IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
) 
ELOUISE PEPION COBELL et al., ) 
No. 1:96CV01285 (RCL) 
Plaintiffs, 
v. 
) 
) 
) 
)
) GALE A. NORTON, Secretary of 
the Interior, et al., 
Defendants. 
)
)
)
) 
INTERIOR DEFENDANTS’ NOTICE OF OBJECTIONS TO 
PLAINTIFFS’ PROPOSED NOTICE TO THE CLASS OF PLAINTIFFS’ PETITION 
FOR INTERIM FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT 
In response to this Court’s Memorandum Opinion and Order, dated July 12, 2005, 
Plaintiffs submitted a filing setting forth the proposed content and means of giving notice to the 
Cobell class members concerning class counsel’s pending petition for an interim award of 
attorney fees pursuant to the Equal Access to Justice Act. See Notice of Plaintiffs' Proposed 
Notice to the Class of Plaintiffs' Petition for Interim Fees under the Equal Access to Justice Act 
(July 18, 2005) (“Plffs.’ Notice”). Defendants respectfully object to Plaintiffs’ proposal, because 
it is wholly inadequate in terms of content, distribution and timing. Defendants request that the 
Court modify the notice as proposed and order Plaintiffs to make the following changes to the 
notice: (1) the notice must be disseminated more broadly than by a single Internet posting, 
preferably, through newspaper advertisements published throughout Indian country; (2) the 
notice must afford class members at least sixty (60) days to see the notice and respond to or 
comment upon the fee petition; and (3) the text of the notice must be revised in three areas: (I) 
argumentative assertions should be removed, (ii) a simple means for obtaining copies of the fee
petition and the government’s opposition should be provided, and (iii) class counsel’s contact 
number should be clearly identified as toll free. 
In its Memorandum Opinion of July 12, 2005, the Court expressly recognized class 
counsel’s obligation under Federal Rule of Civil Procedure 23(h) to notify class members of its 
pending motion for an interim award of attorneys fees under the Equal Access to Justice Act. 
The Court noted the important purposes behind such notice to class members and, quoting the 
Advisory Committee, observed that fee awards “are a powerful influence on the way attorneys 
initiate, develop, and conclude class actions.” Mem. Op. at 29-30 (internal quotation marks 
omitted). The Court also stated, again quoting the Advisory Committee, that “members of the 
class have an interest in the arrangements for payment of class counsel whether that payment 
comes from the class fund or is made directly by another party[.]” Id. at 30 (internal quotation 
marks omitted). As the Court recognized, the aim of the notice rule is to provide “the class with 
sufficient information to question objectionable fee requests and to scrutinize any potential 
conflicts of interest that arise from certain payment scenarios.” Id. Plaintiffs’ proposal, however, 
falls far short of this goal. 
Defendants are not aware that Plaintiffs have done anything thus far to communicate their 
fee request to class members. Although Plaintiffs regularly publish all manner of material on 
their website, Plaintiffs have chosen not to publish their fee request on their website, even though 
their motion for a fee award, filed August 14, 2004, is almost a year old. Having apparently 
done nothing to date, even informally, to inform class members of their fee petition, Plaintiffs 
now propose that their notice merely be posted as a message on their website, without any further 
dissemination or promotion. Plaintiffs also propose an unreasonably small window – barely two 
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weeks (until August 17, 2005) – during which class members who have seen the web posting can 
retrieve a copy of the fee petition and submit comments on it to the Court. This proposed 
scheme is wholly inadequate to satisfy the important purpose that lies behind the notice 
requirement. 
Although Plaintiffs only propose publishing their class notice on their Internet website, 
class counsel has previously represented to this Court that the Internet is not an adequate vehicle 
for communicating with the represented class. Just last October, during a hearing regarding the 
class communications order, Plaintiffs’ lead counsel told this Court: 
Your Honor, what we've also learned from the recent few weeks of dealing with 
our clients with regard to the notice issues that we've [sic] wrestling with is that 
very few of the them have access to the Internet, very few of them have computers. 
I will also tell Your Honor that very few of them have voice mail, so 
communications and actual communications sometimes can be a challenge. Also, 
very few of them have money, so long distance telephone calls are actually quite 
expensive to them, and are quite meaningful to them, and for those with whom we 
are communicating effectively, Your Honor, it requires many of them to drive 
distances to get to a facility with a fax machine or electronic means, or 
something where they can provide us that. 
