UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 

ELOUISE PEPION COBELL, et al., : 

:  
Plaintiffs,  : :  
v.  : :  Civil Action No. 96-1285 (JR)  
DIRK KEMPTHORNE, Secretary ofthe Interior, et al.,  : : :  
Defendants.  : 


ORDER 

Pending before the Court are Defendants’ Motion for 
Order that the Office of the Solicitor Information Technology 
System May be Reconnected to the Internet [3450]; and Defendants’ 
Motion for an Order (1) Authorizing the Reconnection to the 
Internet of Information Technology Systems of the Bureau of 
Indian Affairs, the Office of Hearing and Appeals, and the Office 
of the Special Trustee, (2) Confirming that the Office of 
Historical Trust Accounting May Connect its Information 
Technology System to the Internet, and (3) Vacating the 
December 17, 2001 Consent Order Regarding Information Technology 
Security [3507]. For the reasons discussed below, both motions 
are granted. 


Discussion 

Weaknesses within Interior’s information technology 
systems housing Individual Indian Trust Data (IITD) have received 
a great deal of attention in this case. After orders, reports, 
hearings, injunctions, disconnections, reconnections, and 

appellate opinions too numerous and complex to be recited here, 

five bureaus and offices within Interior remain disconnected from 

the internet. Conditions for the reconnection of those bureaus 

and offices, and a process for evaluating Interior’s compliance 

with those conditions, are set forth in the Consent Order entered 

more than six years ago, on December 17, 2001 [1063]. It 

provides that 

Interior may reconnect to the Internet any information
technology system that houses or provides access to
individual Indian trust data. At least seventy-two (72)
hours before reconnecting, Interior shall give actual notice
to the Special Master and Plaintiffs’ counsel with
appropriate documentation of its intent to reconnect. At 
that time, Interior shall provide its plan to reconnect to
the Special Master. The Special Master shall review the
plan and perform any inquiries he deems necessary to
determine if it provides adequate security for individual
Indian trust data. If the Special Master objects to the
plan because it does not provide adequate security for
individual Indian trust data, he shall inform Interior of
his objections and Interior shall work with the Special
Master to attempt to resolve those objections. Interior 
shall not reconnect until such objections have been resolved
to the satisfaction of the Special Master. If the Interior 
Defendants and the Special Master cannot resolve the Special
Master’s objections, notwithstanding their best efforts, the
Interior Defendants may seek relief from the Court [ . . . ]
[T]his Consent Order may be vacated by this Court once the
Court has determined the Interior Defendants are in full 
compliance with this Consent Order and Interior’s relevant
information technology systems are in compliance with the
applicable standards outlined in OMB Circular A-130. 

Consent Order [1063] at 7-8. Three subsequent IT security orders 

superseded the Consent Order, but each of them was vacated on 

appeal, Cobell XII, 391 F.3d 251 (D.C. Cir. 2004); Cobell XVIII, 

455 F.3d 301 (D.C. Cir. 2006), leaving the 2001 Consent Order in 
place by default. 

The Consent Order was drafted by the government and 
entered over plaintiffs’ objections, but today the government 
wants it vacated, and it is plaintiffs who insist that the Order 
should remain in place. Plaintiffs’ argument is that the 
government has not met its burden of demonstrating that the five 
bureaus and offices are ready for reconnection. They identify 
several recent reviews critical of the current state of IT 

1

security within Interior, and they claim that declarations of
Interior officials attesting to the adequacy of IT security are 
in direct, irreconcilable conflict with such reports. See 
Plaintiffs’ Opposition [3517] at 7-8. Plaintiffs read Cobell XII 
as requiring this court to hold an evidentiary hearing before 
ruling on IT security matters where genuine issues of materials 
fact are in dispute. Id. at 19, citing 391 F.3d at 261-62. 

