Free Response to Motion - 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 March 26, 2007

DEFENDANT'S OPPOSITION TO BELGARDE MOTION TO INTERVENE

Defendant, the United States, submits this opposition to the Motion to Intervene (not filed electronically but referred to in Court's order, Dkt. No. 434) filed by proposed intervenor Kermit Redeagle-Belgarde (hereafter "Belgarde" or "Mr. Belgarde") on his own behalf and purportedly as the representative of other unnamed intervenors (hereafter collectively referred to as "the Belgarde Group"). The motion seeks intervention in the case on behalf of Belgarde and an unspecified number of unnamed intervenors, despite the Court's deadline of July 12, 2006, for filing motions to intervene. This Court should deny the motion because it is untimely, because the Belgarde group's claimed "interest" differs substantially from that of the existing Plaintiffs in this case, and because movants seek to add new claims and issues to the existing lawsuit. Defendant also objects to Belgarde's attempt to represent unnamed "relatives" who are not members of his immediate family. The reasons the motion should be denied are discussed in greater detail below. As a preliminary matter, Kermit Redeagle-Belgarde's attempt to represent "several

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relatives" (Belgarde Group's Motion at 3) contravenes Rule 83.1 of the Rules of the United States Court of Federal Claims (RCFC). Mr. Belgarde's papers state that he is appearing pro se. They contain no indication that he is a member of the bar of this Court. Rule 83.1 prohibits those who are not members of the bar of this Court from representing others before the Court, except, in limited circumstances, members of a litigant's immediate family. This Court addressed this issue, with respect to the Frances E. Felix, et al., group of Plaintiff-Intervenors, and ordered that representation by pro se Plaintiff-Intervenors may only extend to "immediate family" under Rule 83.1(c)(8).1/ The Belgarde Group's motion does not provide the names of Mr. Belgarde's "relatives" and provides no indication whether they are "immediate" family or whether they have even agreed that Belgarde will represent them in these proceedings. Instead, Mr. Belgarde states only that these individuals are relatives and that they have been unable to obtain death certificates and birth certificates to prove their ancestry. (Belgarde Group's Motion at 3). Rule 11 and Rule 83.1 exist for the protection of all parties and prospective litigants, and for the Court, to ensure (among other things) that unauthorized representations and filings are not made purportedly on

For example, in its October 5, 2006, Order granting an extension of time for the Felix Group to file a First Amended Complaint complying with this Court's Rules, the Court ordered that "the amended complaint, among other things, should ... reflect substituted counsel in place of Ms. Felix as a pro se plaintiff at the very least insofar as a larger group than her immediate family is involved." (Dkt. 301; emphasis added) (also see August 30, 2006, Order, Dkt 291, at 1; also see August 22, 2006, Order, at 11, n. 9.) While this Court may give limited leeway to pro se litigants in certain respects, it may not permit them to ignore Rules 11 or 83.1, engage in the unauthorized practice of law, or represent persons (or be represented) other than as specifically set forth in Rule 83.1. See, e.g., Carter v. United States, 62 Fed. Cl. 365, 368 (2004) (citations omitted) ("While pro se litigants are generally allowed some leniency in the formalities of their pleadings, they are not immune from laws and rules of procedure simply on the basis of their pro se status.") See also, Saladino v. United States, 62 Fed. Cl. 782 (2004). 2

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behalf of litigants; that putative litigants have competent advice and counsel in matters before this Court; and that the Court and the parties do not have to consume time and resources attempting to resolve otherwise avoidable issues that arise as a result of unrepresented persons' failed attempts to navigate a complex case in compliance with the law and the Court's Rules. Because Mr. Belgarde has not complied with the Court's Rules respecting pro se litigants, this Court should consider his Motion to Intervene as encompassing only Mr. Belgarde himself. Regardless whether the motion encompasses Mr. Belgarde only, or additional persons, the motion must fail because the deadline to seek intervention has passed. 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. This lawsuit was filed in 2003. The subject matter of the litigation was apparent from 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 Mr. Belgarde requests to add an unspecified number of additional persons to the lawsuit over eight months after the July 12, 2006, deadline set by the Court. The Court should deny Belgarde's request to join the case or to add additional persons, because the request is untimely