Hearing at 7-8 (Oct 19, 2004) (emphasis added). If class counsel’s statements to the Court are 
accepted as true, then it necessarily follows that mere website publication would be an 
inadequate means of notice to this class. 
In their submission, Plaintiffs also tender meager excuses for not contacting class 
members more directly. First, they claim that this Court has ruled out mail distribution of the fee 
award notice. Plffs.’ Notice at 1-2. That assertion, though, is simply incorrect. The Court did 
decide against including the Plaintiffs’ fee notice with other written notice that it has ordered 
Interior to give class members, but this was because the Court deemed the two matters – 
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attorneys’ fees and the information given out by Defendants – to be “not at all germane” to one 
another. Mem. Op. at 30. The Court, however, did not rule out mailing or any other method of 
distribution for Plaintiffs’ notice. Instead, the Court ordered Plaintiffs to propose a dissemination 
plan. See id. (“The Court will, however, order that plaintiffs’ counsel submit . . . a proposal for 
distributing that notice to class members.”) 
Plaintiffs next contend that Defendants cannot identify all account holders and have 
“grossly mismanaged” Indian lands. They then make a leap of logic from these purported facts 
to say that class counsel should be relieved of the obligation to contact members of their class. 
Plffs.’ Notice at 2-3. Plaintiffs ignore the fact that Defendants regularly issue tens of thousands 
of checks to IIM account holders and these individuals are highly likely to be class members 
whose mailing addresses are known. Plaintiffs’ argument also ignores the fact that many IIM 
account holders can be reached through local media – including newspapers – in the Indian 
communities where many class members reside. Plaintiffs have no ready explanation for why 
they should not make an affirmative effort to contact a substantial and identifiable portion of the 
class’ membership. 
Finally, Plaintiffs point out that they are seeking payment of fees from the government 
through the Equal Access to Justice Act (“EAJA”), contending by way of implication that class 
members do not really need to know about their interim fee request. Plaintiffs expressly note that 
class members have “no pecuniary interest in the award” and might actually “benefit directly” 
from a high EAJA award because this interim award “may well be deducted from any final fee 
award made pursuant to the ‘common fund doctrine.’” Id. at 3. These justifications for 
abridging their duty to inform the class run counter to this Court’s unequivocal recognition that 
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class members must be made aware of “arrangements for payment of class counsel whether that 
payment comes from the class fund or is made directly by another party,” and that Rule 23(h) 
does not draw such distinctions with respect to the notice requirement.1 Id. at 30 (internal 
quotation marks omitted)(emphasis added). 
Defendants submit that Plaintiffs -- in addition to posting the notice prominently at the 
top of the home page on their website -- should also be required to give some form of written 
notice to the class members. The fee award notice rule, Fed. R. Civ. P. 23(h)(1), requires notice 
be given “in a reasonable manner,” and it is appropriate to consider what standards have been 
employed for class notice in other contexts. In class action damages cases, for example, class 
representatives are required to give the “best notice practicable under the circumstances,” Fed. R. 
Civ. P. 23(c)(2)(B), which in most instances means direct contact by first-class mail. See, e.g, 
Peters v. Nat’l R.R. Passenger Corp., 966 F.2d 1483, 1486 (D.C. Cir. 1992) (“beyond dispute 
that notice by first class mail ordinarily satisfies rule 23(c)(2)'s requirement”). Defendants do 
not suggest that Plaintiffs should be made to send letters to several hundred thousand class 
members about their fee request, but they should be required to give meaningful notice to a 
substantial portion of the class. Publication on their website alone is not sufficient notice. 
Defendants propose that Plaintiffs should also be required to render the class notice 
through local newspapers in addition to the website notice. The advertisements should be full 
page and placed with publications on Indian reservations and in areas with significant Indian 
populations. The advertisements should run at least twice over a two or three week period. This 
1/ Plaintiffs’ reliance on a “common fund” contention also overlooks the reality that there is no 
“common fund” when, as here, Plaintiffs are seeking only injunctive relief. 
