Free Motion to Certify Interlocutory Appeal - District Court of Federal Claims - federal

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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 July 16, 2007

DEFENDANT'S MOTION TO CERTIFY ORDERS FOR INTERLOCUTORY APPEAL RONALD J. TENPAS Acting Assistant Attorney General Environment and Natural Resources Division 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. 20044-0663

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OF COUNSEL: Janet Goodwin James Porter Office of the Solicitor United States Department of the Interior

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TABLE OF CONTENTS I. II. QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. B. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STANDARDS FOR CERTIFICATION FOR INTERLOCUTORY APPEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

III.

ARGUMENT: THE COURT'S OCTOBER 2004, DECEMBER 2005, AND AUGUST 2006 ORDERS MEET THE REQUIREMENT FOR CERTIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 A. THIS COURT'S ORDERS INVOLVE CONTROLLING QUESTIONS OF LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 SUBSTANTIAL GROUNDS FOR DIFFERENCE OF OPINION EXIST, CONCERNING ALL THESE CONTROLLING QUESTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 1. Substantial Grounds for Difference of Opinion Exist Concerning Whether the Appropriations Acts at Issue Created a Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Substantial Grounds for Difference of Opinion Exist Concerning Whether the 1980 Act Terminated Any Preexisting Trust, and the Related Consequences . . . . . . . . . . . . . . . . . . 12 Substantial Grounds for Difference of Opinion Exist also as to Whether the Three Communities Became "Agents" of the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

B.

2.

3.

C.

INTERLOCUTORY APPEAL OF THE ORDERS AT ISSUE WILL ADVANCE THE ULTIMATE TERMINATION OF THE LITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 1. Resolving Whether the Appropriations Acts Gave Rise To a Trust Would Materially Advance the Resolution of the Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

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2.

Resolving Whether the 1980 Act Terminated the Purported Trust Would Also Materially Advance the Termination of the Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Resolution of the Question Whether the Communities are the Agents of the United States, also may Materially Advance the Ultimate Termination of the Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . 20

3.

IV.

THIS COURT SHOULD STAY PROCEEDINGS IN THIS COURT PENDING RESOLUTION OF AN INTERLOCUTORY APPEAL . . . . . . . . . . . . . . . . 20 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

V.

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TABLE OF AUTHORITIES FEDERAL CASES American Tel. & Tel.Co. v. United States, 33 Fed. Cl. 540 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B & G Enters. v. United States, 220 F.3d 1318 (Fed. Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Brown v. United States, 86 F.3d 1554 (Fed. Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Coast Fed. Bank, FSB v. United States, 49 Fed. Cl. 11 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22 Favell v. United States, 22 Cl. Ct. 132 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 16 INS v. Cardozo-Fonseca, 480 U.S. 421 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Inter Tribal Council of Arizona, Inc. v. Babbitt, 51 F.3d 199 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Jones v. United States, 801 F. 2d 1334 (Fed. Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21 (2d Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Lincoln v. Vigil, 508 U.S. 182 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Menominee Tribe of Indians v. United States, 607 F.2d 1335 (Ct. Cl. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 19 Miami Nation of Indians of Ind. v. Babbitt, 112 F. Supp.2d 742 (N.D. Ind. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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Pikes Peak Family Housing v. United States, 40 Fed. Cl. 673 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Quick Bear v. Leupp, 210 U.S. 50 (1908) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Sac & Fox Tribe of Indians of Okla. v. Apex Constr. Co., 757 F.2d 221 (10th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Scholder v. United States, 428 F.2d 1123 (9th Cir. 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Sokaogon Gaming Enterprise Corp. v. Tushie-Montgomery Assocs., 86 F.3d 656 (7th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 United States v. Connolly, 716 F.2d 882 (Fed. Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 United States v. Mitchell, 445 U.S. 535 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 United States v. Mitchell, 463 U.S. 206 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 United States v. Navajo Nation, 537 U.S. 488 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9, 11 Vereda, Ltda. v. United States, 46 Fed. Cl. 569 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Wolfchild v. United States, 62 Fed. Cl. 521 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Wolfchild v. United States, 68 Fed. Cl. 779 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Wolfchild v. United States, 72 Fed. Cl. 511 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Wolfchild v. United States, 2007 WL 1227691 (Fed. Cl. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

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FEDERAL STATUTES 24 Stat. 388 (1887) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 25 Stat. 217 (1888) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 25 Stat. 980 (1889) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 25 U.S.C. §§ 479a, 479a-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 26 Stat. 336 (1890) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 28 U.S.C. § 1292 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Pub. L. No. 96-557, 94 Stat. 3262 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 12 Pub. L. No. 103-454, 108 Stat. 4791 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 OTHER AUTHORITY 1994 U.S.C.C.A.N. 3768 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 16 C. Wright, A. Miller, and E. Cooper, Federal Practice & Procedure, § 3930 (West Publishing Co. 2d ed. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 19 James Wm. Moore, et al., Moore's Federal Practice, § 203.31[1] (3d ed. 1999) . . . . . . . . 3,16 House of Representatives Report No. 103-781 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Restatement (Third) of Agency § 1 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Senate Report 1047, 96th Cong. (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

