Patchak v. Kempthorne et al

MOTION to Intervene

D.D.C.August 19, 2008

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) DAVID PATCHAK, ) ) Plaintiff, ) ) vs. ) ) DIRK KEMPTHORNE, in his official capacity ) Case No. 1:08-CV-01331 as SECRETARY OF THE UNITED STATES ) Hon. Richard J. Leon DEPARTMENT OF THE INTERIOR, ) ) and ) ) CARL J. ARTMAN, in his official capacity as ) ASSISTANT SECRETARY OF THE UNITED ) STATES DEPARTMENT OF THE INTERIOR, ) BUREAU OF INDIAN AFFAIRS, ) ) Defendants. ) __________________________________________) ) MATCH-E-BE-NASH-SHE-WISH BAND OF ) POTTAWATOMI INDIANS, a federally ) recognized Indian Tribe, ) ) Intervenor. ) __________________________________________) UNOPPOSED MOTION TO INTERVENE PURSUANT TO FED. R. CIV. P. 24(B) The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (“Tribe”), a federally- recognized Indian Tribe, submits this unopposed motion to intervene as a defendant pursuant to Federal Rule of Civil Procedure 24(b). The undersigned contacted counsel for Plaintiff and for Defendants, who respectively stated that neither Plaintiff nor Defendants will oppose the motion. The Tribe understands that Plaintiff intends to move for injunctive relief from this Court. Thus, for the reasons set forth in the attached Statement of Points and Authorities, the Tribe Case 1:08-cv-01331-RJL Document 13 Filed 08/19/2008 Page 1 of 3 2 respectfully requests that the Court promptly grant this motion, permit the Tribe to intervene as a defendant, and direct the clerk to file the Tribe’s Answer. Respectfully submitted this 19 th day of August, 2008. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, Intervenor-Defendant, By /s/ Conly J. Schulte Conly J. Schulte Shilee T. Mullin FREDERICKS PEEBLES & MORGAN LLP 3610 North 163rd Plaza Omaha, NE 68116 Telephone (402) 333-4053 Fax (402) 333-4761 Seth P. Waxman Edward C. DuMont Demian S. Ahn WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 Telephone (202) 663-6910 Fax (202) 663-6363 Case 1:08-cv-01331-RJL Document 13 Filed 08/19/2008 Page 2 of 3 3 CERTIFICATE OF SERVICE I hereby certify that on August 19, 2008, a copy of the foregoing Unopposed Motion To Intervene Pursuant To Fed. R. Civ. P. 24(B) was served by first class mail on the parties below, and was filed electronically with the Clerk of the Court. The electronic filing prompted automatic service of the filing to all counsel of record in this case who have obtained CM/ECF passwords. The following parties were additionally served by first class mail: Tobey B. Marzouk MARZOUK & PARRY 1120 Nineteenth Street, N.W., Suite 750 Washington, DC 20036 Counsel for Plaintiff Bruce A. Courtade Gregory G. Timmer RHOADES MCKEE 161 Ottawa Ave. N.W., Ste. 600 Grand Rapids, MI 49503 Counsel for Plaintiff Gina L. Allery U.S. Department of Justice Environment & Natural Resources Div. Indian Resources Section P.O. Box 44378 Washington, D.C. 20026-4378 /s/ Conly J. Schulte Case 1:08-cv-01331-RJL Document 13 Filed 08/19/2008 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) DAVID PATCHAK, ) ) Plaintiff, ) ) vs. ) ) DIRK KEMPTHORNE, in his official capacity ) Case No. 1:08-CV-01331 as SECRETARY OF THE UNITED STATES ) Hon. Richard J. Leon DEPARTMENT OF THE INTERIOR, ) ) and ) ) CARL J. ARTMAN, in his official capacity as ) ASSISTANT SECRETARY OF THE UNITED ) STATES DEPARTMENT OF THE INTERIOR, ) BUREAU OF INDIAN AFFAIRS, ) ) Defendants. ) __________________________________________) ) MATCH-E-BE-NASH-SHE-WISH BAND OF ) POTTAWATOMI INDIANS, a federally ) recognized Indian Tribe, ) ) Intervenor. ) __________________________________________) STATEMENT OF POINTS AND AUTHORITIES IN SUPPORT OF THE TRIBE’S UNOPPOSED MOTION TO INTERVENE PURSUANT TO FED. R. CIV. P. 24(B) The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (the “Tribe” or “Gun Lake Tribe”) submits this Statement of Points and Authorities in Support of the Tribe’s Unopposed Motion to Intervene Pursuant to Fed. R. Civ. P. 24(b). 