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

Case 1:03-cv-02684-CFL

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS No. 03-2684L (Electronically Filed: February 27, 2007) ) ) ) ) ) ) ) ) ) ) )

SHELDON PETERS WOLFCHILD, et al., Plaintiffs, v. UNITED STATES, Defendant.

REPLY TO DEFENDANT'S OPPOSITION TO THE MOTION OF CERTAIN INTERVENORS TO DEFER RULING ON LATE FILED MOTIONS TO INTERVENE
This Reply Memorandum responds to an Opposition filed by the United States (Docket No. 425, filed February 15, 2007). A lengthy Reply is both unnecessary and inappropriate. The motion in question ("Motion to Defer") was offered by its proponents in hopes of stimulating the very discussion that took place during the February 5 telephone hearing. The motion is intended to be pragmatic, and to put all late-intervention motions, including future motions, into the larger context of decisions that are yet to come in these proceedings. The motion is grounded on a variety of facts and assumptions, many of which are not formally part of the record. They emanate instead from comments made by numerous speakers during the February 5 (and earlier) hearings. These facts and assumptions include: · The fact that--realistically--potential trust beneficiaries continue to surface, and will almost certainly continue to do so for a long time to come;

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·

The fact that the original plaintiffs are not prejudiced by the motion, as reflected by counsel's statement that plaintiffs do not object to the pending intervention motions. Nor have the original plaintiffs objected to the Motion to Defer; The fact that the exact ultimate number of trust beneficiaries changes neither the liability considerations for the U.S. nor the amount of damages, thereby suggesting an absence of prejudice to the U.S.; and The fact that all parties appear to agree that the scope of the term "trust beneficiary" as used in this case should be addressed--and decided--as soon as possible, because this determination will have great bearing on the ultimate makeup of the intervenor pool, and (potentially) on questions of whether additional notice should--or must--be given in the event trust beneficiary status extends more widely than the original plaintiffs believe it should.

·

·

The Court has heard many comments, and at an appropriate juncture may be exposed to more, concerning one of the reasons that intervenors continue to surface. Without suggesting impropriety of any kind by anyone, comments on February 5 by both Mr. Kaardal and counsel for various intervenors reflect two important underlying facts that are not yet part of the record, but that clearly bear directly on questions pertaining to the appropriate timing of motions to intervene. First, Mr. Kaardal clearly expressed both the practice and the belief of plaintiffs' counsel that it would be a conflict of interest for them to have agreed to represent anyone other than descendants of the Loyal Mdewakantons as reflected in (and limited by) the 1886 Census. Second, it is clear that the offices of Mohrman & Kaardal were swamped with inquiries, letters, documents, calls and visitors during the late spring and early summer of 2006. Third, because of the foregoing, many people who had contacted the busy plaintiffs' lawyers were not "turned down" for representation by plaintiffs' counsel until very close to the July 12 deadline. Many of them, rightly or wrongly, came away from that contact believing they were not eligible for trust beneficiary status.

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Fourth, counsel for plaintiffs required rigorous genealogical documentation from all would-be clients and apparently submitted that documentation to Dr. Barbara Buttes, a plaintiff in this case, and/or others assisting Dr. Buttes. This process (a) was necessarily time consuming, and (b) assumed the level and quantum of documentation that this Court would ultimately require at some future stage of the proceedings. Again, some applicants left the process

believing they had reached the end of their options because they could not satisfy the documentation standards. The foregoing recitation, as already noted, is not offered in a spirit of disparagement or innuendo. Mohrman & Kaardal has done a great service to the Native American community in general and to already-accepted intervenors in particular. The Moving Intervenors seek only to summarize many comments made by many lawyers at various points during the August 2006 and the February 2007 intervention hearings. The purpose for raising these issues is simply to suggest that many of these questions may never need to be formally aired, depending on the Court's rulings on several issues that have not yet been fully addressed. These issues include the scope of trust beneficiary status, statute of limitations issues, quantum of proof of descendancy, etc. The possibility exists that any and all questions about what could or should have happened in the spring/summer of 2006 will be mooted by such rulings. Depending on the Court's rulings as to what constitutes trust beneficiary status, some intervenors may eventually ask the Court to consider supplemental notice. Supplemental notice, of course, would moot any and all questions about the sufficiency of the 2006 notice. ********** For reasons not entirely clear, the United States relies heavily on a statute of limitations argument in opposing the Motion to Defer. This reliance is misplaced for several reasons.