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Pursuant to Rule 7 of the Rules of the United States Court of Federal Claims ("RCFC"), Defendant, the United States, through its undersigned counsel, respectfully requests that the Court amend its October 27, 2004, December 16, 2005, and August 22, 2006, Orders, to include the express finding prescribed by 28 U.S.C. § 1292(d)(2) (2006), and thereby formally certify those orders for interlocutory appeal. Those orders involve controlling questions of law with respect to which there is substantial ground for difference of opinion, and an appeal from those orders now will materially advance the ultimate termination of this litigation. The United States also moves the Court to stay further proceedings in this case pending the conclusion of any interlocutory appeal. The grounds for this motion are set forth below. I. QUESTION PRESENTED Whether this Court's October 2004, December 2005, and August 2006 Orders should be certified for interlocutory appeal, pursuant to 28 U.S.C. § 1292(d)(2)? II. STATEMENT OF THE CASE A. BACKGROUND

In an October 27, 2004, Order, the Court denied the United States' motion to dismiss in part and granted Plaintiffs' cross-motion for summary judgment in part. Wolfchild v. United States, 62 Fed. Cl. 521 (2004)("Wolfchild I").1/ The Court held "that (1) a trust was created in connection with and as a consequence of the 1888, 1889, and 1890 Appropriations Acts for the benefit of the loyal Mdewakanton and their lineal descendants, which trust included land, improvements to land, and monies as the corpus, (2) such trust was neither extinguished nor

1/

This Court dismissed Plaintiffs' purported "breach of contract" claim because it is time-barred.

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terminated by the 1980 Act, and (3) such trust was breached by the United States through actions taken in December 1980 and thereafter." Id. at 525. The United States moved for reconsideration. In a December 16, 2005, Order, the Court reviewed its grant of partial summary judgment to Plaintiffs in Wolfchild I and adhered to its earlier ruling, denying the motion for reconsideration. Wolfchild v. United States, 68 Fed. Cl. 779, 801 (2005)("Wolfchild II"). Pursuant to the Court's Order in Wolfchild II, Plaintiffs' counsel published notice of this lawsuit so that other potential plaintiffs could intervene. By Order dated August 22, 2006, the Court granted intervention to all those who had filed motions by July 12, including the Lower Sioux Indian Community (hereinafter, "the Lower Sioux Community" or "Lower Sioux"). The Court also granted Plaintiffs' motion that summonses issue to bring the Shakopee Mdewakanton Sioux Community and the Prairie Island Indian Community into the litigation as parties, involuntarily.2/ The United States filed Answers to thirty-six Complaints in Intervention and the summoned Communities moved to quash the summonses issued to them. On April 27, 2007, the Court issued its rulings on those additional party-related motions, and others filed between the July 12, 2006, deadline and April 2007. This litigation is at a point where interlocutory appeal is appropriate. The Court has ruled on fundamental issues regarding Plaintiffs' case and the identified Orders contain various controlling questions of law, whose resolution at this stage in the litigation will materially advance the litigation's termination.

2/

The Lower Sioux Community, the Shakopee Mdewakanton Sioux Community and the Prairie Island Indian Community are referred to in this memorandum collectively as the "three Communities."

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B. STANDARDS FOR CERTIFICATION FOR INTERLOCUTORY APPEAL The Court can certify an order for interlocutory appeal where (1) the order involves a controlling question of law; (2) substantial ground for difference of opinion exist regarding that controlling question; and (3) certification of that order may materially advance the ultimate termination of the litigation if the certification order is issued. 28 U.S.C. § 1292(d)(2) (2006); Favell v. United States, 22 Cl. Ct. 132, 143 (1990). That test is designed to assess the relative burdens and benefits attendant to allowing an immediate appeal. American Tel. & Tel. Co. v. United States, 33 Fed. Cl. 540, 541 (1995). The three elements listed above therefore should be viewed together as a "unitary requirement" so the Court may consider the probable gains and losses of certification against proceeding with a full disposition of the case. 19 James Wm. Moore, et al., Moore's Federal Practice, § 203.31[1], at 203-86 (3d ed. 1999). Furthermore, in certifying a question for interlocutory appeal to the Federal Circuit, the court "may . . . assess the burdens and benefits of certification by considering factors such as the probability of reversal, the hardship on the parties, and judicial proceedings avoided by the reversal of an interlocutory ruling." Vereda, Ltda. v. United States, 46 Fed. Cl. 569, 570 (2000). Application of these principles compels the conclusion that an interlocutory appeal of the Court's October 2004, December 2005, and August 22, 2006, Orders is appropriate in this case.

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III.

ARGUMENT: THE COURT'S OCTOBER 2004, DECEMBER 2005, AND AUGUST 2006 ORDERS MEET THE REQUIREMENT FOR CERTIFICATION A. THIS COURT'S ORDERS INVOLVE CONTROLLING QUESTIONS Of LAW.

All three of the Orders as to which the United States seeks interlocutory review involve "controlling questions" within the meaning of 28 U.S.C. § 1292 (2006). "[I]t is clear that a question of law is `controlling' if reversal of the [trial] court's order would terminate the action." Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 24 (2d Cir. 1990). Likewise, "[t]here is no doubt that a question is `controlling' if its incorrect disposition would require reversal of a final judgment ... ." 16 C. Wright, A. Miller, and E. Cooper, Federal Practice & Procedure, § 3930, at 423 (West Publishing Co. 2d ed. 1996)(hereinafter, "Wright & Miller") . Questions are "controlling" when they "materially affect issues remaining to be decided in the trial court." Pikes Peak Family Housing v. United States, 40 Fed. Cl. 673, 686 (1998); see also United States v. Connolly, 716 F.2d 882, 883 n. 1 (Fed. Cir. 1983) (noting that the language of section 1292(d)(2) is "virtually identical to 28 U.S.C. § 1292(b) (1976), which governs interlocutory review by other courts of appeals"). Thus, a question is controlling if reversal would terminate the action or resolution of the question might "save time for the [trial] court, and time and expense for the litigants." Wright & Miller § 3930, at 426. Under those principles and as explained in detail below, the Court's October 27, 2004, December 16, 2005, and August 22, 2006, Orders present the following controlling questions of law: (1) Whether a trust was created in connection with and as a consequence of the 1888, 1889, and 1890 Appropriations Acts for the benefit of the loyal Mdewakanton and their lineal descendants, which trust included land, improvements to land, and monies as the corpus? (2) If the Appropriations Acts created such a trust, whether Congress terminated

