UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, : Civil Action 96-1285 et al. : Plaintiffs : : Washington, D.C. V. : Wednesday, March 5, 2008 : DIRK KEMPTHORNE, Secretary : of the Interior, et al. : : Defendants : 2:30 p.m. TRANSCRIPT OF STATUS CONFERENCE BEFORE THE HONORABLE JAMES ROBERTSON UNITED STATES DISTRICT JUDGE APPEARANCES: For the Plaintiffs: DENNIS GINGOLD, ESQUIRE LAW OFFICES OF DENNIS GINGOLD 607 14th Street, NW Ninth Floor Washington, DC 20005 (202) 824-1448 ELLIOTT H. LEVITAS, ESQUIRE WILLIAM E. DORRIS, ESQUIRE KILPATRICK STOCKTON, L.L.P. 1100 Peachtree Street Suite 2800 Atlanta, Georgia 30309-4530 (404) 815-6450 KEITH HARPER, ESQUIRE JUSTIN GUILDER, ESQUIRE KILPATRICK STOCKTON, L.L.P. 607 14th Street, N.W. Suite 900 Washington, D.C. 20005 (202) 585-0053 DAVID C. SMITH, ESQUIRE KILPATRICK STOCKTON, L.L.P. 1001 West Fourth Street Winston-Salem, North Carolina 27101 (336) 607-7392 PDF created with pdfFactory trial version www.pdffactory.com For the Defendants: ROBERT E. KIRSCHMAN, JR., ESQUIRE JOHN WARSHAWSKY, ESQUIRE MICHAEL QUINN, ESQUIRE U.S. Department of Justice 1100 L Street, N.W. Washington, D.C. 20005 (202) 307-0010 JOHN STEMPLEWICZ, ESQUIRE Senior Trial Attorney U.S. Department of Justice Commercial Litigation Branch Civil Division Ben Franklin Station P.O. Box 975 Washington, D.C. 20044 (202) 307-1104 Court Reporter: REBECCA STONESTREET Official Court Reporter Room 6511, U.S. Courthouse 333 Constitution Avenue, N.W. Washington, D.C. 20001 (202) 354-3249 Proceedings reported by machine shorthand, transcript produced by computer-aided transcription. PDF created with pdfFactory trial version www.pdffactory.com 1 P R O C E E D I N G S 2 COURTROOM DEPUTY: This is Civil Action Number -- 3 THE COURT: Have I told this story before? When I was 4 in private practice I was representing a television company, and somebody had sued them for anti-trust in Mississippi. And we 6 walked in to take a deposition in the courthouse, and the 7 courthouse was full of suits. And the local lawyer who had 8 filed the suit against our client and others looked around and 9 looked at that group of people and said: "Lord, I think the Chamber of Commerce ought to give me an award for bringing all 11 you people to town." 12 That's kind of the way I feel with this courtroom. 13 I'm sorry. Call the case, Al. 14 COURTROOM DEPUTY: This is Civil Action Number 96-1285, Cobell, et al. versus Assistant Secretary of Interior, et al. 16 If counsel that will be speaking would please identify 17 themselves for the record. 18 MR. KIRSCHMAN: For the government, Your Honor, Robert 19 Kirschman. MR. GINGOLD: For plaintiffs, Dennis Gingold. 21 MR. DORRIS: For plaintiffs, Bill Dorris. 22 MR. HARPER: Plaintiffs, Keith Harper. 23 THE COURT: Okay. We set this status conference down 24 after I issued the order I issued at the end of --after issuing the findings of fact and conclusions of law that I issued at the Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com PDF created with pdfFactory trial version www.pdffactory.com 1 end of January, for the purpose of discussing a process for 2 determining an adequate remedy. 3 I don't want to get all hung up on process. I think I 4 tried to send a pretty clear message in those findings and conclusions that it is time to bring this matter to a close with 6 a decision of some kind or another. 7 The most obvious kind of remedies that occur to me are, 8 A, declaratory judgment, and/or, B, something to do with money. 9 The money issue has been much vexed in the history of this case because of the very clear jurisdictional lines between something 11 that looks like, smells like, feels like, or otherwise simulates 12 economic damages on the one hand, and something which the 13 plaintiffs have maintained from the beginning is not damages, 14 but in fact the IIM account holders own money, which should be equitably disgorged to them. 16 It is no secret to anybody in this courtroom that the 17 idea of equitable disgorgement, if it was ever clearly known to 18 federal courts, is sort of lost in the murk of history. But 19 frankly, when I try to think about remedy in this case, I can't quite think past the analytical blocks called jurisdiction, 21 equitable disgorgement, and how much. Those are the questions 22 that occur to me. I'm sure the lawyers can think of much more 23 subtle, complex, and difficult questions, but when I said that I 24 wanted to discuss a process for determining an adequate remedy, those are the three analytical boxes I had in my head. 1 I'm assuming that between January 30th and today, 2 you-all have had some time to think about and ponder the 3 question of where we go from here, and I will be happy to hear 4 from counsel now, in whatever order you think you want to go first or whoever wants to grab the podium first. 6 There are some other related procedural questions and 7 loose ends in this case that we should talk about at some point 8 this afternoon, but I want to begin with this core subject of a 9 process for determining adequate remedy. So who wants to be heard first, Mr. Kirschman? 11 MR. KIRSCHMAN: Thank you, Your Honor. Your Honor, 12 when you talk about determining an appropriate remedy in this 13 case, the Court should be guided by two principal points. One 14 is the fact that there is in this case not only a long history, but a well established law of the case, and that applies 16 especially to the issue of a remedy in this case. 17 The second main point is the nature of this class 18 action and how that affects any remedy in this case. I would 19 like to address those two points regarding --and I think that would cover your first analytical box related perhaps towards 21 jurisdiction, to a certain extent. 22 The law of this case comes from Judge Lamberth over the 23 years, several of his decisions, and it comes from the Court of 24 Appeals. This law of the case cannot be simply ignored, and it certainly should not be forgotten. 1 Under the law of this case, both Judge Lamberth and the 2 Court of Appeals made clear this point, and that is there is 3 only one live claim and there's only one remedy available for 4 that live claim, and that is the historical accounting. Judge Lamberth, as late as 2005, was unequivocal in 6 stating that the plaintiffs' single live cause of action seeks 7 remedy for this legal breach - and that is the failure to 8 provide an accounting - and I'm quoting now. Judge Lamberth 9 stated in his 2005 opinion: "The remedy that this Court has fashioned is limited to ensuring that the defendants produce the 11 requisite accounting of the Indian Trust." 12 Judge Lamberth then went on to address the 13 underpinnings of the legal action brought, and he concluded -- 14 while he was quoting his earlier Cobell V opinion, he stated in 2005 that: "Thus, to the extent plaintiffs seek relief beyond 16 that provided by statute, their claims must be denied." 17 The Court of Appeals confirmed this point as late as in 18 2006, Your Honor. The Court of Appeals stated plainly that the 19 accounting of the IIM Trust is, quote, "The ultimate relief sought in this case," and quote, "the ultimate relief sought by 21 the class members." 22 Again, Judge Lamberth's consideration of this issue 23 goes back to Cobell I in 1998, and to Cobell V in 1999, so this 24 case law is very relevant to the issue of what remedy is available here. 1 And the second point tied to that, Your Honor, is the 2 nature of this class action. This class action was brought for 3 an accounting, and the accounting that was sought was for the 4 individual plaintiffs, the plaintiff class and the individual beneficiaries. So the question has to be asked whether, in 6 looking at a remedy, these individual beneficiaries can receive 7 an accounting. 