Shoshone Bannock Tribes of the Fort Hall Reservation v. United States of America et al
Filing
88
MEMORANDUM DECISION AND ORDER - The Tribes Motion for Discovery (Dkt. 81 ) is DENIED. The United States Motion for Protective Order (Dkt. 79 ) is GRANTED. The Court will hold in abeyance the Tribes discovery request until after it rules on the pen ding Motion to Dismiss and after the parties have held a Rule 26(f) conference. The Tribes Motion for Excess Pages (Dkt. 84 ) is GRANTED. The Tribes Response to the United States Motion to Dismiss shall be due on or before 14 days from the date o f this order. The United States reply shall be due on or before 14 days after the Tribes response is filed. Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
SHOSHONE-BANNOCK TRIBES OF
THE FORT HALL RESERVATION,
Plaintiffs,
Case No. 4:18-cv-00285-DCN
MEMORANDUM DECISION AND
ORDER
v.
UNITED STATES OF AMERICA, et al.,
Defendants.
I. INTRODUCTION
Pending before the Court is Federal Defendants’ (collectively “United States”)
Motion for Protective Order. Dkt. 79. Plaintiff Shoshone-Bannock Tribes Of The Fort Hall
Reservation (the “Tribes”) have filed a competing Motion for Discovery. Dkt. 81.
Having reviewed the record and the briefs, the Court finds that the facts and legal
arguments are adequately presented. Accordingly, in the interest of avoiding further delay,
and because the Court finds the decisional process would not be significantly aided by oral
argument, the Court will decide the Motions without oral argument. Dist. Idaho Loc. Civ.
R. 7.1(d)(1)(B).
Upon review, and for the reasons set forth below, the Court DENIES the Tribes
Motion for Discovery and GRANTS the United States’ Motion for Protective Order.
II. BACKGROUND
A. Factual Background
In 1868, the Tribes entered into a Treaty with the United States, promising to
MEMORANDUM DECISION AND ORDER - 1
“relinquish all title, claims, or rights in and to any portion of the territory of the United
States, except such as is embraced within the limits [of the Treaty].” Dkt. 21, at 7. The
Tribes also acquired split title to the Fort Hall Reservation land, in which the United States
held legal title as Trustee promising no unauthorized person “shall ever be permitted to
pass over, settle upon, or reside [on the Reservation].” Dkt. 21, at 8.
In 1878, Utah & Northern Railroad Company built a road and railway across the
Reservation (North/South line) without permission. Then in 1881, the Utah & Northern
Railroad Company proposed another railway crossing the Reservation from East to West
and sought a right of way totaling 670 acres to complete the project. On July 18, 1881,
Tribal members, a Utah & Northern Railroad Company representative, and the United
States as Trustee for the benefit of the Tribes, executed an agreement, in which the Tribes
agreed to let Utah & Northern Railroad purchase the East/West line right of way for
$6,000.00. This agreement was ratified as the Act of 1882. The Act of 1882 gave Utah &
Northern Railroad Company a right of way through the Reservation, which divested Tribal
interests in the land.
In 1887, after further concern of unauthorized trespass on the Reservation, the
Tribes and the United States (participating as Trustee), entered into another agreement with
the Utah & Northern Railroad Company granting a north/south right of way for the
Pocatello townsite. This agreement was ratified as the Act of 1888. The land subject to the
Act of 1888 encompassed 1,840 acres, including 102 acres previously given under the Act
of 1882. The Act of 1888 also granted the Railway Company a right of way for the
construction of railway tracks and the surrounding grounds for station buildings, depots,
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shops, etc. The purpose of the Act of 1888 was “for the surrender and relinquishment to
the United States of a portion of the Fort Hall Reservation, [] for the purpose of a townsite, and for the grant of a right of way through said reservation to the Utah and Northern
Railway Company.” Dkt. 21, at 22. The Act of 1888 imposed reversion conditions, which
state “all lands acquired by said railway company near its station at Pocatello for its use for
station grounds, depot buildings, shops, tracks, side-tracks, turn-outs, yards, and for water
purposes, as hereinbefore provided, shall, whenever used by said railway company, or its
assigns, for other purposes, be forfeited and revert to the United States, and be subject to
the other provisions of this act.” Dkt. 21, at 26; Act of 1888, Art. III, Section 11. Thus, one
of the Tribes overarching claims in this case is that they have a reversionary interest in
right of way lands granted under the Act of 1888.