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that trust with enactment of the 1980 Act? (3) Whether the Lower Sioux, Prairie Island and Shakopee Indian Communities act as the agents of the United States as a result of the 1980 Act? This Court's October 2004 decision that the Appropriations Acts created a trust for the benefit of the loyal Mdewakanton, and the December 2005 Order, which reviewed but adhered to that October 2004 decision, plainly involve controlling questions of law. The decision that the Appropriations Acts in question gave rise to a trust for the benefit of the "loyal Mdewakanton" forms the basis for Plaintiffs' breach of trust claim, and therefore the entire case. Moreover, without a statutory source of a money-mandating duty flowing from the United States to Plaintiffs, this Court lacks jurisdiction over Plaintiffs' purported claims. To state a claim within Tucker Act or Indian Tucker Act jurisdiction, Plaintiffs "must identify a substantive source of law that establishes specific fiduciary or other duties, and allege that the Government has failed faithfully to perform those duties." United States v. Navajo Nation, 537 U.S. 488, 506 (2003). Plaintiffs must also show that "the relevant source of substantive law can fairly be interpreted as mandating compensation for damages sustained as a result of a breach of the duties the governing law imposes." Id. (internal quotation marks and brackets omitted). Unless Plaintiffs meet both of those requirements, this Court lacks jurisdiction over their alleged claims. In sum, because the ruling that the Appropriations Acts gave rise to a trust is the basis for jurisdiction in this Court, as well as for Plaintiffs' entire theory of their case, it clearly is a "controlling question." Likewise, the question whether the Court's interpretation of the 1980 Act is correct is also a "controlling" question within the meaning of 28 U.S.C § 1292. "The interpretation of the

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1980 Act, central to plaintiffs' claims of breach of trust and the government's defenses to those claims, is manifestly at issue in this case." Wolfchild v. United States, 72 Fed. Cl. 511, 532 (2006) ("Wolfchild III"). In the 1980 Act, Congress declared that the land at issue was "hereby declared to hereafter be held by the United States . . . in trust for" the federally-recognized Lower Sioux, Prairie Island and Shakopee Indian Communities in Minnesota. Act of Dec. 19, 1980, Pub. L. No. 96-557, 94 Stat. 3262, § 1. (Exhibit 7, Memorandum of Law in Support of Motion for Reconsideration (Dkt no. 62) at 1). The United States argued that the proper interpretation of that 1980 Act was that it extinguished any alleged pre-existing trust. This Court, however, ruled that the 1980 Act did not terminate the trust purportedly created by the Appropriations Acts. Wolfchild I, 62 Fed. Cl. at 543-44; also see Wolfchild III, 72 Fed. Cl. at 528. If that ruling is incorrect, many of the Plaintiffs' claims are subject to dismissal. If the 1980 Act extinguished the Appropriations-Acts based trust, Interior's actions after that time could not have breached any duties of the then-extinguished trust. Moreover, if the 1980 Act extinguished any pre-existing trust, there could be no viable claims based on either the enactment or implementation of the 1980 Act under the holding of Menominee Tribe of Indians v. United States, 607 F.2d 1335, 1340-45 (Ct. Cl. 1979).3/ For all of the foregoing reasons, the question of the proper interpretation of the 1980 Act, which lies at the heart of the Court's October 2004, December 2005, and August 2006, Orders, is

3/

In Wolfchild I, 62 Fed. Cl. at 549, the Court distinguished Menominee Tribe based on the premise that the 1980 Act did not extinguish any pre-existing trust duties but instead created a trust-on-a-trust. The Court thus concluded that "it was the Department of the Interior that allegedly breached its duty to the lineal descendants, not Congress." Id.

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a "controlling question" for the purpose of certifying those orders for interlocutory appeal. Like the first two questions set forth above, the question whether the Communities serve as agents of the United States since the passage of the 1980 Act is also a controlling question for purposes of interlocutory appeal. The conclusion that the three Communities are the agents of the United States in "controlling and administering the trust property" (as the Court held in its August 22, 2006, Order) affects questions such as the potential scope of the alleged liability of the United States and whether the United States might have potential claims against the Communities. Accordingly, the resolution of this issue is "quite likely to affect the further course of the litigation" and is thus appropriate for interlocutory appeal. See Sokaogon Gaming Enterprise Corp. v. Tushie-Montgomery Assocs., 86 F.3d 656, 658-659 (7th Cir. 1996)("A question of law may be deemed `controlling' if its resolution is quite likely to affect the further course of the litigation, even if not certain to do so."). Moreover, all of the above-listed questions and the related Orders are controlling because their resolution on interlocutory appeal will sharpen the focus of any remaining issues, for the purpose of discovery and other proceedings. That would reduce the burden of such proceedings on all parties and the Court. Such considerations are especially compelling in this case because of the broad time periods potentially involved and the tremendous number of individuals who joined the case after Plaintiffs published notice of the litigation at the Court's direction in Spring 2006. B. SUBSTANTIAL GROUNDS FOR DIFFERENCE OF OPINION EXIST, CONCERNING ALL THESE CONTROLLING QUESTIONS

There are substantial grounds for difference of opinion about the correct resolution of all

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of the controlling questions identified above. 1. Substantial Grounds for Difference of Opinion Exist Concerning Whether the Appropriations Acts at Issue Created a Trust.