1 For the reasons set forth below, and in light of the Tribe’s understanding that Plaintiff intends to move for injunctive relief, the Tribe respectfully requests that the Court promptly 1 While we believe the Tribe is entitled to intervene as of right under Fed. R. Civ. P. 24(a), we submit this unopposed motion for permissive intervention under Fed. R. Civ. P. 24(b). Case 1:08-cv-01331-RJL Document 13-2 Filed 08/19/2008 Page 1 of 7 2 grant the Motion, permit the Tribe to intervene as a defendant, and direct the Clerk of the Court to file the Tribe’s Answer. PROCEDURAL BACKGROUND The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians is a federally-recognized Indian Tribe that has not had any reservation or other federally-protected land for over 170 years. Declaration of Chairman David K. Sprague in Support of Motion to Intervene (“Sprague Decl.”) ¶ 5. In order to remedy that injustice and achieve economic self-sufficiency through a proposed gaming facility, the Tribe secured a small parcel of land within its aboriginal territory and— nearly seven years ago—asked the Secretary of the Interior to accept the land into trust for the benefit of the Tribe. Id. ¶¶ 6, 10. The Secretary published his final decision to accept the land into trust on May 13, 2005. Id. ¶ 14. Shortly thereafter (but now more than three years ago), an organization named Michigan Gambling Opposition (“MichGO”) filed in this Court a complaint challenging the Secretary’s decision on various statutory and constitutional grounds (although not including the claim Plaintiff presents here). Id. ¶ 15. The Plaintiff in this case, David Patchak, publicly supported that litigation and is a member of or affiliated with MichGO. Id. ¶¶ 17-22. Plaintiff, however, did not intervene or take any other legal action in his individual capacity, even when MichGO’s claims were rejected by this Court, 477 F. Supp. 2d 1 (D.D.C. 2007), and the Court of Appeals, 525 F.3d 23 (D.C. Cir. 2008), and even when MichGO belatedly attempted to raise the very legal claim on which Plaintiff now relies (MichGO Mot. To Supplement Issues, filed March 7, 2008, in Michigan Gambling Opposition v. Kempthorne, U.S. Court of Appeals for the D.C. Circuit, Case 1:08-cv-01331-RJL Document 13-2 Filed 08/19/2008 Page 2 of 7 3 Case No. 07-5092). See Sprague Decl. ¶ 16. Indeed, Plaintiff took no action until August 1, 2008, seven days after the D.C. Circuit denied MichGO’s petition for rehearing en banc. 2 Meanwhile, the Tribe promptly moved to intervene in the MichGO litigation on July 27, 2005. Sprague Decl. ¶ 15. The Court granted the Tribe’s motion in light of the Tribe’s “interest defending [the Secretary’s] decision to place the 147-acre parcel of land into trust,” holding that the Tribe “should be granted permissive intervention pursuant to Fed. R. Civ. P. 24(b).” Memorandum Opinion dated September 1, 2005, at 5 (Dkt. 18), Michigan Gambling Opposition v. Norton, U.S. District Court for the District of Columbia Civil Action No. 05-01181 (JGP). This motion requests that the Court similarly grant the Tribe’s motion to intervene in this case. STATEMENT IN SUPPORT OF THE UNOPPOSED MOTION This litigation is a transparent attempt, by those who oppose the Tribe’s application for trust lands, to get a second bite at the apple. Plaintiff’s Complaint challenges the same decision by the Secretary of the Interior, concerns the same land, presents some of the same issues, and in light of Plaintiff’s connections with MichGO, appears to involve the same parties as the MichGO case. The Tribe’s motion to intervene should therefore be granted for the same reasons that the Tribe was entitled to intervene in MichGO: First, the Tribe meets the standard for permissive intervention because its intended “defense” will present “a question of law or fact in common” with the questions presented by “the main action.” Fed. R. Civ. P. 24(b)(2); Appleton v. Food and Drug Admin., 310 F. Supp. 2d 2 It thus appears, under the circumstances and based on the allegations in his Complaint (¶¶ 11- 12), that Plaintiff simply decided to do nothing until it was