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

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IN THE UNITED STATES COURT OF CLAIMS ____________________________________ ) ) ) Plaintiffs, ) ) ) vs. ) ) ) THE UNITED STATES, ) ) Defendant. ) ____________________________________) SHELDON PETER WOLFCHILD et al.,

Case No. 03-2684L Hon. Charles F. Lettow Electronically filed on February 5, 2007

JANE ROBERTSON LINEAL DESCENDANTS ("VADNAIS GROUP") COLLECTIVE REPLY TO UNITED STATES' OPPOSITION TO VADNAIS MOTION TO INTERVENE The proposed intervenors, the Jane Robertson lineal descendants, labeled by the Defendant, the United States, as "the Vadnais Group", herewith respond to the February 2, 2007 Opposition of the United States to the Vadnais Motion to Intervene. The Vadnais Group submits that the Defendant's arguments are contrary to the unique circumstances inherent in the case sub judice and the authorities cited in the United States brief are distinguishable and otherwise unpersuasive. The Court of Claims standard of review for analyzing the Vadnais Group's Motion to Intervene was recently restated in Cherokee Nation of Oklahoma v. United States, 69 Fed. Cl. 148, 152-153 (Fed. Cl. 2005). This Court held, the following, This court has also recognized that, generally, courts will accept as true all well-pleaded, non-conclusory allegations in the motion to intervene, absent sham, frivolity, or other objections. See id. at 258; see also Mendenhall v. M/V Toyota Maru No. 11, 551 F.2d 55, 56 n.2 (5th Cir. 1977); Reich v. ABC/York-Estes Corp., 64 F.3d 316, 321 (7th Cir. 1995); Southwest Center for Biological Diversity v. Berg, 268 F.3d 810,

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819-820 (9th Cir. 2001); see also 6 JAMES WM. MOORE ET AL, MOORE'S FEDERAL PRACTICE § 24.03, at 24-51 (3d ed. 2002). Consequently, the factual statements contained in the Motion to Intervene filed by the Vadnais Group are assumed as true for the purposes of the Motion. It is noteworthy that the Defendant, the United States, does not claim that any of the facts in the Motion are a sham or otherwise frivolous. Their objections are not addressed to any particular factual statements in the Motion, but primarily the United States asserts that the Motion is untimely and that the United States has been prejudiced. The Government's arguments are without merit. I. THE UNITED STATES' ARGUMENT THAT THE VADNAIS GROUP'S MOTION TO INTERVENE IS UNTIMELY BELIES THE UNIQUE CIRCUMSTANCES INHERENT IN THE CASE, THEREBY PROVIDING COMPELLING RATIONALE TO SUSTAIN THE MOTION TO INTERVENE. The Defendant United States attacks the Motion to Intervene "because it is untimely". United States' Opposition Brief, p. 2. However, the proposed intervenors submit that the arguments and authorities cited by the Government are distinguishable on the facts of the case sub judice and otherwise unpersuasive. The United States first cite Cherokee Nation of Oklahoma v. United States, 54 Fed. Cl. 116, 118 (Fed. Cl. 2002) for the generic principle of law stating, "If such an application is untimely, intervention must be denied". The Government's recitation from the case stops prematurely at that point. The remainder of the quote provides, "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; unless that discretion is abused, the court's ruling will not be disturbed on review." [NAACP v. New York, 413 U.S. 345, 365, 37 L. Ed. 2d 648, 93 S. Ct. 2591 (1973).] 413 U.S. at 366.

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In reviewing the timeliness of a motion to intervene, the Court must balance the following factors: (1) the length of time during which the would-be intervenor actually knew or reasonably should have known of his right to intervene in the case before he applied to intervene; (2) whether the prejudice to the rights of existing parties by allowing intervention outweighs the prejudice to the would-be intervenor by denying intervention; (3) existence of unusual circumstances militating either for or against a determination that the application is timely. Sumitomo Metal Indus., Ltd. v. Babcock & Wilcox Co., 69 C.C.P.A. 75, 669 F.2d 703, 707 (C.C.P.A. 1982) (footnoted citations omitted). Cherokee Nation, Id. at 118. (Emphasis ours). The Cherokee Nation case is clearly distinguishable on its facts. Interestingly, the Indian tribe involved in the case was involved in litigation with the Government for over 30 years. This Court observed, "Plaintiffs [United Keewootah Band] have been involved in multiple ongoing negotiations and lawsuits with the United States in the past 32 years seeking compensation to resolve the dispute." Id. at 118. The case featured litigation in this Court which had been ongoing for 13 years ­ the present case has been ongoing since November 18, 2003. This Court observed that the Tribe in the Cherokee Nation had,

