IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

Transcription

1 Case 5:06-cv C Document 71 Filed 05/11/2009 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA OTOE-MISSOURIA TRIBE OF INDIANS, OKLAHOMA, Plaintiff, v. No. 5:06-CV C KENNETH L. SALAZAR, Secretary of the Interior; Judge Robin J. Cauthron DONNA M. ERWIN, Acting Special Trustee, Office of the Special Trustee for American Indians; and TIMOTHY F. GEITHNER, Secretary of the Treasury, Defendants. DEFENDANTS UNOPPOSED MOTION FOR LEAVE TO FILE THEIR ANSWER OUT OF TIME, BRIEF IN SUPPORT, [PROPOSED] ORDER, and ANSWER TO PLAINTIFF S AMENDED COMPLAINT Pursuant to LCvR 7.1 (k and Rule 7 of the Federal Rules of Civil Procedure, Defendants respectfully make this motion for leave to file out of time their Answer to Plaintiff s Amended Complaint, Docket Number (Dkt. 9. This motion is Defendants first such motion. The grounds for the motion are as follows: 1. The Court ruled on Defendants motion to dismiss on December 10, Dkt. 56. Under Federal Rule of Civil Procedure 12(a(4(a, Defendants are obligated to file the Answer or otherwise respond to the Amended Complaint within ten days after notice of

2 Case 5:06-cv C Document 71 Filed 05/11/2009 Page 2 of 5 the Court s action. Nevertheless, on June 3, 2008, this Court had issued an order directing counsel to agree on a scheduling order and submit to the court for approval, if appropriate, otherwise the court will issue a briefing schedule. Dkt In their proposed scheduling order, Defendants did not indicate the day on which they would file their Answer. Dkt. 61. Further, in the parties March 31, 2009, joint status report, Dkt. 69, Defendants did not suggest a date on which they would file their Answer. Without the benefit of Defendants suggesting a deadline, this Court s April 2, 2009, Order did not identify any due date for the Answer. Dkt. 70. Therefore, Defendant s Answer was likely due April 16, Through inadvertence of counsel and the press of other work including litigation in related and unrelated cases involving Tribal trust accounting and trust mismanagement claims, Defendants failed to file the Answer to the Amended Complaint on or by April 16, Defendant s counsel became aware of the matter and acted as expeditiously as possible to redress the issues by preparing the requisite Answer as well as those motion papers; submitting them for review by the appropriate federal agencies; addressing any comments; and conferring with Plaintiff s counsel about this motion. 5. Pursuant to LCvR 7.1(h, Defendants counsel contacted Plaintiff s counsel, Michael McMahan, about this motion by telephone on May 4, 2009, and by during the prior week. Plaintiff s counsel indicates that Plaintiff does not oppose this request. 6. Granting this unopposed motion will not cause undue prejudice or harm to the parties rights or interests herein. Further, granting the motion will serve the public interest

3 Case 5:06-cv C Document 71 Filed 05/11/2009 Page 3 of 5 by ensuring that the Court can resolve this case on the merits without having to address unnecessary procedural hurdles that do not bear on the merits of the case. On the other hand, denying the motion would cause undue prejudice and harm to Defendants position herein, because it would prevent the Court from considering and having the benefit of Defendants responses to the factual and legal allegations, as well as their affirmative defenses as set forth in the Answer. Defendants regret any inconvenience to the Court or Plaintiff as a result of their inadvertent omission. For the foregoing reasons, Defendants respectfully request this Court to grant leave to file the attached Answer to the Amended Complaint out of time. Further, Defendants request that the Court deem the Answer to be filed as of this date. RELIEF REQUESTED 1. Defendants motion should be and hereby is GRANTED. 2. Defendants may file their Answer to the Amended Complaint out of time. 3. The Answer attached to Defendants motion is considered filed as of this date. Respectfully submitted this 11th day of May 2009, JOHN C. CRUDEN Acting Assistant Attorney General /s/ Jared S. Pettinato JARED S. PETTINATO United States Department of Justice Environment and Natural Resources Division Natural Resources Section P.O. Box 663