8 Plaintiffs have always taken an all-or-nothing approach 9 to this issue, Your Honor. Their position is that if not every single IIM account for every single beneficiary can be accounted 11 for to the extent that they argue should be found applicable, 12 then no accountings should be done, no historical statements of 13 account should be released. There's simply no justification for 14 that. What we have here is a class of individual 16 beneficiaries, and to the extent that the individual can benefit 17 from a historical statement of account because the work has been 18 done, then those statements of account should be released. Any 19 other finding is contrary to the interests of the individual and the purposes of the 1994 Act. Interior should be providing 21 information to those people for whom it has such information, it 22 should provide the accounting that is possible. 23 Now, in your January 30th findings of fact, Your Honor, 24 you did find that the accounting was impossible. But this also appears to be on a global view, that not all the work that would Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 1 be necessary for every beneficiary could be done to the extent 2 that you found was required under the terms of the 1994 Act. 3 However, we respectfully state that that is 4 inconsistent with the 1994 Act that was looking to an accounting for individuals, and such a global view will not benefit the 6 individual beneficiaries. 7 We appreciated and certainly agree with the Court's 8 finding in the January 30th findings of fact that Department of 9 Interior deserves credit for acting professionally and doing all they could to provide the accounting with the resources they 11 have. That is absolutely true. Those efforts, to the extent 12 they could benefit individual beneficiaries, should not be 13 wasted. 14 The purpose of the Act was to give the best accounting practicable, and what we're saying is, as part of the remedy 16 here, that information should be provided. Those individuals 17 who can receive information should receive it. It shouldn't be 18 kept from them. 19 The Court has before it pending historical statements of account related to per capita and judgment accounts. Now, 21 those, along with other specific land-based accounts, could fall 22 and do fall under the Court's opinion, or January 30th findings 23 of fact. That is, you don't need to go behind a probate 24 decision, for example, you don't have to look at an inheritance. These historical statements of account and those 1 related to land-based accounts that began in the electronic 2 ledger era that started with a zero balance not related to a 3 probate, this type of information could be provided. And that's 4 the remedy contemplated by the Act, and it's the only one contemplated by Judge Lamberth and the Court of Appeals, and 6 it's the only one supported by the complaint in this case. 7 So all that hard work and the $127 million that has 8 been expended to date should be utilized to benefit those 9 people, those beneficiaries who could use the information. Here it's notable, Your Honor, that since 2001, the 11 Department of Interior has been providing quarterly statements 12 related to the transactional history of accounts, moving 13 forward, looking forward. And while plaintiffs have always 14 argued that you shouldn't release any of this information related to the historical accountings because it's confusing or 16 because it's incomplete, we strongly disagree with that. 17 There has not been a rush to this Court under the 18 Little Tucker Act or the Court of Federal Claims related to 19 those quarterly statements of account that have been provided through the hard work of Interior to the individual 21 beneficiaries. And even if there were questions to arise from 22 the historical statements of account that could be provided, at 23 least they would see the light of day and the individual 24 Indians, those who would benefit from the information and should have it, could raise their concerns. They could either file Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 1 claims, or, as another part of the remedy, they could move 2 through an administrative process that we then ask the Court to 3 take note of that the Department of Interior has contemplated. 4 This is the remedy, the only remedy contemplated by the 1994 Act and by the law of this case, and it will benefit 6 individual beneficiaries. We are talking about tens of 7 thousands of accounts. So we think this is a remedy, and it's 8 the appropriate one. 9 To go beyond that, to look at any other relief, would be contrary to the law of the case and would raise issues 11 related to the jurisdiction of this Court. It depends what 12 monies you look at, but if you look at monies that were not or 13 are not in individual Indian money accounts, any award would 14 very likely be substitutionary and would likely then fall outside of 702 of the APA. 16 This is an APA case, and that's been recognized, 17 especially when it comes to remedies, by Judge Lamberth and by 18 the Court of Appeals. These issues related to the jurisdiction, 19 related to the APA and the scope of 702, are matters that we believe - and I'm talking about process here - should be briefed 21 anew in light of your findings of fact on January 30th. 22 The implications of your finding of impossibility 23 should also be briefed by the parties. It is something that was 24 not addressed, I believe by either party, leading up to the October hearing, and the parties should be able to provide the Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 1 Court with their insights and their argument on the implications 2 of the finding of impossibility. 3 The Court did not, in finding impossibility, indicate 4 the consequences of that finding, and I think it would benefit all concerned, and hopefully the Court, to brief that issue as 6 to what it means. 7 THE COURT: Well, that's kind of what I thought we were 8 here about today. And when you tell me that the law of the case 9 says the only relief is a historical accounting, that doesn't mean very much if historical accounting is impossible. Then 11 what? Then there's no relief? Relief is impossible? 12 MR. KIRSCHMAN: Well, Your Honor -- 13 THE COURT: Is that the government's position? 14 MR. KIRSCHMAN: Well, respectfully, Your Honor, there are aspects of your January 30th findings of fact and 16 conclusions of law we don't agree with, and one is the finding 17 of impossibility, for the reasons I've just stated. We should 18 address what it means regarding the individual accounts. 19 As far as other relief, that is not this case. THE COURT: What case is it? What case is it? 21 MR. KIRSCHMAN: It's a case that has not been brought 22 by this class of individual IIM beneficiaries. It is a case 23 that would have to do more than ask for an accounting under the 24 1994 Act. It is a case that likely would have no place in this court. But those are matters we should brief. 