"passed up an opportunity to dispute its position and stake out a portion of the settlement." Id. at 118. In the present case, the proposed intervenors only found out that they were not going to present any position to this Court by a cryptic postcard sent mere days before the deadline ­ unaware that this Court had even extended the deadline to July 12, 2006 and also unaware that descendants not on either census would have an opportunity to prove their trust beneficiary status. The ultimate distinguishing factor between the Cherokee Nation case and the proposed intervenors is that, in the Cherokee Nation case, the litigants were sophisticated

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in litigation, and experienced with first-hand knowledge of the circumstances, electing to file amicus pleadings when they knew they could intervene, but also employing a risky strategy of consciously waiting until a chosen moment to seek intervention. In the present case, the proposed intervenors were left to wait for eighteen months to see if they were eligible to be in the case in the first instance, only to be unceremoniously rejected days before the stated deadline. They were not aware of their rights until their present counsel completed an exhaustive historical review and legal analysis which is contained within the "lengthy" Vadnais group's Motion to Intervene ­ filed immediately after the historical research could be expeditiously memorialized in writing by counsel. In fact, the public notices gave the sole, and erroneous, impression that descendants from the 1886 and 1889 census were eligible. The rejection postcard dated June 12, 2006, like the public notices, advised the proposed intervenors that they submitted insufficient evidence to qualify as beneficiaries of the two censuses ­ no mention was made that a possible avenue of establishing trust beneficiary status was available without regard to the censuses. The proposed intervenors are not experienced litigants, but, at least for the purposes of the Motion, have now submitted a prima facie case of eligibility without regard to either census ­ unchallenged by the Defendant. The remaining two cases cited by the Government are likewise opposite the unusual circumstances presented by the case sub judice. As a preliminary matter, it is noted that the intervenor in the Sand decision was eventually allowed to participate as an amicus party. See 457 F.3d 1345 (Fed. Cir. 2006). In the John R. Sand & Gravel Co. v. United States, 59 Fed. Cl. 645 (Fed. Cl. 2004) case cited by Defendant, this Court found that neither party identified any "unusual circumstances" nor did the Court find any such

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circumstances. Id. at 649. In the other case cited by the Defendant, Standard Space Platforms Corp. v. United States, 35 Fed. Cl. 463 (Fed. Cl. 1996), the Court's intervention analysis, pursuant to Rule 24, was done, sua sponte, after this Court noted that the party at issue, "has not intervened under Rule 24 in this case". Id. at 466. (Emphasis ours). Terming the party's request to be heard by the Court as an "eleventh hour request, two business days before the scheduled oral argument"; the Court considered the request as untimely. Id. at 466. Neither of the cases cited by the Government supports the timeliness argument presented by the Defendant. The Government's footnoted case, United States v. Alpine Land & Reservoir Co., 431 F.2d 763 (9th Cir. 1970) (footnote 1, Brief p. 2), involved a Tribe's motion to intervene filed forty-seven (47) years after filing of the complaint and twenty-seven years (27) after the trial ­ clearly inapplicable on the facts of the present case. Finally, the United States submission of authority in the case of Deukmejian v. Nuclear Regulatory Com'n, 751 F.2d 1287, 1318 (D.C. Cir. 1984) is inopposite to the present case as the Court in that case (a non-intervention case) observed, that the Plaintiffs sought reopening of an administrative record, "three years too late". The case sub judice is not an administrative proceeding, nor is discovery ongoing, dispositive motions pending nor has a trial occurred on the merits. Consequently, these cases are not persuasive and are factually distinguishable. The United States asserts that the basis of the Vadnais Group's motion is that the "members had difficulty getting legal representation to intervene in this lawsuit". United States' Opposition Brief, p. 2. Their argument is misplaced. The Vadnais Group thought that it was being represented by the Mohrman & Kaardal firm, however, through