4 Case 5:06-cv C Document 71 Filed 05/11/2009 Page 4 of 5 Washington, D.C Tel: ( Fax: ( Jared.Pettinato@usdoj.gov ANTHONY P. HOANG United States Department of Justice Environment and Natural Resources Division Natural Resources Section P.O. Box 663 Washington, D.C Tel: ( Fax: ( Anthony.Hoang@usdoj.gov TERRY M. PETRIE United States Department of Justice Environment and Natural Resources Division Natural Resources Section 1961 Stout Street, 8th Floor Denver, CO Tel: ( Fax: ( Terry.Petrie@usdoj.gov Attorneys for Defendants OF COUNSEL: SHANI N. WALKER JOSHUA A. EDELSTEIN Office of the Solicitor United States Department of the Interior Washington, D.C REBECCA M. SALTIEL THOMAS KEARNS Office of the Chief Counsel Financial Management Service United States Department of the Treasury Washington, D.C

5 Case 5:06-cv C Document 71 Filed 05/11/2009 Page 5 of 5 CERTIFICATE OF SERVICE I hereby certify that a copy of the Defendants Unopposed Motion for Leave to File Their Answer out of Time, Brief in Support, [Proposed] Order, and [Proposed] Answer to Plaintiff s Amended Complaint was served today by Electronic Case Filing, on the following counsel: Kennis M. Bellmard II RUBENSTEIN MCCORMICK & PITTS, PLLC 1503 E. 19th Street Edmond, OK Tel: ( Fax: ( kbellmard@oklawpartners.com Respectfully submitted this May 11, 2009, /s/ Jared S. Pettinato JARED S. PETTINATO

6 Case 5:06-cv C Document 71-2 Filed 05/11/2009 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA OTOE-MISSOURIA TRIBE OF INDIANS, OKLAHOMA, Plaintiff, v. No. 5:06-CV C KENNETH L. SALAZAR, Secretary of the Interior; Judge Robin J. Cauthron DONNA M. ERWIN, Acting Special Trustee, Office of the Special Trustee for American Indians; and TIMOTHY F. GEITHNER, Secretary of the Treasury, Defendants. [PROPOSED] ORDER This matter is before the Court on the Defendants motion for leave to file its Answer out of time. Upon consideration of the motion and for good cause shown, it is hereby ORDERED that 1. Defendants motion should be and hereby is GRANTED. 2. Defendants may file their Answer to the Amended Complaint out of time. 3. The Answer attached to Defendants motion is considered filed as of this date. Date: ROBIN J. CAUTHRON United States District Court Judge

7 Case 5:06-cv C Document 71-3 Filed 05/11/2009 Page 1 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA OTOE-MISSOURIA TRIBE OF INDIANS, OKLAHOMA Plaintiff, v. Case No C Judge Robin J. Cauthron KENNETH L. SALAZAR, Secretary of the Interior, DONNA M. ERWIN, Acting Special Trustee for American Indians, TIMOTHY F. GEITHNER, Secretary of the Treasury, Defendants. ANSWER TO AMENDED COMPLAINT Defendants Kenneth L. Salazar, Secretary of the Interior, Donna M. Erwin, Acting Special Trustee for American Indians (collectively, Interior, and Timothy F. Geithner, Secretary of the Treasury (Treasury, hereby submit the following Answer to the Amended Complaint filed on May 25, 2007, Docket No. (Dkt. 9. Defendants specifically deny each and every allegation of the Amended Complaint that this Answer does not admit, deny, qualify, or otherwise expressly address. The numbered paragraphs of this Answer correspond to the numbered paragraphs and sections of the Amended Complaint. Defendants admit the allegations in Footnote 1 of the Amended Complaint. 1. The allegations of paragraph 1 provide Plaintiff s characterizations of this suit to which Defendants need not respond.

