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

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

Case No. 03-2684L Hon. Charles F. Lettow Electronically filed on February 2, 2007

DEFENDANT'S OPPOSITION TO VADNAIS MOTION TO INTERVENE Defendant, the United States, hereby responds to the Motion To Intervene (Dkt. No. 400) filed by certain proposed Intervenors, the first-listed of which is "Victoria Robertson Vadnais" represented by R. Deryl Edwards, Esquire (hereinafter "the Vadnais Group"). The motion seeks intervention on behalf of 66 additional Plaintiff-Intervenors to the case, although the Court set a final deadline of July 12, 2006 for filing motions to intervene. The United States opposes the request to add additional plaintiff-intervenors, as it explains below. "According to the United States Supreme Court, both intervention as of right and permissive intervention rely on timely application." Cherokee Nation of Oklahoma v. United States, 54 Fed. Cl. 116, 118 (Fed. Cl. 2002) (citing NAACP v. New York, 413 U.S. 345, 365 (1973)). "If such an application is untimely, intervention must be denied." Id. "The requirement of timeliness is not a tool of retribution to punish the tardy would-be intervenor, but rather a guard against prejudicing the original parties by the failure to apply sooner." Sierra

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Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994) (citation omitted).1/ The United States opposes the Vadnais Group's request to add the additional persons listed in the caption of the Motion to Intervene as intervenors, because it is untimely. Litigation in this lawsuit began on November 18, 2003. The subject matter of this litigation was apparent from Plaintiffs' Complaint; and movants' proposed Complaint in Intervention parrots Plaintiffs' Complaint, in large part. Yet, the Vadnais Group's request to add 66 additional persons was filed on January 17, 2007, over six months after the July 12, 2006, deadline set by the Court. Because of this lengthy delay, the Vadnais Group's motion for intervention should be denied. See, e.g., John R. Sand & Gravel Co. v. United States, 59 Fed. Cl. 645, 651 (Fed. Cl. 2004), aff'd sub nom. John R. Sand & Gravel Co. v. Brunswick Corp., 143 Fed. Appx. 317 (Fed. Cir. 2005) (denying motion for intervention when the intervenor-applicants delayed approximately sixteen months in filing their motion to intervene and case had progressed beyond the preliminary stage); Standard Space Platforms Corp. v. United States, 35 Fed. Cl. 463, 466 (Fed. Cl. 1996) (finding motion to intervene untimely when the intervenor-applicant delayed six months before making an application for intervention). The Vadnais Group's attempts to explain their delay fail to overcome the untimeliness of their motion. The Vadnais Group filed a lengthy motion but in essence the Vadnais Group alleges that its members had difficulty getting legal representation to intervene in this lawsuit, filed over three years ago. Vadnais Group's Mot. at 6 (alleging that the proposed Plaintiffs did not have adequate time to obtain counsel after being advised that the law firm of Mohrman and

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"The `timely application' requirement of Rule 24 applies to Indians as well as other litigants." United States v. Alpine Land & Reservoir Co., 431 F.2d 763, 767 (9th Cir. 1970). 2

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Kaardal opted not represent them); see also id. at 31. The Vadnais Group's filing makes clear that its members were on notice of the lawsuit since ­ at least ­ January 31, 2005. Id. at 5 (stating that a majority of the proposed Plaintiffs entered into a contingent fee agreement with counsel or signed a statutory short form of power of attorney on or about January 31, 2005). The burden lies with the proposed Intervenors to contact, communicate with, and obtain counsel. The Vadnais Group's allegations simply do not constitute "good cause" in the context of this case. "The inability to retain counsel and experts before expiration of the prescribed time period constitutes no legal justification for [the Vadnais Group's] delay. If it did, the principle of finality underlying filing deadlines, statutes of limitations and legal time bars would be rendered subordinate to the financial and practical vicissitudes of individual litigants." Deukmejian v. Nuclear Regulatory Comm'n, 751 F.2d 1287, 1318 (D.C. Cir. 1984).2/ In addition, the Vadnais Group contends that they were notified on or about June 12, 2006 that they did not have legal representation in this matter. Vadnais Group's Mot. at 6. The Vadnais Group contends that it is "unreasonable" to expect that they could have retained counsel and adequately prepared an appropriate pleading before the Court's filing deadline. Id. The Vadnais Group, however, has made no attempt to file for an enlargement of time to seek intervention in this lawsuit. The Vadnais Group's failure to seek such relief continued even after they retained counsel in November, 2006. Id. at 32. Indeed, the Vadnais Group did not file the motion at issue until January 17, 2007. In short, the Vadnais Group has not given the Court any basis to conclude that the 66 proposed new Plaintiffs have good cause to join the suit over six

A separate portion of Deukmejian v. Nuclear Regulatory Comm'n, 751 F.2d 1287, 1318 (D.C. Cir. 1984) was vacated by San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory Com'n, 760 F.2d 1320 (D.C. Cir. 1985) (vacating section III. B). 3

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months late. Furthermore, the United States notes that contrary to movants' assertions, prejudice will result to it from the addition of over 60 more individuals to the lawsuit. As noted above, this litigation began over three years ago, and it has generated a substantial volume of filings: over 415 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. For example, simply keeping track of the name and affiliations of the persons named as plaintiffintervenors, and their varying allegations and disposition of their motions to the Court, is burdensome and logistically difficult. Moreover, as it has previously noted, 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. For all of these reasons, the Motion To Intervene (Dkt. No. 400) should be denied.

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Dated: February 2, 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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