Kubanyi et al v. Golden Valley Electric Association et al
Order on Motion in Limine
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
DON M. KUBANYI; JIMMY KUBANYI;
AILEEN WELTON; ELIZABETH
TUZROYLUK; DORIS KUBANYI;
VICTOR KUBANYI; BOBBY KUBANYI;
ARLETTE KUBANYI; and BRIAN
Case No. 4:04-0026 CV (RRB)
GOLDEN VALLEY ELECTRIC
ASSOCIATION; DAVE CRUZ,
individually and d/b/a CRUZ
ORDER DENYING PLAINTIFF’S
MOTIONS AT DOCKETS 309 AND 313
Before the Court are Plaintiffs Don M. Kubanyi, and other
members of the Kubanyi family (“Plaintiffs”), with a Motion in
Limine at Docket 313 “to exclude any and all evidence, or argument”
by Defendant Golden Valley Electric Association, Inc. (“GVEA”)
“respecting the location and width of the Rex Trail based upon
survey techniques and conclusions that are inconsistent with the
Bureau of Land Management (“BLM”) Manual of Surveying Instructions
ORDER DENYING MOTIONS AT DOCKETS 309 AND 313 - 1
Plaintiffs rely on 25 U.S.C. § 176, which provides:
Whenever it becomes necessary to survey any
Indian or other reservations, or any lands,
the same shall be surveyed under the direction
and control of the General Land-Office [Bureau
of Land Management], and as nearly as may be
in conformity to the rules and regulations
under which other public lands are surveyed.
GVEA opposes at Docket 326 and argues that “Plaintiffs’
argument is misplaced because it fails to recognize that a Native
allottee’s rights as a riparian owner must be determined by the law
of the State, and not by the federal BLM Manual.”2
The Court has thoroughly reviewed the relevant pleadings,
including each of Plaintiffs’ cited authorities.
For the reasons
stated by GVEA, the Court finds Plaintiffs’ citations inapplicable
Plaintiffs fail to establish that evidence
inconsistent with the BLM Manual is inadmissible for purposes of
Moreover, the Court is not convinced that GVEA’s
expert surveyor, Patrick Kalen, was engaged in a survey of Indian
Rather, as GVEA asserts, and as supported by a thorough
review by this Court of Mr. Kalen’s report, the survey focuses on
determining the location of the ordinary high water mark of Seven
Docket 313 at 1-2.
Docket 326 at 1-2.
See id. at 2-4.
ORDER DENYING MOTIONS AT DOCKETS 309 AND 313 - 2
Because Mr. Kalen’s report appears to be relevant and
admissible, Plaintiffs’ Motion at Docket 313 is DENIED.
Additionally, the parties agree that this decision is a
perquisite to the resolution of Plaintiff’s pending motion at
Docket 309 to exclude Mr. Kalen’s report and testimony based on
Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).5
GVEA urges the Court to simply deny the Daubert motion without
Based on a thorough review of Mr. Kalen’s report and
Plaintiffs’ objections thereto, the Court finds that Plaintiffs
scientific methodology. Accordingly, Plaintiffs’ motion to exclude
at Docket 309 is DENIED.
ENTERED this 12th day of October, 2007.
S/RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE
See Docket 337 at 1-2; Docket 123, Ex. 1.
See Dockets 328, 331, & 337.
ORDER DENYING MOTIONS AT DOCKETS 309 AND 313 - 3
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