8 Case 5:06-cv C Document 71-3 Filed 05/11/2009 Page 2 of 12 PARTIES 1/ 2. In response to the allegations in paragraph 2, Defendants admit that the Otoe- Missouria Tribe of Indians of Oklahoma (hereafter Plaintiff is a federally-recognized Indian tribe organized pursuant to the Indian Reorganization Act of 1934, 48 Stat. 984, 25 U.S.C. 461 et seq. The remaining allegations in paragraph 2 provide Plaintiff s characterizations of its case and conclusions of law to which Defendants need not respond. 3. In response to the allegations in paragraph 3, Defendants admit that Dirk Kempthorne was the previous Secretary of the Interior, but aver that Kenneth L. Salazar is the new Secretary of the Interior. The remaining allegations in paragraph 3 provide Plaintiff s characterizations and conclusions of law to which Defendants need not respond. 4. In response to the allegations in the first sentence of paragraph 4, Defendants admit that Ross O. Swimmer was the previous Special Trustee for American Indians, appointed by the President of the United States with the advice and consent of the Senate, but aver that Donna M. Erwin is the new Acting Special Trustee for American Indians. The allegations in the second sentence of paragraph 4 provide Plaintiff s characterizations and conclusions of law to which Defendants need not respond. The referenced Act speaks for itself and provides the best of evidence of its contents. The allegations in the third and fourth sentences of paragraph 4 provide Plaintiff s characterizations, conclusions of law, and subjective intentions to which Defendants need not respond. 1/ The headings herein correspond to the headings in Plaintiffs Complaint. Defendants include them strictly to provide convenient reference to Plaintiffs Complaint and do not intend them to form any substantive part of Defendants Answer. To the extent those headings make substantive allegations, Defendants deny those allegations.

9 Case 5:06-cv C Document 71-3 Filed 05/11/2009 Page 3 of In response to the allegations in the first sentence of paragraph 5, Defendants admit that Henry Paulson was the Secretary of the Treasury, but aver that Timothy F. Geithner is the new Secretary of the Treasury. The remaining allegations in paragraph 5 provide Plaintiff s characterizations and conclusions of law to which Defendants need not respond. 6. Defendants admit that, in this action, Plaintiff has named three defendants, Secretary Salazar, Secretary Geithner, and Acting Special Trustee Erwin. The remaining allegations in paragraph 6 provide legal conclusions to which Defendants need not respond. JURISDICTION AND VENUE 7. The allegations in paragraph 7 provide Plaintiff s characterizations and conclusions of law to which Defendants need not respond. The cited statutes speak for themselves and provide the best evidence of their contents. 8. The allegations in paragraph 8 provide Plaintiff s characterizations and conclusions of law to which Defendants need not respond. The cited statutes and case law speak for themselves and provide the best evidence of their contents. 9. In response to the allegations in paragraph 9, Defendants lack sufficient information to admit or deny whether a substantial part of the events or omissions giving rise to the claims herein have occurred within this judicial district. The remainder of paragraph 9 provides characterizations and conclusions of law to which Defendants need not respond. The cited statutes speak for themselves and provide the best evidence of their contents. FACTUAL BACKGROUND 10. In response to the allegations in the first sentence of paragraph 10, Defendants admit that the Otoe-Missouria Tribe of Indians, Oklahoma, currently occupies land in Noble and Pawnee Counties, Oklahoma, and that the United States holds certain lands and other assets in trust for the