1 What we have here is a complaint and a law of the case 2 that demonstrates that there is an appropriate remedy, the 3 ultimate relief is a historical accounting, and any other remedy 4 may be denied. The ultimate outcome with that, then, may mean that the remedy available is what I've described and no more, 6 because of the limitations in this Court and because of the 7 posture of this case. 8 It's important to point out too, Your Honor, regarding 9 the nature of this class action, that this class was certified under 23(B)1 and (B)2. And we raised this issue back in our 11 June 13th, 2007 brief, Your Honor, and we cover it in more 12 detail than I probably will here. But the point is, this is not 13 an opt-out class action, this is a class action brought for 14 injunctive relief only and not for an award of money. Again, we cite cases in our June 13th brief, but the 16 point is, there are additional safeguards that should be 17 afforded class members when the issue of monetary relief is 18 raised as part of a remedy in a class action. And that has 19 never been addressed by plaintiffs, and at this stage there is no reason to raise it. 21 This class was presented to the Court, was presented to 22 Judge Lamberth, not as an opt-out class, and as a class that was 23 seeking only the injunctive relief of enforcement of the 24 accounting obligation that in Cobell VI the Court of Appeals found to exist through the 1994 Act. 1 So we get into a lot of questions about in what case 2 can they seek money. And I think the bottom line is, it's not 3 this case. And to go beyond that in this case raises, as you 4 said, jurisdictional issues. The analytical box of equitable disgorgement raises 6 those same issues, because under the APA, even under Bowen v. 7 Massachusetts, you have to look to the statute that is being 8 addressed by the Court and being raised by the plaintiff, and 9 you look to determine whether the payment of money flows from that statute. And we believe that that is not the case, and we 11 would like an opportunity to brief that again. 12 But the point also is that it would be substitutionary, 13 depending on what was pled. We've been dealing here with 14 allegations. And the Court, for example, noted in your January 30th opinion, for example, a delta in the one document 16 presented by Dr. Haspel between collections and --collections 17 by the Department of Interior and that money that then was 18 posted to individual Indian money accounts. That is the IIM 19 Trust. To look at that gap -- and you were right, Your Honor. 21 You stated that you presumed that Mr. Haspel's exhibit wasn't 22 meant to show any type of shortfall of about $3 billion, and 23 indeed you were correct. That was not the implication that 24 should be made from that document. But the point is here, that money, that $3 billion gap, Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 1 assuming it exists, to address that, for example, would lead to 2 an issue of funds that arguably should have been posted in the 3 IIM accounts, and then we're looking outside of the accounting 4 that was to be of funds that weren't in the IIM accounts. Judge Lamberth also addressed that issue. In finding 6 that he could hear the case and could decide the claim, 7 Judge Lamberth clearly found, based on plaintiffs' 8 representations, that this case was not about an infusion of 9 funds into the existing IIM accounts. So to go in that direction, to consider what should have been in the IIM 11 accounts, leads to that issue which Judge Lamberth found was not 12 part of this case based on his early discussions with the 13 parties and his reading of the complaint. 14 THE COURT: Well, there's no question, Mr. Kirschman, that there is a whole universe of issues that aren't even 16 touched by this case. And they're the issues that we've come to 17 call, I think, the management issues, and have to do with 18 whether the sufficient monies were collected, you know, whether 19 high enough prices were charged, how funds were managed once they were within the Treasury Department, and so forth. 21 And I think everybody agrees that those issues are not 22 part of the case that is before us now. 23 MR. KIRSCHMAN: Yes, Your Honor. 24 THE COURT: What I am talking about, or thought I was talking about in the opinion, was monies that were in fact 1 collected and made it into Treasury -- into trust funds in some 2 way, but have not been adequately accounted for. The payout has 3 not been adequately accounted for. That's the issue which I 4 said both sides at the October trial presented proof that I call desultory, because I don't think either side paid much attention 6 to that or could pay much attention to it. 7 But to my way of thinking, that is a critical subject 8 here, and the best fix I could get on it was somewhere between 9 three and three and a half billion dollars. But that's pretty -- that's not even close enough for government work. 11 So we need better numbers than that. Go ahead. 12 MR. KIRSCHMAN: Your Honor, to look at the collections 13 versus credits to the IIM account now would constitute a 14 significant shift in the paradigm of this case. The accounting is for monies that are held in individual Indian money accounts, 16 and now we're looking outside of that. 17 So the attention was not there because this would be a 18 different view of a different set of funds. And the Department 19 of Interior can conduct that investigation regarding that difference between collections and the posting to IIM accounts, 21 and there are answers. That money, speaking generally, was 22 money that was not intended or should have been in IIM accounts. 23 It was money that was Tribal money, it was money returned to 24 third parties - unsuccessful bidders was an example Mr. Cason provided - it was money that went to fees that were paid by Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 1 various parties to the Department of Interior. 2 And that investigation can be undertaken. It will be 3 as detailed as the work you heard Michelle Herman testify about, 4 where -- THE COURT: How many years will it take? 6 MR. KIRSCHMAN: I cannot answer that, Your Honor. 7 Because again, that is not where the focus of the historical 8 accounting has been. 9 And again, the bigger issue before we ever get to such an investigation is what that represents. That represents a 11 should have been in the IIM accounts, not what is. And for that 12 reason, that would constitute damages. It would be 13 substitutionary. 14 For hypothetically the Court to find that three billion or 2.5 billion should have been in the IIM accounts, any award 16 would not come from the IIM accounts, it would be funds that 17 would have to be appropriated and would be outside the 18 historical accounting, and certainly outside what both 19 Judge Lamberth and the Court of Appeals have envisioned. Judge Lamberth said in Cobell V that the plaintiffs 21 have expressly disavowed seeking an order for the payment of 22 money in this case. Plaintiffs simply do not seek every element 23 of a true accounting, as that phrase was meant at common law. 24 And what was sought here, Your Honor, was information, information that they could use then to address their accounts. Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 1 Again, to the extent that information is available, that 2 information should be provided to the individual beneficiaries. 3 There's no reason to keep them separated from that information 4 that Interior has gone to great lengths to provide. I think it's also important to note in this vein, Your 6 Honor, that as I said, as I just referenced, plaintiffs' common 7 law claims were dismissed by Judge Lamberth, and the Court of 8 Appeals in Cobell VI recognized that there were no cognizable 9 common law claims here. So we are not talking about some common law accounting 11 that might include at the end of it the payment of funds. That 12 has already clearly been decided. Instead what we look to is 13 the 1994 Act and the limited accounting that was addressed in 14 the 1994 Act. In a similar vein, just as there's no common law 16 accounting, this Court's ability to address the issue of 17 remedies is limited by the fact that the Court here respectfully 18 is not sitting as a chancellor in equity. Plaintiffs in an 19 earlier brief this summer stated that an accounting trial should be one as --and I'm quoting from a May 2007 brief, "An 21 accounting trial is traditionally heard by the chancellor in 22 equity." 23 Well, first of all, there is no common law claims here. 24 Those have been dismissed, and that is the law of the case. And two, the Court of Appeals addressed the fact that this Court, in Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 1 considering the 1994 Act, is in a different position than it may 2 be in a case involving private parties who are seeking the full 3 breadth of equitable relief. 