Post by hermin1 on Sept 29, 2012 14:09:17 GMT -5
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IN THE UNITED STATES
COURT OF FEDERAL CLAIMS
SHELDON PETERS WOLFCHILD,
et al.
Case No. 03-2684L
Judge Charles F. Lettow
Plaintiffs,
vs.
UNITED STATES
Defendant.
PLAINTIFFS’ COORDINATED RESPONSE TO MOTION FOR STAY, ETC.
Dated: September 28, 2012 Erick G. Kaardal
Mohrman & Kaardal, P.A.
33 South Sixth Street, Suite 4100
Minneapolis, MN 55402
(612) 341-1074 Telephone
(612) 341-1076 Facsimile
Attorneys for Plaintiffs
Case 1:03-cv-02684-CFL Document 1125 Filed 09/28/12 Page 1 of 7
The Plaintiffs object to the government’s motion to stay, at this time, because the government is not likely to prevail on appeal, delay is costly to Plaintiffs and the government’s more substantial costs are incurred not in the initial, but later administrative proceedings.
Plaintiffs hereby make a cross-motion that the Court should issue an order establishing deadlines per Interior’s projections for completing and approval the final plan and report and requiring an Interior report every 90 days. Interior’s projections are as follows:
September 5, 2012 – proposed distribution plan and report completed
After September 5, 2012 – proposed plan and report along with meeting notices published as required by law
October, 2012 – Interior project to hold 2-3 public hearings on the record in locations to be determined in Minnesota, the Dakotas, Iowa and/or Nebraska
On or about January 15, 2013 – Interior projects that the BIA can consider the comments and communications received from those hearings and issue a final plan and report within 60 days of the close of the hearings/comment period.
The Court should adopt into its order these deadlines.
STATEMENT OF FACTS
Since the Distribution Act was enacted in 1973, Interior has developed approximately 150 plans for distribution and beneficiary rolls pursuant to that Act and the relevant regulations found at 25 C.F.R. parts 61, 62 and 87. Smith Dec. ¶ 3. The Bureau of Indian Affairs offices and personnel have direct experience relative to the creation of distribution plans, reports, and rolls. Id. ¶ 4. For example, the Bureau has created
2
Case 1:03-cv-02684-CFL Document 1125 Filed 09/28/12 Page 2 of 7
distribution plans, reports and rolls for the Hoopa and Yurok; the Sisseton Wahpeton; and the Western Shoshone. Id. See 53 F.R. 49795, 63 F.R. 36866, 64 F.R. 19896, 72 F.R. 9836.
The government recognizes that the major components for distributing a judgment award are (a) preparation of a plan for the use and distribution of the judgment award (25 C.F.R. part 87); and, if applicable, (b) compilation of a roll of eligible beneficiaries (25 C.F.R. Part 61). Smith Dec. ¶ 6. The government recognizes, consistent with 25 U.S.C. § 1402, a distribution plan (inclusive of report) is distinct, and does not include, the actual roll of eligible beneficiaries that would participate in a distribution of the judgment award. Id. ¶ 7. The government recognizes that, consistent with 25 U.S.C. § 1405(a), the development of the actual roll of individual beneficiaries would come after an approved plan to do so became effective under the Act. Id.
(1)
DEVELOPMENT AND APPROVAL OF FINAL PLAN AND REPORT.
The government recognized on about August 3, 2012 that the following deadlines are feasible:
September 5, 2012 – proposed distribution plan and report completed
After September 5, 2012 – proposed plan and report along with meeting notices published as required by law
October, 2012 – Interior project to hold 2-3 public hearings on the record in locations to be determined in Minnesota, the Dakotas, Iowa and/or Nebraska
On or about January 15, 2013 – Interior projects that the BIA can consider the comments and communications received from those hearings and issue a
3
Case 1:03-cv-02684-CFL Document 1125 Filed 09/28/12 Page 3 of 7
final plan and report within 60 days of the close of the hearings/comment period.
Id. ¶¶ 11-13.
(2)
PREPARING AN ACTUAL BENEFICIARY ROLL
After the final plan and report are approved, Interior would prepare the actual beneficiary roll pursuant to the approved final plan and report. Id. ¶ 14. The preparation and approval of the actual beneficiary roll is time-consuming and administratively expensive. Id. ¶¶ 14-19.
ARGUMENT
The Plaintiffs object to the government’s motion to stay, at this time, because the government is not likely to prevail on appeal, delay is costly to Plaintiffs and the government’s more substantial costs are incurred not in the initial, but later administrative proceedings. Plaintiffs make a cross-motion that the Court should issue an order establishing deadlines per Interior’s projections for completing and approval of the final plan and report and requiring an Interior report every 90 days.
First, the government is not likely to prevail on appeal. This Court has issued multiple opinions in this case, after multiple briefings by the parties, and determined that the Plaintiffs are entitled to $673,944 judgment. This Court’s reasoning was based on well-established law and will be affirmed by the appellate courts.