10 Case 5:06-cv C Document 71-3 Filed 05/11/2009 Page 4 of 12 Tribe s benefit. Defendants aver that the allegation that natural resources are attributable to its former reservations in Oklahoma and elsewhere is vague and ambiguous, so Defendants are unable to formulate a response to it. The allegation in the second sentence of paragraph 10 provides Plaintiff s characterization or conclusion of law to which Defendants need not respond. 11. The allegations in paragraph 11 provide Plaintiff s characterizations and conclusions of law to which Defendants need not respond. The cited statute speaks for itself and provides the best evidence of its contents. 12. The allegations in paragraph 12 provide Plaintiff s characterizations and conclusions of law to which Defendants need not respond. The cited statute speaks for itself and referenced other federal laws speak for themselves and provide the best evidence of their contents. 13. The allegations in the first through the fourth sentences of paragraph 13 are vague and ambiguous such that Defendants are unable to formulate a response to them. The referenced treaties, settlements and other contractual agreements speak for themselves and provide the best evidence of their contents. Defendants deny the allegations in the fifth sentence of paragraph The allegations in the first sentence of paragraph 14 provide Plaintiff s characterizations and conclusions of law to which Defendants need not respond. In response to the allegations in the second sentence of paragraph 14, Defendants admit that leases, easements, and permits have been approved for the Plaintiff s benefit, and as requested by Plaintiff. The allegation that Defendants have approved on Plaintiff s behalf other grants of authority to use certain of the Tribe s trust lands and natural resources for specific purposes is vague and ambiguous such that Defendants are unable to formulate a response to it. In response to the allegations in the third sentence of paragraph 14, Defendants admit that the United States has, in certain limited instances,

11 Case 5:06-cv C Document 71-3 Filed 05/11/2009 Page 5 of 12 conveyed the title of certain of the Plaintiff s lands to third parties for Plaintiff s benefit, and as requested by Plaintiff. The allegations in the fourth sentence of paragraph 14 regarding Defendants assumption of the legal responsibility for the collection of fair and equitable compensation are vague and ambiguous such that Defendants are unable to formulate a response to them. Defendants aver that the United States holds certain funds in trust on Plaintiff s behalf and that it carries out certain legal responsibilities for Plaintiff through the Secretary of the Interior. Defendants aver that Plaintiff has shared, and continues to share, in the control and management over Plaintiff s trust property, and that the extent of Plaintiff s and of Interior s control and management over Plaintiff s trust property is set forth in the provisions of, and the regulations implementing, statutes, such as the Indian Self-Determination and Education Assistance Act, Pub. L , 88 Stat (1975, as well as the contract entered thereunder between Plaintiff and Interior (commonly known as 638 contracts or Section 638 contracts. Such documents speak for themselves and provide the best evidence of their contents. 15. The allegations in paragraph 15 are vague and ambiguous, so Defendants are unable to formulate a response to them. Defendants aver that the United States does not exercise exclusive control of all the books and records of account concerning Plaintiff s trust funds and trust property, and that control and management over Plaintiff s trust funds and trust property and books and records are shared or have been shared with Plaintiff, in accordance with applicable laws, statutes, regulations, or agreement of the parties. 16. The allegations in paragraph 16 provide Plaintiff s characterizations and conclusions of law to which Defendants need not respond. The cited cases speak for themselves and provide the best evidence of their contents.

12 Case 5:06-cv C Document 71-3 Filed 05/11/2009 Page 6 of The allegations in paragraph 17 provide Plaintiff s characterizations and conclusions of law to which Defendants need not respond. 18. The allegations in paragraph 18 provide Plaintiff s characterizations and conclusions of law to which Defendants need not respond. 19. The allegations in paragraph 19 provide Plaintiff s characterizations and conclusions of law to which Defendants need not respond. The cited case law and statute speak for themselves and provide the best evidence of their contents. 20. In response to the allegations in the first three sentences of paragraph 20, Defendants deny that they control and manage all of the trust property and trust assets of the tribe or all of the books and records of accounts affecting [Plaintiff s] Trust Funds and Trust Property. Defendants aver that the terms complete, accurate [and] timely accounting, as used by Plaintiff, are vague and ambiguous, and that, as a result, Defendants are unable to formulate a response to them. Subject to the foregoing averment, however, Defendants aver that Interior has furnished and continues to furnish Plaintiff with financial and accounting data and documentation, including (a from at least 1980 to 1995, reports entitled Summary and Detail of Trust Fund statements ; (b a report in1996 entitled Tribal Trust Funds Reconciliation Project, Agreed-Upon Procedures and Findings Report for the Otoe-Missouria Tribe of Indians of Oklahoma for Fiscal Years , which sets forth the results of Interior s project to reconcile tribal trust accounts including those of Plaintiff for the years noted; and (c from 1995 to the present, periodic statements of account or performance for Plaintiff s trust fund monies received by the Interior Department. Defendants deny the allegations in the remaining sentences in paragraph The allegations in the first, second, and third sentences in paragraph 21 provide Plaintiff s characterizations and conclusions of law to which Defendants need not respond. The

