Honorable James J. Wechler v. San Juan River Adjudication. THE UNITED STATES OF AMERICA et al., Claims of Navajo Nation CERTIFICATE OF SERVICE

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1 STATE OF NEW MEXICO COUNTY OF SAN JUAN ELEVENTH JUDICIAL DISTRICT STATE OF NEW MEXICO ex rel. STATE ENGINEER, D-1116-CV Plaintiff, Honorable James J. Wechler v. San Juan River Adjudication THE UNITED STATES OF AMERICA et al., Defendants. Claims of Navajo Nation Case No. AB CERTIFICATE OF SERVICE Richard T. C. Tully, Esq., hereby certifies the original of this Certificate of Service and Defendants B Square Ranch, LLC et al. s Answer/Response to Navajo Nation s Motion to Dismiss Certain Non-Settling Parties for Failure to Comply with Court s Scheduling Orders will be filed with the above-styled Court on October 19, 2012 and copies of this Certificate of Service and Defendants B Square Ranch, LLC et al. s Answer/Response were served on the Court s electronic service list by to wrnavajointerse@nmcourts.gov and to bushnell@law.unm.edu on October 18, 2012 at approximately 3:30 p.m., MDT. TULLY LAW FIRM, P. A. /s/ Richard T. C. Tully, Esq. P. O. Box 268 Farmington, NM (505) tullylawfirm@qwestoffice.net

2 STATE OF NEW MEXICO, ex rel., STATE ENGINEER, D-1116-CV HON. JAMES J. WECHSLER Presiding Judge Plaintiffs, v. SAN JUAN RIVER ADJUCICATION THE UNITED STATES OF AMERICA et al., Defendants, Cause No. AB-07-1 Claims of the Navajo Nation DESCRIPTIVE SUMMARY: Defendants B Square Ranch, LLC et al. s Answer/Response to Navajo Nation s Motion to Dismiss Certain Non-Settling Parties for Failure to Comply with Court s Scheduling Orders NAME OF PARTY: Defendants B Square Ranch, LLC et al. NUMBER OF PAGES: 8 DATE OF FILING: October 18, 2012 by electronic service and October 19, 2012 with Court Clerk DEFENDANTS B SQUARE RANCH, LLC et al. s ANSWER/RESPONSE TO NAVAJO NATION S MOTION TO DISMISS CERTAIN NON-SETTLING PARTIES FOR FAILURE TO COMPLY WITH COURT S SCHEDULING ORDERS Defendants B Square Ranch, LLC et al. answer the Navajo Nation s Motion to Dismiss Certain Non-Settling Parties for Failure to Comply with Court s Scheduling Order as follows: The Court entered an Amended Order Setting Schedule Governing Discovery on the Non-Settling Parties and Remaining Procedures on August 7, 2012 in the abovestyled action. The Amended Order stated in relevant part as follows: 2. September 21, 2012: Objections/Responses by non-settling Parties. The legal and factual bases for all responses shall be stated with particularity. The failure of an Objector to comply with discovery requests or

3 otherwise adhere to the requirement of any order by the Court may result in dismissal of the objection. At any time an Objector may withdraw an objection by filing a notice of withdrawal with the Court. 3. September 21, 2012: Initial Disclosures by non-settling Parties, including (i) the name, address and telephone number of each individual likely to have discoverable information that the Respondent may use to support its position, and (ii) a description, by category, and location, of all documents, electronically stored information and tangible items in the possession, custody or control of the Respondent that the Respondent may use to support its position. The City of Aztec and the City of Bloomfield filed their Motion to Extend All Scheduled Deadlines on September 13, 2012 in the above-styled action and the San Juan Water Commission filed its Motion to Extend Remaining Case Management Deadlines by 180 Days on September 14, Both Motions to Extend Deadlines were filed prior to September 21, Rule NMRA 2102 provides that motions shall be in writing and shall state with particularity the grounds and the relief sought in such motions. Unless otherwise specifically provided in the Rules of Civil Procedure for the District Courts, any written response to the motion shall be filed within 15 days after service of the motion. The Navajo Nation, the United States of America and the State of New Mexico ( Settling Parties ) had 15 days after service of the two above-described Motions to Extend Deadlines to file their responses thereto under Rule NMRA These Settling Parties did not timely file their answers/responses to these two motions until October 5, Query: Should the two above-described Motions to Extend Deadlines by granted because the Settling Parties did not file their answers/responses to these Motions nor

4 did they file a motion to continue or extend the time for which they needed to file an answer/response during this 15 days period. After a party files a motion to extend or continue deadlines or other matters, it has been the long time practice and custom of the District Courts in the Eleventh Judicial District that the subject deadlines are extended or continued until the motions to extend or continue are heard. Defendants B Square Ranch, LLC et al. joined the Motion to Extend All Scheduled Deadlines filed by the Cities of Aztec and Bloomfield as well as the San Juan Water Commission s Motion to Extend Remaining Case Management Deadlines. This Joinder was served on the Settling Parties and Non-Settling Parties via the electronic service list on September 19, These Defendants Joinder to the Motions to Extend Deadlines was thus filed prior to September 21, It was therefore not necessary for Defendants B Square Ranch et al. to file Preliminary Objections and Initial Disclosures by September 21, 2011 because they joined in the two above-described Motions to Extend Deadlines prior to such date. However, in the event Defendants B Square Ranch, LLC et al. needed to file Preliminary Objections and Initial Disclosures prior to the time the Court ruled on such Motions to Extend Deadlines, these Defendants served, as a precautionary measure, Preliminary Objections and Initial Disclosures within 15 days after joining the abovedescribed Motions to Extend Deadlines. These Defendants Preliminary Objections and Initial Disclosures were served on the Settling Parties and Non-Settling Parties via the electronic service list on October 1, 2012.

