NEZ PERCE TRIBE et al v. KEMPTHORNE et al

MOTION for Order Deeming Motions for Trust Records Preservation Orders

D.D.C.May 1, 2008

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA THE NEZ PERCE TRIBE, et al., ) ) ) Plaintiffs, ) ) No. 06cv02239-JR ) v. ) ) DIRK KEMPTHORNE, ) Secretary of the Interior, et al., ) ) ) Defendants. ) ____________________________________) PLAINTIFFS’ MOTION FOR AN ORDER DEEMING MOTIONS FOR TRUST RECORDS PRESERVATION ORDERS FILED IN AK-CHIN INDIAN COMMUNITY v. KEMPTHORNE; PASSAMAQUODDY TRIBE v. KEMPTHORNE; SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY v. KEMPTHORNE; AND, TOHONO O’ODHAM NATION v. KEMPTHORNE TO BE FILED IN THIS CASE AND JOINING PLAINTIFFS IN THOSE MOTIONS Pursuant to Fed. R. Civ. P. 7(b), Plaintiffs the Nez Perce Tribe, et al., hereby move this Court for an Order deeming the Motions for Entry of Trust Records Preservation Orders filed April 29, 2008 by Plaintiffs in Ak-Chin Indian Community v. Kempthorne, No. 06-2245 (Doc. # 37); Passamaquoddy Tribe v. Kempthorne, et al., No. 06-2240 (Doc. # 31); Salt River Pima-Maricopa Indian Community v. Kempthorne, et al., No. 06-2441 (Doc. # 31); and, Tohono O’Odham Nation v. Kempthorne, et al., No. 06-2236 (Doc. # 31), to be filed in this action, and joining Plaintiffs herein in those Motions. Pursuant to Fed. R. Civ. P. 7(b)(1)(B) and LCvR 7(a), Plaintiffs state in support of this Motion the following specific points of law and authority. 1. On April 29, 2008, Plaintiffs in Ak-Chin Indian Community v. Kempthorne, et al., No. 06- Case 1:06-cv-02239-JR Document 46 Filed 05/01/2008 Page 1 of 5 2 2245 (Doc. #37); Passamaquoddy Tribe v. Kempthorne, et al., No. 06-2240 (Doc. # 31); Salt River Pima-Maricopa Indian Community v. Kempthorne, et al., No. 06-2441 (Doc. # 31); and, Tohono O’Odham Nation v. Kempthorne, et al., No. 06-2236 (Doc. # 31), filed Motions for Entry of Trust Records Preservation Orders. As noted in the Memoranda of Points and Authorities in Support of those Motions, at 3, the named Plaintiffs in this action join in those Motions. See, e.g., Ak-Chin Indian Community v. Kempthorne, et al., No. 06-2245, (Doc. # 38). 2. The Trust Records Preservation Order Motions in these other four actions raise issues identical to issues in this action, and the two principal named Defendants are the same in all of the actions. Accordingly, in the interests of conserving the parties’ and the Court’s resources, rather than filing a separate Trust Records Preservation Order Motion in this action, Plaintiffs here seek an Order deeming the Motions in Ak-Chin Indian Community v. Kempthorne; Passamaquoddy Tribe v. Kempthorne; Salt River Pima-Maricopa Indian Community v. Kempthorne; and, Tohono O’Odham Nation v. Kempthorne, to be filed in this action, and joining the Plaintiffs in this action in those Motions. 3. Similar procedural resource conservation steps already have occurred involving those actions and this action with respect to previous motions filed in those actions. See, e.g., Ak-Chin Indian Community v. Kempthorne, No. 06-2245, Order of July 2, 2007, at 4 (“those cases in which the government files such a [remand] motion will be consolidated for the limited purpose of the remand motion . . . .” .