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

Case 1:03-cv-02684-CFL

Document 430

Filed 02/23/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ SHELDON PETERS WOLFCHILD, et al., ) ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA ) ) Defendant. ) ____________________________________)

Case No. 03-2684L Hon. Charles F. Lettow Electronically filed on February 23, 2007

DEFENDANT'S RESPONSE TO MOTION TO SUBSTITUTE LEGAL COUNSEL (Dkt 424) Defendant, the United States, submits this response to the Motion To Substitute Legal Counsel filed by "the Shirley Abdo-Arrow Family" (Dkt No. 424). Movants state that they were represented by Garrett Horn, Esquire, and now wish to substitute Gary Montana, Esquire, and Ron Volesky, Esquire, as their lawyers, instead of Mr. Horn. The United States does not oppose the motion to substitute counsel, insofar as the motion relates to persons who moved to intervene in this case and whose motions to intervene were granted via the Court's August 22, 2006, Order; however, it is not clear that all of the persons listed in the attachment to the motion as "now represented by" Messrs. Volesky and Montana are, in fact, plaintiff-intervenors in this case. The United States opposes the motion to the extent that it seeks to add as new plaintiffs any persons who have not already moved for, and been granted, intervention. Defendant attempted to discover, from examining the motions to intervene and Complaints in Intervention previously filed by Mr. Horn on behalf of the eleven groups he

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represents,1/ which together contain over 3,000 names, whether all of the persons listed in Attachment A were in fact already intervenors in the case. Defendant was unable to locate in the papers filed by Mr. Horn certain names that were listed in Attachment A to the motion to substitute counsel. Those names are set forth below. (The line numbers listed below with the names are those used in movants' Attachment A.) 3: Cindy Shunk Helen Shunk Lucy Shunk Josetta Marie Caple Jasiat Joseph Abdo Louis Young Josh B. Abdo Sylvan S. Abdo Lisa Caple Aleena Zephier Joan Roan Eagle Jacob J. Abdo (Minor) (Minor)

(Minor) (Minor)

6:

(Minor) (Minor)

7:

(Minor)

10: 15: 17: 20:

1/

The those papers are the motions to intervene and Complaints in Intervention filed on behalf of the following "groups:" Deborah L. Saul, et al. (Dkt No. 169 (motion) and 266 (Complaint), dated June 22, 2006, and August 22, 2006, respectively); Raymond Cournoyer, Sr. et al. (Dkt No. 196 and 271, dated July 17, 2006, and August 22, 2006, respectively); Jerry Robinette et al. (Dkt No. 199 and 269, dated July 17, 2006, and August 22, 2006, respectively); Sandra Kimbell, et al. (Dkt No. 200 and 270, dated July 17, 2006, and August 22, 2006, respectively); Charlene Wanna, et al. (Dkt No. 202 and 259, dated July 17, 2006, and August 22, 2006, respectively); Laura Vassar, et al. (Dkt No. 203 and 258, dated July 17, 2006, and August 22, 2006, respectively); Lydia Ferris, et al. (Dkt No. 207 and 263, dated July 13, 2006, and August 22, 2006, respectively); Daniel M. Trudell, et al. (Dkt No. 208 and 264, dated July 13, 2006, and August 22, 2006, respectively); Robert Lee Taylor, et al. (Dkt No. 210 and 255, dated July 13, 2006, and August 22, 2006, respectively); Leslie Lee French, et al. (Dkt No. 212 and 256, dated July 13, 2006, and August 22, 2006, respectively); and Dawn Henry, et al. (Dkt No. 213 and 257, dated July 13, 2006, and August 22, 2006, respectively). 2

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25: 29: 41: 42: 43: 44:

Caroline M. Dion Megan Hope Abdo Paul Henry Denney Theodore Denney Larry Ike Denney Daniel John Denney (Minor)

In addition, as to other names, there appear to be differences in spelling or names between some names on the list set forth in Attachment A to the motion to substitute, on the one hand, and those listed on the papers filed by Mr. Horn, on the other. For example, the names "Amya Shirley Dion Caple" and "Amria Vonn Mariah Caple" are set forth on Attachment A (p. 2, line 6) to the motion, but do not appear on any of the motions or Complaints filed by Mr. Horn. Instead, the names "Ameia Caple" and "Amyia Caple" appear on the Motion to Intervene and the Complaint in Intervention previously filed by the Lydia Ferris Group (Dkt No. 207 and 263). Neither the United States nor (presumably) the Court and the other parties can tell whether those names listed in the Ferris Group Complaint refer to the same persons as those listed in Attachment A, or not. They therefore cannot tell whether the persons in question have already been admitted as intervenors or not. Likewise, if only a spelling error is at issue, no one but the named intervenors themselves (and their counsel) can tell which spelling or version of the intervenors' names is the correct one. This situation underscores the need for electronic lists prepared by counsel for each group, containing the correct names of the plaintiff-intervenors in this case in a uniform format to be determined, as the Court seemed to suggest at the conclusion of the February 5, 2007, hearing in this case. 3

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In summary, the United States does not oppose the substitution of counsel for persons already admitted to the case as plaintiff-intervenors; however, the motion should be denied to the extent it attempts to add new parties to the case, who may include the persons listed above in this memorandum.

Dated: February 23, 2007

MATTHEW J. MCKEOWN Acting Assistant Attorney General Environment and Natural Resources Division

_____s/Laura Maroldy__________________ LAURA MAROLDY Natural Resources Section Environment and Natural Resources Division United States Department of Justice Benjamin Franklin Station, P.O. Box 663 Washington, D.C. 20044-0663 Telephone: (202) 514-4565 Facsimile: (202) 305-0506 Email: [email protected] Attorney of Record for the Defendant THOMAS ZIA SARA CULLEY Trial Attorneys Natural Resources Section Environment and Natural Resources Division United States Department of Justice Washington, D.C. 20044-0663

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OF COUNSEL: Janet Goodwin Angela Kelsey Office of the Solicitor United States Department of the Interior

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