likewise Not a "Controlling Question of Law."

Defendant next argues that this Court's determination that Pub.L. No. 96-557, 94 Stat. 3262 (the "1980 Act") did not terminate the trust is also a "controlling question of law." Defendant's argument fails for the same reasons set forth above with respect to this Court's determination that the Appropriation Acts created a trust. First, although the Court found that Defendant argued in its Memorandum in support of its Motion to Dismiss that the 1980 Act terminated the trust, that argument is by no means clear in Defendant's Memorandum. Careful examination of Defendant's argument reveals the Defendant never specifically asserted that the 1980 Act terminated the trust. Defendant did not directly make this argument for two simple reasons ­ (i) specifically asserting this argument would unequivocally demonstrate that the Appropriation Acts did in fact create a trust and (ii) termination of the trust would then give Plaintiffs an unequivocal "takings" claim against Defendant under the Fifth Amendment. Second, similar to the arguments set forth above with respect to the creation of a trust, interpretation of the 1980 Act is not a pure question of law because such interpretation requires an examination of the Department of the Interior's administration of the trust lands after enactment of the 1980 Act ­ 27 years of administration. For instance, the Court would need to carefully examine the Department of the Interior's administrative proceedings regarding beneficiaries of the Shakopee Mdewakanton Sioux Community -- including 1995 through 2004

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proceedings before administrative law judges per the instructions of Secretary of the Interior Bruce Babbit. See Plaintiffs' Opposition to Motion to Quash App.Exhibits W-AA. In addition, attached to the William F. Mohrman Declaration as Exhibit 2 is a Department of the Interior September 14, 1990 letter to Mr. Kurt V. BlueDog in which the Department specifically admitted that "use rights which are outstanding as of the date of the passage of the [1980] act continued for the duration of such rights unaffected by the provisions of the Act." Such Department of the Interior proceedings and admissions support Plaintiffs' argument that the 1980 Act not only did not terminate the trust, but in fact acknowledged and affirmed a trust was created and continued to exist. As a result, the U.S. Court of Appeals for the Federal Circuit would not as a matter of law reverse this Court's determination that the 1980 Act did not terminate the trust because Plaintiffs must be afforded their opportunity to conduct discovery regarding the Department of the Interior's continued administration of the trust lands after passage of the 1980 Act. This is particularly true here because Defendant has undoubtedly "cherry-picked" Department of the Interior records to support its arguments ­ most notably the 1995-2004 administrative proceedings were never presented to the Court by the government, but rather the 1995-2004 administrative proceedings were discovered and presented by Plaintiffs' counsel to the Court in 2006. See Plaintiffs' Opposition to Motion to Quash App. W-AA.

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Third, the Defendant again invites uneconomical piecemeal litigation and piecemeal statutory interpretation which could lead to conflicting and inconsistent judgments. Interlocutory review of the 1980 Act is uneconomical piecemeal litigation because the U.S. Court of Appeals would be analyzing the 1980 Act without a complete factual record and a complete set of this Court's statutory interpretations of the 1980 Act. Interlocutory review of the 1980 Act is piecemeal statutory interpretation which could lead to conflicting and inconsistent judgments because the interlocutory appeal only concerns one aspect of the 1980 Act ­ i.e., whether it terminated the trust ­ while this Court has statutory interpretations of the 1980 Act left to make such as delineation of the trust, trust corpus and trust beneficiaries. 3. This Court's Determination that the Communities Acted as Defendant's Agents In Administering The Trust Lands After Passage of the 1980 Act is Not a "Controlling Question of Law."

Defendant argues this Court's "determination" that the Communities acted as the Defendant's agent in administering the trust lands after enactment of the 1980 Act is a further "controlling question of law" which should be referred to the U.S. Court of Appeals. This argument is absurd. First, this Court has not ruled on the issue of whether the Communities are agents of Defendant because that issue is not ripe and has not been presented to this Court for a ruling. Therefore, this Court's discussion of that issue in conjunction with this Court granting Plaintiffs' Motion for the Court to Issue Summonses on the Communities is not a "controlling question of law" in this case. Simply put, this Court has simply not made any ruling on which the U.S. Court of Appeals could
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opine. Moreover, even if the U.S. Court of Appeals could opine on this issue, the determination of whether or not the Communities are Defendant's agents would not be a "controlling question of law" because it certainly would not result in the termination of this litigation. Second, Defendant cannot appeal from this alleged "ruling" because Defendant "won." Once again, Defendant forgets the procedural context in which the Court allegedly made its "agency ruling." Plaintiffs moved that this Court authorize the issuance of summonses to the Communities. Defendant opposed this Motion. This Court granted Plaintiff's' Motion; however, the Communities and Defendant then subsequently moved to quash those summonses and this Court granted those motions to quash. As a result, because Defendant ultimately won on this issue, Defendant cannot appeal from this alleged "ruling." Mueller v. Reich, 54 F.3d 438, 441 (7th Cir. 1995),vacated on other grounds, 519 U.S. 114 (1997). Third, while Plaintiff will certainly argue in conjunction with the damages phase of this action that the Communities are in fact Defendant's agents with respect to administering the trust lands after enactment of the 1980 Act, this Court has not specifically ruled that the Communities are Defendant's agents with respect to administering the trust lands. Therefore, the issue is certainly not ripe for appeal. By necessity, the issue of whether or not a party is the agent of another involves an extensive and intensive factual inquiry. "The question of whether an agency relationship exists is `a mixed question of law and fact' that should be submitted to a jury...." Cromer v. Berger, 245 F.Supp.2d 552 (S.D.N.Y. 2003). The parties have

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conducted absolutely no discovery, no factual record has been presented to this Court on this issue and there is simply no evidence at this stage from which the U.S. Court of Appeals could rule on this issue. Defendant's Motion for Certification under 28 USC § 1292(d)(2) does not involve any "controlling questions of law" and should be denied. B. Defendant's Motion for Certification under 28 U.S.C. § 1292 (d)(2) does not Present Any "Substantial Ground for Difference of Opinion" on any Issues This Court has Decided.

