UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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1 Case :0-cv-000-JLQ ECF No. filed 0// PageID.0 Page of Brian C. Huber P.O. Box THE HONORABLE JUSTIN L. QUACKENBUSH 0 PAUL GRONDAL, a Washington resident; and THE MILL BAY ASSOCIATION, INC., a Washington Non-Profit Corporation, Plaintiffs, vs. UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF THE INTERIOR; THE BUREAU OF INDIAN AFFAIRS, et al., Defendants. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON NO. 0-CV-000-JLQ RESPONSE MEMORANDUM OF MILL BAY RE: COURT S ORDER OF JUNE, Plaintiffs, by and through their attorneys of record, Jeffers, Danielson, Sonn & Aylward, P.S., by Brian C. Huber, submit this Memorandum pursuant to the Court s instructions set forth in its Order dated June,. Page

2 Case :0-cv-000-JLQ ECF No. filed 0// PageID.0 Page of 0 The three topics addressed in this Memorandum are limited to ( the role of the Government and the Tribes in the 0 mediation and/or court proceedings, ( the rent payments made by the Mill Bay Members since the 0 settlement, and ( the nonexistence of any verbatim transcripts (only clerk s minutes relating to the 0 settlement hearing in the Chelan County Superior Court.. The role of the Government and the Tribes in the 0 mediation and court proceedings. On December, the Plaintiffs submitted a Plaintiff s Statement of Facts In Response to Federal Defendant s Motion for Summary Judgment (ECF No. which includes a detailed recitation of facts and evidence that go to the heart of the first topic framed by the Court s June, Order. Specifically, a heading entitled The Mill Bay Resort Litigation and 0 Settlement appears just above Statement of Fact No. set forth at page of Plaintiff s Statement of Facts. That section of the Statement of Facts, which includes Statement of Fact Nos. through and ends at page 0, delves extensively into the role of the Government and the Tribes in the 0 mediation and the related court proceedings. Those Statements of Fact also include citations to the evidentiary record already on file in this case. Page

3 Case :0-cv-000-JLQ ECF No. filed 0// PageID.0 Page of 0 The Plaintiffs believe the court record, as set forth in the Statement of Facts and the citations to the record set forth therein, conclusively establishes that the Government and the Tribes: Actively participated in the mediation and the negotiation of the settlement. Were kept apprised of the pending actions and provided notice of the November, 0 TEDRA court hearing by which the Chelan County Superior Court approved the 0 Settlement. Declined to file any objection despite having been given notice and an opportunity to object. Not only approved of the settlement terms but also accepted the benefits of the settlement inasmuch as the BIA received the Plaintiffs annual payments (through Wapato Heritage, LLC and then distributed the settlement payments to the individual landowners. All of these facts and more, as well as the underlying evidence supporting them, are set forth in the Plaintiffs Statement of Facts and specifically in Statement of Facts Nos. through. See ECF No.. ` Under the circumstances presented in this case, the 0 Settlement Agreement is binding and final. Washington s Trust and Estates Dispute Resolution Act (RCW.A ( TEDRA applies not only to a broad range of disputes involving estates and trusts, but also to a broadly defined list of parties. The term party as defined Page

4 Case :0-cv-000-JLQ ECF No. filed 0// PageID. Page of 0 by TEDRA includes, inter alia, [a]ny other person who has an interest in the subject the particular proceeding. RCW.A.00((i. The parties meet this definition under the facts presented here. Under TEDRA the court s jurisdiction to resolve disputes involving estates is very broad. Under TEDRA Judge Bridges had the statutory authority to administer and settle the affairs of Mr. Evans s estate and order and cause to be issued all such writs and any other orders as are proper or necessary; and do all other things proper or incident to the exercise of jurisdiction under this section. RCW.A.00(. See also RCW.A.00. The broad authority granted to trial courts under TEDRA is further demonstrated by RCW.A.00( which provides in part that any party may have a judicial proceeding for the declaration of rights or legal relations to any matter, as defined by RCW.A.00. (Emphasis added. See RCW.A.00( (setting forth broad definition of matter, including [t]he determination of any question arising in the administration of an estate or trust, or with respect to any nonprobate asset, or with respect to any other asset or property interest passing at death. There can be no doubt that the November, 0 Order confirming settlement Page