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and Belgarde failed to establish good cause for the late motion.2/ Rule 24 makes timeliness a threshold requirement of any motion to intervene. RCFC 24. See, e.g., Cherokee Nation of Okla. v. United States, 69 Fed. Cl. 148, 152 (2005). "`[T]imeliness is to be determined from all the circumstances. And it is to be determined by the court in the exercise of its sound discretion.'...[T]he court's determination `will not be disturbed' `unless that discretion is abused.'" 69 Fed. Cl. at 152 (quoting NAACP v New York, 413 U.S. 345, 366 (1973)). The Belgarde motion fails to provide any basis upon which this Court reasonably could conclude that "good cause" exists for the untimely request to intervene. In the Proposed Complaint,3/ the purported group asserts that the delay was caused because of a lack of response from this Court, a lack of response from Erick Kaardal's law office and an inability to obtain birth and death certificates. (Belgarde Group's Prop. Comp. at 3). The Group's own exhibits demonstrate that some documents, such as Belgarde's birth certificate, were obtained as early as September 2, 2005. (Belgarde Group's Motion, App. A). Yet there is no explanation for why other records were not obtained earlier or what reasonable efforts were made to obtain those records. In addition, Belgarde fails to explain what it was that the Court or Mr. Kaardal's office did that prevented the Belgarde Group from filing the motion

Aside from the timeliness issue, the United States continues to maintain that Plaintiffs, including the additional "group" of potential plaintiffs-intervenors Mr. Belgarde purports to represent 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.
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The Belgarde Group's Proposed Complaint contains several arguments pertaining to the issue of intervention that, for the purpose of this response, Defendant will assume were intended to support the Belgarde Group's Motion to Intervene. 4

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prior to the Court's July 12, 2006, deadline. The Belgarde Group's vague allegations about difficulty in communicating with the Court and Mr. Kaardal's office do not constitute "good cause" in the context of this case. For example, the motion does not state when any of the group's members learned of the litigation, or why they did not file their motion until two and one half years after the litigation had commenced. 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." 69 Fed. Cl. at 152-53. The responsibility to communicate with and obtain counsel, if necessary, 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 Belgarde Group's] delay. If it did, the principle of finality underlying filing deadlines, statutes of limitations and other legal time bars would be rendered subordinate to the financial and practical vicissitudes of individual litigants." Deukmejian v. Nuclear Regulatory Comm'n, 751 F.2d 1287, 1318 (D.C. Cir. 1984).4/ 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 allegations do not establish good cause for an unspecified number of persons moving to intervene eight months after the twice-extended deadline. Although it is unclear how large the purported Belgarde Group is, the addition of any

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 Comm'n, 760 F.2d 1320 (D.C. Cir. 1985) (vacating section III. B). 5

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number of additional intervenors eight months after the Court-ordered deadline will prejudice the United States. As noted above, this litigation began over three years ago, and it has generated a substantial volume of filings: over 442 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. 473 U.S. at 172. To grant intervention under the circumstances here, long after the Court's cutoff date, would contravene the principle of ensuring "orderly" joinder. The Belgarde Group's motion must be denied for the additional, independent reason that Belgarde does not "claim an interest relating to the property or transaction which is the subject

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of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest" within the meaning of RCFC 24 (a), as required for intervention as of right. Nor does Belgarde's "claim or defense and the main action have a question of law or fact in common" within the meaning of RCFC 24(b)5/. On the contrary, as Defendant explains below, whatever interests (if any) the members of the purported Belgarde group have differ from those asserted by the existing Plaintiffs, who allege that they are lineal descendants of the "loyal Mdewakanton." Furthermore, for the purpose of intervention under Rule 24, "[t]he interest of applicants in the property or transaction must be `of such direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment.' The interest thus may not be either indirect or contingent. The interest must also be a `legally protectable interest.'" John R. Sand & Gravel Company v. United States, 59 Fed. Cl. 645, 653 (2004), citing and quoting American Maritime Transp. Inc. v. United States, 870 F.2d 1559, 1562 (Fed. Cir. 1989). Belgarde's claims do not meet any of these requirements. According to the motion to intervene, the Belgarde Group traces its lineage to "Little Crow," who was born "Tayoyateduta." (Belgarde Group's Motion at Appendix B and untitled Appendix, including attached article titled "Famous Native Minnesotans."). According to the assertions of the Belgarde Group, Little Crow was a chief of Mdewakanton Dakota Sioux tribe. ("Famous Native Minnesotans" article at 1-2). The article attached to the motion to intervene states that Little Crow had a substantial leadership role in the 1862 Indian rebellion, including leading an attack on the Redwood Agency that killed twenty men, the attack on Fort Ridgely and