The Union Pacific Railroad Company (“UPR”) is a successor and assignee of the
Utah and Northern Railway Company, and the Oregon Short-Line Railroad Company.
UPR has formally relinquished rights under the Act of 1882 and the Act of 1888 on various
occasions. All relinquished lands, however, are not in possession of the Tribes. The Tribes
argue that they have an enforceable right to these relinquished lands (held in trust by the
United States) for the benefit of the Tribes. Additionally, the Tribes argue that they also
have an enforceable right to other lands within the Act of 1882 and the Act of 1888 that
have been sold or leased by UPR for non-railroad purposes.
On January 31, 2012, The United States Department of Interior, Bureau of Indian
Affairs (“BIA”), Northwest Regional Office issued a written notice to UPR detailing
particular uses it had undertaken that did not comply with the Act of 1882 or the Act of
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1888 (“DOI Notice Letter”). The Tribes argue that it was not until after the DOI Notice
Letter that they became “aware of the actual finding of encroachment, the actual reversion,
and claims related thereto.” Dkt. 21, at 35. The Tribes further argue that the United States
has failed to address the right of way encroachments even after receipt of the DOI Notice
Letter.
On September 12, 2007, the Tribes requested action by the BIA regarding the
abandoned right of way lands, known as the Idaho Gem facility. October 1, 2008, the
Superintendent of the BIA issued a Decision finding that the Act of 1888 granted a right
of way with a reversionary interest in the Tribes. In April 2019, the BIA further explained,
“when the lands cease to be used for railroad purposes, the railroad company forfeits its
interest in the land.” Dkt. 21, at 38. The United States participated in these administrative
hearings in support of the Tribes reversionary interests. The United States now holds the
lands, subject to the administrative proceedings, in trust for the benefit of the Tribes
pursuant to the Act of 1888. Additionally, on April 11, 2012, the United States filed a Joint
Stipulation of Settlement, referenced as the Salazar Settlement Agreement, which
recognized that: “(1) the subject land is a right of way; (2) that wrongful use has occurred;
(3) that the United States had a trust obligation in connection with the management of such
land and UPR’s conduct in relation to the subject land; and, (4) that the Tribes could
maintain an action based on their reversionary interest.” Dkt. 21, at 42. However, in the
instant suit before the Court, the United States has taken a different position regarding the
Tribes’ reversionary interest.
On June 10, 2014, the Bureau of Land Management (“BLM”) asserted control and
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ownership over some of the subject lands. On December 14, 2016, the BLM issued a public
Official Statement that it had received the lands by relinquishment and that the land may
revert to sole ownership of the United States. Additionally, despite Tribal request, the
United States has refused to record the subject lands in the Tribes’ name. The Tribes
reference various attempts to do so in the Amended Complaint, detailing requests to record
the subject land, but the Tribes assert that the United States has failed to timely respond to
the requests.
B. Procedural Background
On February 8, 2002, the Tribes filed a lawsuit in Federal District Court for the
District of Columbia against the Secretary of Interior and the Secretary of Treasury for the
mismanagement of monetary and non-monetary trust resources. On May 16, 2012, the
Tribes settled their pending tribal trust case for $60 million. Dkt. 77-1. In this settlement,
the Tribes waived the right to sue the federal government for any harm or wrongdoing
relating to the management of trust funds and non-monetary trust assets, that occurred
before the entry of the settlement on May 16, 2012. Shoshone-Bannock Tribes of the Fort
Hall Reservation v. Salazar, No. 1:02-cv-254-TFH (D.D.C. Apr. 11, 2012).
On June 26, 2018, the Tribes brought this action to “resolve unsettled rights to land
that has been abandoned or relinquished” by UPR in Pocatello, Idaho. Dkt. 21, at 2. The
Tribes argue that the United States, as trustee and fiduciary to the Tribes, had a statutory
duty to protect the Tribes’ interests in the land at issue.
