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COBELL v. NORTON

March 3, 2003

ELOUISE PEPION COBELL, et al., Plaintiffs,
v.
GALE A. NORTON, Secretary of the Interior, et al., Defendants.



The opinion of the court was delivered by: ROYCE C. LAMBERTH, District Judge

ORDER

This matter comes before the Court on motions by two non-parties, the National Congress of American Indians (NCAI) and the Quapaw Tribe of Oklahoma, for leave to file amici curiae briefs in the instant case. This Court has recently stated that "[a]n amicus curiae, defined as "friend of the court," . . . does not represent the parties but participates only for the benefit of the Court. Accordingly, it is solely within the discretion of the Court to determine the fact, extent, and manner of participation by the amicus." United States v. Microsoft Corp., 2002 WL 319366 at *2 (D.D.C. 2002) (citing Ryan v. Commodity Futures Trading Comm'n, 125 F.3d 1062, 1064 (7th Cir. 1997)). In this context, the Seventh Circuit has opined that
[a]n amicus brief should normally be allowed when a party is not represented competently or is not represented at all, when the amicus has an interest in some other case that may be affected by the decision in the present case (though not enough affected to entitle the amicus to intervene and become a party in the present case), or when the amicus has unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide. Otherwise, leave to file an amicus curiae brief should be denied.
Ryan, 125 F.3d at 1063.
  The Court has concluded that the amicus brief submitted by the National Congress of American Indians may be helpful and of interest to the Court in the instant litigation. Although NCAI acknowledges that it is "speaking not for individual Indians but for tribes," it nevertheless persuasively argues that
[i]t should be of interest to the Court, as it considers the individual claims, to be aware of the Tribes' interest in (1) the Government's handling of tribal trust funds which are in many cases the same kind of trust fund accounts as the ones owned by plaintiffs in the Cobell case (even being called by the same name — "IIM accounts"); (2) the Government's handling of trust land and natural resources owned by individual Indians, which, the tribes argue, must be handled consistent with tribal law and applicable federal laws, even when that reduces the income from the trust account; and (3) the Government's handling of trust land and natural resources where the land is owned by both individuals and as a tribe as tenants in common, or where individual and tribal land is jointly managed and leased.
NCAI's Reply Br. at 2. The Court is certainly cognizant that this is a case concerning individual Indian money accounts, not accounts owned by American Indian tribes. Nevertheless, given the broad nature of the relief at issue in Phase 1.5 of this litigation, it does not seem unreasonable for the Court to consider the potential impact that such relief might have on American Indian tribes. Additionally, NCAI notes that although its interests frequently coincide with the interests of the plaintiffs in this litigation, there nevertheless exists the "potential for some disagreement between tribes and the individual plaintiffs" concerning defendants' management of trust land and natural resources. Id. at 3. Therefore, despite

[246 F. Supp.2d 63]

      defendants' characterization of the NCAI amicus brief as "nothing more than a proxy brief filed by a Plaintiffs-amicus-interest group," it is does not appear to the Court that the amicus brief of NCAI would simply repeat the arguments presented by plaintiffs. Defs.' Opp. B.R. at 8 n. 3. The Court is mindful of defendants' argument that "[t]he parties to this suit have plenty of pleadings from their opponents to respond to, and should not have to divert their focus from the case in chief to respond to an amicus brief." Id. at 10. However, defendants also represent that "the Department of Justice is litigating numerous cases brought by Indian tribes in various courts around the country." Id. at 3. Given the fact that there is probably some overlap between the issues raised in these cases and the issues raised in NCAI's amicus brief, and that defendants are free to file motions for extensions of time to file responsive briefs, the Court concludes that it would not constitute an undue burden on defendants to respond to the NCAI amicus brief. Accordingly, the Court will grant NCAI's motion for leave to file its amicus brief.

  On the other hand, the Court does not believe the filing of an amicus brief by the Quapaw Tribe would necessarily prove helpful to the Court in the instant litigation. First, given that both defendants and plaintiffs have submitted motions opposing the Quapaw Tribe's motion for leave to file, the Court would be overriding the express objections of both parties if it were to grant the Quapaw Tribe's motion. Second, the interests of the tribe are already fully represented because it has filed an independent civil action against defendants. Third, unlike the NCAI, which represents the interests of over 250 American Indian tribes and Alaska Native villages, the Quapaw Tribe represents the interests of only a single tribe. Both plaintiffs and defendants persuasively argue that granting the Quapaw Tribe's motion would encourage other individual tribes to move for leave to file similar amici briefs, which would unduly expand the already extensive record in this case. Pls.' Opp. Br. at 5-6; Defs.' Opp. Br. at 7. Therefore, the Court will deny the Quapaw Tribe's motion for leave to file an amicus brief in the present case. Accordingly, it is hereby

  ORDERED that the motion of the Quapaw Tribe of Oklahoma (O-Gah-Pah) for the admission pro hac vice of Stephen R. Ward and Jason B. Aamodt for the sole purpose of seeking leave to file, and filing, a brief amicus curiae [1753-1] be, and hereby is, GRANTED. It is further

  ORDERED that the motion of the Quapaw Tribe of Oklahoma (O-Gah-Pah) to file an amicus curiae brief [1752-1] be, and hereby is, DENIED. It is further

  ORDERED that the motion of the National Congress of American Indians for leave to file an amicus curiae brief [1755-1] be, and hereby is, GRANTED. It is further

  ORDERED that, pursuant to Rule 83.2(d) of the Rules of the U.S. District Court for the District of Columbia, the motion of the National Congress of American Indians to grant leave for Geoffrey D. Strommer to appear pro hac vice on its behalf in the instant litigation [1756-1] be, and hereby is, GRANTED. It is further

  ORDERED that defendants' motion for an enlargement of time to file an opposition brief to the National Congress of American Indians' Amicus Brief [1800-1] be, and hereby is, GRANTED. Defendants shall have eleven (11) days from the date of the instant order in which to serve and file a memorandum of points and authorities in opposition to the amicus brief of the National Congress of American Indians. It is further

[246 F. Supp.2d 64]

     

  ORDERED that the Brief for Amicus Curiae National Congress of American Indians, dated January 28, 2003, which is attached as an exhibit to the NCAI's motion for leave to file, shall be filed by the Clerk of Court.