13 Case 5:06-cv C Document 71-3 Filed 05/11/2009 Page 7 of 12 cited Acts speak for themselves and provide the best evidence of their contents. Defendants deny the allegations in the forth sentence of paragraph Defendants admit the allegations in the first sentence of paragraph 22. The allegations in the second sentence of paragraph 22 provide Plaintiff s characterizations and conclusions of law to which Defendants need not respond. The cited statute speaks for itself and provides the best evidence of its contents. 23. In response to the allegations in paragraph 23, Defendants aver that the terms complete, accurate and timely accounting, as used by Plaintiff, are vague and ambiguous, and that, as a result, Defendants are unable to formulate a response to them. The remaining allegations are Plaintiff s characterizations and conclusions of law to which Defendants need not respond. 24. In response to the allegations in paragraph 24, Defendants admit that Congress has enacted the listed Acts. The remaining allegations in paragraph 24 are Plaintiff s characterizations and conclusions of law to which Defendants need not respond. The cited Acts speak for themselves and provide the best evidence of their contents. 25. The allegations in paragraph 25 provide Plaintiff s characterizations and conclusions of law to which Defendants need not respond. The cited statute and Acts speak for themselves and provide the best evidence of their contents. COUNT I PLAINTIFF S REQUEST FOR DECLARATORY AND INJUNCTIVE RELIEF AND PLAINTIFF S REQUEST FOR DECLARATION 26. Defendants incorporate by reference herein its responses to the allegations in paragraphs 1 through 25 above. 27. The allegations in paragraph 27 provide Plaintiff s characterizations and conclusions of law to which Defendants need not respond. The cited case law speaks for itself and provides the best evidence of its contents.

14 Case 5:06-cv C Document 71-3 Filed 05/11/2009 Page 8 of The allegations in paragraph 28 provide Plaintiff s characterizations and conclusions of law to which Defendants need not respond. Defendants aver that the terms full, accurate and timely accounting and interfered, as used by Plaintiff, are vague and ambiguous, and that, as a result, Defendants are unable to formulate a response to them. To the extent a response is required, Defendants deny the allegations in paragraph The allegations in paragraph 29 provide Plaintiff s characterizations and conclusions of law to which Defendants need not respond. 30. The allegations in paragraph 30 provide Plaintiff s characterizations and conclusions of law to which Defendants need not respond. 31. The allegations in paragraph 31 provide Plaintiff s characterizations and conclusions of law to which Defendants need not respond. Defendants aver that the terms complete, accurate and timely accounting, as used by Plaintiff, are vague and ambiguous, and that, as a result, Defendants are unable to formulate a response to them. 32. The allegations in Paragraph 32 are Plaintiff s characterizations and conclusions of law to which Defendants need not respond. COUNT II PLAINTIFF S REQUEST FOR DECLARATORY AND INJUNCTIVE RELIEF 33. Defendants incorporate by reference herein its responses to the allegations in paragraphs 1 through 32 above. 34. The allegations in paragraph 34 provide Plaintiff s characterizations and conclusions of law to which Defendants need not respond. Defendants aver that the terms complete, accurate and timely accounting, as used by Plaintiff, are vague and ambiguous, and that, as a result, Defendants are unable to formulate a response to them. 35. The allegations in paragraph 35 provide Plaintiff s characterizations and conclusions

