Plaintiffs' Response to Yakama Motion to Intervene
Alan L. Schneider, OSB No. 68147
Paula A. Barran, OSB No. 80397
Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ROBSON BONNICHSEN, et al.,
UNITED STATES OF AMERICA, DEPARTMENT OF THE ARMY, et al.,
Defendants. CV No. 96-1481 JE
Plaintiffs Response to Yakama Motion to Intervene
Plaintiffs have received the motion filed by the Yakama Nation seeking to intervene in this lawsuit. Plaintiffs are uncertain whether the motion is properly filed given that these proceedings have been stayed, and are uncertain whether the Court will entertain the request at this time.
Plaintiffs neither oppose nor support the motion to intervene and believe it is best left to the judgment of the Court whether to permit intervention at such a late date, after nearly four years. If the Court does permit intervention, plaintiffs ask that it also consider and address the following issues:
1. The proposed "Answer and Counterclaim". The Yakama Nation has submitted a proposed Answer and Counterclaim which is questionable in form and substance. Plaintiffs ask that the Court reject this document, or permit plaintiffs to file a motion to dismiss when the stay is lifted. First, there is no reason for the Yakama Nation to answer a complaint that is not alleged against it. Second, the Yakam Nation has included a claim which is more properly asserted against the federal defendants than raised as a counterclaim against the plaintiffs.
2. Plaintiffs oppose the use of the use of an intervention motion to assert any claims against them, even if the requested relief is only equitable. If the Yakama Nation had cognizable claims against plaintiffs (and plaintiffs believe it does not), those claims would be untimely by now and the Court should not permit them to be asserted through this mechanism. If this inappropriate counterclaim is permitted to stand, plaintiffs are concerned because the Yakama have not sought to join all potential claimants. In other words, since the Yakama Nation is claiming that the remains belong it it, it must necessarily be opposed to all other claimants, not just the plaintiffs.
3. Plaintiffs ask that the Court not permit the requested intervention to interfere with timely resolution of this case when the stay is lifted. They hae waited many years for defendants to complete their administrative process, and the Yakama Nation should have sought to intervene years ago instead of now, a few short months from the deadline imposed on the government.
4. Plaintiffs ask that the Court make clear that if the Yakama Nation is permitted to intervene, it may not seek to relitigate issues that have already been decided (such as those raised by the federal defendants' motion to dismiss and motion for partial summary judgment).
5. Plaintiffs ask that the Court also consider that permitting intervention could increase, exponentially, the issues in this litigation, including discovery. If intervention is allowed, plaintiffs ask that the Court schedule a status conference at the earliest possible opportunity to address plaintiffs' legitimate concerns that after nearly four years of litigation they are now being asked to respond to an additional litigant with its new claims and legal theories and discovery requests, and to assume an even greater financial burden than they have suffered to date.
Dated this 1st day of June, 2000.
BARRAN LIEBMAN LLP
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