5 Case :0-cv-000-JLQ ECF No. filed 0// PageID. Page of 0 clearly invoked the broad powers afforded to Judge Bridges under TEDRA, RCW.A. Among other things, the Order: Includes specific Findings of Fact demonstrating the applicability of TEDRA, including the death of William Evans, Jr., the Last Will and Testament s listing of beneficiaries, the filing of a contingent creditor s claim by the Mr. Grondal and the Mill Bay Members, the court s certification of the creditor s claim as a class action creditor s claim, and the commencement of a lawsuit by Mr. Grondal and the Mill Bay Members seeking damages on the contingent creditor s claim. See, e.g., Finding of Fact Nos. - of November, 0 Order confirming settlement, attached as Exhibit C to Declaration of Brian C. Huber Re: 0 Settlement filed concurrently herewith. Also includes Finding of Fact that on the Personal Representative of Mr. Evans s Estate and the Estate invoked their right to mediation of the dispute under TEDRA, RCW.A et. seq. (Id., at Finding of Fact No. and that the two-day mediation thereafter took place at the law offices of Stokes Lawrence in Seattle, Washington on August and September, 0. Id., at Finding of Fact No.. This demonstrates that the mediation itself that resulted in the 0 Settlement took place pursuant to TEDRA. Includes a Finding of Fact that [a]s a result of the mediation, the parties entered into a Settlement Agreement, dated September, 0, to settle the creditor s claim and lawsuits... Id., at Finding of Fact No.. This Finding of Fact makes clear that the 0 Settlement was a settlement pursuant to TEDRA. Includes, in addition to Conclusions of Law confirming the settlement itself, an additional Conclusion of Law providing as follows: Page

6 Case :0-cv-000-JLQ ECF No. filed 0// PageID. Page of 0. Binding Effect. The terms of the Settlement Agreement and of this Order are binding on the parties hereto, as well as their heirs, executors and administrators, successors and assigns, and those terms shall have res judicata and other proceedings maintained by or on behalf of any such persons, to the extent those claims, lawsuits or other proceedings involve matters that were or could have been raised in this Action. The terms of the Settlement Agreement are binding upon all interested parties and beneficiaries to the Estate of William Evans, Jr. pursuant to RCW.A.0-0. Id., at Conclusion of Law No.. This Conclusion of Law demonstrates that the confirmation of the settlement was intended to be final and to be binding upon all interested parties and anyone else claiming an interest in the matter. In short, Judge Bridges properly exercised the authority granted under TEDRA by entry of his Order confirming settlement on November, 0. The 0 Settlement is binding and final.. The rent payments made by the Mill Bay Members since the 0 settlement. The Supplemental Declaration of Paul Grondal Re: 0 Settlement Payments (ECF No. filed on April, includes a detailed discussion and listing of the payments made by Mill Bay Members through the year pursuant to the 0 Settlement Agreement, all of which were paid in full and on a timely basis. The Declaration of Kristin Fererra Re: 0 Settlement Agreement (ECF No. Page

7 Case :0-cv-000-JLQ ECF No. filed 0// PageID. Page of 0 outlines the annual payments made from 0 through, all of which were transmitted to Jeffrey Webb on behalf of Wapato Heritage, LLC, along with instructions to distribute the payments (via the BIA to the individual landowners. In the roughly two years that has passed since the April filing of the Supplemental Declaration of Paul Grondal Re: Settlement Payments (ECF No. and the Declaration of Kristin Fererra Re: 0 Settlement Agreement (ECF No., the Mill Bay Members have continued to make the required payments in full and on a timely basis. As before, the and annual payments were transmitted to Jeffrey Webb, Operations Manager for Wapato Heritage, LLC, and accompanied by a cover letter directing him as follows: As per previous agreements, we direct you to remit this payment to the individual MA- allottees/landowners via the Bureau of Indian Affairs (the BIA. See Declaration of Brian C. Huber Re: 0 Settlement Payments filed concurrently herewith, Exhibit A. Both transmittal letters, as with previous transmittal letters, specifically directed Mr. Webb that [i]f you have any questions or objections to the contents of this letter, please have your attorney contact me upon receipt. Id. To date, neither the Mill Bay Members nor their counsel have received any Page

8 Case :0-cv-000-JLQ ECF No. filed 0// PageID. Page of 0 indication that Mr. Webb or Wapato Heritage, LLC have had any questions or objections to the contents of the transmittal letters. It is presumed that the BIA has continued to distribute the settlement payments to the individual landowners as the BIA has previously acknowledged it has done each year since the 0 Settlement was achieved. See, e.g., Plaintiff s Statement of Fact Nos. -0 (ECF No. and citations to the record set forth therein.. The non-existence of transcripts relating to the 0 settlement hearing. To the knowledge of Plaintiffs counsel, there is no transcript, recording or other record of the 0 mediation that took place in Seattle and was attended by the parties to this litigation as well as by representatives of the BIA and the Tribes. As the Court is aware, a TEDRA settlement hearing took place on November, before Judge Bridges of the Chelan County Superior Court. The hearing pertained to three separate lawsuits, the In Re Estate of William Evans probate matter (Cause No , the Paul Grondal and All Mill Bay Resort Members v. Chief Evans Inc. class action matter (Cause No and the Paul Grondal v. Jeffrey Webb matter (Cause No , and was therefore conducted as a joint hearing. A copy of the clerk s minutes from that hearing is attached as Exhibit B to Page