clear that MichGO’s claims would (finally) be denied. On August 15, 2008, the D.C. Circuit in the MichGO case stayed its mandate pending MichGO’s petition for a writ of certiorari. Case 1:08-cv-01331-RJL Document 13-2 Filed 08/19/2008 Page 3 of 7 4 194, 196 (D.D.C. 2004). In fact, because the Tribe seeks to defend every claim Plaintiff asserts, the matters of law and fact the Tribe will address are identical to those already before the Court. Second, the Tribe’s motion to intervene was timely filed and will not “unduly delay or prejudice the adjudication of the rights of the original parties.” Fed. R. Civ. P. 24(b)(3). The Tribe’s motion was filed less than twenty days after the Complaint, before Defendants were required to file any responsive pleadings. Moreover, as explained further below, the Tribe has every incentive to expedite the proceedings and will not delay the litigation in any manner. Third, this litigation directly threatens the Tribe’s vital governmental, social and economic interests in acquiring federally-protected trust lands and obtaining other federal benefits—and no other party can sufficiently represent the Tribe’s unique sovereign interests. Indeed, Indian tribes are routinely allowed to intervene in cases where a plaintiff challenges the Secretary’s decision to accept a parcel of land into trust for the benefit of the Tribe, as illustrated in Florida Dep’t of Bus. Regulation v. Dep’t of Interior, 768 F.2d 1248, 1250 (11 th Cir. 1985), Roseville v. Norton, 219 F. Supp. 2d 130, 137 (D.D.C. 2002), City of Sault Ste. Marie, Michigan v. Andrus, 532 F.Supp. 157, 159-60 (D.D.C. 1980), and of course in the MichGO litigation. In this case, its lack of federal trust lands—an injustice that has been perpetuated for more than 170 years—has not only denied the Tribe a land base where it can exercise territorial jurisdiction and fulfill the promise of a “government-to-government relationship with the United States,” 25 C.F.R. § 83.12, but it has also deprived the Tribe of the means to pursue economic self-sufficiency. Sprague Decl. ¶¶ 5, 23-30. Like any government, the Tribe seeks to provide enhanced opportunities and a better life for its members and future generations. Id. ¶¶ 26-27. But unlike many governments, the Tribe lacks the resources to provide even basic social programs or Case 1:08-cv-01331-RJL Document 13-2 Filed 08/19/2008 Page 4 of 7 5 other assistance to its members—and as a result the Tribe disproportionately suffers from unemployment, low homeownership rates, and other diminished economic opportunities. 3 Id. The proposed trust acquisition, which will allow the Tribe to proceed with its proposed gaming facility pursuant to the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. § 2701, et seq., is the only practical means for the Tribe to attain economic self-sufficiency and tribal self- determination. Sprague Decl. ¶ 26. The casino will provide jobs for its members and funds for a number of critical social programs, including rental housing assistance, emergency assistance, health care, home buying assistance, youth programs, higher education programs, and elder care. Id. ¶¶ 31-33. These benefits, which Congress specifically contemplated when it enacted the IGRA, will remain unattainable so long as the Tribe lacks any federal trust lands. Finally, the impact of this litigation could extend beyond the particular trust acquisition that prompted Plaintiff’s Complaint. Plaintiff’s claim that the Tribe is not an “Indian Tribe” covered by Section 19 of the IRA could deprive the Tribe of the right to obtain federal trust lands under other circumstances—and it could deny the Tribe other important benefits that, under the IRA and similar statutes, are limited to Tribes with land in trust. See 25 U.S.C. § 461, et seq.; 26 U.S.C. § 168(j); 26 U.S.C. § 45A; 26 U.S.C. § 7871(c)(3); 25 U.S.C. §§ 1521, et seq. 4 3 Indeed, as of April 2005, the Tribe’s unemployment rate was approximately 27%, which is six times higher than that of non-Tribal members in the surrounding