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Belgarde appears to have sought intervention as of right pursuant to RCFC 24(a). 7

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the attack on New Ulm that succeeded in burning most of the town. Id. Little Crow was killed by a settler in 1863 after unsuccessfully attempting to rally warriors to continue attacks on the United States. Id at 3. The Belgarde Group appears to claim that sometime after 1863, Little Crow's brother, John Little Crow, and the entire Little Crow family changed their names to "Wakeman" and became "Loyal Mdewekanton Sioux." Id. In contrast, Plaintiffs and the Plaintiff-Intervenors granted intervention in this lawsuit alleged that they are beneficiaries of a purported trust allegedly established by the Appropriations Acts in 1888, 1889, and 1890 to benefit certain Mdewekanton Sioux who were "loyal" to the United States during the Sioux outbreak of 1862, not those who allegedly became "loyal" years later. E.g., Wolfchild v. United States, 62 Fed Cl. 521, 526-7 (2004). In contrast, the Belgarde Group appears to claim that their ancestors led the Sioux outbreak, a claim substantially different legally and factually from the "interest" and basis for recovery claimed by other Plaintiffs in this case. 6/ Accordingly, even if Belgarde's motion were timely (and it is not), neither intervention as of right or permissive intervention is appropriate here. The request for intervention should be denied for the additional reason that movants seek to inject new claims and new issues into the lawsuit. Belgarde alleges that three casinos on the Shakopee Mdwekanton Dakota Sioux Community, the Lower Sioux Indian Community and the Prairie Island Indian Sioux Coummunity were "illegally established within those Dakota Sioux Communities" and "illegally approved by the United States Government." (Belgarde Group's

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The Belgarde Group also alleges in passing that they are descended from several other families listed in the 1886 and 1889 census but provides no information as to how they are "related" or any other specifics regarding that allegation. (Belgarde Group's Motion at Exhibit A). A party is not entitled to intervene based upon conclusory allegations. E.g., United States v. Franklin Parish Sch. Bd., 47 F.3d 755, 757 (5th Cir. 1995). 8

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Motion at 2). Such claims differ from those asserted by the existing Plaintiffs in this litigation. An intervenor must take the litigation as he or she finds it and may not change the issues framed between the original parties. See, e.g., Seminole Nation of Okla. v. Norton, 206 F.R.D. 1, 7 (D.D.C. 2001); Ill. Bell Tel. Co. v. F.C.C., 911 F.2d 776, 786 (D.C. Cir. 1990). Rule 24 and governing case law do not permit a person to intervene to raise new issues or issues that are outside the scope of those framed by the original parties to the main suit. Time-Warner Entm't Co. v. F.C.C., 56 F.3d 151, 202 (D.C. Cir. 1995), cert. denied, 516 U.S. 1112 (1996). CONCLUSION For all of these reasons, the Motion To Intervene (Dkt. No. 434) should be denied. Dated: March 26, 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 9

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

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CERTIFICATE OF SERVICE I hereby certify that on this 26th day of March, 2007, I directed that the foregoing DEFENDANT'S OPPOSITION TO BELGARDE MOTION TO INTERVENE and that the NOTICE OF ELECTRONIC FILING 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; and that the Notice of Electronic Filing (only) be sent by U.S. MAIL, FIRST-CLASS POSTAGE PREPAID, to: 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: March 26, 2007

/s Laura Maroldy Laura Maroldy

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