The Tribes’ Amended Complaint requests monetary damages, declaratory relief,
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and for the United States to take action regarding the subject land.1 Count I requests a
declaratory judgment that the interest granted to UPR was an easement that automatically
extinguished when UPR ceased to use the easement for railroad purposes. Dkt. 21, at 47.
Counts II-VI assert that the Tribes are entitled to a decree quieting title to the land at issue,
declaring that the United States holds the legal title of the land in trust for the benefit of
the Tribes. Id. at 49–60. Count VII requests the court to issue a Writ of Mandamus
“ordering the BLM or Department of Interior to transfer the parcels in question to the
property inventory of the BIA, to hold in trust for the benefit,” of the Tribes. Id. at 61.
Count IX is a Breach of Trust claim against the BIA for violating its “trust obligation and
fiduciary duty under 25 CFR Part 169 to bring and enforce trespass actions against
unlawful occupants of Indian lands.” Id. at 65. Count XVI is for the ejectment and
restitution of property. This count relates to Defendants purported refusal to surrender
possession of the “Parking Lot, Bus Depot, Credit Union, City Creek Trail Area, and A
Strip of Land 3.27 Acres.” Id. at 72.
On November 11, 2018, the United States filed a Motion to Dismiss the Amended
Complaint. Dkt. 41. On March 12, 2019, the Tribes filed a Motion to Stay, pending
resolution from the United States District Court for the District of Columbia regarding the
scope of the 2012 Settlement. Dkt. 53. The Court granted the stay. Dkt. 59. On September
20, 2019, the D.C. District Court issued a decision finding that the 2012 Settlement
unambiguously waived right of way claims against the United States for any actions taken
1
The Amended Complaint also include various claims against UPR and the City of Pocatello.
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prior to 2012. Dkt. 70-1. However, the D.C. District Court also held that “the Idaho District
Court should determine whether the Tribes’ claims are based on harms or violations that
occurred before May 16, 2012.” Id. (emphasis added).
The Tribes then voluntarily dismissed several claims against the United States. Dkt.
73. The United States also withdrew its prior Motion to Dismiss and renewed the Motion
in response to the Tribes’ remaining claims. Dkt. 77. The United States filed its renewed
motion on November 3, 2020.
On November 2, 2020, the Tribes served the United States with roughly twenty
pages of discovery requests, include 93 requests for admission, nine interrogatories, and
nine requests for production. In response to these requests, the United States filed a Motion
for Protective Order on November 20, 2020, asking that the Court order the discovery be
withdrawn—or at the very least deemed served after any upcoming Rule 26(f)
conference—and that ALL discovery be stayed until the Court rules on the motion to
Dismiss. Dkt. 79.
The Tribes responded and filed a competing Motion for Discovery arguing that it
needs some limited discovery at this stage to adequately respond to the United States’
Motion to Dismiss.
As explained in their motion, the Tribes requests (in part):
[C]onfirmation from the Government about documents referenced by and
relevant to the motion to dismiss; information about the nature of the pivotal
2012 DOI Notice where the Government admits that the Tribes own the
subject land in trust, which impacts the Governments’ arguments;
information related to the jurisdictional issues raised by the motion;
information about the nature of the Governments’ ownership and possession
of the subject land impacting the Governments’ arguments; the timing and
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nature of the change in the Government’s positions and associated bearing
on the harms and injuries in question; the Tribes’ notice of the Government’s
possession and ownership of subject lands; information about related
administrative and judicial proceedings involving the subject right of way
involving the Government and Tribes that has collateral estoppel effect
impacting arguments raised by the motion to dismiss; etc.
Dkt. 81-1. Briefing on the competing motions concluded and the matter is now ripe for
adjudication. Because the Motions work in tandem, the Court’s decision of one motion
naturally affects the other. The Court begins with the Tribes’ Motion for Discovery.
