NO.: CV-S-97-327-HDM (RLH)

by its Chief, Raymond D. Yowell, and
CHIEF RAYMOND D. YOWELL as Representative of
the Class of Shoshone Persons,


Department of the Interior, Secretary BRUCE BABBITT,
Bureau of Land Management, ANN J. MORGAN, HELEN HANKINS; and
affiliates, subsidiaries, successors, assigns, etc.,

Reply to Federal Defendants' Opposition To Preliminary Injunction

On February 23, 1998, the Federal Defendants filed a memorandum in opposition to Plaintiffs' Motion for Preliminary Injunction, alleging that (1) Plaintiffs have not complied with Local Rule 7-2; and (2) Plaintiffs have failed to meet the standards for issuance of a preliminary injunction.

1. Authority in support of plaintiffs' motion is well-established, self-evident, and may be judicially noticed.

Plaintiffs' Motion for Preliminary Injunction sets forth facts and circumstances evidencing basic departures from due process and the orderly administration of justice, to wit: Federal Defendants' ex parte, extra judicial communications with and threatened actions against the Plaintiffs and persons represented by the Plaintiffs, all of which are specifically described in the Motion and more fully set forth in a subsequent filing by letter and attachment.

"Authority" in support of Plaintiffs' Motion is evident on the face of the Motion, because the contact and threatened conduct against which Plaintiffs' seek injunctive relief so clearly violate well-established rules of legal procedure:

American Bar Association Rules of Professional Conduct, Model Rule 4.2 states:

A lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

Disciplinary Rule 7-104(A)(1) states:

During the course of his representation of a client a lawyer shall not . . . [c]ommunicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such party or is authorized by law to do so.

The two provisions are essentially the same, except that the Model Rule includes the language "cause another to communicate." This would encompass the actions of the Federal Defendants.

Courts and disciplinary authorities have interpreted the Rule literally. The Model Code's footnote to DR 7-104(A)(1) states that Canon 9 DR 7- 104(A)(1)'s predecessor) "is to be construed literally and does not allow communication with an opposing party, without the consent of his counsel, though the purpose merely be to investigate the facts." Thus, the Rule applies to investigations, not merely lawsuits. Lidge, Government Civil Investigations And The Ethical Ban On Communicating, 67 Ind. L.J. 549, 553 (1992).

Although the Rule refers to communications with a party known to be represented by counsel, it is clear that a "lawyer must still obey the ethical rules when dealing with unrepresented parties." Id., at 554.

Plaintiffs, appearing pro se, did not presume it necessary to provide a separate statement of "points and authorities" on long-standing Rules of Professional Ethics for Lawyers when filing their Motion requesting this Court to enforce such rules in this instance.

In 1934, the ABA originally stated that the prohibition against ex parte communications proposed "[t]o preserve the proper functioning of the legal profession as well as to shield the adverse party from improper approaches." Langs, The Question Of Ex Parte Communications And Pro Se Lawyers Under Model Rule 4.2--Hey, Can We Talk?, 19 W. New Eng. L. Rev. 421, 426 (1997).

The success of the adversarial legal system requires Americans to "have faith that justice can be obtained through our legal system." Id., at 442 (citing Model Rules).

Plaintiffs' rely on the fact that the above-quoted and referenced Rules of Professional Conduct are sufficiently well-established so as to be proper subjects of judicial notice.

"In determining the content ,,, of a rule of domestic law, the judge is unrestricted in his investigation and conclusion. ..." Morgan, Judicial Notice, 57 Harv. L. Rev. 269, 270-271 (1944).

This is the view which should govern judicial access to legislative facts. Federal Rules of Evidence 201, Notes of Advisory Csed all due diligence in the circumstances to file the instant pleading, Reply to Federal Defendants' Opposition To Preliminary Injunction, citing points and authorities in support of their motion within the time limit established by Local Rule 7-2(c). motion within the time limit established by Local Rule 7-2(c).

It must be pointed out that Plaintiffs have been hampered in this regard by the fact of continuing ex parte communications and threats issued by the Bureau of Land Management. Evidence of these was submitted by Plaintiffs to the Court under separate letter and attachments on February 23, 1998, with copies of the same to opposing counsel. Attached to this pleading is a copy of yet another ex parte communication and threat of BLM action against Plaintiffs. The ongoing ex parte communications of the BLM have diverted precious resources from Plaintiffs' prosecution of this case in their effort to respond so as to avoid the threatened ex parte actions.

2. Plaintiffs have met the standards for issuance of a preliminary injunction.

Plaintiffs' Complaint raises serious issues of fact and law regarding the existence of Western Shoshone rights to lands and territory currently claimed by Defendants Bureau of Land Management and Oro Nevada, These issues are distinct from those litigated in previous cases relied on by Defendants in their Answers and Motions to Dismiss.

Plaintiffs' Motion for Preliminary Injunction raises serious violations of well-established rules for the conduct of litigation in United States Courts.

The Federal Defendants cite Granny Goose Foods v. Teamsters, 415 U.S. 423, 441 (1974), for the proposition that "plaintiffs bear the burden of proof to demonstrate by clear and convincing evidence that they are entitled to (injunctive) relief." Granny Goose states:

... the party seeking the injunction would bear the burden of demonstrating the various factors justifying preliminary injunctive relief, such as the likelihood of irreparable injury to it if an injunction is denied and its likelihood of success on the merits. [citing Stark v. New York Stock Exchange, 466 F.2d 743 (CA2 1972); Crowther v. Seaborg, 415 F.2d 437 (CA10 1969); and Garlock v. United Seal, 404 F.2d 256 (CA6 1968)] Id.