4 The Court noted that it would be wrong to assume that the 1994 Act gave the District Court the freedom of a private 6 law chancellor to exercise its discretion fully. And that was 7 in Cobell XVII. And the point of that, and the reason for that 8 was also clearly set out by the Court of Appeals. 9 The Court stated, and again I'm quoting, Your Honor, "Nor does the act, the 1994 Act, have language in any way 11 appearing to grant courts the same discretion that an equity 12 court would enjoy in dealing with a negligent trustee. Congress 13 was, after all, mandating an activity to be funded entirely at 14 the taxpayers' expense." So we look to the 1994 Act and what it envisioned the 16 Department of Interior providing to the individual 17 beneficiaries. And again, Cobell VI addressed that. Cobell VI, 18 in that opinion the Court of Appeals found that there was an 19 obligation to perform a historical accounting, but that's where it stopped. 21 So the issue of how much, we in all honesty believe we 22 should not reach that. That would be contrary to the law that's 23 been established and the 1994 Act. The issue of how much is an 24 issue that is not before the Court in this case, which is one for injunctive relief only, and not an award of money damages to Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 1 a class that was certified only, only to receive information, to 2 receive a historical accounting. 3 Again, to the extent you're talking about money that 4 was unlawfully withheld, that is also a mismanagement issue, Your Honor. Whether that $3 billion, assuming hypothetically 6 they lost it or they erroneously sent it to another Treasury 7 account, that would be a mismanagement issue, and any relief for 8 that relating to equitable disgorgement begs the question, what 9 is it that the government is to disgorge? Speaking roughly, in the IIM account, in 14X-6039, 11 there is approximately $400 million of funds at any time. That 12 money is generally earmarked for individual Native Americans, as 13 it is distributed as addresses are found, as minors reach a 14 mature age. That money, even the $400 million that is in the 14X account, is generally earmarked for individual Native 16 Americans. 17 So the question is, what could the government possibly 18 disgorge even if the Court were to recognize in this case some 19 type of general theory of equitable disgorgement? Again, we would like the opportunity to brief these 21 issues more fully, and -- 22 THE COURT: You're certainly going to get the 23 opportunity. What you're not going to get is 10 years to do it. 24 MR. KIRSCHMAN: Oh, to brief the issue, Your Honor? THE COURT: Of course. I mean, the whole purpose of Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 1 this is to -- we have to figure out what issues we're going to 2 brief. Of course you're going to have the opportunity to brief 3 these questions. 4 MR. KIRSCHMAN: Well, I mention that because I'm -- THE COURT: Sometime over the next 30 or 45 days, okay, 6 that's what we're talking about here. That's my time frame. 7 MR. KIRSCHMAN: Okay, Your Honor. 8 THE COURT: We're going to move this matter along and 9 do something. I don't know what we're going to do, but we're going to move it. 11 So with respect, Mr. Kirschman, I think you're starting 12 to repeat yourself a little bit. So why don't I hear from the 13 plaintiffs? 14 MR. KIRSCHMAN: Thank you, Your Honor. MR. GINGOLD: Good afternoon, Your Honor. 16 THE COURT: Good afternoon, sir. 17 MR. GINGOLD: And thank you very much for scheduling 18 the status conference for today. 19 Your Honor, Mr. Kirschman's understanding of the facts and law in this case is materially different from our own. I've 21 been practicing law for 34 years, and this is the first time 22 I've heard a description of what the United States District 23 Court can do and not do. That's more consistent with a civil 24 law state and a common law state. We do not, as far as I know, operate under the civil Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 1 code doctrine damnum absque injuria; unless there is a specific 2 provision identified in the statute, there is no remedy. And 3 literally speaking, it provides for injury without remedy. We 4 don't have that in this country in this court system. And I understand Mr. Kirschman has expressed a lot of 6 concern for benefits to beneficiaries that they receive -- 7 THE COURT: Do we have damnum absque jurisdiction? 8 MR. GINGOLD: Yes, Your Honor. The jurisdiction is 9 grounded in statute and informed by common law. That's precisely what Cobell VI said, and none of the subsequent Court 11 of Appeals decisions said anything otherwise. Rule 54 of the 12 Federal Rules of Civil Procedure deals with the scope of 13 authority with regard to judgments for an action brought, and 14 specifically provides that Justice be done, that remedies be provided to ensure that the party that's successful gets the 16 relief he's entitled to receive. 17 Your Honor, we've dealt with these issues before and 18 we've discussed them with you, and since I understand that we 19 will be briefing these, I'll be as brief as I can, subject to Your Honor's questions. 21 Monetary recovery is not necessarily damages. The 22 United States Supreme Court established that very clearly in 23 Bowen v. Massachusetts. This Court is aware of that case and 24 itself has noted the discussion of issues in that case. The issue of an accounting is not merely a de minimis Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 1 obligation. As this Court and the Court of Appeals has held, it 2 is actually fundamental to any trust. Without an accounting or 3 an obligation to do an accounting, there is no trust, 4 Your Honor. An accounting, as plaintiffs have said repeatedly, will 6 allow plaintiffs to determine other courses of action once the 7 accounting of all funds, as stated by the Court of Appeals, is 8 completed. And in order to account for all funds, Your Honor, 9 it is necessary to start with the opening balances. This is a commingled trust, it is a common trust fund; we have undivided 11 interests in millions and millions of acres of land. The 12 government itself has represented to this Court -- 13 THE COURT: Somebody answer the phone. 14 Okay. Go ahead. MR. GINGOLD: If it's for me, I can't take it. 16 Your Honor, the interests are for the most part now 17 held undivided. The government has complained about the 18 fractionated interest problems. Even for those interests that 19 are not held in an undivided context, the funds are collected jointly from the revenues developed by the trust lands, 21 deposited in either a government entity or authorized 22 representatives of the government. 23 And in fact, on June 30th, 1998 in a statement of 24 undisputed material facts sent to the --or filed with this Court, the statement of what constitutes an account is not just Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 1 accounts held by the Secretary of the Interior, they also 2 explicitly stated it's accounts held by authorized 3 representatives. That is part of their own regulatory 4 structure, Your Honor. It was never intended to necessarily be identifiable to a trust beneficiary. 6 Because, Your Honor, if a trust trustee manages a trust 7 so poorly that the trust funds are not identifiable and the 8 beneficiaries are not properly stated, that does not excuse the 9 trustee from his own accountability for the mismanagement of the trust. That would be a change of generations of trust law. 11 What we are dealing with here, Your Honor, is a 12 confluence of trust law, the law of restitution and the law of 13 equity. We're dealing with law that has been decided in cases 14 in this country and before that in England. And whether or not there are limitations on this Court because of the unique aspect 16 of the government as trustee, in fact the District Court was 17 granted the same authority of a chancellor in equity. And the 18 Supreme Court has explicitly dealt with that issue, as has this 19 circuit. But what we have here is a very different situation. 