Miles et al v. The Secretary of the Department of Interior et al

Filing 29

ORDERED that the # 22 Motion to vacate is GRANTED. FURTHER ORDERED that the # 21 Motion for attorney fees is DENIED without prejudice. FURTHER ORDERED that the # 24 Motion to defer briefing is DENIED as moot. Signed by Judge Robert C. Jones on 7/23/2014. (Copies have been distributed pursuant to the NEF - DRM)

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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THE DIRECT LINEAL DESCENDANTS OF )
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ROSIE JACK AND WAGON JACK;
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MARION GAYLE nee SANDERS MILES; )
NANCY LAURA nee SANDERS
)
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STEWART;
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JODY FAYE WHITE;
JODY FAYE WHITE, or the Estate of JESSE )
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WAYNE WHITE; and WILLIAM EDWARD )
WHITE,
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Plaintiffs,
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vs.
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THE SECRETARY OF THE INTERIOR,
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through its Acting Assistant Secretary,
BUREAU OF INDIAN AFFAIRS, its officers, )
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servants, agents, employees, representatives, )
and attorneys,
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Defendants.
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3:13-cv-00657-RCJ-WGC
ORDER

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In this case, five plaintiffs seek judicial review of a denial of their applications for

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inclusion on the Western Shoshone Judgment Roll. On June 6, 2014, this Court entered an order

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(ECF No. 20) approving a stipulation (ECF No. 12), filed on April 9, 2014, for remand to the

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Secretary of the Interior and entry of final judgment under the APA. On April 17, 2014, prior to

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the entry of the June 6 order, the Secretary moved to withdraw the then-pending stipulation,

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arguing that “the directive to add the five plaintiffs to the Western Shoshone Judgment roll

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cannot be supported by the existing analysis of the current [Administrative Record] and is thus

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not in accordance with the Western Shoshone Claims Distribution Act.” (Mot. Withdraw, ECF

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No. 13, at 4).

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Following the Court’s entry of the order approving the June 6 stipulation, plaintiffs filed

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the pending motion for attorney fees and expenses (ECF No. 21), based on the Court’s entry of

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“final judgment.” The same day, defendants filed the pending Rule 60(b)(1) motion to vacate the

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June 6 order, arguing that the “stipulation previously submitted . . . does not represent the final

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and complete position of the Secretary in this action” and that “[t]he secretary’s motion to

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withdraw the stipulation was filed only eight days after the stipulation was submitted.” (ECF No.

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22). Defendants further note that the Court approved the stipulation “without any reference to the

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[then-pending] motion to withdraw.” (Id. at 4). Defendants also filed the pending, unopposed

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motion to defer briefing on plaintiffs’ motion for fees and costs. (ECF No. 24).

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Plaintiffs’ response to the motion to vacate includes only the following statement:

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“Plaintiffs are confident that the Court is fully cognizant of the matters on its docket and,

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therefore, rest upon their prior pleadings.” (Response, ECF No. 23, at 1).

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Local Rule 7-2 provides that the “failure of an opposing party to file points and

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authorities in response to any motion shall constitute a consent to the granting of the motion.”

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Here, plaintiffs have failed to file points and authorities in their “response” to the motion to

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vacate. (See ECF No. 23, at 1). It is not the Court’s duty to infer or manufacture a substantive

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response from clues hidden in plaintiffs’ “prior pleadings.” The familiar refrain is worth

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repeating: “judges are not like pigs, hunting for truffles buried in briefs.” Guatay Christian

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Fellowship v. Cnty. of San Diego, 670 F.3d 957, 987 (9th Cir. 2011). “Nor are they

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archaeologists searching for treasure.” Jones v. Las Vegas Valley Water Dist., No. 2:10-CV-

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1941-JAD-PAL, 2014 WL 1248233, at *6 (D. Nev. Mar. 26, 2014). Plaintiffs effectively

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consented to the granting of defendants’ viable motion to vacate (ECF No. 22), and it is therefore

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granted. Accordingly, the motion for attorney fees (ECF No. 21) is denied, without prejudice, as

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premature, and the motion to defer briefing (ECF No. 24) is denied as moot.

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CONCLUSION

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IT IS HEREBY ORDERED that the motion to vacate (ECF No. 22) is GRANTED.

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IT IS FURTHER ORDERED that the motion for attorney fees (ECF No. 21) is DENIED

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without prejudice.
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IT IS FURTHER ORDERED that the motion to defer briefing (ECF No. 24) is DENIED
as moot.
IT IS SO ORDERED.

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Dated: _______________________.
July 23, 2014
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ROBERT C. JONES
United States District Judge

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