III. LEGAL STANDARD
A. Motion for Discovery
“A party may not seek discovery from any source before the parties have conferred
as required by Rule 26(f), except . . . when authorized by these rules, by stipulation, or by
court order.” Fed. R. Civ. P. 26(d)(1) (emphasis added). In authorizing expedited
discovery, a court must consider “good cause.” Wicklund v. Ada Cty., No. CV 09-673-SCWD, 2010 WL 2428753, at *4 (D. Idaho June 11, 2010), aff’d, 431 F. App’x 614 (9th
Cir. 2011) (cleaned up). Good cause occurs when the need for expedited discovery
outweighs the prejudice to the opposing party and the limited discovery is relevant to the
matters before the Court. Id. Additionally, the party requesting the discovery must
demonstrate why it needs “immediate access to the requested discovery rather than
postponing . . . production [until] the normal course of discovery.” Semitool, Inc. v. Toyko
Electron America, Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002).
In determining whether there is good cause to permit limited expedited discovery,
the Court should consider the following factors as outlined in Rovio Entm’t Ltd. v. Royal
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Plush Toys, Inc.: (1) “whether a preliminary injunction is pending;” (2) “the purpose for
requesting the expedited discovery;” (3) “the breadth of the discovery request;” “(4) the
burden on the defendants to comply with the requests; and (5) how far in advance of the
typical discovery process the request was made.” 907 F. Supp. 2d 1086, 1099 (N.D. Cal.
2012).
B. Motion for Protective Order
“Pre-trial discovery is ordinarily accorded a broad and liberal treatment” because
“wide access to relevant facts serves the integrity and fairness of the judicial process by
promoting the search for the truth.” Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir. 1993)
(cleaned up). “Under Rule 26, however, ‘[t]he court may, for good cause, issue an order to
protect a party or person from annoyance, embarrassment, oppression, or undue burden or
expense.’” In re Roman Catholic Archbishop of Portland, 661 F.3d 417, 424 (9th Cir.
2011) (quoting Fed. R. Civ. P. 26(c)(1)). “The party opposing disclosure has the burden of
proving ‘good cause,’ which requires a showing ‘that specific prejudice or harm will result’
if the protective order is not granted.” Id. (quoting Foltz v. State Farm Mut. Auto. Ins. Co.,
331 F.3d 1122, 1130 (9th Cir. 2003)).
IV. ANALYSIS
A. Motion for Discovery
As noted, Courts may find good cause for limited expedited discovery when there
is a pending preliminary injunction. Hum. Rts. Watch v. Drug Enf’t Admin., No.
CV152573PSGJPRX, 2015 WL 13648069, at *2 (C.D. Cal. July 10, 2015). Here, the
Tribes have not filed a Motion for Preliminary Injunction. Thus, the first factor weighs
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against granting early discovery.
Second, the Court looks to the purpose of the discovery request. Importantly, the
purpose of the request must not outweigh the burden of production to the responding party.
Melaleuca, Inc. v. Kot Nam Shan, No. 4:18-CV-0036-DCN, 2018 WL 9988657, at *3 (D.
Idaho Feb. 14, 2018). Here, the Tribes assert the purpose of their discovery is to help clarify
the issues brought up in the Motion to Dismiss. The Tribes argue that, “[t]he pending
motion to dismiss raises issues intertwined with aspects of the merits of the case.” Dkt. 81.
Additionally, the Tribes seek information regarding the Unites States, “change of position
and facts that undermine its arguments in the pending motion.” Id. The Tribes have only
vaguely explained the purpose of the discovery requests, which relates to replying to the
pending Motion to Dismiss. However, the Tribes never explain why they need the limited
discovery to answer the Motion to Dismiss. In fact, the majority of the Tribes Motion for
Discovery and Reply argues that the Court should intervene and require the scheduling of
a Rule 26(f) conference. While the Court can tease out the purpose for limited expedited
discovery, there is no clear showing of the necessity of the discovery at this stage.
Additionally, the United States argument is well taken that engaging in this process now
could be prejudicial because, were the Court to allow this expansive discovery, but then
grant (either in whole or in part) the United States’ Motion to Dismiss, the discovery would
be rendered useless. In sum, the purpose factor weighs against granting the request.