area for the time period. Sprague Decl. ¶ 29. Similarly, whereas the home ownership rate in surrounding areas is approximately 83%, only 26% of Tribal Members own their own residence. Id. 4 While Federal Government Defendants have proficient counsel and will no doubt be mindful of the Tribe’s interests set forth above, the nature of this action is such that the United States government cannot fully represent the Tribe’s sovereign interests. For example, while time is of the essence for the Tribe—the significant costs resulting from any further delay will be most directly, and in some cases exclusively, borne by the Tribe—the United States on several occasions during the MichGO litigation voluntarily agreed to delay accepting the land into trust over the Tribe’s objections and, most recently in this case, granted yet another self-stay without consulting with or informing the Tribe. Sprague Decl. ¶ 32. Case 1:08-cv-01331-RJL Document 13-2 Filed 08/19/2008 Page 5 of 7 6 CONCLUSION For the foregoing reasons, the Court should grant the Tribe’s Unopposed Motion to Intervene Pursuant to Fed. R. Civ. P. 24(b). Respectfully submitted this 19th day of August. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, Intervenor-Defendant, By /s/ Conly J. Schulte Conly J. Schulte Shilee T. Mullin FREDERICKS PEEBLES & MORGAN LLP 3610 North 163rd Plaza Omaha, NE 68116 Telephone (402) 333-4053 Fax (402) 333-4761 Seth P. Waxman Edward C. DuMont Demian S. Ahn WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 Telephone (202) 663-6910 Fax (202) 663-6363 Case 1:08-cv-01331-RJL Document 13-2 Filed 08/19/2008 Page 6 of 7 7 CERTIFICATE OF SERVICE I hereby certify that on August 19, 2008, a copy of the foregoing UNOPPOSED MOTION TO INTERVENE PURSUANT TO FED. R. CIV. P. 24(B) was served by first class mail on the parties below, and was filed electronically with the Clerk of the Court. The electronic filing prompted automatic service of the filing to all counsel of record in this case who have obtained CM/ECF passwords. The following parties were additionally served by first class mail: Tobey B. Marzouk MARZOUK & PARRY 1120 Nineteenth Street, N.W., Suite 750 Washington, DC 20036 Counsel for Plaintiff Bruce A. Courtade Gregory G. Timmer RHOADES MCKEE 161 Ottawa Ave. N.W., Ste. 600 Grand Rapids, MI 49503 Counsel for Plaintiff Gina L. Allery U.S. Department of Justice Environment & Natural Resources Div. Indian Resources Section P.O. Box 44378 Washington, D.C. 20026-4378 /s/ Conly J. 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Richard J. Leon DEPARTMENT OF THE INTERIOR, ) ) and ) ) CARL J. ARTMAN, in his official capacity as ) ASSISTANT SECRETARY OF THE UNITED ) STATES DEPARTMENT OF THE INTERIOR, ) BUREAU OF INDIAN AFFAIRS, ) ) Defendants. ) __________________________________________) ) MATCH-E-BE-NASH-SHE-WISH BAND OF ) POTTAWATOMI INDIANS, a federally ) recognized Indian Tribe, ) ) Intervenor. ) __________________________________________) PROPOSED ANSWER OF THE MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS Case 1:08-cv-01331-RJL Document 13-21 Filed 08/19/2008 Page 1 of 9 2 Proposed Intervenor Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (“Tribe”), a federally-recognized Indian Tribe, submits this Answer to Plaintiff David Patchak’s Complaint. The Tribe specifically denies each and every allegation of the Complaint not otherwise expressly admitted, qualified or denied in this Answer. JURISDICTION AND VENUE 1. The Tribe admits that this action purports to be an action for review pursuant to the Administrative Procedure Act (“APA”) and the Indian Reorganization Act of 1934 (“IRA”), but denies that Plaintiff is entitled to the relief requested. The Tribe denies the balance of the allegations contained in paragraph 1. 2. The Tribe admits the allegation contained in paragraph 2. PARTIES AND STANDING 3. The allegation in paragraph 3 constitutes Plaintiff’s description and characterization of himself, to which no substantive response is required. 