Marzulla Law, LLC is the nation's leading law firm for takings claims against the federal government. ML represents landowners, developers, water districts, Indian tribes, business, and corporate interests in litigation of property rights and contract claims. ML also represents clients in environmental enforcement actions, and litigation involving natural resources and permitting issues, in federal district courts and courts of appeal.

 

We hope that this Newsletter will serve as a resource for you.

 

 

Best regards,   Follow us on Twitter 

   

Nancie and Roger Marzulla      

Marzulla Law, LLC  

Tel.: 202.822.6760      

www.marzulla.com    

    

 

 

Happy New Year From Marzulla Law

2013  

 All of us at Marzulla Law are excited to welcome our readers to 2013. We hope this New Year is a happy and prosperous one for everyone.

House of Representatives Approves Congressional Reference, Sending Quapaw Claims to U.S. Court of Federal Claims

for Resolution

 

112th U.S. Congress

In the waning days of the 112th Congress, the U.S. House of Representatives utilized the congressional reference procedure authorized under 28 U.S.C. � 2509 and passed House Resolution 668, referring "a Bill [H.R. 5862] relating to members of the Quapaw Tribe of Oklahoma (the O-Gah-Pah)" to the Chief Judge of the U.S. Court of Federal Claims on December 19, 2012. The reference procedure allows either house of Congress to refer a dispute to the Chief Judge of the U.S. Court of Federal Claims for a hearing on the facts of a matter, as well as to refer a recommendation to Congress on the justice of the underlying claims pertaining to said matter. Congress may also ask the Chief Judge to make a recommendation as to the amount of money owed by the United States to a claimant if the claim is meritorious.

 

In the reference, the Chief Judge is asked to make "a determination as to whether the Tribe and its members have Indian trust-related legal or equitable claims that are pending the Court of Federal Claims . . . ." Once that determination is made, the Chief Judge is to report back to the House "findings of fact and conclusions of law that are sufficient to inform the Congress of the nature, extent, and character of the Indian-trust related claims of the Quapaw Tribe of Oklahoma and its tribal members for compensation as legal or equitable claims against the United States . . . " and "the amount, if any, legally or equitably due from the United States to the claimants."

 

Representative Lamar Smith (R-TX), Chairman of the House Committee on the Judiciary, explained why he supported the bill: "The government's foot-dragging necessitates our passage of House Resolution 668 . . . ." He further stated that "[l]ast year, eight Quapaw Tribe members filed a class-action lawsuit on behalf of themselves and other individuals for damages based on breach of trust. The government filed motions to dismiss the case and also refused to respond to a formal settlement demand proffered by the [Quapaw] tribe."

 

Representative Zoe Lofgren (D-CA) further stated that she supported House Resolution 668 after having consulted with the Departments of Justice and Interior. She stated that "both agencies agree that the Quapaw Tribe has legitimate claims against the United States concerning certain tribal lands that were held in trust by the Federal Government. The only real dispute is the value of the claim. This makes the congressional reference bill an appropriate measure to help bring this matter to a final resolution."

 

Finally, the resolution's sponsor, Representative Tom Cole (R-OK), stated that the congressional reference for the Quapaw Tribe "is a matter of justice . . . . This is a bipartisan effort to try and make sure that an Indian nation that has a legitimate claims against the United States of America has an opportunity to go to court and make its case . . . of an injustice that all sides admit occurred, and establish what's fair compensation."

 

Next steps: Once the congressional reference is received by the Chief Judge, the Quapaw Tribe and its members will have 90 days within which to file any complaint based on the reference.

Administrative Conference of the United States (ACUS) Urges Congress to Repeal 28 U.S.C. � 1500 and Restore Litigants' Rights

 

On December 6, 2012, the Administrative Conference of the United States (ACUS) at its 57th Plenary Session approved its final recommendations to Congress supporting repeal of 28 U.S.C. � 1500, an 1868 law that divests the United States Court of Federal Claims of jurisdiction over otherwise cognizable claims when the plaintiff has claims against the federal government "pending in any other court" and arising from substantially the same set of operative facts. If Section 1500 sounds familiar, it's because we discussed the law and its implications for the lawsuit filed in the U.S. Court of Federal Claims by the Quapaw Tribe of Oklahoma in our June 2011 Newsletter. The final recommendation from ACUS further urges Congress to adopt a statutory stay presumption to mitigate any burden on courts or parties from simultaneous litigation of such claims in the U.S. Court of Federal Claims and other federal courts.

           

Comments submitted by the Quapaw Tribe of Oklahoma summed up why full repeal of Section 1500 is necessary:

 

Although Section 1500 may have served a legitimate purpose when it was enacted in 1868, its legitimacy has long since been superseded by an array of procedural devices that protect all parties against duplicative lawsuits and allow courts to take steps to promote judicial efficiency. ... [T]here is also the general recognition in modern jurisprudence that the courts have inherent authority to manage their dockets by using multi-district case management rules, granting stays, and transferring or consolidating cases to avoid duplicative litigation.

 

The reality is that there is no problem with identical lawsuits being filed or need to special protections for the United States against having to defend against identical claims in two different forums at the same time. The law solved this problem many decades ago, and for that reason, Section 1500 stands alone as an antiquated relic of a time in which courts had not yet developed mechanisms such as res judicata, consolidation, and transfers for case management. We therefore support full repeal of this provision, applied to all pending suits in which Section 1500 is an issue. Read more here.