21 In order to manage a trust properly, there have to be adequate 22 records, there have to be adequate systems, there has to be 23 adequate staffing. That was explicitly stated by the Court of 24 Appeals in Cobell VI. Those are subsidiary duties of the duty to account. 1 The government is in breach of its duty to account, it 2 has been in breach of that duty to account, and the 3 impossibility means it will continue to be in breach of its duty 4 to account. Therefore, what we are dealing with, Your Honor, is, 6 what are the remedies available for this Court with a breaching 7 trustee? The remedies available to a Court with a breaching 8 trustee are broad, Your Honor. So long as we don't run into the 9 jurisdictional issue this Court has identified, which is whether or not we are in fact seeking damages as opposed to 11 restitutionary relief, the issue of legal versus equitable 12 restitution has been examined thoroughly over the decades, more 13 recently with regard to the U.S. Supreme Court in 2002 in the 14 Great West Life case. Your Honor, this trust at the turn of the 20th century 16 had 54 million acres of land; today we are guessing there are 17 approximately 11 million acres of land. The government says in 18 its filings with this Court that it is one of the largest land 19 trusts in the world. This Court in its January 30th opinion specifically restated what has been said before by this Court, 21 and that is, yes, assets are part of the accounting. 22 Your Honor, equitable restitution is identified for a 23 breaching trustee. To the extent this Court doesn't have 24 jurisdiction, in both this circuit and in decisions of the Supreme Court, there must be a specific statute that limits the Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 1 equitable authority of the Court. Examples for Your Honor are 2 ERISA, CERCLA, and civil RICO. They are characterized by the 3 United States Supreme Court in this circuit and other circuits 4 as comprehensive reticulating statutes that explicitly provide the relief that a United States District Court judge is to 6 consider, unless the limitations are established by statute. 7 And, Your Honor, they are not established by the Trust Reform 8 Act or any other statute going back to the 1890s that plaintiffs 9 have provided as a supplement in their proposed findings and conclusions that deal with any limitation with regard to the 11 remedies where the United States as trustee is in breach. 12 Your Honor, an easy way to look at it from our 13 perspective is damages is to provide a remedy for the injury 14 sustained by the plaintiffs. Equitable restitution is to provide a remedy for two purposes; to require the disgorgement 16 of trust funds and assets that the trustee in breach has no 17 right to retain for his or her purposes, and two, equally 18 important, Your Honor, to ensure that the misconduct in the 19 management of the trust does not continue. They are equally important issues. 21 And that was an issue, as a matter of fact, recently 22 discussed in the United States Supreme Court case decided on 23 February 20th with regard to the reach of ERISA. And it's one 24 of the few Supreme Court decisions I've seen in years, Your Honor, where there was no dissent. And in that particular case Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 1 the statement was, where you have --in an ERISA pension fund 2 situation, where you have misconduct by the administrator or the 3 trustee, there's greater latitude, even where there is a 4 comprehensive reticulating statute, to provide remedy for the beneficiary, the participant in the plan, not just for the plan 6 itself. That was a significant change from previous decisions, 7 and Your Honor, there was no dissent by the Supreme Court. 8 Now, equitable restitution has always been considered 9 the antithesis to damages. If plaintiffs wanted damages, we would have sought damages in the appropriate forum. We were 11 hoping that an accounting, and we were hoping, obviously naively 12 at this point in time, Your Honor, we were hoping that an 13 accounting would reveal exactly how the trust was managed, what 14 assets continue to be held, what funds continue to be held, how they were held, and where they were held, and whether or not 16 it's the United States government that should be disgorging or 17 provide restitution, whether or not damages would be in order 18 based on the details of that conduct over the history of the 19 trust, and/or, Your Honor, whether or not we would need to seek relief from third parties. 21 Your Honor, it became evident after the first couple of 22 years of this litigation that the accounting was not possible, 23 as the government was unable to produce documents even under the 24 November 27th, 1996 court order. And Your Honor, we learned that, we kept on reporting to the Court we didn't believe the Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 1 accounting was possible and therefore the remedies that we could 2 have determined as appropriate once an accounting is rendered 3 obviously don't exist in that regard, but we are left with a 4 remedy that has been in existence, and the Supreme Court does not consider it damages and no other circuit that I'm aware of, 6 Your Honor, has ever considered it damages, and that is 7 restitution. 8 We want the property of our clients back. We want the 9 benefit conferred on the government for its unlawful conduct -- and there is no correlation, Your Honor, between the injury our 11 clients have sustained and the benefit conferred on the 12 government for its breach of trust. That is the difference 13 between damages and non-damages, or equitable relief, which 14 every single authority has stated does not constitute damages. THE COURT: Okay. Mr. Gingold, I get the drift. But 16 talk to me about Mr. Kirschman's Rule 23 point. What do we do 17 about the class action aspects of this case? 18 MR. GINGOLD: I would like to refer this Court to 19 Coleman Vs. Pension Benefit Guaranty Corporation. It's a District Court decision in this district, August 10th, 2000. It 21 specifically holds as follows: "The class certified under 22 Rule 23(B)(2) may recover monetary relief in addition to 23 declaratory and injunctive relief at least where the monetary 24 relief does not predominate." And it cites to you Banks vs. Billington, a DC Circuit case in 1997. 1 THE COURT: You don't think a monetary award styled as 2 something other than damages in the neighborhood of billions of 3 dollars wouldn't predominate over -- 4 MR. GINGOLD: Your Honor, we sought an accounting to determine whether or not there was anything that was owed to the 6 plaintiffs. Based on the discovery and the testimony in this 7 case and the documents that have been produced over nearly 8 12 years, it became evident that there are issues that go far 9 beyond this, especially, Your Honor, with respect to the property. 11 I would suggest, Your Honor -- prior to Trial 1.5 in 12 2003, Your Honor, plaintiffs deposed Bert Edwards, the executive 13 director of the Office of Historical Accounting. During the 14 course of that deposition, plaintiffs' counsel asked Mr. Edwards, "What happened to approximately 40 million acres of 16 land that were held in trust?" The response from Mr. Edwards 17 was -- after plaintiffs' counsel said, "Did the land just 18 vanish," he said, "It must have just vanished." 19 Your Honor, that is trust corpus. The subsurface rights include oil and gas, the surface rights include timber 21 and grazing and other issues. These are vested property rights. 