IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Size: px

Start display at page:

Download "IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA"

Valentine Chapman
5 years ago
Views:

1 Case :-cv-00-dgc Document Filed 0/0/ Page of 0 William Gregory Kelly (#0) Paul E. Frye (pro hac vice application pending) FRYE LAW FIRM, P.C. 000 Academy Rd. NE, Suite 0 Albuquerque, NM Phone: (0) -00 Fax: (0) -0 wgk@fryelaw.us pef@fryelaw.us Attorneys for Amicus Curiae Navajo Nation Oil and Gas Company IN THE UNITED STATES DISTRICT COURT Mel R. Begay; Russell Begaye; Charles Damon; and Kenneth Maryboy, vs. FOR THE DISTRICT OF ARIZONA Plaintiffs, Mae-Gilene Begay; Diandra Benally; Lennard Eltsosie; Jennifer Hatathlie; and Nelson Toledo, Defendants. No. :-cv-00-dgc MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE THE NAVAJO NATION OIL AND GAS COMPANY AND MEMORANDUM IN SUPPORT 0 Date: July, 0 W. Gregory Kelly Paul E. Frye FRYE LAW FIRM, P.C. 000 Academy Rd. NE, Suite 0 Albuquerque, New Mexico Attorneys for Amicus Curiae Navajo Nation Oil and Gas Company

2 Case :-cv-00-dgc Document Filed 0/0/ Page of 0 0 Pursuant to Fed R. Civ. P. and Local Rule., the Navajo Nation Oil and Gas Company ( NNOGC ) moves this Court for permission to participate as amicus curiae in this action for the purpose of filing the concurrently-lodged brief in opposition to the Plaintiffs application for a temporary restraining order ( TRO ). NNOGC s motion is based on the points and authorities, below. I. FACTS POINTS AND AUTHORITIES The Complaint and application for TRO are brought by four Navajo legislators against five Navajo Board members (the Majority Board ) of a corporation wholly owned by the Navajo Nation. The Navajo Nation Supreme Court comprehensively addressed this internal Navajo corporate governance dispute on June 0, 0, holding that the Majority Board was not lawfully removed by these same four legislators and that the Majority Board continues to validly serve. Navajo Nation Oil and Gas Co. v. Window Rock District Court and Robert Joe, Real Party in Interest ( Opinion ), No. SC-CV--, slip op. at (Nav. Sup. Ct. June 0, 0) (TRO App. Ex. ). It rejected the attempt by former NNOGC CEO Robert Joe ( Joe ) to enlist the aid of the Plaintiffs in this case to remove these members of the NNOGC Board, who had begun to question Joe s competence and integrity. The Plaintiffs seek review of the Navajo Nation Supreme Court s decision in this federal court. II. ARGUMENT NNOGC HAS SUBSTANTIAL INTERESTS THAT WILL BE DIRECTLY IMPACTED BY THE COURT S DECISIONS IN THIS CASE, CAN PROVIDE INFORMATION TO MORE FULLY INFORM THE COURT, AND SHOULD THEREFORE BE PERMITTED LIMITED ENTRY AS AMICUS CURIAE. NNOGC has substantial interests that support NNOGC s filing of an amicus curiae brief in this case. NNOGC is a wholly owned corporation of the Navajo Nation, organized under section of the Indian Reorganization Act, as amended, U.S.C.. See App. for TRO and Order to Show Cause ( TRO App. ) (June, 0) Ex. (Federal Charter of Incorporation) ( Charter ). That statutory provision defines such a corporation as the incorporated tribe. U.S.C.. NNOGC must always be owned by the Navajo

3 Case :-cv-00-dgc Document Filed 0/0/ Page of 0 0 Nation. Charter Art. V(B). As a so-called Section corporation, NNOGC is an arm of the tribe sharing in the tribe s sovereign attributes, including its immunity from suit. See Memphis Biofuels, LLC v. Chickasaw Nation Indus., Inc., F.d, (th Cir. 00); Charter Art. IV(A). All of NNOGC s dividends and distributions of profit must be returned to the Navajo Nation government to be used for essential governmental services. Charter Art. VII(E). Like other corporations, management responsibility is vested in NNOGC s Board of Directors. See TRO App. Ex., Charter Art. XI(A) ( Charter ) ( The business affairs of the Corporation shall be managed exclusively by its Board of Directors. ). If the Plaintiffs are successful in their application for a TRO, and thereby prevent the Majority Board from carrying out their responsibilities and duties, the Board will be effectively incapacitated, and NNOGC will be unable to manage its corporate affairs, including approving and authorizing crucial Company transactions, contracts, NNOGC s budget, etc., all functions of the Board of Directors. The request for and ratification of the Charter were formal actions of the full Navajo Nation Council, following in each case compliance with elaborate procedures required by the Navajo Nation Code. See Opinion, slip op. at ; N.N.C. (00). The Charter is itself an express Council enactment[ ]. Opinion, slip op. at ; accord id. at (NNOGC Charter and Navajo Sovereign Immunity Act are clear laws enacted by the Navajo Nation Council ). The Navajo Nation Supreme Court expressly rejected the position of the Plaintiffs here that NNOGC was not a tribal business as perplexing in [Plaintiffs ] avoidance of clear laws enacted by the Navajo Nation Council. Id. at. The Navajo Nation Supreme Court also emphasized that [n]o general principle of corporate law would allow a governing Board to be so diminished below quorum so that an officer/ceo becomes the sole decision-maker without any Board oversight... and that the principle of corporate independence requires that Navajo Nation businesses must be able to conduct their business transactions and internal affairs free of influence or pressure by the government. Id. at,.