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miscommunication and silence, the Group was unaware that the firm was primarily representing those lineal descendants on one of the two censuses. Unfortunately, the Vadnais group found out ­ too late for the June 12, 2006 and July 12, 2006 deadlines ­ that the Group did not meet the criteria set forth by the public notices. After conducting subsequent attempts to find legal representation, a process that took several months, the Vadnais Group found a firm that would only take the case after it was satisfied that the Jane Robertson lineal descendants possessed a good faith claim to trust beneficiary status which did not depend upon the presumptions arising from appearance on the two censuses. Their historical and legal research, much of which is recited in its Motion and the proposed Complaint, was detailed and time consuming. No other Plaintiff or proposed intervenor has submitted the product of their research and investigation in the historical detail as the proposed intervenors. Certainly, much of the time the Government complains that the Vadnais Group took after the deadline was in order to submit the exhaustive compendium of factual detail, historical records and exhibits in support, not only of the Group's Motion to Intervene, but ultimately, to support the Vadnais Group's Complaint and entitlement to status as trust beneficiaries without regard to the two censuses. The Jane Robertson lineal descendants submit that these unique circumstances constitute good cause; establishing a compelling case for sustaining the Motion to Intervene filed by the Vadnais Group. II. THE UNITED STATES BALD ASSERTION OF PREJUDICE IS WITHOUT MERIT AND SHOULD BE REJECTED AS A MATTER OF LAW. The Defendant United States asserts that, "prejudice will result to it from the addition of over 60 more individuals to the lawsuit." Defendant's Opposition Brief, p. 4. The case of John R. Sand & Gravel Co. v. United States, 59 Fed. Cl. 645 (Fed. Cl. 2004),

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cited by the United States in its brief, deals a substantive blow to the Government's position that it was prejudiced by the proposed intervenors' motion. The Court of Claims identified the standard by which prejudice was to be adjudged on a case by case basis, where it stated, The court must weigh the prejudice to the parties if intervention is allowed against the prejudice to the potential intervenor if intervention is not allowed. Belton Indus., Inc. v. United States, 6 F.3d 756, 762 (Fed. Cir. 1993). This prong measures only the prejudice caused by a potential intervenor's delay and not that caused by the intervention itself. Utah Ass'n of Counties v. Clinton, 255 F.3d 1246, 1251 (10th Cir. 2001).

John R. Sand & Gravel Co. Id. at 651. In other words, the Government's argument that it was prejudiced is not the test of whether substantial prejudice occurred ­ rather, it is the intervenor's delay that the Court must weigh among the three factors controlling the Court's discretion to allow or deny intervention. The Motion contains ample facts from which the Court can base its requested decision to sustain the Motion to Intervene. The Proposed intervenors submit that the case is not at a critical juncture such that prejudice would result by the delay in the Vadnais Group's filing of the Motion to Intervene. As stated, there are no pending summary judgment motions. This Court is still considering discovery requests of the parties. No depositions have been taken nor has any depositions been scheduled to proposed intervenors' knowledge. The issue of the Defendant's liability has been adjudged and the issue of damages is awaiting discovery. No trial has been scheduled nor has there been any pretrial order finalized, thereby crystallizing the factual and legal issues in the case. In short, the Defendant failed to identify anything of substance from which it erroneously claims prejudice; claiming it was prejudiced by, "keeping track of the name and affiliations of the persons named as

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plaintiff-intervenor" - these are ministerial tasks which the Government claims are "burdensome and logistically difficult". Defendant's Opposition Brief, p. 4. Such is the burden which the Government should bear as a fiduciary which looked the other way as the lineal descendants and their forefathers suffered without the support the Defendant was entrusted to provide the trust beneficiaries. It is enigmatic how the United States could reasonably argue about the significance of the addition of a group of 66 individuals, all sharing one prominent common Mdewakanton ancestor and family name, when there are over ten thousand or more lineal descendants already in the action. The United States' asserted prejudice for ministerial and administrative discomfort is far outweighed by the prejudice that would be heaped upon the Jane Robertson lineal descendants by rejection of their Motion to Intervene ­ Mdewakanton people whom dedicated their lives to Government and Native American service before, during and after the 1862 uprising, and in doing so, stayed in the State of Minnesota after the uprising for the privilege of sacrificing their lives, living in squalor and abject poverty and to otherwise be taken advantage of for the reward of non-support from the Government they served so well - notwithstanding the role of the Government as a fiduciary. The Government's argument rings hollow and their prejudice argument amounts to a tempest in a teapot. WHEREFORE, the Jane Robertson lineal descendants, also known as the Vadnais Group, respectfully renew their collective request to intervene as Plaintiffs in the captioned case, thereby rejecting the United States' arguments against their Motion to Intervene, for the reasons stated herein above, for the reasons set forth in their Motion to

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Intervene which is incorporated herein by reference and for such other and further reasons as this Honorable Court deem just and equitable.

Respectfully Submitted,

s/ R. Deryl Edwards, Jr. R. Deryl Edwards, Jr. MO# 48277 606 S. Pearl Joplin, MO 64801-2582 (417) 624-1962 (Telephone) (417) 624-1965 (Facsimile) [email protected] ATTORNEY FOR JANE ROBERTSON LINEAL DESCENDANTS a/k/a "the Vadnais Group"

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