22 The government itself may have acquired much of that acreage, 23 whether those properties were transferred to the Department of 24 Defense for military bases and bombing ranges, whether they were transferred to the Department of Agriculture, or whether BLM Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 1 itself directly has held them or has acquired those lands 2 through swaps. 3 Your Honor, this is an action in equity. The Court of 4 Appeals said the Trust Reform Act doesn't create or limit the rights of the plaintiffs in Cobell, it affirms rights and it 6 isn't exclusive. That's exactly what it said, Your Honor. 7 How far we go with that remains to be seen. However, 8 I'm dealing with specific holdings and what the truth of the 9 matter is. And Your Honor -- THE COURT: What do I do with Eddie Jacobs? What are 11 you going to do with Eddie Jacobs? He wants to opt out. 12 MR. GINGOLD: Your Honor, Mr. Jacobs, as I read his 13 complaint, Mr. Jacobs is talking for the most part about 14 damages. Mr. Jacobs believes he has an action for damages. This case is not for damages, it is not covered for damages, 16 does not preclude anyone who is otherwise not precluded, based 17 on whatever judgment occurs, from seeking damages on his own in 18 the claims court. 19 Your Honor, the claims court does not have general class action jurisdiction, nor does the claims court have 21 general equitable jurisdiction. One of the reasons the 22 Individual Indian Trust is in as bad shape as it is, based on 23 testimony from government officials, former government 24 officials, is because there was no expectation that individuals would be able to bring an action to hold the government 1 accountable because of the limited jurisdictional requirements 2 in the claims court. Again, they don't have general equitable 3 authority to fashion equitable relief, as this Court, as an 4 Article III Court, has. That doesn't exist in a claims court. What we have is a situation that has gone on for 6 120 years with no accountability, poor records -- 7 THE COURT: I got that part. I got that part. 8 MR. GINGOLD: Your Honor, one other thing with regard 9 to Judge Lamberth. It's stated by Mr. Kirschman that Judge Lamberth said that this is only an APA case. I would like 11 to cite to you language from the November 5, 1998 decision of 12 Judge Lamberth. It's 30 Supp 2nd 33, and it is a summary 13 judgment decision of Judge Lamberth at the time. 14 Direct quote at page 33: "The defendants seek from the beginning to constrain the plaintiffs' claims to the APA, but 16 such a characterization simply does not comport with facts 17 alleged and the allegations set forth in the complaint. 18 Therefore, to the extent that plaintiffs state a claim for 19 equitable relief for breach of trust duties, Defendant's motion for judgment on the pleadings must be denied." Your Honor, that 21 wasn't appealed. 22 So therefore, with all due respect to Mr. Kirschman, 23 our understanding of the law of this case is very different from 24 his own. We believe it's critical for this Court to set a trial date clear. Clearly the issues that this Court has outlined for Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 1 us with regard to jurisdiction and the other two issues can be 2 dealt with in motions in limine or in pretrial briefs. 3 We believe it is important. It's been 12 years. 4 10 percent of the time of this trust has been involved in litigation against this trustee. We agree completely that this 6 case must end, it must end in accordance with Cobell XIX's 7 instructions, which are to resolve the case expeditiously and 8 fairly. 9 Therefore, Your Honor, we ask this Court to consider setting a May 26th, 2008 trial date. We can be prepared to go 11 to trial at that point in time. This Court has noted before, 12 much has been produced given the concerns about accuracy and 13 completeness of information. There's very little that anyone 14 can reasonably expect will be changed between now and, Your Honor, another 10 years with regard to the quality of the 16 data. What it is, it is. So we are prepared to go to court, 17 try this case on May 26th -- 18 THE COURT: What does the trial look like? 19 MR. GINGOLD: Your Honor, I believe it should be considered an equitable restitution proceeding, and the 21 equitable restitution, if this Court chooses, can include both 22 the monetary relief, the recovery of the benefits conferred on 23 the government through its breaches of trust - and this Court 24 has held the government in breach of trust - and also, Your Honor, the incidental and consequential benefits derived 1 therefrom, which is conventional equitable restitution. 2 In addition, Your Honor, if this Court chooses at that 3 time, or how it deems appropriate, the recovery of up to 4 44 million acres of land that is held in trust by -- that have been held in trust no longer exists, we would like either the 6 recovery of that land or the identification of to whom that land 7 has been transferred, we would like the income that was derived 8 from that land in the interim that it was held by the United 9 States. That is a benefit conferred in classic equitable restitution, Your Honor. 11 So Your Honor, we believe this should be construed as 12 an equitable restitution proceeding. The remedies are 13 plaintiffs' remedies. They are not defendants' remedies to 14 choose, particularly whereas here the government remains in breach of its most fundamental trust duty. 16 Your Honor, until the government understands that it 17 has the same interests to manage the trust in the best interests 18 of the beneficiaries, and it chooses to make its resource 19 decisions in that regard, no injunction, no declaratory judgment, and no other action by this Court will be effective. 21 Indeed, Your Honor, what is clear is this Court has 22 more limited injunctive relief powers than other courts with 23 regard to a private trustee. Which is precisely why equitable 24 restitution is critical in this case, because that is one of two essential components of equitable restitution, to deter 1 continuing breaches of trust. And Your Honor, it's time. 2 12 years of litigation is enough, and 120 years of misconduct is 3 enough. 4 So, Your Honor, we request this Court to set a May 26th, 2008 trial date. We will be prepared, and if 6 necessary we will go first. 7 THE COURT: Don't leave that podium. I asked you what 8 the trial looked like, and you got very expansive about 9 44 million acres of land, but you didn't tell me anything about what the trial looks like. Tell me what the trial looks like. 11 Who are the witnesses? What are the issues? 12 MR. GINGOLD: The way we understand them, Your Honor, 13 we would be working with the data principally -- well, whatever 14 data we would use, Your Honor, would be data that has already been produced in this case or has been admitted into evidence in 16 this case. So that's the information. 17 We would be looking at the income information. And 18 Your Honor, some of the documents that have been produced - and 19 we have been reviewing them over the last several weeks - indicate additional income figures. And there is a significant 21 amount of disbursement figures that were not actually introduced 22 in the October 10th trial. That information sometimes is not 23 even consistent with what was identified as throughput. 24 For example, in one particular year it was represented in the government's throughput analysis there was approximately Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 1 $60 million received in income, when in fact, in that particular 2 year, in a report that went to Congress, I believe, and other 3 information backing it, it showed $120 million received that 4 particular year. So, Your Honor, we would be using principally the 6 government documentation. We would be prepared to retain 7 experts to identify -- for example, 1972 forward is much better 8 information provided by the government with regard to the income 9 figures than 1887 to 1972. As a matter of fact, as this Court noted in its opinion, there are concerns about the quality of 11 the data because you're looking at year-end balances as opposed 12 to income and disbursements. 