 

Comments were also submitted by several other Native American nations, tribes and organizations, among them the Navajo Nation, the Nez Perce Tribe, the Congress of American Indians, and SPOA Tribes. Each of them fully supported outright repeal of Section 1500 or, at an absolute minimum, substantial reform.

 

In supporting repeal of Section 1500, the SPOA Tribes discussed the inequitable impact of the statute upon Native American claimants: "[F]ederal jurisdictional rules often require Indian tribes with valid claims against the United States to pursue claims in both the Court of Federal Claims and some other forum in order to obtain complete relief. [The U.S. Supreme Court's reinterpretation of Section 1500 in Tohono] makes it exceedingly and unnecessarily difficult for tribal plaintiffs [and] unjustly forces tribes to choose between partial remedies available in different venues."

 

To view all comments, visit the ACUS website for the 57th Plenary Session.

Supreme Court Rules For Arkansas Game & Fish Commission

 

On Friday, January 25, 2013, Nancie Marzulla will moderate a Telebriefing covering the Supreme Court's recent ruling in Arkansas Game & Fish Commission v. U.S. The event will be hosted by Law Seminars International. For more information about how to register and how to obtain CLE credit, click here.

 

We discussed this case in our May 2012 newsletter, noting that the Supreme Court granted the petition for certiorari filed by the Arkansas Game & Fish Commission, seeking review of a decision by the U.S. Court of Appeals for the Federal Circuit. In that decision, which denied just compensation to the Arkansas Game & Fish Commission, "the circuit panel reversed a trial court's ruling that the U.S. Army Corps of Engineers' flooding of state-owned property from 1993 to 1999 constituted a temporary taking of a flowage easement over the property. The Federal Circuit held that because the flooding was not permanent, no taking had occurred. In denying rehearing and rehearing en banc, several judges on the Federal Circuit hotly disagreed, stating that the temporary flooding was sufficient to trigger the duty to pay just compensation for a taking."

 

On December 4 2012, in an 8-0 ruling, the U.S. Supreme Court reversed the Federal Circuit's decision and remanded for further proceedings, holding that "no decision of this Court authorizes a blanket temporary-flooding exception to our Takings Clause jurisprudence, and we decline to create such an exception in this case." The opinion was written by Justice Ginsburg; Justice Kagan did not participate.

What People Are Saying About Marzulla Law:

 
"I thoroughly enjoyed working with Marzulla Law.  I found Nancie and Roger, and for that matter all of the staff, to be very focused, knowledgeable, and, most important to me, always operating with a high degree of integrity while never taking their 'eye off the ball.' As a result I felt that I and the other experts were given the latitude to do their best work."

Deborah Meehan
Meehan Advisory Group

Expert Witness Spotlight:

Deborah Meehan 
 Meehan  










 
  
Deborah Meehan was an expert witness for Marzulla Law in the takings case of Love Terminal Partners v. United States, providing expert testimony pertaining to underlying market conditions and demand for use of the Dallas Love Field Airport.
  

With a Bachelor of Arts in Economics from the University of Massachusetts, and a Masters in City and Regional Planning and Transportation Planning from Harvard University, Deborah's expertise in demand forecasting and airline analysis has made her a trusted advisor to senior management at airports and airlines across the country for over thirty years. Before forming the Meehan Advisory Group in 2011, Deborah was President and Chief Operating Officer of the aviation consulting firm SH&E (now ICF SH&E), where she directed large, complex airport projects.

Meet Connor Barry  

 

Connor BarryConnor Barry was one of our two interns for the 2012 fall season, coming to us from the Washington Center's Law and Criminal Justice internship program. A fourth year English major at the University of New Hampshire, Connor's minor in Justice Studies, as well as his having won four Outstanding Attorney Awards for his participation in a mock during his 2011 fall semester, no doubt inspired his interest to intern at a D.C. law firm.

 

During his time with us, Connor was quite an asset. He participated in three civil litigation trials in federal court and helped prepare three expert and four fact witnesses for trial testimony. He also analyzed deposition transcripts and formulated direct examination of witnesses, as well as organized approximately 400 exhibits for use at trial.

 

"It is very rare for an intern from the Washington Center program to be able to say they worked at a tier one firm here in D.C.," said Connor. "It was an honor to be a part of Marzulla Law. Roger and Nancie Marzulla are exceptional role models, and showed me how to strive for excellence in trial advocacy. I made a collection of laughs, lasting memories, and esteemed colleagues. Thanks to my experience at the firm I have solidified my career choice. It was truly one of the best decisions I could have made."

 

Among Connor's hobbies are tennis, jogging, and reading.

About Marzulla Law 

 

Marzulla Law, LLC is a Washington D.C.-based law firm. Nancie G. Marzulla and Roger J. Marzulla help property owners get paid just compensation when the Government takes their property through inverse condemnation.

 

ML lawyers practice in the federal courts, especially the U.S. Court of Federal Claims, the Federal Circuit Court of Appeals, and the U.S. District Court for District of Columbia, as well as other federal district courts, appellate courts, and the U.S. Supreme Court. ML also represents clients in administrative agencies, such as the District of Columbia Office of Administrative Hearings or the Interior Board of Indian Appeals.   

 

Chambers has recognized Marzulla Law as one of the top ten water rights litigation firms in the country. Nancie Marzulla and Roger Marzulla have been selected by their peers to be included on the list of Best Lawyers in America, and their firm has the highest AV-rating from Martindale-Hubble.  Nancie and Roger Marzulla have been recognized by Best Lawyers as a Top Tier law firm by U.S. News & World Report for environmental law, and Marzulla Law is a proud member of the International Network of Boutique Law Firms.