4. The Tribe admits that Dirk Kempthorne is the Secretary of the United States Department of the Interior, which is an administrative agency of the United States. 5. The Tribe denies that Carl J. Artman is the Assistant Secretary of the United States Department of the Interior, Bureau of Indian Affairs, which is an administrative agency of the United States, as Mr. Artman purportedly resigned from that position in May 2008. 6. The Tribe denies the allegations in paragraph 6. 7. The Tribe denies the allegations in paragraph 7. STATEMENT OF FACTS 8. The Tribe admits that the United States Department of the Interior (“DOI”) and the Bureau of Indian Affairs (“BIA”) (collectively termed “Defendants”) have approved taking a Case 1:08-cv-01331-RJL Document 13-21 Filed 08/19/2008 Page 2 of 9 3 147-acre parcel of land into trust for the benefit of the Tribe and that the Tribe intends to construct and operate a casino on the parcel. The allegation that the above actions are unlawful is a conclusion of law and therefore requires no response, but to the extent a response is required, the Tribe denies that the above actions are in any way unlawful. 9. The Tribe lacks information or knowledge sufficient to form a belief as to the truth of Plaintiff’s assertions regarding his intent in moving into the area or his subjective fears. The Tribe denies the allegations that the Tribe’s casino will cause any negative impacts and that Plaintiff will be disproportionately affected by the Tribe’s casino. The Tribe further denies the remaining allegations contained in paragraph 9. 10. Paragraph 10 is a conclusion of law and therefore requires no response. However, to the extent that a response is required, the Tribe denies paragraph 10. 11. The Tribe admits that Judge Penn issued a stay in the litigation captioned MichGO v. Kempthorne, and states that Judge Penn’s orders speak for themselves. a. The Tribe admits that on April 29, 2008, the United States Court of Appeals for the District of Columbia Circuit issued an opinion affirming the District Court, and states that the substance of the April 29, 2008 opinion speaks for itself. b. The Tribe admits that MichGO filed a petition for rehearing en banc on May 13, 2008 and that the Court denied the petition on July 25, 2008, and states that the July 25, 2008 order speaks for itself. c. The Tribe was not a party to conversations between MichGO and Defendants and lacks first hand knowledge of such conversation. Case 1:08-cv-01331-RJL Document 13-21 Filed 08/19/2008 Page 3 of 9 4 d. The Tribe denies that the United States District Court from the District of Columbia issued a mandate on Friday, August 1, 2008. The Tribe further states that the Court of Appeals for the District of Columbia Circuit has not issued its mandate. 12. Paragraph 12 contains conclusions of law, to which no response is required. a. Paragraph 12(a) contains conclusions of law to which no response is required. b. Paragraph 12(b) contains conclusions of law to which no response is required. 13. Paragraph 13 calls for relief. The Tribe denies that Plaintiff is entitled to any of the relief requested. 14. Paragraph 14 calls for relief. The Tribe denies that Plaintiff is entitled to any of the relief requested, and further denies that Plaintiff will suffer any irreparable harm. 15. The Tribe admits the allegations contained in paragraph 15. 16. The allegation contained in paragraph 16 contains conclusions of law, to which no response is required. To the extent that a response is required, the Tribe denies that 62 Fed. Reg. 38,113 (July 16, 1997) states that “[i]n 1870, the Gun Lake Band discontinued its compliance with its 1855 treaty by moving from Oceana County to Allegan County.” With respect to the second sentence, the Tribe admits that 62 Fed. Reg. 38,113 (July 16, 1997) states that the Tribe “received annuity payments under this [the 1855 Treaty of Detroit] until the final commutation payment in 1870.” 