Third, a proper expedited discovery request “should be ‘narrowly tailored’ so as to
discover only the ‘minimum amount of information needed’ to achieve its stated purpose.
Hum. Rts. Watch, No. CV152573PSGJPRX, 2015 WL 13648069, at *2 (citing AF
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Holdings LLC v. Doe, No. 2:11-CV-03076 LKK, 2012 WL 974933, at *4 (E.D. Cal. Mar.
21, 2012)). Here, the Tribes argue that the point of limited discovery is to reveal what
position the United States is taking regarding the ownership of the lands at issue and that
its request are sufficiently tailored to that goal. The Court disagrees.
The Tribes requested 93 Requests for Admission, nine Interrogatories, and nine
Requests for Production. Dkt. 81-2.
The 93 Requests for Admission include a wide range of assertions, including
admissions of ownership of various buildings and areas of land after 2012, admissions
regarding certain documents—such as the Settlement Agreement, the 1882 Act, and the
1888 Act—and “the affirmative litigation memorandum(a) from the Solicitor for the
Portland Area Office of the BIA.” See generally id.
The Tribes Interrogatories are equally broad. One request in particular asks the
United States to “identify when the United States changed its position regarding the
ownership of the reversionary interest from the position stated in the January 31, 2012 DOI
Right of Way Notice Letter.” Id. at 22. This appears to be one of the main purposes of the
Tribes’ discovery requests. The remaining Interrogatories and Requests for Production
seek confirmation of ownerships interests in various areas of land and buildings, as well as
copies of deeds, titles, or other documentation evidencing ownership. Considering the
broad range of the requests—not to mention the sheer volume—the Court cannot find that
the Tribes’ discovery requests are narrowly tailored to provide only the minimum amount
of information needed. Additionally, the Tribes have made no effort to limit the scope of
the requests. Thus, this factor weighs also against granting limited early discovery.
MEMORANDUM DECISION AND ORDER - 11
Fourth, the burden to the opposing party is overcome when “the need for expedited
discovery, in consideration of the administration of justice, outweighs the prejudice to the
responding party.” Semitool, Inc, 208 F.R.D. at 276. Here, the Tribes have not shown the
necessity of the expedited discovery. Further, the Tribes merely assert the United States
“suffers no prejudice in being required to comply with Rule 26(f)’s requirement to
participate in a discovery conference nor does it suffer prejudice in responding to
discovery.” Dkt. 85. Again, the Tribes press for a Rule 26(f) conference instead of
indicating specific information needed in order to respond to the United States’ Motion to
Dismiss. This is putting the proverbial cart before the horse. Additionally, requiring the
United States to respond to the 111 discovery requests is not only burdensome, but would
extend the Motion to Dismiss briefing even further. Moreover, as noted, if the Motion to
Dismiss were granted, all of the work in responding to the 111 discovery requests would
be for nothing.
Fifth and finally, a party seeking discovery in the pleading stages should not do so
too far in advance of the formal discovery process. Hum. Rts. Watch, No.
CV152573PSGJPRX, 2015 WL 13648069, at *2. This case was filed in June 26, 2018.
However, the case was stayed on May, 29, 2019, for sixteen months until the D.C. District
Court resolved the scope of the 2012 Settlement. Thus, the pleading stage has been in
motion for almost three years. That said, discovery in this case is on the horizon. Once the
Court rules on the pending Motion to Dismiss discovery will commence. So while the
Tribes request is not overly premature from a timing standpoint, it is in light of the pending
legal matters that must be addressed.
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Overall, the analysis of the factors outlined by Rovio Entm’t Ltd. v. Royal Plush
Toys, Inc., weigh against granting limited expedited discovery.
