Case 2:09-cv JLQ ECF No. 357 filed 07/18/18 PageID.5099 Page 1 of 7 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 0 JOSEPH H. HARRINGTON United States Attorney Joseph P. Derrig Assistant United States Attorney Post Office Box Spokane, WA - Telephone: (0) - PAUL GRONDAL, a Washington resident; and THE MILL BAY MEMBERS ASSOCIATION, INC., a Washington Non-Profit Corporation UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON Plaintiffs/Counter-Defendants, vs. UNITED STATES OF AMERICA; US DEPARTMENT OF INTERIOR; BUREAU OF INDIAN AFFAIRS, WAPATO HERITAGE, LLC, CONFEDERATED TRIBES OF THE COLVILLE RESERVATION, FRANCIS ABRAHAM, CATHERINE GARRISON, et al., allotees of Moses Allotment, Defendants/Cross-Defendants/Cross- Claimants/Counter-Defendants. NO. :0-CV-000-JLQ UNITED STATES RESPONSE TO ORDER DIRECTING ADDITIONAL FILINGS (ECF No. ) The Federal Defendant s respond to Court s Order (ECF No. ), with each of the questions posed by the Court answered in separately numbered paragraphs repeating the questions posed, as follows: (ECF No. ) -

2 Case :0-cv-000-JLQ ECF No. filed 0// PageID.00 Page of 0 () The role and/or statements and/or participation of the Government, the Colville Tribe and/or the Colville Tribe Enterprise Corporation in the 0 mediation and/or court proceedings. The Federal defendants had no role and did not participate in the 0 mediation other than certain BIA employees simply being there. See Mot. Hearing Trans. :-0 ( THE COURT: Well, they were there as I read the record. ). Mr. Nicholson, the Colville Indian Agency Superintendent at the time, testified that some of Wapato s heirs and Attorney Michael Arch asked him to attend the mediation. ECF No. -, Ex. at p. (Nicholson Dep. : :). Mr. Nicholson attended but did not participate. Id. As Mr. Nicholson put it, it would be like if you guys where in here having this meeting and I was out in the lobby. That s all the closer I got. I was in the building. That was it. Id. Mr. Nicholson was not even told what came of the mediation at that time. Id. (Nicholson Dep. :-). Mr. Nicholson s subordinates all had a similar experience. See e.g., ECF No. -, Ex. at p. (Joseph Dep. :- (in the lobby for about an hour)); Ex. at p. (Redthunder Dep. : : (just remembers being there but not involved)). Similarly, Federal Defendants were not parties to any of the state court actions nor does the record reflect Federal Defendant s employees participating in any state court proceedings. ECF No. -, Ex. at p. 0 (Nicholson Dep. :-). The United States ordered the Court files and minutes for each of the three State court cases. The minutes do not reflect participation by the Federal Defendants or any employees thereof. () The amount of rent money paid by the Mill Bay Members pursuant to the 0 Settlement Agreement that was passed on to the individual landowners, if any. ECF No. - at p., Ex C appears to show all rent money paid by Mill Bay Members pursuant to the 0 Settlement Agreement remains in an account held by Wapato Heritage, LLC. See also ECF No. - at p. (Jeff Web stating, From (ECF No. ) -

3 Case :0-cv-000-JLQ ECF No. filed 0// PageID.0 Page of 0 December, 0 to the present, Wapato received rent payments from Mill Bay Members Association totaling $0,.00. As the BIA refused to accept Wapato s rent payments, the funds have been reserved....). Although not pursuant to the settlement agreement, Federal Defendants do not deny that Wapato Heritage LLC paid the Indian landowners money in 0. ECF at p.. The record appears to reflect that $,. was paid by checks from Wapato Heritage LLC made out to the beneficial landowners. ECF No. at pp.-. The context of this payment has been previously explained. ECF No. at p.. [T]his payment by WHLLC to some of the beneficial landowners was simply meant as an enticement to the beneficial landowners to sign a year lease with WHLLC. Id. (citing briefings and Court Order at ECF 0 at p. ; ECF 0-; ECF No. at 0-, and ECF No. at p.). Each check included a note that read: The attached check represents 0% of your 0 & 0 MA- R.V. Park Rental Income. The remaining balance will be mailed upon receipt of your vote per the proposed MA- development. Warmest personal regards, Wapato Heritage LLC.. ECF No. at p.. (citing Exh. (Ct. Rec. 0- at, )). While the $,. appears to be close to 0% of the rents due under the Settlement Agreement for the years 0 and 0, there was no agreement between or among any of the parties that rent would be paid in whole or in part to the Lessors, other than what the Master Lease provided. ECF No. at p.. Furthermore, the United States has not found any provision in the settlement related to this $,000. ECF No. at p., n.. In context, the payment was an enticement to the beneficial landowners to sign a -year lease with WHLLC rather than pursuant to the settlement agreement. ECF No. at p.. /// /// /// (ECF No. ) -