9 Case :0-cv-000-JLQ ECF No. filed 0// PageID. Page of 0 the Declaration of Brian C. Huber filed concurrently herewith. Plaintiffs counsel has inquired as to the existence of any verbatim transcripts, recordings or other documentation that might exist in connection with the joint settlement hearing. The undersigned has been informed that as of 0 there was no standard procedure in place by which audio recordings were made during court hearings in the Chelan County Superior Court (although that practice was later adopted. As of 0 court hearings would be attended by an official court reporter and transcribed only if requested by a party in advance of the court hearing. At the bottom of pages and of the clerk s minutes from the November, 0 settlement hearing, the minutes state Not Reported[.] Id. It is the undersigned s understanding that no court reporter was requested in advance of the November, 0 settlement hearing and that therefore no verbatim transcript exists. It appears the official record of the hearing is limited to the clerk s minutes and Judge Bridges s Order confirming settlement of that same date. A copy of said Order is attached as Exhibit C to the Declaration of Brian C. Huber filed concurrently herewith. Page

10 Case :0-cv-000-JLQ ECF No. filed 0// PageID. Page 0 of 0 DATED this th day of July,. s/brian C. HUBER WSBA No. Attorney for Plaintiffs JEFFERS, DANIELSON, SONN & AYLWARD, P.S. 00 Chester Kimm Road P.O. Box Telephone: 0-- Fax: brianh@jdsalaw.com Page 0

11 Case :0-cv-000-JLQ ECF No. filed 0// PageID. Page of CERTIFICATE OF SERVICE I hereby certify that on July th,, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF System. Notice of this filing will be sent to the parties listed below by operation of the Court s electronic filing system. Parties may access this filing through the Court s system. 0 Dana Cleveland dana.cleveland@colvilletribes.com bonnie.timentwa@colvilletribes.com Jason C. D Avignon Jason.davignon@colvilletribes.com Brian C. Huber brianh@jdsalaw.com teishab@jdsalaw.com Pamela Jean DeRusha USAWAE.PDeRushaECF@usdoj.gov colleen.kelley@sol.doi.gov mary.f.buhl@usdoj.gov Rudolf J Verschoor usawae.rverschoorecf@usdoj.gov mary.f.buhl@usdoj.gov Matthew A. Mensik mam@witherspoonkelley.com Joseph Cox Finley jos.finley@yahoo.com Dale Melvin Foreman dale@fahzlaw.com R Bruce Johnston bruce@rbrucejohnston.com Franklin L Smith Frank@Flyonsmith.com Timothy Michael Lawlor tml@witherspoonkelley.com James M Danielson jimd@jdsalaw.com Page

12 Case :0-cv-000-JLQ ECF No. filed 0// PageID. Page of Notice of this filing is being sent this date via United States Postal Service First Class Mail to the parties below at the addresses indicated below. Francis Abraham 0 E. Empire Avenue Spokane Valley, WA PRO SE PARTIES Catherine Garrison S th Street, Apt Tukwila, WA -0 0 Michael H. Palmer PO Box Nespelem, WA Paul Wapato, Jr. Forest Estates Drive Spokane, WA Sandra Covington P.O. Box Omak, WA Linda Saint PO Box Omak, WA - Deborah A. Backwell SE Keegan RD Eagle Creek, OR 0 Vivian Pierre PO Box Elmer City, WA Gary and Francis Reyes PO Box Newman Lake, WA 0 Mary Jo Garrison PO Box Seattle, WA Enid T. Wippel PO Box 0 Nespelem, WA Judy Zunie PO Box Omak, WA Francis J. Abraham PO Box Spokane, WA - Arthur Dick PO Box Nespelem, WA -0 Page

13 Case :0-cv-000-JLQ ECF No. filed 0// PageID. Page of 0 Francis J. Reyes PO Box Elmer City, WA -0 Annie Wapato 00 Jones Rd. Wapato, WA - Dwane Dick PO Box Nespelem, WA -0 Kathleen M. Dick PO Box Nespelem, WA -0 Paul G. Wapato, Jr. 0 N Sundance Dr. Spokane, WA - Leonard M. Wapato PO Box White Swan, WA -0 Jacqueline L. Wapato PO Box Lapwai, ID 0-0 Jeffrey M. Condon PO Box Omak, WA - Sonia W. (Wapato Vanwoerkom 0 th St. Lewiston, ID 0- Hannah Rae Dick PO Box Nespelem, WA -0 Lydia A. Arneecher PO Box Wapato, WA -0 Travis E. Dick c/o Hannah Dick (Guardian of Travis Dick PO Box Nespelem, WA -0 Stephen T. Wapato N. Franklin Ave Wenatchee, WA 0- Page

14 Case :0-cv-000-JLQ ECF No. filed 0// PageID. Page of 0 DATED at Wenatchee, Washington this th day of July,. s/brian C. Huber BRIAN C. HUBER WSBA No. Attorney for Plaintiffs JEFFERS, DANIELSON, SONN & AYLWARD, P.S. 00 Chester Kimm Road P.O. Box Telephone: 0-- Fax: BrianH@jdsalaw.com Page