The Tribes argue that the party opposing discovery bears a heavy burden of showing
why discovery should be denied, citing Blankenship v. Hearst Corp., 519 F.2d 418, 429
(9th Cir. 1975). This is true during the discovery stage of litigation. However, during the
pleadings stage, discovery is only appropriate if there are factual issues raised by a rule
12(b) motion. Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987). Here, during the Motion
to Dismiss, all of the facts alleged by the Tribes will be accepted as true and construed in
their favor. See Ashcroft v. Iqbal, 556 U.S. 662, 666 (2009). What’s more, pursuant to
Ninth Circuit precedent, if the Court dismisses any claim/s in this case, it will do so without
prejudice and with leave to amend. See Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir.
2009) (finding that dismissal of a complaint without leave to amend is inappropriate unless
it is beyond doubt that the complaint could not be saved by an amendment).
The usual course of litigation will be followed in this case. The Court will first
address the legal arguments in the Motion to Dismiss to ascertain which claims may
proceed. Then discovery can begin.2 Finally, if the Court dismisses any particular claim
and then, in subsequent discovery, the Tribes gain sufficient facts and evidence to revive
2
Occasionally when the Court dismisses certain claims with leave to amend, this very issue arises. The
Plaintiff often want to engage in early discovery (during the leave to amend period) in an effort to save their
dismissed claims. Defendants, however, typically want to press forward with discovery on only the current
claims. The Court will address this quandary if it becomes necessary. However, the Court notes that is has
sometimes allowed limited discovery on dismissed claims concurrent with discovery on active claims if the
circumstances warranted such. Thus, this issue may arise again; however, the case will likely be in a
procedurally different posture than it currently is and a different analysis may apply.
MEMORANDUM DECISION AND ORDER - 13
that claim, it is within their power to file a motion for leave to amend.
In sum, the Tribes have not sufficiently explained why their need for limited
discovery at the pleading stage outweighs the prejudice to the United States. Additionally,
the Tribes have not identified factual issues raised by the Motion to Dismiss that warrant
early discovery. Because the Tribes have failed to establish good cause sufficient to show
that early discovery is necessary to resolve factual issues raised by the Motion to Dismiss,
expedited discovery is not warranted.
Accordingly, the Court DENIES the Tribes’ Motion.
B. Motion for Protective Order
In light of the Court’s denial of the Tribes’ Motion for Discovery, the Government’s
Motion for Protective Order will be granted. The Court will not delve substantively into
the elements of a protective order as most are simply the antithesis of the elements
necessary for discovery. The Court simply reiterates that, as the Ninth Circuit has held:
discovery during the pleadings stage is only appropriate to resolve factual disputes raised
by a Rule 12(b) motion, and additionally, that a pending Motion to Dismiss is sufficient to
grant a protective order. Ministerio Roca Solida v. U.S. Dep’t of Fish & Wildlife, 288
F.R.D. 500, 502–03 (D. Nev. 2013) (cleaned up). Because the Tribes have not shown that
early discovery is warranted to resolve factual disputes regarding the pending Motion to
Dismiss, the Court finds that granting the United States’ Motion for Protective Order is
proper.
Separately, in anticipation of their responsive filing, the Tribes filed a Motion for
Leave to File Excess Pages. Dkt. 84. The Motion is unopposed. Good cause appearing, the
MEMORANDUM DECISION AND ORDER - 14
same is hereby GRANTED. The Tribes may file a responsive brief up to 35 pages in length.
Furthermore, it is the Court’s standard practice to allow the filing party roughly half as
many pages in reply as their original motion (and as any response). Accordingly, the United
States may file a reply brief of up to 17 pages.
V. ORDER
IT IS ORDERED:
1.
The Tribes’ Motion for Discovery (Dkt. 81) is DENIED.
2.
The United States Motion for Protective Order (Dkt. 79) is GRANTED. The
Court will hold in abeyance the Tribes’ discovery request until after it rules
on the pending Motion to Dismiss and after the parties have held a Rule 26(f)
conference.
3.
The Tribes’ Motion for Excess Pages (Dkt. 84) is GRANTED.
4.
The Tribes’ Response to the United States’ Motion to Dismiss shall be due
on or before 14 days from the date of this order. The United States’ reply
shall be due on or before 14 days after the Tribe’s response is filed.
DATED: May 13, 2021
_________________________
David C. Nye
Chief U.S. District Court Judge
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