The United States contends that the Appropriations Acts did not give rise to a trust nor impose any other specific fiduciary duty on the United States, but were instead appropriations and authorizations for expenditure of funds. The Court concluded otherwise, finding that all the elements of a trust were present (i.e., a trustee, beneficiary and corpus). See Wolfchild I, 62 Fed. Cl. at 540-41. Substantial grounds for difference of opinion exist on this issue. First, the Appropriations Acts do not use the term "trust," nor do they contain any trust language with respect to the expenditure of the appropriated funds. The Supreme Court has long distinguished between funds held in trust for Indian tribes "which belong to the Indians and [are] administered for them by the government" and "gratuitous appropriation[s] of public moneys" which "belong[] to the government." Quick Bear v. Leupp, 210 U.S. 50, 77 (1908); see also Sac & Fox Tribe of Indians of Okla. v. Apex Constr. Co., 757 F.2d 221, 222 (10th Cir. 1985); Scholder v. United States, 428 F.2d 1123, 1129 (9th Cir. 1970); cf. Lincoln v. Vigil, 508 U.S. 182, 193-94 (1993) (allocation of lump-sum appropriations under Snyder Act and Indian Health Care Improvement Act is dedicated to agency discretion and unreviewable). The lack of explicit trust language in the Acts at issue, and the discretion given by the Acts in how to spend the funds, indicate that the Acts did not create trust duties actionable under the Tucker Act or Indian Tucker Act. Indeed, the Appropriations Acts provided the Secretary vast discretion in how to spend the appropriated funds. Such broad discretion is inconsistent with the requirement that the source of substantive law must impose a specific duty to give rise to a cause of action in this

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court. In other words, Congress's appropriation of money for the Secretary to expend on individual Indians "as he may think best" did not give rise to a fiduciary duty and is not sufficient to establish jurisdiction under the Tucker Act and Indian Tucker Act. See Navajo Nation, 537 U.S. at 506. Another substantial ground for difference of opinion concerns whether the Appropriations Acts intended to bestow benefits on the "heirs" of the individual Indians described in the Acts. The pertinent language of the 1889 and 1890 Acts directed that certain appropriated funds were to be "expended by the Secretary of the Interior . . . in the purchase, as in his judgment he may think best, of such lands, agricultural implements, seeds, cattle, horses, food or clothing as may be deemed best in the case of each of these Indians or family thereof".4/ The Court found that the reference to "family" in the 1888 and 1889 Acts, together with other agency practices, revealed an intent to extend the benefits of the appropriations at issue to the "heirs" of the "loyal Mdewakanton." The Court relied in part on the fact that the Indian Land Certificates "certified that an assignee `and his heirs are entitled to immediate possession of said land.'" Wolfchild I, 62 Fed. Cl. at 542 (emphasis in original). In the Court's view this, too, was an indication that the lands were held in trust and "the lineal descendants are beneficiaries." Id. In contrast, the United States maintains that the language of the Indian Land Certificates, which are not Acts of Congress and cannot alter the plain meaning of the Acts,

4/

Act of March 2, 1889, 25 Stat. 980. (Exhibit 1 D, Defendant's Motion to Dismiss and Memorandum in Support Thereof (Dkt no. 10) at 3). The pertinent portion of the 1890 Act uses the words "each of these Indians or families thereof." Act of August 19, 1890, 26 Stat. 336. (Exhibit 1 E, Defendant's Motion to Dismiss and Memorandum in Support Thereof (Dkt no. 10) at 3).

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should not be deemed to expand the word "family," used by Congress in the 1889 and 1890 Appropriations Acts, to mean "heirs."5/ There exists a strong presumption that "Congress expresses its intent through the language it chooses" and that the choice of words in a statute is therefore deliberate and reflective. INS v. Cardozo-Fonseca, 480 U.S. 421, 433 n. 12, 436 (1987); see also Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 222 (1986)("Normal principles of statutory construction require that we give effect to the subtleties of language that Congress chose to employ . . . ."). Congress clearly knew how to say "heirs" when it intended a benefit to run to heirs. For example, in the Dawes Act, 24 Stat. 388 (1887), concerning allotments to individual Indians, Congress expressly provided for "heirs."6/ Additional grounds for difference of opinion exist regarding the nature of the Appropriations Acts, because without a declaration by Congress that "unambiguously provide[s]

The 1888 Appropriations Act is unambiguous in funding assistance to specific individuals, and did not create a trust extending to lineal descendants. The 1888 Appropriations Act referred neither to "heirs" nor "family," as among those whom the appropriations were to benefit, but only to "said Indians," that is, "those full-blood Indians in Minnesota, belonging to the Medewakanton Band of Sioux Indians, who have resided in said State since the twentieth day of May, A.D. eighteen hundred and eighty-six, and severed their tribal relations . . . ." Act of June 29, 1888, 25 Stat. 217. (Exhibit 1 C, Defendant's Motion to Dismiss and Memorandum in Support Thereof (Dkt no. 10) at 2).
6/

5/

In the Dawes Act, Congress provided "upon the approval of the allotments provided for in this act by the Secretary of the Interior, he shall cause patents to issue therefor [sic] in the name of the allottees, which patents shall be of the legal effect, and declare that the United States does and will hold the land thus allotted ... in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in the case of his decease, of his heirs according to the laws of the State or Territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, . . . ." Dawes Act, § 5, 24 Stat. 388, 389 (1887). This language contrasts with that of the Appropriations Acts at issue in this case, in which Congress did not provide for the "heirs" of the persons to receive benefits from the appropriations at issue.