It would be well to examine the cases cited in Granny Goose. As its ground for affirming a denial of injunctive relief in Stark, the Appeals Court stated that the plaintiff's business

... can continue to be carried on by Stark individually, thus permitting any alleged losses to Stark, Inc. to be measured in dollars. Under such circumstances Judge Brieant acted well within the bounds of permissible discretion in denying preliminary relief. 466 F.2d at 744.

In the present case, as asserted in Plaintiffs' Motion and demonstrated in their subsequent filing, the threatened impoundment actions of the BLM would destroy the Plaintiffs' livelihood altogether. Cattle grazing may be a monetary matter to the BLM, but it is a matter and way of life to the Plaintiffs. Furthermore, disruption of an existing herd of livestock, especially at the Spring of the year, would create more than monetary disruption to the breeding practices exercised by the Plaintiffs.

In Crowther, the Appeals Court upheld a denial of injunctive relief on the following grounds:

... the Government has exercised extreme caution and care to protect the persons, the animal life, the plant life, water supply and any other things that may be adversely affected by [its proposed actions]. 415 F.2d at 439.

Plaintiffs' Motion alleges facts quite different from those, based on previous BLM impoundment actions directed against Western Shoshone cattle ranchers. The previous actions of the BLM against Western Shoshone people and livestock have been anything but cautious and careful and have resulted in adverse effects on human and animal life, with worldwide notoriety.

Finally, in Garlock, the Appeals Court upheld a denial of injunctive relief in the following words:

... injunctive relief as requested by plaintiff would put the defendant out of business and it was not necessary in order to maintain the status quo which had existed for one and one-half years before plaintiff commenced its action. 404 F.2d at 257.

In the present case, the injunction requested by Plaintiffs would not put the BLM out of business and is necessary to maintain a status quo which has existed for many years. Plaintiffs Motion is designed to preserve a long-standing status quo during litigation of serious issues regarding Plaintiffs rights to permanently maintain this status quo. In the event Plaintiffs do not prevail, it is the BLM which may recover by monetary compensation whatever losses it may be able to prove.

The Federal Defendants' Opposition significantly misstates the test for granting preliminary relief in this jurisdiction. Marbled Murrelet v. Babbitt, 83 F.3d 1068 (CA 9 1996), held:

In this circuit, the test for granting a preliminary injunction is whether a party has demonstrated: (1) a likelihood of success on the merits and the possibility of irreparable injury; or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation, and the balance of hardships tips sharply in favor of the party seeking relief. Id., at 1073.

Under the second alternative test, Plaintiffs in the current case have raised issues of land title and challenges to federal authority over land which are "sufficiently serious questions going to the merits to make them a fair ground for litigation" and have alleged injury from threatened BLM actions such that "the balance of hardships tips sharply in favor of the party seeking relief."

The formulation of the test as stated in Oakland Tribune v. Chronicle Publishing, 762 F.2d 1374 (CA 9 1985), also cited by Defendants in their Opposition, would require that Plaintiffs need show only

... the balance of hardships tipping in its favor. 762 F.2d at 1376.

This the Plaintiffs have surely done.

Oakland Tribune further provides a basis for this Court to consider the situation in light of an evidentiary standard more relaxed than at trial:

The exigencies of preliminary relief often prevent the movant from procuring supporting evidence in a form that would meet Rule 56(e)'s requirement of evidence admissible at trial. Such evidence may yet be considered by the court, which has discretion to weight the evidence as required to reflect its reliability. See 11A Charles Alan Wright et al., Federal Practice and Procedure s 2949 at 215-18 (1995). Id., at 1562.

Plaintiffs' filings taken together show an urgent need for this Court to issue protective orders restraining Defendants from engaging in extra-judicial contact with Plaintiffs, individually or jointly. Defendants' ex parte contacts and threats have significantly disrupted the ordinary operations of Plaintiff Western Shoshone National Council and individual Western Shoshone persons represented in this action. Such disruptions are greatly interfering with Plaintiffs' abilities to conduct this litigation in a timely fashion, with requisite care and concern for a full presentation of Plaintiffs' legal and factual positions.

Plaintiffs are preparing a Reply to Defendants Motions to Dismiss, elaborating serious questions raised in their Complaint going to the merits sufficiently to provide a "a fair ground for litigation." Plaintiffs should not be required to expend resources responding to and defending against Defendants' extra-judicial conduct that threatens their livelihood and way of life, particularly when such conduct is premised on no showing of necessity or hardship by Defendants whatsoever. In this situation, the "balance of hardships tips sharply" in Plaintiffs' favor.

3. Conclusion

Plaintiffs have complied with the substantive underpinnings of Local Rule 7-2 and have plead facts and law sufficient to support the issuance of a preliminary injunction in this case.

Plaintiffs therefore respectfully request the Court to issue a preliminary injunction as stated in their Motion, to preserve the orderly administration of this Court and to protect the status quo livelihood of the Plaintiffs during the pendency of this litigation.

Dated: March 4, 1998

Respectfully Submitted,

Raymond D. Yowell, Chief
Allen Moss, Sub-Chief
Virginia Sanchez, Secretary of State & Treasurer
Western Shoshone National Council
Indian Springs, NV 89018

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