Second, a stay and its attendant delay of proceedings is costly to Plaintiffs. The lawsuit is in its ninth year. Both Plaintiffs and counsel have costs and disbursements
4
Case 1:03-cv-02684-CFL Document 1125 Filed 09/28/12 Page 4 of 7
associated with the case which will not be recovered until the end of the case. Therefore, any delay that can be avoided should be avoided.
Third, it appears from the Declaration of Michael Smith that virtually all of the costs referred to by Mr. Smith are associated with the implementation of the plan and developing and approving the actual beneficiary roll – not developing and approving the final plan. The development and approval of the final plan has costs which are minimal relative to developing and approving the actual beneficiary roll. So, it seems appropriate at this time to move forward with the development and approval of the final plan.
CONCLUSION
For the foregoing reasons, the Court should deny the motion to stay and grant Plaintiffs’ cross-motion for a new scheduling order establishing deadlines per Interior’s projections for completing and approval of the final plan and report and requiring an Interior report every 90 days.
Dated: September 28, 2012
/s/Erick G. Kaardal
Erick G. Kaardal
Mohrman & Kaardal, P.A.
33 South Sixth Street, Suite 4100
Minneapolis, MN 55402
(612) 341-1074 Telephone
(612) 341-1076 Facsimile
Attorneys for Plaintiffs
5
Case 1:03-cv-02684-CFL Document 1125 Filed 09/28/12 Page 5 of 7
Dated: September 28, 2012
/s/R. Deryl Edwards
R. Deryl Edwards
606 S. Pearl
Joplin, MO 64801
417-624-1962 Telephone
417-624-1965 Facsimile
Attorneys for Robertson Lineal Descendants
Dated: September 28, 2012
/s/Barry P. Hogan
Barry P. Hogan
Renaud Cook Drury Mesaros, P.A.
One North Central Avenue, Suite 900
Phoenix, AZ 85004
Attorneys for the Renaud John Does
6
Case 1:03-cv-02684-CFL Document 1125 Filed 09/28/12 Page 6 of 7
7
CERTIFICATE OF SERVICE
I hereby certify that on this 28th day of September, 2012, a copy of the foregoing was filed electronically with the Clerk of the Court through its ECF System and electronic notice was delivered to the parties entitled to receive notice.
Dated: September 28, 2012.
/s/Erick G. Kaardal
Erick G. Kaardal Case 1:03-cv-02684-CFL Document 1125 Filed 09/28/12 Page 7 of 7
Patience! Looking good.
IN THE UNITED STATES
COURT OF FEDERAL CLAIMS
SHELDON PETERS WOLFCHILD,
et al.
Case No. 03-2684L
Judge Charles F. Lettow
Plaintiffs,
vs.
UNITED STATES
Defendant.
PLAINTIFFS’ COORDINATED RESPONSE TO MOTION FOR STAY, ETC.
Dated: September 28, 2012 Erick G. Kaardal
Mohrman & Kaardal, P.A.
33 South Sixth Street, Suite 4100
Minneapolis, MN 55402
(612) 341-1074 Telephone
(612) 341-1076 Facsimile
Attorneys for Plaintiffs
Case 1:03-cv-02684-CFL Document 1125 Filed 09/28/12 Page 1 of 7
The Plaintiffs object to the government’s motion to stay, at this time, because the government is not likely to prevail on appeal, delay is costly to Plaintiffs and the government’s more substantial costs are incurred not in the initial, but later administrative proceedings.
Plaintiffs hereby make a cross-motion that the Court should issue an order establishing deadlines per Interior’s projections for completing and approval the final plan and report and requiring an Interior report every 90 days. Interior’s projections are as follows:
September 5, 2012 – proposed distribution plan and report completed
After September 5, 2012 – proposed plan and report along with meeting notices published as required by law
October, 2012 – Interior project to hold 2-3 public hearings on the record in locations to be determined in Minnesota, the Dakotas, Iowa and/or Nebraska
On or about January 15, 2013 – Interior projects that the BIA can consider the comments and communications received from those hearings and issue a final plan and report within 60 days of the close of the hearings/comment period.
The Court should adopt into its order these deadlines.
STATEMENT OF FACTS
Since the Distribution Act was enacted in 1973, Interior has developed approximately 150 plans for distribution and beneficiary rolls pursuant to that Act and the relevant regulations found at 25 C.F.R. parts 61, 62 and 87. Smith Dec. ¶ 3. The Bureau of Indian Affairs offices and personnel have direct experience relative to the creation of distribution plans, reports, and rolls. Id. ¶ 4. For example, the Bureau has created
2
Case 1:03-cv-02684-CFL Document 1125 Filed 09/28/12 Page 2 of 7
distribution plans, reports and rolls for the Hoopa and Yurok; the Sisseton Wahpeton; and the Western Shoshone. Id. See 53 F.R. 49795, 63 F.R. 36866, 64 F.R. 19896, 72 F.R. 9836.