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that the United States has undertaken full fiduciary responsibilities," even if the Appropriations Acts had created a trust (which Defendant does not concede), they did not give rise to the type of claims on which Plaintiffs may sue the United States. United States v. Mitchell, 445 U.S. 535, 542 (1980) ("Mitchell I"); compare United States v. Mitchell, 463 U.S. 206, 225-226 (1983) ("Mitchell II")(specific duties defined by statute and regulation). See, e.g., Inter Tribal Council of Arizona, Inc. v. Babbitt, 51 F.3d 199, 203 (9th Cir. 1995). As the Supreme Court and Federal Circuit have explained, "[T]he analysis must train on specific rights-creating or duty-imposing statutory or regulatory prescriptions." Navajo Nation, 537 U.S. at 506; see also Mitchell II, 463 U.S. at 219 (tribe must show that statutes or regulations at issue can "fairly be interpreted as mandating compensation for damages sustained as a result of a breach of the duties they impose"); Brown v. United States, 86 F.3d 1554, 1563 (Fed. Cir. 1996) ("`[t]he scope and extent of the fiduciary relationship' alleged to have been breached `is established by the regulation[s]' that control this type of leasing") (quoting Pawnee v. United States, 830 F.2d 187, 192 (Fed. Cir. 1987)); Brown, 86 F.3d at 1563 ("where no specific statutory requirement or regulation is alleged to have been breached by the Secretary, the money claim against the government must fail"). In sum, the Appropriations Acts do not contain language expressly creating a trust, nor any language that can fairly be interpreted as mandating compensation for damages. For these and the other reasons set forth above and in Defendant's previous filings, there are substantial grounds for difference of opinion regarding whether the Appropriations Acts created a trust, and therefore regarding whether this Court has jurisdiction over the claims that the United States breached any fiduciary duties allegedly arising from that trust.

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2.

Substantial Grounds for Difference of Opinion Exist Concerning Whether the 1980 Act Terminated Any Preexisting Trust, and the Related Consequences.

Substantial grounds for a difference of opinion exist regarding the proper interpretation of the 1980 Act, and the October 27, 2004, December 16, 2005, and August 22, 2006, Orders all involve that controlling question. The 1980 Act provides, in pertinent part, that: all right, title, and interest of the United States in those lands (including any structures or other improvements of the United States on such lands) which were acquired and are now held by the United States for the use or benefit of certain Mdewakanton Sioux Indians under the [Appropriations Acts], are hereby declared to hereafter be held by the United States . . . in trust for the [three Communities]. Act of Dec. 19, 1980, Pub. L. No. 96-557, 94 Stat. 3262, § 1. (Exhibit 7, Memorandum of Law in Support of Motion for Reconsideration (Dkt no. 62) at 1). The United States argued that the 1980 Act terminated the purported trust (if one existed) and therefore the Court lacked jurisdiction over claims that arose from the passage of the 1980 Act or later events. The Court rejected that position. It concluded, instead, that the 1980 Act did not extinguish the purported trust because when Congress intends to terminate a trust it typically uses far more explicit language. Wolfchild I, 62 Fed. Cl. at 543. The Court found that all the 1980 Act did was transfer only the United States' legal title to the lands, while equitable title remained with the loyal Mdewakanton and their descendants. Id.; also see Wolfchild III, 72 Fed. Cl. at 528; and April 27, 2007, Order at 11, n. 14, 2007 WL 1227691, *12 (Fed. Cl. 2007). The Court held that "the 1980 Act did not terminate the trust created respecting the 1886 property," 62 Fed. Cl. at 543, and concluded that the 1980 Act may have created a "trust on a trust." Wolfchild I, 62 Fed. Cl. at 544, n. 13; see also, Wolfchild III, 72 Fed. Cl. at 528 ("The 1980 Act essentially created an overlay on the earlier trust."). Accordingly, the Court concluded, it had

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jurisdiction over Plaintiffs' claims relating to the 1980 Act and alleged post-1980 breaches of trust. Wolfchild I, 62 Fed. Cl. at 551. Several substantial grounds for difference of opinion arise regarding this controlling question. One ground is that the interpretation of the 1980 Act in this fashion runs counter to the Act's core language, which declares the 1886 lands "to hereafter be held . . . in trust for" the three Communities. The proposition that equitable title "remained with" the so-termed loyal Mdewakanton and their descendants after the lands were transferred to be held in trust for the Communities directly contradicts that language of the 1980 Act. There are also reasonable grounds to dispute whether the lack of explicit termination language in the 1980 Act is legally significant. The conclusion that it is depends on the premise that a trust existed before Congress enacted the 1980 Act. Yet if the Appropriations Acts did not create a trust to begin with (as the United States contends), it makes perfect sense that Congress did not use explicit language to terminate the purported trust. In short, because no such trust existed before the 1980 Act, Congress did not contemplate "terminating" it and did not include termination language. Even assuming (arguendo only) that a trust was created by the Acts, authority from the Federal Circuit (among other courts) teaches that a trust may be terminated other than by explicit "termination language." For example, in Jones v. United States, 801 F. 2d 1334 (Fed. Cir. 1986), the Federal Circuit held, "[a] trustee may repudiate an express trust by words or, as in this case, by actions inconsistent with his obligations under the trust." Id. at 1336, citing Philippi v. Phillipe, 115 U.S. 151, 157 (1884). The related conclusion that the 1980 Act created "an overlay on the earlier trust,"