4 Case :-cv-00-dgc Document Filed 0/0/ Page of 0 0 NNOGC has a substantial interest to ensure that the company is lawfully governed in accordance with its Charter, bylaws, and Navajo law. For example, if the Board of Directors is unlawfully constituted or if a terminated CEO (here, Mr. Robert Joe) is enabled to hold himself out as a corporate official, NNOGC s actions of significance will be subject to challenge by third parties. See, e.g., Rare Earth, Inc. v. Hoorelbeke, 0 F.Supp., - (S.D.N.Y. ); Clark v. Dine College, No. SC-CV--0, slip op. at (Nav. Sup. Ct. Oct., 00). Moreover, the decision of the Navajo Supreme Court that the Plaintiffs are asking this Court to overturn was made upon the petition of NNOGC, to clarify governance issues which were harming the Company and its assets. As a result of the Supreme Court s decision that the Majority Board members were not validly suspended or terminated by actions of the Plaintiffs, NNOGC has been able to establish new management and has begun repairing relationship with its banking partners that had been seriously undermined by mismanagement. See Brief of Amicus Curiae NNOGC Ex. Q. The banks now all accept the Majority Board as the legitimate governing authority of NNOGC. Id. NNOGC s interests are thus so substantial in this matter that NNOGC is also required to be joined if feasible under Fed. R. Civ. P. (a)(). The relief the Plaintiffs seek, essentially a federal court reversal of the Navajo Supreme Court s interpretation of Navajo law, including NNOGC s Charter, would impair NNOGC s ability to protect its interests as a practical matter. NNOGC has substantial interest in the interpretation of NNOGC s Charter, and a critical interest in the stability and competence of its corporate governance NNOGC s new management team is also in control of the corporate office and functions, and it seeks to provide the Court with an accurate and complete factual gbackground and up-to-date status of the Company s finances, and its business and employee relationships, to more fully inform the Court. II. CONCLUSION For the above reasons, NNOGC respectfully requests that it be allowed to participate as amicus curiae in the above titled action for the purpose of submitting the accompanying

5 Case :-cv-00-dgc Document Filed 0/0/ Page of 0 0 brief. Respectfully submitted, FRYE LAW FIRM, P.C. By: s/ W. Gregory Kelly W. Gregory Kelly Paul E. Frye 000 Academy Rd. NE, Suite 0 Albuquerque, NM Attorneys for Amicus Curiae Navajo Nation Oil and Gas Company

6 Case :-cv-00-dgc Document Filed 0/0/ Page of 0 CERTIFICATE OF SERVICE I hereby certify that on July, 0, I electronically transmitted the foregoing document to the Clerk s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Jeffrey D. Gross, Esq. Kiersten A. Murphy, Esq. Christopher W. Thompson, Esq. Laura E. Antonuccio, Esq. GALLAGHER & KENNEDY, P.A. East Camelback Road Phoenix, AZ 0- Brian J. Schulman, Esq. Nedda R. Gales, Esq. GREENBERG TRAURIG, LLP East Camelback Rd., Suite 00 Phoenix, AZ 0 s/ W. Gregory Kelly 0

No. SC-CV NAVAJO NATION SUPREME COURT. Navajo Nation Oil and Gas Company, Petitioner, Window Rock District Court, Respondent, and

No. SC-CV NAVAJO NATION SUPREME COURT. Navajo Nation Oil and Gas Company, Petitioner, Window Rock District Court, Respondent, and No. SC-CV-25-14 NAVAJO NATION SUPREME COURT Navajo Nation Oil and Gas Company, Petitioner, v. Window Rock District Court, Respondent, and Robert Joe, Real Party in Interest. OPINION Before YAZZIE, H.,