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Primary among these reasons is the simple fact that the U.S. did not object to the pending Motions to Intervene on statute of limitations grounds. An inchoate statute of limitations defense, whether or not valid, would not prevent would-be intervenors from filing new actions in the United States Court of Federal Claims, nor would such a defense likely discourage that Court from consolidating all new cases with the Wolfchild case before addressing affirmative defenses. So the issue would come right back to this Court. Indeed, the United States has chosen an unlikely time to audition its statute of limitations defense; if indeed the relevant claims are barred unless filed before 1986, it is reasonable to wonder why that defense has not been thoroughly argued and decided long before now. The intervenors who support the Motion to Defer have no intention of responding to the statute of limitations argument on the merits, because this is neither the time nor the place to do that. If the United States believes its statute of limitations defense is meritorious, such a belief should logically counsel the government to support, rather than oppose the Motion to Defer. In any class or collective action, the defendant has every interest in binding the largest possible number of litigants with a dispositive result. The government's opposition in this case suggests that it would prefer to litigate the statute of limitations issue repeatedly in subsequently filed cases, and in other Wolfchild contexts not now before the Court. The rationale for such a choice is anything but clear, but the burdensome and repetitive consequences for the United States Court of Federal Claims are very apparent.

Conclusion
Addressing individual reasons for "late" motions to intervene at this time does not promote judicial economy. Because it is possible that the scope of "trust beneficiary" status will

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expand as the Court turns its attention to that issue, little purpose is served by deciding motions that might be mooted by such rulings. The unique facts and circumstances of this case, coupled with the undeniable fact that potential trust beneficiaries continue to contact attorneys, suggests that a ruling on the pending motions to intervene should be deferred. Dated: February 27, 2007. MOVING INTERVENORS

By:

s/ Wood R. Foster, Jr.
Wood R. Foster, Jr. Siegel, Brill, Greupner, Duffy & Foster, P.A. 1300 Washington Square 100 Washington Avenue South Minneapolis, MN 55401 (612) 337-6100 (612) 339-6591 (facsimile) Attorneys for Lafferty, Whipple, Lowe and Blaeser Intervenor Groups Jack E. Pierce Pierce Law Firm, P.A. 6040 Earle Brown Drive Suite 420 Minneapolis, MN 55430 (763) 566-7200 Fax: (763) 503-8300 Attorneys for Cermak, Sr., Stephens, Cermak, Henderson, Klingberg, Alkire, Arnold, Jr., and Godoy Intervenor Groups Kelly Hope Stricherz P.O. Box 187 Vermillion, SD 57069 (605) 624-3333 Attorney Group for Mozak Intervenor

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Larry B. Leventhal David Garelick Larry Leventhal & Associates 319 Ramsey Street St. Paul, MN 55102 (612) 333-5747 Fax: (612) 344-1126 Attorneys Group for Burley Intervenor

Scott Allen Johnson Johnson Law Group 10801 Wayzata Boulevard Suite 120 Minnetonka, MN 55391 612 525-1224 Attorneys for Rocque and Taylor Intervenor Groups Robin Leonard Zephier Abourezk & Zephier 2020 W. Omaha Street P.O. Box 9460 Rapid City, SD 57709-9460 (605) 342-0097 Fax: (605) 342-5170 Attorneys for Zephier Intervenor Group Randy V. Thompson 710 Lawson Commons 380 St. Peter Street St. Paul, MN 55102 (651) 227-6661 Fax: (651) 287-0005 Attorneys for Abrahamson Intervenor Group

37-HSF-2/27/07-24467

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