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Wolfchild III, 72 Fed. Cl. at 528, also engenders substantial grounds for difference of opinion. The legislative history establishes that one purpose of the 1980 Act was to eliminate the problems caused by a "checkerboard pattern" of land holdings and land use, which developed as the United States acquired land in the area of the Communities. See S.R. 1047, 96th Cong. (1980), cited and quoted in Defendant's Motion To Dismiss And Memorandum In Support Thereof, filed March 15, 2004 (Dkt. No. 10). There is no reason to believe Congress intended to remedy such problems by creating a "trust on a trust," nor by making the Communities the agents of the United States for any purpose, including administering the 1886 lands for their own benefit. Either of those scenarios would exacerbate, rather than cure, the complexities caused by the "checkerboard" of mixed holdings and uses of land. 3. Substantial Grounds for Difference of Opinion Exist also as to Whether the Three Communities Became "Agents" of the United States.

In its August 22, 2006, Order, the Court held that the three Communities became the agents of the United States when they took possession of the 1886 lands under the 1980 Act. Wolfchild III, 72 Fed. Cl. at 538-39. The decision to grant intervention to the Lower Sioux Indian Community was based on that view. Id. at 531. The Court's analysis of agency rested in large part on the observation that "the Department of the Interior, in implementing the 1980 Act, transferred control of the trust property, improvements, and monies to the Communities." Id. at 539. From that the Court inferred that "the Communities thus have acted as agents of the Department of the Interior." Id. But the transfer of control over property falls far short of establishing an agency relationship. For one thing, the Communities could not be agents of the United States unless the United States exercised control over their actions, see B & G Enters. v.

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United States, 220 F.3d 1318, 1323-24 (Fed. Cir. 2000); Restatement (Third) of Agency § 1 (2006), but there is no evidence of such control here. Moreover, far from establishing an agency relationship, "[f]ederal acknowledgment establishes an intergovernmental relationship between the United States and the acknowledged tribe. An acknowledged tribe becomes a domestic dependent nation with inherent sovereign authority independent of the United States and independent of the state in which it is located." Miami Nation of Indians of Ind. v. Babbitt, 112 F. Supp.2d 742, 745 (N.D. Ind. 2000). Finally, not surprisingly given the government-to-government relationship7/ that exists between the United States and federally-recognized tribes or communities, there is no evidence that the Communities consented to, or ever acknowledged, owing fiduciary duties to the United States, a fundamental characteristic of an authentic agent-principal relationship. See, e.g., Restatement (Third) of Agency § 1 (2006). For all of these reasons, substantial differences of opinion exist on this issue, as well.

7/

Regarding the nature of the relationship between the United States government and federallyrecognized tribes or communities, see also the House Report accompanying the Federally Recognized Indian Tribe List Act of 1994 ("List Act"). The Federally Recognized Indian Tribe List Act of 1994 ("List Act") is contained in Public Law 103-454, 108 Stat. 4791, Title I. The List Act is now codified at 25 U.S.C. §§ 479a, 479a-1. The Report of the U.S. House of Representatives that accompanied the List Act notes that "[r]ecognized' is more than a simple adjective; it is a legal term of art." It explains further that federal "recognition" (a) confirms that the Tribe is a "domestic dependent nation" capable of a "government-to-government relationship" with the United States; (b) "institutionalizes the tribe's quasi-sovereign status, along with all of the powers accompanying that status such as the power to tax, and to establish a separate judiciary"; ( c ) and "establishes tribal status for all federal purposes." H.R. Rep. No. 103-781, at 2-3 (1994), reprinted in 1994 U.S.C.C.A.N. 3768.

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C.

INTERLOCUTORY APPEAL OF THE ORDERS AT ISSUE WILL ADVANCE THE ULTIMATE TERMINATION OF THE LITIGATION

The third consideration in the "unitary requirement"8/ for interlocutory appeal of orders containing controlling questions is whether resolution of the identified questions would "possibl[y] material[ly] advance the ultimate termination of the litigation. . . ." Favell v. United States, 22 Cl. Ct. 132, 143 (1990). Each of the three questions the United States has identified in this memorandum meets that criterion. 1. Resolving Whether the Appropriations Acts Gave Rise To a Trust Would Materially Advance the Resolution of the Litigation.

The question whether the Appropriations Acts gave rise to a trust, and a moneymandating duty flowing from the United States to the so-termed lineal descendants, is fundamental to this case. Not only would its resolution materially advance the resolution of the case, but its reversal on appeal would require the termination of the litigation: Plaintiffs' case depends on their claim that a trust existed; and, furthermore, absent a source of a moneymandating duty flowing from the United States to Plaintiffs, this Court has no jurisdiction over Plaintiffs' claims. Determination of that controlling question by the Court of Appeals now may eliminate any need to resolve a panoply of legal and factual issues in the trial court. Those issues include what criteria define the "lineal descendants" of the persons intended to benefit from the Appropriations Acts in question; which of the over 20,000 Plaintiffs meet those criteria; the

8/

19 James Wm. Moore, et al., Moore's Federal Practice, § 203.31[1], at 203-86 (3d ed. 1999).

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contours and extent of the alleged breach of trust and of the alleged trust itself;9/ the parameters of any accounting to be performed (if necessary) after those matters are determined; and a calculation of any damages allegedly owed to whichever of the over 20,000 Plaintiffs are found, after trial, to be entitled to such damages. Likewise, it would eliminate any need to decide the twenty-three additional questions that Intervenors identified in their June 15, 2007, joint status report to the Court. (Dkt No. 499, at 5-6.).10/ Furthermore, Plaintiffs have filed two additional motions for partial summary judgment. (See Dkt No. 102; the motions for partial summary judgment were in the same filing in which Plaintiffs requested that summonses be issued to the three Communities and their members.) One of those motions seeks summary judgment on a question styled by Plaintiffs as whether the United States "failed to collect and disburse proceeds from trust lands to lineal descendants

