Free 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 ____________________________________ SHELDON PETER WOLFCHILD, et al., ) ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA ) ) Defendant. ) ____________________________________)

Case No. 03-2684L Hon. Charles F. Lettow Electronically filed on February 12, 2007

DEFENDANT'S OPPOSITION TO KITTO MOTION TO INTERVENE Defendant, the United States, submits this opposition to the Motion To Intervene (Dkt. No. 413) filed by certain proposed intervenors, the first-listed of which is "Jeffrey Arnold Kitto" (hereinafter collectively referred to as "the Kitto Group"). The motion seeks intervention in the case on behalf of 106 additional potential Plaintiff-Intervenors, despite the Court's deadline of July 12, 2006, for filing motions to intervene. This Court should deny the motion, because the deadline for intervention passed over six months ago and movants have not shown good cause why they should be permitted to intervene after the twice-extended deadline. To grant the motion to intervene would be inconsistent with the principle expressed in Hoffmann-LaRoche v. Sperling, 493 U.S. 165, 170, 171 (1989) that the Court should oversee the joinder of additional parties in an orderly manner, a responsibility that includes setting cutoff dates, "as [the Court] was bound to do if the action was to proceed in diligent fashion." 493 U.S. at 172. The reasons the motion should be denied are discussed in greater detail below.

This lawsuit was filed in 2003. The subject matter of the litigation was apparent from 1

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Plaintiffs' Complaint; and from the Court's published decisions of October 2004 and December 2005. The Court twice extended the deadline for intervention in this case. It supervised the contents and publication of notice to be provided by the plaintiffs to potential "lineal descendants." When it extended to July 12, 2006, the deadline for filing motions to intervene, it ordered that anyone who sought intervention after that date had to show good cause for his or her late application. [Dkt. 166]. Yet the Kitto Group's request to add 106 additional persons was filed on January 24, 2007, over six months after the July 12, 2006, deadline set by the Court. The Court should deny the Kitto Group's request to add the over 100 additional persons listed in the caption of the Motion to Intervene as intervenors, because it is untimely and movants failed to establish good cause for their late motion.1/ Rule 24 makes timeliness a threshold requirement of any motion to intervene. RCFC 24. See, e.g., Cherokee Nation of Oklahoma v. United States, 69 Fed. Cl. 148, 152 (Fed. Cl. 2005). "`Timeliness is to be determined from all the circumstances. And it is to be determined by the court in the exercise of its sound discretion.'" Id., quoting NAACP v. New York, 413 U.S. 345, 366 (1973). "The court's determination as to timeliness `will not be disturbed' `unless that discretion is abused.'" Cherokee Nation, supra, 69 Fed. Cl. at 152, quoting NAACP, supra, 413 U.S. at 366. In this case, the question whether any motion to intervene is timely must be considered against the background of this Court's extensions of the intervention deadline, and the

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Aside from the timeliness issue, the United States continues to maintain that Plaintiffs, including these additional groups of potential plaintiffs-interveners, are not an "identifiable group of American Indians" within the meaning of the Indian Tucker Act, 28 U.S.C. § 1505. Defendant will not reiterate its arguments on that jurisdictional issue here, but reserves all of its defenses, including but not limited to its defenses on this issue. 2

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requirement that movants show "good cause" for late filing. The Kitto Group's motion fails to provide any basis upon which this Court reasonably could conclude that "good cause" exists for the untimely motion to intervene. In essence, the Kitto Group alleges that its members had difficulty getting legal representation to intervene in this lawsuit. Kitto Group's Mot. at ¶¶ A6, B6, C6, D6 (stating that the proposed intervenors received notices of non-representation from the firm of Mohrman & Kaardal). The Kitto Group's vague allegations about difficulty in obtaining counsel do not constitute "good cause" in the context of this case. For example, the motion does not state when any of the group's 106 members learned of the litigation, or why (it appears) they did not communicate with an attorney until two and one half years after the litigation had commenced.2/ Although "courts will [generally] accept as true all well-pleaded, non-conclusory allegations in [a] motion to intervene," one of the factors the Court should consider is "the length of time during which the would-be intervenor actually knew or reasonably should have known of its right to intervene." Cherokee Nation of Oklahoma v. United States, 69 Fed. Cl. 148, 152-153 (Fed. Cl. 2005). Movants' allegations about when certain members of the group contacted the Mohrman & Kaardal firm about this case show that they were on notice of the existence of this lawsuit as of at least April of 2006.3/ The members of the Kitto Group already had their various lineage