The government recognizes that the major components for distributing a judgment award are (a) preparation of a plan for the use and distribution of the judgment award (25 C.F.R. part 87); and, if applicable, (b) compilation of a roll of eligible beneficiaries (25 C.F.R. Part 61). Smith Dec. ¶ 6. The government recognizes, consistent with 25 U.S.C. § 1402, a distribution plan (inclusive of report) is distinct, and does not include, the actual roll of eligible beneficiaries that would participate in a distribution of the judgment award. Id. ¶ 7. The government recognizes that, consistent with 25 U.S.C. § 1405(a), the development of the actual roll of individual beneficiaries would come after an approved plan to do so became effective under the Act. Id.
(1)
DEVELOPMENT AND APPROVAL OF FINAL PLAN AND REPORT.
The government recognized on about August 3, 2012 that the following deadlines are feasible:
September 5, 2012 – proposed distribution plan and report completed
After September 5, 2012 – proposed plan and report along with meeting notices published as required by law
October, 2012 – Interior project to hold 2-3 public hearings on the record in locations to be determined in Minnesota, the Dakotas, Iowa and/or Nebraska
On or about January 15, 2013 – Interior projects that the BIA can consider the comments and communications received from those hearings and issue a
3
Case 1:03-cv-02684-CFL Document 1125 Filed 09/28/12 Page 3 of 7
final plan and report within 60 days of the close of the hearings/comment period.
Id. ¶¶ 11-13.
(2)
PREPARING AN ACTUAL BENEFICIARY ROLL
After the final plan and report are approved, Interior would prepare the actual beneficiary roll pursuant to the approved final plan and report. Id. ¶ 14. The preparation and approval of the actual beneficiary roll is time-consuming and administratively expensive. Id. ¶¶ 14-19.
ARGUMENT
The Plaintiffs object to the government’s motion to stay, at this time, because the government is not likely to prevail on appeal, delay is costly to Plaintiffs and the government’s more substantial costs are incurred not in the initial, but later administrative proceedings. Plaintiffs make a cross-motion that the Court should issue an order establishing deadlines per Interior’s projections for completing and approval of the final plan and report and requiring an Interior report every 90 days.
First, the government is not likely to prevail on appeal. This Court has issued multiple opinions in this case, after multiple briefings by the parties, and determined that the Plaintiffs are entitled to $673,944 judgment. This Court’s reasoning was based on well-established law and will be affirmed by the appellate courts.
Second, a stay and its attendant delay of proceedings is costly to Plaintiffs. The lawsuit is in its ninth year. Both Plaintiffs and counsel have costs and disbursements
4
Case 1:03-cv-02684-CFL Document 1125 Filed 09/28/12 Page 4 of 7
associated with the case which will not be recovered until the end of the case. Therefore, any delay that can be avoided should be avoided.
Third, it appears from the Declaration of Michael Smith that virtually all of the costs referred to by Mr. Smith are associated with the implementation of the plan and developing and approving the actual beneficiary roll – not developing and approving the final plan. The development and approval of the final plan has costs which are minimal relative to developing and approving the actual beneficiary roll. So, it seems appropriate at this time to move forward with the development and approval of the final plan.
CONCLUSION
For the foregoing reasons, the Court should deny the motion to stay and grant Plaintiffs’ cross-motion for a new scheduling order establishing deadlines per Interior’s projections for completing and approval of the final plan and report and requiring an Interior report every 90 days.
Dated: September 28, 2012
/s/Erick G. Kaardal
Erick G. Kaardal
Mohrman & Kaardal, P.A.
33 South Sixth Street, Suite 4100
Minneapolis, MN 55402
(612) 341-1074 Telephone
(612) 341-1076 Facsimile
Attorneys for Plaintiffs
5
Case 1:03-cv-02684-CFL Document 1125 Filed 09/28/12 Page 5 of 7
Dated: September 28, 2012
/s/R. Deryl Edwards
R. Deryl Edwards
606 S. Pearl
Joplin, MO 64801
417-624-1962 Telephone
417-624-1965 Facsimile
Attorneys for Robertson Lineal Descendants
Dated: September 28, 2012
/s/Barry P. Hogan
Barry P. Hogan
Renaud Cook Drury Mesaros, P.A.
One North Central Avenue, Suite 900
Phoenix, AZ 85004
Attorneys for the Renaud John Does
6
Case 1:03-cv-02684-CFL Document 1125 Filed 09/28/12 Page 6 of 7
7
CERTIFICATE OF SERVICE
I hereby certify that on this 28th day of September, 2012, a copy of the foregoing was filed electronically with the Clerk of the Court through its ECF System and electronic notice was delivered to the parties entitled to receive notice.
Dated: September 28, 2012.
/s/Erick G. Kaardal
Erick G. Kaardal Case 1:03-cv-02684-CFL Document 1125 Filed 09/28/12 Page 7 of 7
Patience! Looking good.