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is the reasonable effort required for a class notice, and it should not be unduly expensive.2 
Another material defect in the notice is the brief comment period that class counsel 
proposes to afford to the class. The proposed period would give interested class members 
virtually no time at all to ask questions or express concerns. Without explanation, Plaintiffs 
propose August 17, 2005, as the cut-off date for comments by class members, which would be 
barely two weeks after publication. See Plffs.’ Notice at 4. Class members should be given no 
less than sixty (60) days to submit comments to the Court concerning class counsel’s fee petition. 
It could reasonably take a few weeks for class members to become aware of the notice, a few 
weeks more to obtain and review a copy of the fee petition itself, and still another few weeks to 
write and submit comments on the petition. The Court should act here to ensure that the notice 
gives a meaningful opportunity to the class for comment, which Defendants submit should be at 
least a sixty-day period, following final publication of the notice. 
Finally, Defendants urge the Court to order three other changes in the wording of the 
proposed notice. The second paragraph of the proposed notice now begins, “Based on these 
significant court victories and because the government has acted in bad faith . . . .,” class counsel 
has petitioned for an award of fees. Plffs.’ Notice at 4. The second half of this introductory 
clause – “and because the government has acted in bad faith” – should be deleted. The “bad 
faith” assertion is made generally without reference to any facts that Plaintiffs have alleged. 
Moreover, although bad faith in the litigation has been argued by Plaintiffs as a reason justifying 
2/ As a point of comparison, the Department of Interior recently ran full page ads in 51 
newspapers to fulfill a notice requirement under the American Indian Probate Reform Act of 
2004, Pub. L. 108-374. The publication cost of these advertisements was less than $45,000. See 
Exhibit A (attached hereto) (AIPRA Media Buy spreadsheet and cover note). 
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their fee award, their contention has been disputed by Defendants and remains unresolved. The 
reference is a gratuitous misstatement that should not be included in a notice to the class. 
Second, Plaintiffs’ notice should be a clear guide to class members on how to obtain 
access to all additional information relevant to the pending fee award. The proposed notice 
appropriately discloses to class members that they can obtain a copy of the fee petition on-line by 
clicking on a link at Plaintiffs’ website. Plffs.’ Notice at 5. The notice, however, should also tell 
class members that they can obtain a copy of the fee petition by a telephone request to class 
counsel. The notice should further disclose that the government has opposed the fee petition and 
inform interested class members that they can obtain a copy of the government’s opposition 
through the same means as the fee petition itself, either by visiting Plaintiffs’ website or by a 
telephone request to class counsel. This approach will ensure that class members are fully 
informed of the circumstances concerning the pending fee award. 
Third, Plaintiffs’ proposed notice includes a telephone number with an “866” area code 
that people may not readily recognize as being a toll-free line. The notice should make this fact 
clear, so that interested class members will be aware that they can contact class counsel by 
telephone free of long distance charges. Class counsel has previously stated to the Court that 
“very few” class members have money, “so long distance telephone calls are actually quite 
expensive to them, and are quite meaningful to them.” Hearing at 8 (Oct. 19, 2004). Given this 
representation, the notice to the class should inform class members that the listed number is toll 
free. 
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CONCLUSION 
For the foregoing reasons, the Court should modify Plaintiffs’ proposed notice to the 
class concerning Plaintiffs’ petition for interim fees and direct that Plaintiffs make revisions to 
the proposed notice and distribution plan in accordance with Defendants’ requested changes. 
Respectfully submitted, Date: July 25, 2005 
ROBERT D. McCALLUM, Jr. 
Associate Attorney General 
PETER D. KEISLER 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
Director 
/s/ Michael J. Quinn 
ROBERT E. KIRSCHMAN, Jr. 
(D.C. Bar No. 406635) 
Assistant Director 
MICHAEL J. QUINN 
(D.C. Bar No. 401376) 
Trial Attorney 
Commercial Litigation Branch 
Civil Division 
Mailing Address: 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
Phone (202) 616-0328 
Fax (202) 514-9163 
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CERTIFICATE OF SERVICE 
I hereby certify that, on July 25, 2005 the foregoing Interior Defendants' Notice of Objections 
to Plaintiffs' Proposed Notice to the Class of Plaintiffs' Petition for Interim Fees under the Equal 
Access to Justice Act was served by Electronic Case Filing, and on the following who is not 
registered for Electronic Case Filing, by facsimile: 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
Fax (406) 338-7530 
/s/ Kevin P. Kingston 
Kevin P. Kingston
Native Print 
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