15 Case 5:06-cv C Document 71-3 Filed 05/11/2009 Page 9 of 12 of law to which Defendants need not respond. Defendants aver that the terms complete, accurate and timely accounting, as used by Plaintiff, are vague and ambiguous, and that, as a result, Defendants are unable to formulate a response to them. 36. The allegations in paragraph 36 are Plaintiff s characterizations and conclusions of law to which Defendants need not respond. Defendants aver that the terms ultimate and complete accounting, as used by Plaintiff, are vague and ambiguous, and that, as a result, Defendants are unable to formulate a response to them. PLAINTIFF S PRAYER FOR RELIEF 1. Defendants deny that Plaintiff is entitled to any and all relief sought in paragraph 1 of Plaintiff s prayer for relief. 2. Defendants deny that Plaintiff is entitled to any and all relief sought in paragraph 2 of Plaintiff s prayer for relief. 3. Defendants deny that Plaintiff is entitled to any and all relief sought in paragraph 3 of Plaintiff s prayer for relief. 4. Defendants deny that Plaintiff is entitled to any and all relief sought in paragraph 4 of Plaintiff s prayer for relief. 5. Defendants deny that Plaintiff is entitled to any and all relief sought in paragraph 5 of Plaintiff s prayer for relief. 6. Defendants deny that Plaintiff is entitled to any and all relief sought in paragraph 6 of Plaintiff s prayer for relief.

16 Case 5:06-cv C Document 71-3 Filed 05/11/2009 Page 10 of 12 GENERAL DENIAL Defendants deny any allegations of the Amended Complaint, whether express or implied, that are not specifically admitted, denied, or qualified herein. AFFIRMATIVE DEFENSES 1. Plaintiff asserts claims that are barred, in whole or in part, by the Statute of Limitations, 28 U.S.C To the extent that Plaintiff asserts claims that existed on or before August 12, 1946, those claims are barred by the Indian Claims Commission Act of August 13, 1946, 60 Stat. 1049, as amended (formerly 25 U.S.C. 70 et seq.. 3. Plaintiff asserts claims that are barred, in whole or in part, by the doctrines of laches, equitable estoppel, waiver and consent, and any other equitable defenses. 4. To the extent Plaintiff asserts claims that it or its privies or predecessors in interest asserted or could have asserted in a prior adjudication in which a court or tribunal of competent jurisdiction entered a final judgment, those claims are barred in whole or in part by the doctrines of res judicata and/or collateral estoppel. See Indians of Cal. v. United States, 102 Ct. Cl. 837 (Ct. Cl. 1944, and Thompson v. United States, 13 Indian Cl. Comm. 369 (Indian Cl. Comm Plaintiff asserts certain claims over which this Court lacks jurisdiction. 6. Plaintiff fails to state a claim upon which relief can be granted. Respectfully submitted this 11th day of May JOHN C. CRUDEN Acting Assistant Attorney General /s/ Jared S. Pettinato JARED S. PETTINATO ANTHONY P. HOANG United States Department of Justice Environment and Natural Resources Division

17 Case 5:06-cv C Document 71-3 Filed 05/11/2009 Page 11 of 12 P.O. Box 663 Washington, D.C Tel: ( Fax: ( TERRY M. PETRIE Environment and Natural Resources Division U.S. Department of Justice 1961 Stout Street, 8 th Floor Denver, CO Tel: ( Fax: ( Terry.Petrie@usdoj.gov Attorney of Record for Defendant Of Counsel: SHANI N. WALKER JOSHUA A. EDELSTEIN Office of the Solicitor United States Department of the Interior Washington, D.C REBECCA M. SALTIEL THOMAS KEARNS Office of the Chief Counsel Financial Management Service United States Department of the Treasury Washington, D.C

18 Case 5:06-cv C Document 71-3 Filed 05/11/2009 Page 12 of 12 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendant s Answer to Plaintiff s Amended Complaint was served on May 11, 2009, by Electronic Case Filing, on the following counsel: Kenneth Belmard Michael McMahan Jennifer McBee Rubenstein, McCormick & Pitts, P.L.L.C East 19 th Street Edmond, OK kbellmard@oklawpartners.com mmcmahan@oklawpartners.com jmcbee@oklawpartners.com. /s/ Jared S. Pettinato JARED S. PETTINATO