(Doc. # 16); id. Order of August 23, 2007, at 4 (“A principal brief need be filed only in one of the pending 37 cases and will be deemed filed in all of them.”) (Doc. # 21); id. Memorandum Order of December 19, 2007, at 5 (“Pursuant to Fed. R. Civ. P. 42(a), I consolidated the cases for the limited purpose of resolving the remand motion.”) (Doc. # 26). Case 1:06-cv-02239-JR Document 46 Filed 05/01/2008 Page 2 of 5 3 Pursuant to LCvR 7(m), Melody McCoy, counsel for Plaintiffs states that on May 1, 2008, she discussed this Motion with Maureen Rudolph, counsel for Defendants, and is authorized to state that Defendants oppose the relief sought herein. Pursuant to LCvR 7(c), a Proposed Order is submitted with this Motion. DATED this 1st day of May, 2008 Respectfully submitted, /s/ Melody L. McCoy MELODY L. MCCOY, USDC Bar. No. CO0043 DONALD R. WHARTON DAVID L. GOVER DAWN S. BAUM MARK C. TILDEN JOHN E. ECHOHAWK WALTER R. ECHO-HAWK, JR. Native American Rights Fund 1506 Broadway Boulder, CO 80302 Tel (303) 447-8760 Fax (303) 443-7776 E-mail mmccoy@narf.org Attorneys for Plaintiffs Case 1:06-cv-02239-JR Document 46 Filed 05/01/2008 Page 3 of 5 4 CERTIFICATE OF SERVICE I hereby certify that on this 1st day of May, 2008, a true and correct copy of the foregoing PLAINTIFFS’ MOTION FOR AN ORDER DEEMING MOTIONS FOR RECORDS PRESERVATION ORDERS FILED IN AK-CHIN INDIAN COMMUNITY v. KEMPTHORNE; PASSAMAQUODDY TRIBE v. KEMPTHORNE; SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY v. KEMPTHORNE; AND, TOHONO O’ODHAM NATIONv. KEMPTHORNE TO BE FILED IN THIS CASE AND JOINING PLAINTIFFS IN THOSE MOTIONS was served by Electronic Case Filing or by regular first class U.S. mail, postage pre-paid, on the following counsel: E. KENNETH STEGBEY ANTHONY P. HOANG KEVIN J. LARSEN MAUREEN RUDOLPH U.S. Department of Justice Environment and Natural Resources Division P.O. Box 663 Washington, DC 20044-0663 Tel (202) 616-4119 Tel (202) 305-0241 Tel (202) 305-0479 Fax (202) 353-2021 JOHN H. MARTIN U.S. Department of Justice Natural Resources Section 1961 Stout St., Eighth Floor Denver, CO 80294 john.h.martin@usdoj.gov Tel: (303) 844-1383 Fax (303) 844-1350 Attorneys for Defendants Case 1:06-cv-02239-JR Document 46 Filed 05/01/2008 Page 4 of 5 5 OF COUNSEL: PAUL SMYTH ELISABETH BRANDON THOMAS BARTMAN GLADYS I. COHOCARI SHANI N. WALKER Office of the Solicitor U.S. Department of the Interior Washington, DC 20240 TERESA DAWSON Office of the Chief Counsel Financial Management Service U.S. Department of the Treasury Washington, DC 20227 /s/ Melody L. McCoy MELODY L. MCCOY, USDC Bar. No. CO0043 Attorney for Plaintiffs Case 1:06-cv-02239-JR Document 46 Filed 05/01/2008 Page 5 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA THE NEZ PERCE TRIBE, et al., ) ) Plaintiffs, ) ) No. 06cv02239-JR v. ) ) DIRK KEMPTHORNE, ) Secretary of the Interior, et al., ) ) Defendants. ) ____________________________________) [PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR ORDER DEEMING MOTIONS FOR TRUST RECORDS PRESERVATION ORDERS FILED IN AK-CHIN INDIAN COMMUNITY v. KEMPTHORNE; PASSAMAQUODDY TRIBE v. KEMPTHORNE; SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY v. KEMPTHORNE; AND, TOHONO O’ODHAM NATION v. KEMPTHORNE TO BE FILED IN THIS CASE AND JOINING PLAINTIFFS IN THOSE MOTIONS This matter is before the Court on Plaintiffs’ Motion for an Order Deeming the Motions for Records Preservation Orders filed by Plaintiffs in Ak-Chin Indian Community v. Kempthorne, No. 06- 2245; Passamaquoddy Tribe v. Kempthorne, et al., No. 06-2240; Salt River Pima-Maricopa Indian Community v. Kempthorne, et al., No. 06-2441; and, Tohono O’Odham Nation v. Kempthorne, et al., No. 06-2236 to be filed in this action and Joining Plaintiffs in those Motions. Upon consideration of Plaintiffs’ Motion and Defendants’ Opposition to the Motion, it is hereby ORDERED that Plaintiffs’ Motion is GRANTED. SO ORDERED. Date: ________________________________ ___________________________________ HON. JAMES ROBERTSON United States District Court Case 1:06-cv-02239-JR Document 46-2 Filed 05/01/2008 Page 1 of 1