Once again, Defendant failed to set forth the appropriate standard under Section 1292(d)(2) for determining whether or not there is a "substantial ground for difference of opinion" on any issues decided by this Court. In fact, Defendant's basic argument is that Defendant's disagreement with this Court's decisions constitutes "substantial ground for difference of opinion" under §1292 (d)(2). Not surprisingly, Defendant's disagreement with this Court's decision is not a "substantial ground for difference of opinion" under §1292 (d)(2). The term "substantial ground for difference of opinion" does not mean that the parties disagree with the Court's decisions. In order to constitute a "substantial ground for difference of opinion" under Section 1292 (d)(2), the U.S. Courts of Appeal have held that there must be either an inter-circuit conflict,8 an intra-circuit conflict, a conflict between an earlier circuit precedent and a later Supreme Court

Klamath Irrigation District v. United States, 69 Fed. Cl. 160, 163 (2005); see Marriott Int'l Resorts, 63 Fed. Cl. at 146.
8

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case, 9 or a substantial difference of opinion among the judges of this Court on two different, but plausible, interpretations of a line of cases.10 This Court however has specifically held that a difference of interpretation among the parties does not constitute a "substantial ground for difference of opinion."11 Because there is no "substantial ground for difference of opinion" with respect to the questions on which Defendant seeks review, Defendant's Motion for Certification must be denied. 1. This Court Relied On U.S. Supreme Court Precedent, Standard Trust Law and Unequivocal Historical Record in Determining that the Appropriation Acts Created a Trust ­ There Simply Is No "Substantial Ground for Difference of Opinion."

Defendant argues for "substantial ground for difference of opinion" with respect to this Court's legal determination that the Appropriation Acts created a trust as a matter of law. Defendant's argue that the Appropriation Acts did not create a trust because: (i) the Appropriation Acts do not state that they created a trust, (ii) the term "family" does not mean "heirs," and (iii) the Appropriation Acts did not create any specific duties. But there is no "substantial ground for difference of opinion" with respect to this Court's legal determination on these issues. First, this Court quickly and easily disposed of Defendant's argument that the Appropriation Acts must specifically state a trust is created in statutory language. As

9

See Ins. Co. of the West v. United States,1999 WL 33604131 at * 4 (Fed.Cl. 1999). See Vereda, Ltda v. United States, 271 F.3d 1367, 1373-74 (Fed. Cir. 2001). American Airlines v. United States, 71 Fed.Cl. 744, 746 (2006).

10

11

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this Court determined its December 16, 2005 Order denying Defendant's Motion to Reconsider: Defendant argues that the absence of the term "trust" in the Appropriation Acts is a fatal flaw in finding the existence of a trust. See Recons. Mot. at 1819. This argument ignores a basic principle of the law of trusts that indicates that the term "trust" need not be used where the elements of a common law trust are present. See Restatement (Third) of Trusts § 13 cmt. a; White Mountain Apache, 537 U.S. at 476 n. 3, 123 S.Ct. 1126 (affirming a determination that a money-mandating fiduciary relationship existed between the United States and the White Mountain Apache Tribe). Wolfchild II, 68 Fed.Cl. 779, 784 (2005). Simply put, disagreement with binding Supreme Court precedent is not a "substantial ground for difference of opinion." Second, implicit in Defendant's arguments is it's disagreement with this Court's determination under the common law of trusts that based on the factual record Defendant created a trust with regard to its management and administration of the trust lands. However, this argument is not a disagreement on the law since this Court's based its decision on the common law of trusts developed over the last several centuries and currently expressed in the Restatement (Third) of Trusts. Defendant points to no "substantial ground for disagreement" regarding the most basic elements of trust law which this Court applied in its October 27, 2004 Order granting summary judgment. As a result, this Court's determination under the common trust law creates no "substantial ground for difference of opinion." Third, the Defendant asserts that the term "family" in the Appropriation Acts does not mean "heirs" ­ or at least there is a doubt about it. However, the Defendant's assertion is fatally premature because the Court has yet to definitively rule on this statutory interpretive issue. The Appropriation Acts must be completely
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interpreted by the Court prior to any "doubt" being analyzed for purpose of an interlocutory appeal under 28 U.S.C. §1292. The interpretation of the Appropriation Acts as to trust beneficiary status has yet to be fully litigated and adjudicated, by the Court's design, as the notice process needed to be completed before the issue of trust beneficiary status could fully and fairly be litigated. The Defendant's interlocutory appeal would violate the rights of all plaintiffs and intervenors to a full and fair opportunity to be heard on the interpretation of the Appropriation Acts ­ something the Court should n