This court has emphasized that "[e]ntry of partial summary judgment in favor of [the original] plaintiffs ... does not extend beyond a conclusion that the government has, as a general matter, breached its fiduciary duties under the trust created for the loyal Mdewakanton and their lineal descendants." Wolfchild I, 62 Fed. Cl. at 551. The court noted that, particularly in view of the fact that "plaintiffs who belong to a community may have received benefits ... [and]... [b]ecause plaintiffs include members of each of the three communities as well as non-members, individual plaintiffs may differ insofar as they have suffered injury from the breach." 62 Fed. Cl. at 551. Likewise, the court has noted, "[t]he record is incomplete as to the extent of the breach by the government of its fiduciary duties." Id. In addition, "[n]o inventory of funds and lands constituting the corpus has been made ...". Id. Similarly, as the Court noted in its August 22, 2006, Order, "each applicant has a separate responsibility to establish that he or she is a member of the group of lineal descendants and cannot rely on others to make that showing." Wolfchild III, 72 Fed. Cl. at 520.
10/

9/

E.g., "What other censuses or evidence should be utilized regarding substantiating proof that a plaintiff should be a member of the beneficiary class?"; "What is meant by severing tribal relations or how do we establish an individual has severed tribal relations?"; and "How should we treat the fact that many individuals received allotments on other reservations, including some on the 1886 and 1889 censuses?" Joint Preliminary Status Report By Intervenors, Dkt. No. 499, at 5, numbered paragraphs 4, 8, and 19.

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since at least 1975."11/ Briefing and further proceedings on those motions has been stayed because, as the this Court correctly ruled, Plaintiff-Intervenors should have the opportunity fully to participate in the litigation, if any, of those motions. (See Dkt. No. 106, the Court's March 20, 2006, Order.) With those motions and the factual and legal issues described above yet to be resolved, there can be no question that appellate decision on whether the Appropriations Acts gave rise to a trust may advance the termination of the lawsuit. 2. Resolving Whether the 1980 Act Terminated the Purported Trust Would Also Materially Advance the Termination of the Litigation.

The same considerations that make the proper interpretation of the 1980 Act a "controlling question," as explained supra, make clear that the resolution of that question on interlocutory appeal also would materially advance the termination of the litigation. If, as the United States argues, the 1980 Act terminated the purported pre-existing trust, this lawsuit will shrink dramatically. Indeed, it is likely that it would terminate entirely. Post-1980 acts form the heart of Plaintiffs' case; indeed, such acts were the only bases of liability Plaintiffs alleged in the first three iterations of their Complaint. See Plaintiff's Complaint, Dkt No. 1, ¶¶ 32-42, and First Amended Complaint, Dkt No. 6, ¶¶ 32-42 (both alleging that the alleged breaches began "in the 1990's"); and Second Amended Complaint, Dkt No. 54, ¶ 26 (alleging the "United States' complete breach of trust began in 1980.").

11/

The other motion sought summary judgment on the questions whether the United States has breached its supposed fiduciary duties to "lineal descendants" by approving the Shakopee Mdewakanton Sioux Community "base roll" and, further, that Community's constitution. It appears, based on the July 12, 2007, telephonic meet-and-confer amongst counsel, that Plaintiffs do not intend to pursue that motion.

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The case likewise will shrink dramatically or terminate if for any other reason the Court is found to lack jurisdiction over claims arising from or post-dating passage of the 1980 Act. As just one example, reversal of this Court's determination that Menominee Tribe, 607 F.2d 1335, does not bar Plaintiffs' claims would mean that all claims arising from the transfer of the 1886 Lands and proceeds therefrom to the three Communities are barred. A determination that Plaintiffs' proper remedy was to sue for an alleged taking after passage of the 1980 Act, and therefore their claims are now time-barred, would have the same effect. In short, an appellate determination that Menominee Tribe bars Plaintiffs' post-1980 claims would radically narrow the scope of potential liability, and the number and complexity of the issues requiring resolution in the trial court before this case can be brought to a conclusion. In contrast, if the litigation proceeds in this Court now, among the important issues to be decided in the trial court before any final judgment might be rendered include whether, and to what extent, proceeds of casinos and other tribal businesses constitute "trust funds" or "trust proceeds." A related matter is what consequences flow from this Court's ruling that the three Communities are the "agents" of the United States as a result of the 1980 Act and the transfer to the Communities of the United States' interest in the 1886 Lands. Similarly, the legal and factual issues surrounding the Court's determination that "[t]he 1980 Act essentially created an overlay on the earlier trust," Wolfchild III, 72 Fed. Cl. at 528, must be decided if the case proceeds in the trial court now. Such issues promise to be complex. An interlocutory appeal offers the possibility of eliminating the need to address and decide such issues.

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3.

Resolution of the Question Whether the Communities are the Agents of the United States also may Materially Advance the Ultimate Termination of the Litigation.