Defendants maintain that the Consent Order has been 
overtaken by events: that changes in law and fact since its entry 
render it obsolete. See Rufo v. Inmates of Suffolk County, 502 

U.S. 367, 388 (1992) (“A consent decree must of course be 
modified if, as it later turns out, one or more of the 
obligations placed upon the parties has become impermissible 

1 See, e.g., Seventh Report Card on Computer Security at
Federal Departments and Agencies (2007), available at
http://republicans.oversight.house.gov/Media/PDFs/FY06FISMA.pdf. 

under federal law.”). They submit that provisions of the Consent 
Order requiring the Special Master and this Court to assess the 
adequacy of IT security are in conflict with the Federal 
Information Security Management Act of 2002 (“FISMA”), which was 
enacted after the entry of the Consent Order. Pub. L. No. 107­347, Title III, §§ 301-305. Under FISMA, it is the agency head 
who is “responsible for . . . providing information security 
protections commensurate with the risk and magnitude of the harm 
resulting from unauthorized access, use, disclosure, disruption, 
modification or destruction of information[.]” 44 U.S.C. 
§ 3544(a)(1)(A). Indeed, in vacating the last two IT security 
injunctions in this case, the Court of Appeals observed, 
“FISMA . . . includes a role for OMB, the Department of Commerce, 
the NIST, the Comptroller General, Congress, the public, and 
multiple officials within each agency subject to the statute. 
Notably absent from FISMA is a role for the judicial branch.” 
Cobell XVIII, 455 F.3d at 314. 

Plaintiffs correctly note that Defendants have not 
attempted to comply with the terms of the 2001 Consent Order in 
their reconnection motions, but it is unclear how they could have 
done so, considering that the Special Master has resigned, and 
that the majority of the Order’s provisions pertain to his role 
in the reconnection process. Plaintiffs urge the Court to 
perform the judicial functions delegated to the Special Master, 

suggesting that, despite the Court of Appeals’ recent declaration 
that this is “not a FISMA compliance case,” Cobell XVIII, 455 
F.3d at 214, “the relief provided in a consent decree need not 
conform to the limits on court-ordered relief,” Cf. Local Number 
93, Intern. Ass’n of Firefighters v. City of Cleveland, 478 U.S. 
501, 530 (1986) (O’Connor, J., concurring); cited in Plaintiffs’ 
Opposition to Defendants’ Office of the Solicitor Reconnection 
Motion [3472] at 5. 

Under the Consent Order, it is the obligation of the 
Special Master (and, ultimately, the Court) to determine whether 
the IT security of systems housing IITD is adequate. Consent 
Order [1063] at 7. Once each disconnected bureau and office has 
demonstrated adequate IT security, the Consent Order may be 
vacated, so long as the Court finds that the agency’s overall IT 
security is in compliance with OMB Circular A-130. Id. But it 
would be inappropriate, after FISMA and Cobell XVIII, for this 
Court to adjudicate agency compliance with OMB Circular A-130. 
Congress has assigned the role of weighing acceptable risks to 
heads of agencies. The Consent Order established a parallel 
track for evaluating IT security which may have been logical at 
an earlier stage of the case. At one point, my statements in 
court may have suggested an intent to proceed along that track 
and hold an evidentiary hearing before allowing Interior offices 
and bureaus to reconnect. On May 14, 2007, I noted that we were 

not “working on a clean slate,” and denied the motion to vacate 
the Consent Order because the government had not “made the 
requisite showing that [it had] any security.” May 14, 2007 Hrg. 
Tr. At 40-41. But it is now clear that the Consent Order’s 
parallel judicial track cannot be reconciled with applicable law. 
See, e.g., Cobell XVIII, 455 F.3d at 315-16, disapproving of 
“perpetual judicial oversight of Interior’s computer systems,” 
based only on a “list of vulnerabilities[.]” 

I have before me the declarations of Authorizing 
Officials within each agency seeking connection or reconnection, 
see, [3450] Exhibits 1-4; [3507] Exhibits 1-10, all of which 
describe the bureau or office’s successful completion of the 
agency’s Connection Approval Process. The declarations indicate 
that the officials have performed their FISMA-assigned roles. 
The Congressional and Inspector General reports indicating that 
the Interior department, overall, continues to receive failing 
grades on its IT report card are troubling, but I have no 
authority to act in response to them, nor do I have any colorable 
suggestion that the declarations before me -- pertaining not to 
IT security overall, but instead to specific bureaus housing 
IITD -- were made in bad faith. Since my resolution of these 
motions turns not on a weighing of the evidence, but on a legal 
conclusion that it is not my role to weigh IT security risks, the 
Court of Appeals instruction that district judges “may not 

resolve the state of Interior’s IT systems security without 
conducting a hearing on the evidence in dispute” is inapplicable. 
Cobell XII, 391 F.3d at 261. 

For these reasons, I find that the Consent Order is of 
no further use and must be vacated. The five disconnected 
offices and bureaus may be connected. 


It is SO ORDERED.

 JAMES ROBERTSON 
United States District Judge