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Some Kitto group members claim they contacted the law firm of Mohrman & Kaardal in April of 2006 and some in June of 2006. Kitto Mot. to Int. at 6-8. The Group's motion for intervention fails to disclose when members of the Kitto Group became aware of the litigation; however, by April of 2006 most of the group had communicated with the law firm of Mohrman & Kaardal to inquire about the litigation. Kitto Mot. to Int. at 6-8. 3
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documentation compiled by April of 2006 when they submitted them to Mohrman and Kaardal.4/ The Group's allegations also show that they were notified no later than June or July, 2006 that they did not have legal representation in this matter. Kitto Group's Mot. at Ex. C, E. Yet they did not seek intervention until January 24, 2007, and made no effort to obtain a reasonable extension of time to file a motion to intervene. The responsibility to communicate with and obtain counsel lies with the potential intervenors. "The inability to retain counsel and experts before expiration of the prescribed time period constitutes no legal justification for [the Kitto Group's] delay. If it did, the principle of finality underlying filing deadlines, statutes of limitations and legal time bars would be rendered subordinate to the financial and practical vicissitudes of individual litigants." Deukmejian v. Nuclear Regulatory Com'n, 751 F.2d 1287, 1318 (D.C. Cir. 1984).5/ Likewise, the assertion that movants failed to seek intervention earlier because they believed the deadline had already passed, fails to establish "good cause." Any cutoff date set by the Court would be meaningless if a belief that the deadline had passed sufficed as a reason to seek intervention six months late. Given the timeliness requirement for intervention under Rule 24, the Orders from this Court requiring that "good cause" be shown as part of any motion to intervene after the various deadlines had passed; and the Court's responsibility to ensure "orderly" joinder, movants' scanty

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It appears that that the Mohrman & Kaardal law firm warned the Kitto Group to "not send in original documents." Kitto Mot. to Int. at Exh. D, pg. 3. A separate portion of Deukmejian v. Nuclear Regulatory Com'n, 751 F.2d 1287, 1318 (D.C. Cir. 1984) was vacated by San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory Com'n, 760 F.2d 1320 (D.C. Cir. 1985) (vacating section III. B). 4
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allegations do not establish good cause for 106 persons moving to intervene six months after the twice-extended deadline. Furthermore, the United States notes that contrary to movants' assertions, prejudice to it will result from the addition of over 100 more individuals to the lawsuit six months after the extended deadline. As noted above, this litigation began over three years ago, and it has generated a substantial volume of filings: over 420 docket entries in this Court including a number of Opinions and Orders from the Court related to threshold issues. The continual addition of parties to this case is disruptive and prejudices the parties' rights and interests in resolving the litigation in a timely fashion. The need for the Defendant and the Court to address the several late-filed motions for intervention has prevented the case from proceeding more expeditiously, prejudicing all parties. In addition, keeping track of the names and affiliations of the persons named as plaintiff-intervenors, and their varying allegations and disposition of their motions to the Court, is burdensome and logistically difficult. Moreover, the United States is entitled to have certainty and closure respecting the number and identities of the persons who are suing it in this action; as well as respecting the claims brought by those persons. Likewise, the Court and the other parties are entitled to certainty and closure regarding the number and identities of all parties. The Hoffman-LaRoche v. Sperling case, on which this Court relied, in large part, for its authority to issue notice concerning this suit to potential plaintiffs (Wolfchild v. United States, 68 Fed. Cl. 779, 797 (2005)("Wolfchild II"), endorses the application of cutoff dates set by the Court in advance, to ensure that joinder proceeds in an orderly fashion. Hoffman-LaRoche, supra, 473 U.S. at 172. To grant intervention under the circumstances here, long after the Court's cutoff date, would

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contravene the principle of ensuring "orderly" joinder. For all of these reasons, the Motion To Intervene (Dkt. No. 413) should be denied.

Dated: February 12, 2007.

Respectfully submitted, 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] Attorneys 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

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

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