4 Case :0-cv-000-JLQ ECF No. filed 0// PageID.0 Page of 0 () Whether there exists any transcript or other record of the Chelan County mediation proceedings and/or hearings or proceedings before the Chelan County Superior Court. The Federal Defendants ordered all records, including transcripts, for all three Chelan County cases, and contacted the mediator to determine whether he was in possession of any records. The mediator relayed that the only existing record he or his firm currently retains is the settlement agreement. The court records contain minutes but no transcript or audio recordings for the November, 0, hearing on a Motion For Approval of Class Action Settlement. Attached hereto as Exhibit A are the minutes from this proceeding. () If there are disputed facts, the parties shall identify those facts with specificity and present any additional evidence in support of their position. The United States does not believe there are any material disputes regarding the facts relevant to decide the legal issue regarding the trust status of MA- and consequently its motion for summary judgment on ejectment. See ECF Nos.,, 0 at p. -, 0. RESPECTFULLY SUBMITTED this th day of July,. JOSEPH H. HARRINGTON United States Attorney s/ Rudy J. Verschoor s/ Joseph P. Derrig RUDY J. VERSCHOOR JOSEPH P. DERRIG Assistant United States Attorneys USAWAE.JDerrigECF@usdoj.gov USAWAE.RVerschoorECF@usdoj.gov The Chelan County Court Administrative Assistant informs us that they did not begin audio recording hearings until October of. (ECF No. ) -

5 Case :0-cv-000-JLQ ECF No. filed 0// PageID.0 Page of 0 CERTIFICATE OF SERVICE I hereby certify under penalty of perjury that on July,, I caused to be delivered via the method listed below the document to which this Certificate of Service is attached (plus any exhibits and/or attachments) to the following: CERTIFICATE OF SERVICE I hereby certify under penalty of perjury that on July,, I caused to be delivered via the method listed below the document to which this Certificate of Service is attached (plus any exhibits and/or attachments) to the following: James M. Danielson: jimd@jdsalaw.com Brian C. Huber: brianh@jdsalaw.com Franklin L. Smith: frank@flyonsmith.com R. Bruce Johnston: bruce@rbrucejohnston.com Dana Cleveland: dana.cleveland@colvilletribes.com Dale M. Foreman: dale@daleforeman.com Matthew A. Mensik: mam@wittherspoonkelley.com Timothy M. Lawlor: tml@witherspoonkelley.com Joseph Finley: jos.finley@yahoo.com Jason D Avignon: Jason.davignon@colvilletribes.com and hereby certify that I have mailed by United States Postal Service the document to the following non-cm/ecf participants: Francis J Reyes PO Box Elmer City, WA -0 Enid T (Pierre) Marchand PO Box 0 Nespelem, WA -00 Jeffrey M Condon PO Box Omak, WA - Vivian Pierre PO Box Elmer City, WA -0 (ECF No. ) -

6 Case :0-cv-000-JLQ ECF No. filed 0// PageID.0 Page of 0 Arthur Dick P 0 Box Nespelem, WA -0 Annie Wapato 00 Jones Rd Wapato, WA - Mary J Garrison PO Box Seattle, WA - Francis J Abraham PO Box Spokane, WA - Sonia W (Wapato) Vanwoerkom 0 th St Lewiston, Id 0- Dwane Dick PO Box Nespelem, WA -0 Hannah Rae Dick PO Box Nespelem, WA -0 Kathleen M Dick PO Box Nespelem, WA -0 Lydia A Arneecher PO Box Wapato, WA -0 Paul G Wapato Jr S. Forest Estates Dr. Spokane, WA Catherine L (Gua) Garrison S th St Apt Tukwila, WA -0 Leonard M Wapato PO Box White Swan, WA -0 Stephen T Wapato N Franklin Ave Wenatchee, WA 0- (ECF No. ) -

7 Case :0-cv-000-JLQ ECF No. filed 0// PageID.0 Page of 0 Travis E Dick Hannah Dick Guardian of Travis E Dick PO Box Nespelem, WA -0 Jacqueline L. Wapato PO Box Lapwai, ID- 0-0 s/joseph P. Derrig Assistant United States Attorney (ECF No. ) -