Interlocutory appeal also offers the possibility of avoiding the need to decide a host of factual and legal issues raised by the disputed question whether the Communities became the United States' "agents" for the purpose of "controlling and administering" the 1886 lands. Those issues include the scope of the alleged agency; which post-1980 acts or omissions of the three Communities fell within, and which without, the scope of the agency; the consequences of the Communities' owing fiduciary duties to the United States as their principal; and others. Likewise, the implications of the supposed agents having "a fiduciary duty to the lineal descendants to administer the 1886 lands and associated monies according to the terms of the trust for the benefit of the lineal descendants of the loyal Mdewakanton, as well as to themselves as the beneficiaries of the overlaid trust created by the 1980 Act." Wolfchild III, 72 Fed. Cl. at 529. To eliminate such issues from the case at this stage would materially advance the termination of the litigation. IV. THIS COURT SHOULD STAY PROCEEDINGS IN THIS COURT PENDING RESOLUTION OF AN INTERLOCUTORY APPEAL

Should this Court certify the identified Orders for interlocutory appeal, a stay of further proceedings in this Court pending resolution of that appeal would be the most appropriate course, consistent with judicial economy. Any such stay should apply to the consolidated Cermak case as well as this one.12/

Cermak v. United States, No. 01-568L (U.S. Court of Federal Claims). The Court consolidated the cases via its August 22, 2006, Order (Dkt No. 250), on the grounds that "[c]onsolidating the Cermaks' trust mismanagement claim with Wolfchild would increase

12/

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"A court has broad discretion to stay proceedings before it in the interests of `economy of time and effort for itself, for counsel, and for litigants.'" Coast Fed. Bank, FSB v. United States, 49 Fed. Cl. 11, 15 (2001), quoting Landis v. N. American Co., 299 U.S. 248, 254 (1936). Although 28 U.S.C. § 1292 does not require that the trial court proceedings be stayed pending interlocutory appeal, staying this sprawling case is appropriate. First, a decision in favor of the United States on one or more of the controlling questions identified above would likely terminate the litigation, or drastically reduce its scope. Such circumstances make a stay particularly appropriate. "In deciding whether to stay proceedings [pending interlocutory appeal], the court considers whether `the ... order appealed from, if vacated, would vitiate the [] proceedings' below." Coast Fed. Bank, 49 Fed. Cl. at 15, quoting United States v. Local 560 (I.B.T.), 694 F.Supp. 1158, 1186 (D. N.J. 1988). Moreover, the time periods potentially at issue in this case span over a century, Plaintiffs' theories of liability have continued to shift, and the number of Plaintiffs has swelled to over 20,000 individuals, who assert differing theories of descendancy and status as beneficiaries of the purported trust. Extraordinarily expensive and time-consuming endeavors including the briefing of complex issues, discovery, trials or mini-trials to determine descendancy and other issues, and, possibly, an accounting in aid of judgment, lie before the

judicial efficiency. Both cases have similar questions of law and fact; Cermak and Wolfchild involve the corpus of the trust arising under the Appropriation Acts, and the trust claimants in the two cases must address many of the same factual issues, including whether they are trust beneficiaries, namely, lineal descendants of the loyal Mdewakanton." Wolfchild III, 72 Fed. Cl. at 526. For similar reasons, should this Court certify the Orders at issue for interlocutory appeal, Defendant intends to request a stay of proceedings in Belgarde v. United States, No. 07-0265L, which this Court ordered to be filed as an "indirectly related case." April 27, 2007, Order, Dkt. No. 455.

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parties. For all parties, it makes sense to stay further proceedings pending appeal. Second, as in Coast Fed. Bank, "[t]rying the case under one set of assumptions, then retrying it under a different set of assumptions due to a reversal on appeal, would be inconsistent with judicial economy." 49 Fed. Cl. at 15. As explained above, the Orders at issue involve questions that not only are "controlling" within the meaning of 28 U.S.C. § 1292, but form the essence of the litigation. It does not make sense for the parties or the Court to embark on proceedings to resolve questions regarding the contours of the supposed trust and the alleged breaches of the trust; conduct discovery; engage in proof of and challenges to the genealogical claims of over 20,000 individuals; resolve the factual disputes regarding those genealogies; or address the legal and factual issues relating to any proposed accounting, while an interlocutory appeal is proceeding that may eliminate the need for some or all of those proceedings and the attendant time and expense of all parties and the Court. There will be no prejudice to Plaintiffs or Plaintiff-Intervenors resulting from a stay pending the resolution of an interlocutory appeal. It is in the interest of all to avoid the extensive proceedings described above if the case may be terminated, or significantly reduced, by decision on appeal now. V. CONCLUSION

For all of these reasons, Defendant's motion to certify the October 2004, December 2005, and August 2006, Orders for interlocutory appeal, and to stay all further proceedings in this Court pending appeal, should be granted.

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Dated: July 16, 2007.

Respectfully submitted, RONALD J. TENPAS 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 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

OF COUNSEL: Janet Goodwin James Porter Office of the Solicitor United States Department of the Interior

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CERTIFICATE OF SERVICE I hereby certify that on this 16th day of July, 2007, I directed that the NOTICE OF ELECTRONIC FILING of the foregoing Defendant's Motion To Certify Orders For Interlocutory Appeal be sent by U.S. MAIL, FIRST-CLASS POSTAGE PREPAID, to: Kermit A. Belgarde, # 905798 Airway Heights Correction Center NORA UNIT B-39-L P.O. Box 1839 Airway Heights, WA 99001-1839 Francis Felix P.O. Box 141232 Minneapolis, MN 55414 Philip Baker-Shenk Holland & Knight, LLP 2099 Pennsylvania Avenue, NW Suite 100 Washington, DC 20006

Dated: July 16, 2007

/s Laura Maroldy Laura Maroldy

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