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 March 12, 2007

DEFENDANT'S RESPONSE TO THE MOZAK GROUP'S MOTION TO AMEND AMENDMENT TO ITS SECOND AMENDED COMPLAINT IN INTERVENTION Defendant, the United States, submits this response to the "Mozak Intervenors' Motion To Amend Amendment To The Second Amended Complaint In Intervention" (Dkt. No. 426)). Several adults and minors, listed in Part I of Exhibit 1 to the motion seek to join the case as Intervenors. Others seek to have incorrect iterations of their names removed from the current version of the Complaint (Part II of Exhibit 1). In addition, another member of the "Mozak Group" seeks to correct his or her name (Part III of Exhibit 1.) In summary, the position of the United States on those requests is as follows. The United States does not oppose the removal of the four incorrect names listed in Part II. The United States also does not oppose the proposed correction of the name "Lee Stabler Redwing" to Lee Redwing Stabler (listed in Part III). Except as specifically noted below in this response, the United States opposes the addition to the suit of the persons listed at Part I of Exhibit 1 who are not listed in the current version of the Mozak Group's amended Complaint .

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The United States does not oppose the addition of the minor child identified as J.E. 1 and listed at paragraph 8 of Part I of Exhibit 1, based on counsel's assertions regarding the reasons that name was omitted from the current version of the Complaint (a one-letter difference between the spelling of J.E. 1's name and the name of a sibling who was listed.) The United States does not oppose the addition of Sheryl Denney Kramer, based on the assertion that counsel mistakenly understood that name to refer to the same person already listed by a similar name. (The United States notes, however, that it did not find the name "Cheryl Denney Derby," on the current version of the Complaint, but did find a "Cheryl Faye Derby Denny.") The request to add "Chelsey Starr Morales" to the suit presents an additional issue. It appears, based on the assertions in movants' Exhibit 1, that there may be minors listed on the current version of the Complaint without any person with legal capacity to sue averring that he or she is bring suit on their behalf. (See Exhibit 1, Part I, paragraph 6, in which movants assert that "Chelsey Starr Morales" was not one of the plaintiff-intervenors already admitted to the suit but "Chelsey's other minors appear on a prior complaint.)" It is not clear from the motion whether those unidentified putative minor plaintiff-intervenors currently are represented in this suit by a "next friend" or other representative within the meaning of Rule 17. The position of the United States on the request to add Chelsey Starr Morales to the suit, and on the question whether Chelsey Starr Morale's other minors" already listed in the existing version of the Complaint may proceed depends (in part) on the answer to that question. In summary, except with respect to J.E. 1 and Sheryl Denney Kramer, and the matter of Chelsey Starr Morales and "her other minors," as explained above, the United States opposes the proposed addition of the other persons listed in Part I of Exhibit 1 to the motion. The assertions

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that various relatives of those who seek to be added to the suit may have been listed on one or more versions of the various iterations of the Mozak Group's Complaint do not establish good cause why the new potential intervenors should be added. To allow additional persons to join the suit late on the basis that their names "should have" been included in earlier-filed iterations of the Complaint, or because various relatives were included, 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. Likewise, the mere fact that a person was born after the

July 12, 2006, deadline for joinder does not, under all the circumstances, provide a basis to add him or her to the suit now. To continue to add plaintiffs as they are born contravenes the principles of orderly joinder and moving the suit toward termination. Furthermore, the United States notes that contrary to movants' assertions, prejudice to it will result from the continued addition of persons to the lawsuit, and concomitant amendments of various Complaints, eight months after the extended deadline. 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 various late-filed motions to add parties 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. Counsel for various intervenor groups evidently have had considerable difficulty keeping track of their own clients' names and family relationships,

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and even the number of their clients. The burden for other parties and the Court to keep track of the ever-changing groups of litigants is even greater. The import of many of the party-related motions, viewed collectively, is that several counsel (representing various intervenor groups) are unsure who their clients are. That circumstance does not establish good cause for continued amendments to add additional persons to the case. 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. Under all of the circumstances, to grant movants permission to join the suit now long after the Court's cutoff date, would contravene the principle of ensuring "orderly" joinder. For all of these reasons, the motion should be denied, except with respect to the corrections noted in Part II and III of movants' Exhibit 1; and the addition of the names of minor J.E. 1 and adult Sheryl Denney Kramer.

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Dated: March 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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