  ORDER

  This matter comes before the Court on defendants' motion to strike scandalous materials from plaintiffs' response to defendant's historical accounting plan for individual Indian money accounts [1795-1], which was filed on February 10, 2003. Rule 12(f) provides in relevant part that "upon motion made by a party within 20 days after the service of the pleading upon the party . . ., the court may order stricken from any pleading any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter." It has been observed by well-respected commentators that
[t]he court possesses considerable discretion in disposing of a motion to strike redundant, impertinent, immaterial, or scandalous matter. However, because motions to strike on these grounds are not favored, often being considered `time wasters,' they usually will be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties.
5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1382 (2d ed. 1990) (citing cases) (footnotes omitted). In relation to material alleged to be "scandalous" in nature, the same authorities have explained that "[i]t is not enough that the matter offends the sensibilities of the objecting party if the challenged allegations describe acts or events that are relevant to the action" and that "[t]he granting of a motion to strike scandalous matter is aimed, in part, at avoiding prejudice to a party by preventing a jury from seeing the offensive matter or giving the allegations any other unnecessary notoriety. Of course, if the complaint will not be submitted to the jury, or if the case will be tried to the court, . . . there is less need to strike scandalous allegations." Id. (citing cases) (footnotes omitted).
  In a recent case, United States v. Property Identified as Lot Numbered 718, 983 F. Supp. 9, 13 (D.D.C. 1997), this Court denied a motion to strike allegedly scandalous material from the government's response to an affidavit, observing that
it was hardly "scandalous," Fed.R.Civ.P. 12(f), "bear[ing] no possible relationship to the controversy." Talbot v. Robert Matthews Distributing Co., 961 F.2d 654, 664 (7th Cir. 1992). Indeed, [the] motion to strike must be denied because it commits the equally objectionable sin of frivolity.
These observations apply equally to defendants' motion. Accordingly, it is hereby

  ORDERED that defendants' motion to strike [1795-1] be, and hereby is, DENIED.

  ORDER

  This matter comes before the Court on Interior Defendants' motion to strike plaintiffs' untimely filings [1760], which was filed on January 30, 2003. Defendants state that plaintiffs made three filings in an untimely manner, and that these filings should be struck as untimely filed.[fn1a] Although plaintiffs concede that the filings were made in an untimely manner, plaintiffs state that the lateness of the filing was due to an inadvertent miscalculation of the date by which they were required to respond to defendants' filings. The Court accepts plaintiffs' representation that the lateness of their filings resulted from a good faith misunderstanding regarding the date on which they were required to respond. Additionally, the Court is mindful of Rule 6(b)(2) of the Federal Rules of Civil Procedure, which provides in relevant part that "[w]hen . . . by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion . . . upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect." However, plaintiffs have failed to file any motion seeking relief under Rule 6(b)(2). Additionally, if the Court were to deem plaintiffs' opposition brief to constitute such a motion, it would be necessary for the Court to permit defendants to file an opposition brief in response, and to permit plaintiffs to submit a reply brief. The Court concludes that this simple procedural issue does not merit another round of briefing, especially given the parties' recent penchant for flooding the Court with motion after motion. Finally, although there might be merit in plaintiffs' argument that no prejudice has accrued to defendants from plaintiffs' having filed their responsive briefs a day or so late, the Court nevertheless concludes that it is only fair to require all parties to the present case to comply with the Federal Rules of Civil Procedure and Local Rules. Accordingly, it is hereby

  ORDERED that defendants' motion to strike [1760] be, and hereby is, GRANTED.

  MEMORANDUM AND ORDER

  This matter comes before the Court on defendants' motion to file under seal a portion of their response to the Seventh Report of the Court Monitor ("Seventh Report") [1304-1], which was filed on May 16, 2002 and defendants' unopposed motion to file under seal their notice of filing the original declaration of James E. Cason [1315-1], which was filed on May 30, 2002. Also before the Court is defendants' motion for a protective order regarding allegedly privileged documents that were referenced in the Seventh Report [1320-1], which was filed on May 31, 2002. Upon consideration of defendants' motions, plaintiffs' opposition thereto, defendants' reply briefs, and the applicable law in this case, the Court finds that defendants' motions should be granted.

  I. PROCEDURAL BACKGROUND

  On May 2, 2002, the Court Monitor (now Special Master-Monitor) ("Monitor") filed the Seventh Report.[fn1b] The attachments submitted with the Seventh Report included four letters between Justice Department attorneys and Interior Department officials, and two interdepartmental memoranda from the Office of the Special Trustee to the Office of the Solicitor (collectively, "the Six Documents"). On May 16, defendants filed their response to the Seventh Report. On the same date, defendants moved to file under seal a portion of their response that discussed the Six Documents, claiming that the documents fell under the protection of the attorney-client privilege and the work product doctrine. Attachment 3 of defendants' response contained a facsimile copy of a declaration that was composed by Associate Deputy Interior Secretary James E. ...


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