13 Your Honor, we would plan to use the data available, 14 whether the data -- if we do an early trial as opposed to a late trial, we would not need to get checks, nor all the check 16 authorization documents, whether those documents are signature 17 cards, whether those documents indicate authorization to the 18 payee as a particular beneficiary. We would assume for purposes 19 of the trial that disbursements that are recognized in the CP&R data would be valid for certain purposes or for purposes of the 21 restitution. 22 Your Honor, we're looking at approximately from 1972 23 forward, I think it's to 2005, we're looking at approximately 24 something between a 60 to 70 percent disbursement rate between the money the government itself acknowledges was deposited in Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 1 the Trust - and Your Honor, how much of that was actually 2 reported as being deposited in commercial banks, it's impossible 3 to tell - but that was a depository authorized representative of 4 the government, commercial banks, for many, many, many years; as a matter of fact, for probably more time than the Treasury held 6 the funds. 7 So we would be looking at the government's data in that 8 regard. We would consider using a regression analysis, 9 straight-line regression analysis prior to 1971 through the beginning of the trust in 1887, using data points provided in 11 the government materials itself in order to come up with a 12 reasonable income and distribution rate. So again, we would be 13 relying on government data, what the government itself has 14 admitted to. We have discussed this type of approach with our 16 experts, each of whom says it is reliable and doable, and 17 obviously an alternative to having all the documentation. 18 Your Honor, when there's spoliation of documents in 19 litigation independent of the trust, or when the trustee destroys documents, generally all inferences are against the 21 government. We're not asking for that even in this case, 22 Your Honor. We'll use the government's data, we'll go forward. 23 And if you look at the data, whether you look at Dr. Haspel's 24 sheets and information or others, you're looking at data from actually 1887 through 2005, which is greater than 1 13 billion in collections. You're looking at disbursement rates 2 that range from actually, Your Honor, less than 50 percent to 3 slightly more than 70 percent. The difference between the 4 amount of money held in trust and the amount of money disbursed is the amount of money that remains in the government's hands. 6 Your Honor, we're not asking for the interest that 7 should have been paid on it. That would be damages. Rather, we 8 would be looking at the benefit conferred on the government. 9 Let me give you an example. In the 1999 trial on June 7th, Commissioner Gregg, the commissioner of the Financial 11 Management Service of the Department of Treasury, testified that 12 funds held in the Treasury general account reduced the amount of 13 money the government needs to borrow, and explicitly testified 14 that the government has benefitted from the use of those funds. Your Honor, whatever that benefit is, is benefit 16 conferred. That is part of traditional restitution if those 17 funds have been held and not distributed. 18 We're also looking at a situation, Your Honor, where 19 because the trustee has not maintained adequate records, and for much of the trust our clients have been labeled as non compos 21 mentis, they didn't have the ability to make any decisions with 22 regard to their assets and they didn't have any ability to make 23 decisions with regard to the income. 24 Therefore, to the extent we have thumb prints on checks and other things, practically speaking, that would be impossible Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 1 for us or this Court to resolve for decades. So we're not going 2 to go there. We're going to make certain assumptions. We're 3 going to make certain assumptions because we agree with this 4 Court's approach to resolving this case. This case can be resolved fairly and expeditiously. We will use the government's 6 information, we will use what they have admitted to this Court, 7 what they've represented to the Court of Appeals, what they've 8 produced in discovery, and what they've produced and has been 9 introduced into evidence in this case. Your Honor, it's the government's information; the 11 government will have to repudiate its own data. If that's the 12 case, that's another interesting position for a trustee to be 13 in. 14 But Your Honor, we think this can be relatively simple, we think it can be short. We're not going to be dealing with 16 months of litigation. This case can be resolved fairly and 17 expeditiously. 18 And Your Honor, it is not as traditional as an 19 equitable restitution proceeding as we would hope, because that would actually require all the information. But it is something 21 that recognizes reality. 22 As this Court has noted - and Your Honor, we as counsel 23 for the class are extremely grateful for this Court's 24 understanding and sensitivity of the issue - class members have died out of this class. Your Honor, one of our named plaintiffs Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 1 has died since this action was filed. We see people suffering 2 too long, and we believe they're entitled to a resolution, and 3 Your Honor, we could do it quickly, it could be done fairly, and 4 it's time that the trust -- that the trustee be encouraged within the bounds of the law to manage this trust as it should. 6 One last point in that regard. Generally speaking, 7 when you're looking at trust cases over 200 years in this 8 country, first through Massachusetts and then through New York 9 and then elsewhere, the most frequent repudiation of a trust is where the trustee refuses to do an accounting. When there's a 11 repudiation of the trust, the Court sitting in equity has 12 significant authority to ensure that the beneficiaries are 13 protected and their assets do not fall into further ruin. The 14 United States Supreme Court in White Mountain Apache in 2003 specifically said the Secretary of the Interior has an 16 obligation not to allow trust assets to fall into ruin on his 17 watch. 18 Your Honor, as long as this trust is managed the way it 19 is, ruination will continue. It's time to stop. It's time to encourage them. We think this proceeding can -- I would be 21 surprised, Your Honor, if this proceeding would take more than 22 two weeks, and it could take less time than that. 23 THE COURT: All right. Thank you, sir. Both sides 24 have addressed me so far at a very high level of generality, and, if I may say so, rhetoric. Well spoken rhetoric, but 1 rhetoric. I have to get a lot more specific. 2 Mr. Kirschman says he wants to brief issues in this 3 case. Of course he does, and he'll be permitted to do so. 4 Mr. Gingold says he wants a trial in May. I can't do that. But I am committed, absolutely committed, to getting this matter 6 resolved in something like a final judgment this summer, before 7 the summer is out, early this summer, if possible. 8 And so here is a schedule that I've been sketching out 9 as you've been talking. Now, you will all remember that sometime last year I said we were going to have a trial in 11 October and we'll figure out later what the trial is all about. 