17. Paragraph 17 contains an issue of law, to which no response is required Case 1:08-cv-01331-RJL Document 13-21 Filed 08/19/2008 Page 4 of 9 5 18. The Tribe admits that it petitioned the Department of Interior to be acknowledged as an Indian Tribe in approximately 1994, pursuant to 25 C.F.R. Part 83, and that the DOI determined that the Gun Lake Tribe exists as an Indian tribe on or about October 23, 1998. 19. Insofar as the Plaintiff categorizes the Bradley Tract as “rural,” the Tribe denies the allegation contained in paragraph 19, but the Tribe admits the remaining allegations contained in paragraph 19. 20. The Tribe admits that the Tribe submitted a fee-to-trust application to the United States for a parcel of land termed as “the Bradley Tract,” requesting the United States to accept the Tract into trust, and that a portion of the Bradley Tract will be used to construct and operate a casino. The Tribe denies the allegations of paragraph 20, insofar as they suggest the casino will occupy the entire Bradley Tract. 21. The Tribe admits the allegations contained in paragraph 21. 22. Paragraph 22 contains conclusions of law, to which no response is required. To the extent that a response is required, the Tribe states that the IRA and United States v. John, 437 U.S. 634, 650 (1978) speak for themselves, and the Tribe denies that the IRA only applies to Indian tribes that were federally recognized in 1934. 23. Paragraph 23 contains a conclusion of law, to which no response is required. To the extent that a response is required, the Tribe states that the Department of Interior (“DOI”) has determined that the Tribe continually existed as an Indian tribe since at least 1870, see 63 Fed. Reg. 56,936 (Oct. 23, 1998). 24. The Tribe admits that it filed a brief in the MichGO v. Kempthorne litigation, but states that the brief speaks for itself. Case 1:08-cv-01331-RJL Document 13-21 Filed 08/19/2008 Page 5 of 9 6 CAUSE OF ACTION 25. The Tribe avers that paragraph 25 reasserts and incorporates the allegations contained in the previous allegations and therefore no further response is required. 26. Paragraph 26 contains a conclusion of law, to which no response is required. To the extent that a response is required, the Tribe denies that IRA limits Defendants’ power to take land into trust only for Indian tribes that were federally-recognized in June 1934. 27. Paragraph 27 contains a conclusion of law to which no response is required. To the extent that a response is required, the Tribe states that the Department of Interior has determined that the Tribe continually existed as an Indian tribe since at least 1870, see 63 Fed. Reg. 56,936 (Oct. 23, 1998). 28. Paragraph 28 contains a conclusion of law to which no response is required. To the extent that a response is required, the Tribe denies the allegations in paragraph 28. 29. The Tribe admits that the First Circuit in Carcieri v. Kempthorne held that the IRA does not prevent fee-to-trust transfers for Indian tribes not recognized in 1934, and admits that the United States Supreme Court has granted a petition for a writ of certiorari on that issue. 30. Paragraph 30 contains a conclusion of law, to which no response is required. To the extent that a response is required the Tribe denies paragraph 30 and states that the Department of Interior has determined that the Tribe continually existed as an Indian tribe since at least 1870, see 63 Fed. Reg. 56,936 (Oct. 23, 1998). 31. Paragraph 31 contains a call for relief, to which no response is required. To the extent that a response is required, the Tribe denies that Plaintiff is entitled to judicial review under the APA. Case 1:08-cv-01331-RJL Document 13-21 Filed 08/19/2008 Page 6 of 9 7 32. Paragraph 32 is a call for relief to which no response is required. To the extent that a response is required, the Tribe denies that Plaintiff is entitled to any of the relief requested. The Tribe further denies that the Plaintiff will sustain any injury. 