5 The Court s attention is directed to the discovery requests Defendants B Square Ranch, LLC et al. and other Non-Settling Parties served on the Settling Parties on or about June 1, In response to such discovery, on or about June 15, 2012, the Settling Parties filed objections to the discovery and did not produce any documents nor did they provide any substantive answers to the interrogatories. Defendants B Square Ranch, LLC et al. and other Non-Settling Parties then filed motions to compel discovery and the Court held a hearing on such motions. The Court granted certain of the motions to compel and denied other motions to compel. The Settling Parties thereafter produced certain documents and answered certain interrogatories. However, at the present time, there are certain Non-Settling Parties who are filing or have filed additional motions to compel discovery since the Settling Parties continue to not produce certain documents or answer certain interrogatories. The Settling Parties have produced a large number of documents (300,000 to 400,000 pages) that they claim are relevant to the discovery requests of the Non- Settling Parties, but the Settling Parties have also indirectly denied access to the Non- Settling Parties to review documents at agencies or offices of the Settling Parties. The Court has scheduled a hearing on October 25, 2012 to hear the abovedescribed Motion to Dismiss Certain Non-Settling Parties. However, the Court has withdrawn its Order entered October 5, 2012 that was originally scheduled to hear the Motions to Extend Deadlines and the additional motions by certain Non-Settling Parties to compel discovery from the Settling Parties.

6 The Court s attention is also directed to the following pleadings, motions and orders that have been filed in the above-styled action in 2012: A. Settling Parties Motion to Extend Certain Deadlines filed January 13, 2012 B. Order (1) Granting Settling Parties Motion to Extend Certain Deadlines and (2) Setting Schedule Governing Discovery and Remaining Proceedings filed February 3, 2012 C. State s Motion to Extend Deadline for Filing Statement of Legal and Factual Bases for Settlement filed April 2, 2012 D. Order Extending Deadline for State to File Statement of Legal and Factual Bases for Settlement until April 12, 2012 filed April 4, 2012 E. Settling Parties Proposed Schedule for Discovery on the Non-Settling Parties filed July 20, 2012 F. Amended Order Setting Schedule Governing Discovery on the Non-Settling Parties and Remaining Proceedings filed August 7, 2012 The Settling Parties filed their Motions to Extend Deadlines and their proposed Schedule for Discovery (A, C and E above) stating the above-styled action was technically and legally complex, the parties were unable to devote sufficient time to resolve certain matters or file certain documents, and it would be appropriate to extend certain deadlines that had been previously ordered by the Court. The Settling Parties are always attempting to move the Court and the Non- Settling Parties along in this action alleging there is a date certain when the Proposed Decrees must be entered for the Settlement Agreement to remain viable while at the same time the Settling Parties request extensions of deadlines. When the Settling Parties are granted these extensions as well as when they do not timely comply with the Non-Settling Parties discovery requests, the deadlines the Non-Settling Parties have to ordered to meet by Court are adversely affected. Further, there is discrimination against the Non-Settling Parties in the scheduling orders that have been recently entered by the Court. The scheduling orders state that if the Non-Settling Parties do not comply with discovery requests by the Settling Parties or

7 otherwise adhere to the requirements of the orders of the Court, the objections of the Non-Settling Parties may be dismissed from this action. The Settling Parties have not complied with discovery requests and there have been instances where they have not adhered to the requirements of the Court s orders. However, the recent scheduling orders do not contain the provision that the Settling Parties may be dismissed from this action for these reasons. It is respectfully requested that the Court at the October 25, 2012 hearing address the Non-Settling Parties Motions to Extend Deadlines and motions to compel discovery at the same time the Court addresses the Navajo Nation s Motion to Dismiss Certain Non-Settling Parties from this action. To do otherwise, Defendants B Square Ranch, LLC et al. and the other Non- Settling Parties will be denied fundamental due process to: (i) fully protect their rights and interests in the above-styled action; (ii) comply with the orders of the Court; (iii) examine the discovery that has provided by Settling Parties; (iv) request additional discovery from the Settling Parties, if needed; (v) fully develop objections or responses to the proposed Settlement Agreement; and (vi) make a knowledgeable and informed decision whether to approve or oppose the proposed Settlement Agreement. WHEREFORE, Defendants B Square Ranch, LLC et al. request the Court to: (a) enter an appropriate order denying the Navajo Nation s Motion to Dismiss Certain Non- Settling Parties for Failure to Comply with the Court s Scheduling Orders, and (b) enter appropriate orders granting the Non-Settling Parties Motions to Extend Deadlines and motions to compel discovery against the Settling Parties.

8 TULLY LAW FIRM, P.A. /s/ Richard T. C. Tully, Esq. Defendants B Square Ranch, LLC et al. P. O. Box 268 Farmington, NM tullylawfirm@qwestoffice.net wateradjudicationanswermotiondismiss