12 And we did that. We did that by kind of sneaking up on it and 13 coming together to talk about it. 14 I have a trial date available on June 9th. MR. GINGOLD: That's acceptable to plaintiff. 16 THE COURT: I thought it would be, Mr. Gingold. And if 17 it took two weeks, we could spend two weeks, although I don't 18 expect it to take two weeks. 19 I will take Mr. Gingold at his -- I will accept Mr. Gingold's offer that it's the plaintiffs' case and the 21 plaintiff goes first. I still don't know what they're going 22 with. 23 And so here's what I want to happen: This sets up a 24 pretty dramatic schedule for the plaintiffs' side, but the plaintiffs have been thinking about this case for what, 16, Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 1 18 years? I figure that they're ready for anything at this 2 point. 3 The plaintiffs have two weeks from now to file what I 4 will call a written claim for equitable disgorgement in reasonable detail setting forth what they think they're entitled 6 to and on the basis of what evidence, broadly stated. That 7 statement also had better deal pretty clearly with this Rule 23 8 problem, which I think is a significant snag. 9 The government will then have three weeks to respond and to brief its jurisdictional questions, its law of the case 11 questions, and to file whatever objections they think are 12 appropriate to the claims that the plaintiffs have made. 13 And the plaintiffs have 10 days to file a reply to that 14 responsive pleading, or pleading, memorandum. I don't care what you call it, counsel, petition, response. Put whatever label 16 you want on it. If you have any questions when I'm finished 17 talking about what I mean by any of this, I'll be happy to try 18 to answer them. 19 Then we'll have a hearing on April 28th to go over the materials that have been submitted by the parties, to hear 21 further argument, to discuss the content and the shape of the 22 trial proceeding, or evidentiary proceeding, or whatever is 23 going to happen on June 9th. And after that, I don't know 24 what's going to happen. So your dates are two weeks from today, which I think Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 1 would be March 19th, plaintiff makes its submission; three weeks 2 after that, which is -- I lost track of that. It would be, 3 what, April 10th, something like that? April 9th would be the 4 government's response. 10 days after that works out to April 21st for the plaintiffs' reply, and the hearing we're 6 going to have, call it a status conference, hearing, argument, 7 whatever, it will take at least half a day, and we will set it 8 up for -- let's set it up for 10:00 o'clock in the morning on 9 April 28th and go as long as we need to go. And then mark down June 9th on your calendar as the day 11 when we're going to begin whatever it is we decide to begin 12 after that process that I just outlined. 13 The purpose of this is to bring this matter to a 14 conclusion. I will listen carefully and very respectfully to the government's argument about jurisdiction, but I want them 16 and the plaintiffs and everybody in this room to know that I 17 would not consider it a good use of the judicial resources of 18 the United States to stop this case here only to have it start 19 all over again in a different court. 16 or however many years is long enough, and a result of some kind is called for here. 21 Now, that's the big picture we came here to talk about 22 today. Any questions about that schedule or about what I expect 23 of the two sides? I'm not going to issue an order. Everybody 24 okay with that? MR. GINGOLD: Yes, Your Honor. 1 THE COURT: Or if you're not okay with it, do you at 2 least understand it? Yes, Mr. Kirschman? 3 MR. KIRSCHMAN: No, we understand. 4 THE COURT: All right. Now, there are all kinds of other matters kind of floating around here. Probably the most 6 persistent ones are the various motions about reconnecting the 7 computers at the Solicitor's Office and the Department of 8 Interior. 9 Plaintiffs say they don't want to mess with that, they don't want to talk about it, they don't want to answer it. I'm 11 sorry, you've got to answer it. You've got until March 12th. 12 That's the extension of time you have. I've gotten to the 13 point, quite frankly, where I consider this computer connection 14 issue to be collateral to the whole question that is before me, and fail to see why it is any longer necessary to keep the 16 department IT dysfunctional. And I'll want to have some pretty 17 powerful reasons why by the 12th of March; otherwise, I'm 18 frankly inclined to let them turn the switches on. 19 Then there is, of course, the question - Mr. Kirschman came back and back and back to this question in his opening 21 remarks today - of the historical statements of accounts and 22 class communications. I certainly agree with the government 23 that at some point --that the $127 million of work that has 24 been done is not going to go down the drain. I think I tried to suggest in the findings and conclusions that I issued that they Rebecca Stonestreet (202) 354-3249 kingreporter2@verizon.net 1 have value, it's just that the individual Indians need a clear 2 notice about what the limits of that value are. 3 And at some point -- as soon as we can sort out the 4 bottom line we're trying to get to here, it seems to me that at some point, as long as we can get this other big nut taken care 6 of, it will be quite appropriate to send these notices out to 7 people with an appropriate notice that says whatever it says 8 based on the Court's ruling. 9 I do not anticipate terminating this case with an order that says, all that work that's been done is for naught and will 11 never be used. Because, as I tried to indicate in the findings 12 of fact and conclusions of law that I issued, for what they are, 13 there is sufficient accuracy and so forth; they just don't have 14 any starting point that an accounting needs. So we're going to work that out. We're going to work 16 that out as part of the ultimate resolution of this case, and 17 we're certainly not going to keep DOI ever from issuing these 18 historical statements of account. They may be called something 19 different, they may have different legends at the front of them, they may have a surgeon general's warning or something on them, 21 but there's been a lot of work that's gone into the organization 22 of these data and the work should be used. 23 That's all I have today, counsel. Is there anybody 24 that wants to raise any other issue? Mr. Dorris, I haven't heard from him yet. 1 MR. DORRIS: Your Honor, one small request. You've 2 asked us to respond on the reconnection issue by March 12th, or 3 that's what is presently scheduled. We have the March 19th 4 date, two weeks to put the equitable claim together. I would ask the Court's indulgence to let us file the reconnection brief 6 a week after that date, on March 26th. 7 THE COURT: All right. March 26th. 8 MR. DORRIS: Thank you. 9 MR. KIRSCHMAN: Your Honor, related to that, I wanted to point out that the briefing on reconnection of the Office of 11 the Solicitor is complete and has been pending before the Court. 12 So -- 13 THE COURT: I know. I have the same limitations 14 everybody else does. I don't want to climb up this learning curve and then have to do it again. I want to do it all at 16 once. So just hang in there until the 26th or sometime after 17 the 26th, and then I'll deal with the whole question. 18 MR. KIRSCHMAN: Very good, Your Honor. 19 THE COURT: All right. Thank you everybody. We're adjourned. 21 (Proceedings adjourned at 3:50 p.m.) 22 23 24 1 CERTIFICATE OF OFFICIAL COURT REPORTER 2 3 I, Rebecca Stonestreet, certify that the foregoing is a 4 correct transcript from the record of proceedings in the above-entitled matter. 6 7 8 9 SIGNATURE OF COURT REPORTER 11 12 13 14 16 17 18 19 21 22 23 24 DATE PDF created with pdfFactory trial version www.pdffactory.com