33. Paragraph 33 is a call for relief to which no response is required. To the extent that a response is required, the Tribe denies that Plaintiff is entitled to any of the relief requested. PRAYER The remaining paragraphs are calls for relief. The Tribe denies that Plaintiff is entitled to any of the relief, attorney’s fees or costs requested. INTERVENOR’S AFFIRMATIVE DEFENSES First Affirmative Defense The Complaint should be dismissed because the Plaintiff has failed to state a claim upon which relief may be granted. Second Affirmative Defense The Complaint should be dismissed because the Plaintiff lacks standing to bring this action. Third Affirmative Defense The Complaint should be dismissed because the Plaintiff is precluded from bringing this suit by the doctrine of laches. Fourth Affirmative Defense The Complaint should be dismissed because the Plaintiff is precluded from bringing this suit by res judicata. Case 1:08-cv-01331-RJL Document 13-21 Filed 08/19/2008 Page 7 of 9 8 Fifth Affirmative Defense The Complaint should be dismissed because Plaintiff failed to file his complaint within the period prescribed by the statute of limitations. Sixth Affirmative Defense The Tribe asserts all other affirmative defenses that may be revealed subsequent to this filing. WHEREFORE, the Tribe respectfully requests judgment dismissing the Plaintiff’s Complaint herein, together with all costs and reimbursement for defense of this action and for such other relief as the Court deems just and proper. Respectfully submitted August 19, 2008. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, Intervenor-Defendant, By /s/ Conly J. Schulte Conly J. Schulte Shilee T. Mullin FREDERICKS PEEBLES & MORGAN LLP 3610 North 163rd Plaza Omaha, NE 68116 Telephone (402) 333-4053 Fax (402) 333-4761 Seth P. Waxman Edward C. DuMont Demian S. Ahn WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 Telephone (202) 663-6910 Fax (202) 663-6363 Case 1:08-cv-01331-RJL Document 13-21 Filed 08/19/2008 Page 8 of 9 9 CERTIFICATE OF SERVICE I hereby certify that on August 19, 2008, a copy of the foregoing PROPOSED ANSWER OF THE MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS was served by first class mail on the parties below, and was filed electronically with the Clerk of the Court. The electronic filing prompted automatic service of the filing to all counsel of record in this case who have obtained CM/ECF passwords. The following parties were additionally served by first class mail: Tobey B. Marzouk MARZOUK & PARRY 1120 Nineteenth Street, N.W., Suite 750 Washington, DC 20036 Counsel for Plaintiff Bruce A. Courtade Gregory G. Timmer RHOADES MCKEE 161 Ottawa Ave. N.W., Ste. 600 Grand Rapids, MI 49503 Counsel for Plaintiff Gina L. Allery U.S. Department of Justice Environment & Natural Resources Div. Indian Resources Section P.O. Box 44378 Washington, D.C. 20026-4378 /s/ Conly J. Schulte Case 1:08-cv-01331-RJL Document 13-21 Filed 08/19/2008 Page 9 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) DAVID PATCHAK, ) ) Plaintiff, ) ) vs. ) Case No. 1:08-CV-01331-RJL ) Hon. Richard J. Leon DIRK KEMPTHORNE, in his ) official capacity as SECRETARY ) OF THE UNITED STATES ) DEPARTMENT OF THE ) OF THE INTERIOR, ) ) and ) [PROPOSED] ORDER ) CARL J. ARTMAN, in his official ) capacity as ASSISTANT ) SECRETARY OF THE UNITED ) STATES DEPARTMENT OF THE ) INTERIOR, BUREAU OF ) INDIAN AFFAIRS, ) ) Defendants. ) ______________________________) ) MATCH-E-BE-NASH-SHE-WISH ) BAND OF POTTAWATOMI ) INDIANS, a federally recognized ) Indian Tribe, c/o Hon. D.K. Sprague, ) Chairman, Tribal Headquarters, P.O. ) Box 218, Dorr, MI 49323, ) ) Intervenor. ) ______________________________) Presently before the Court is the Intervenor Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians’ Unopposed Motion to Intervene in the above-captioned action. After thoroughly reviewing the submissions on this Motion, the Court finds that the Motion to Intervene is hereby GRANTED. Case 1:08-cv-01331-RJL Document 13-22 Filed 08/19/2008 Page 1 of 2 2 IT IS SO ORDERED. Dated The Honorable Richard J. Leon United States District Court Judge Case 1:08-cv-01331-RJL Document 13-22 Filed 08/19/2008 Page 2 of 2