IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
____________________________________
) 
ELOUISE PEPION COBELL, et al., ) 
Plaintiffs, 
v. 
GALE A. NORTON, Secretary of 
the Interior, et al., 
) 
) 
)
)
)
)
) No. 1:96CV01285 
(Judge Lamberth) 
Defendants. 
)
) 
DEFENDANTS’ CONSOLIDATED REPLY IN SUPPORT OF 
MOTIONS FOR A PROTECTIVE ORDER REGARDING 
PLAINTIFFS’ NOTICES OF DEPOSITION OF DAVID L. BERNHARDT, 
LUCY QUERQUES DENETT AND GABRIEL SNEEZY 
and 
OPPOSITION TO MOTION TO COMPEL 
Plaintiffs have noticed the depositions of David Bernhardt, the Department of the 
Interior’s Director for the Office of Congressional and Legislative Affairs, Gabriel Sneezy, the 
Acting Director of the Office of Appraisal Services, and Lucy Querques Denett, the Associate 
Director for Minerals Revenue Management. Defendants filed individual Motions for Protective 
Order (“Motions”) for each of these noticed depositions. On November 25, 2003, Plaintiffs filed 
a consolidated Opposition to the Motions and a Motion to Compel (“Opposition”). In the 
Motions, Defendants demonstrated that good cause exists for an order preventing these 
depositions. In their Opposition, Plaintiffs are unable to show a right to the depositions – or even 
a need for the depositions at this time. Defendants’ Motions should be granted and Plaintiffs’ 
Motion to Compel should be denied.1 
1/ Although their paper is styled as both an opposition and a motion to compel, Plaintiffs do not 
explain why a motion to compel is necessary. Indeed, Plaintiffs do not even discuss the 
standards for such a motion as set forth in Federal Rule of Civil Procedure 37(a)(2)(B), or
ARGUMENT 
NO DISCOVERY IS AUTHORIZED AT THIS TIME I. 
Relying upon the Federal Rules of Civil Procedure and the Court’s October 17, 2002 
Phase 1.5 Trial Discovery Order, Defendants demonstrated in the Motions that no discovery is 
appropriate or permissible at this stage of the litigation. In response, Plaintiffs rely exclusively 
upon the language of the Court’s September 17, 2002 Order restoring certain discovery rights 
that had been previously denied to them in this case. They contend that the September 17, 2002 
Order somehow conferred upon them “unfettered” discovery rights and surprisingly argue that 
Defendants have not identified any Order which restricts their discovery now that the Phase 1.5 
trial has concluded. Opposition at 5. Plaintiffs have unaccountably chosen to ignore the 
language in the Federal Rules and the October 17, 2002 Order, discussed in the Motions, that 
unambiguously restricts Plaintiffs’ discovery rights. 
The September 17 Order merely restored the usual discovery rights that had been denied 
Plaintiffs by a previous order. After entry of the September 17 Order, Plaintiffs were in the same 
position as any other litigant with regard to their discovery rights. On October 17, 2002, the 
Court signed a Phase 1.5 discovery scheduling order. See Phase 1.5 Discovery Schedule Order 
whether they can meet their burden under those standards, but rather focus solely on their 
Opposition to Defendants’ Motions. In addition, any motion to compel “must include a 
certification that the movant has in good faith conferred or attempted to confer with the person or 
party failing to make the discovery in an effort to secure the information or material without 
court action.” Fed. R. Civ. P. 37(a)(2)(B). Plaintiffs’ Motion to Compel does not include this 
required certification and also does not comply with Local Rule 7(m). In any event, for the 
reasons discussed in the Motions and in this Reply, Plaintiffs’ Motion to Compel should be 
denied. 
2
(October 17, 2002). Pursuant to that Order, fact discovery closed on March 24, 2003,2 and all 
discovery terminated on April 10, 2003. Plaintiffs do not, and cannot, explain how the 
September 17 Order granted them discovery rights that exceed the limits established by the 
Court's subsequent scheduling order. There is no other order granting Plaintiffs the right to take 
discovery and Plaintiffs cite none in their Opposition. 
Plaintiffs are also bound by the Federal Rules, which forbid discovery prior to a Rule 
26(f) planning conference, as described in the Motions.3 See Fed. R. Civ. P. 26(d). The parties 
have not held a discovery planning conference on any post-Phase 1.5 proceeding. Therefore, 
discovery has not commenced for any subsequent proceedings and Plaintiffs are precluded from 
requesting documents and noticing depositions without leave of Court. Id.; Fed. R. Civ. P. 
30(a)(2)(C).4 
PLAINTIFFS FAIL TO IDENTIFY ANY RELEVANT DISCOVERY THEY SEEK II. 
Plaintiffs’ Opposition also reveals a fundamental misunderstanding about the type of 
information that is discoverable in this case. Plaintiffs claim that they need the noticed 
2/ The close of fact discovery was subsequently extended by the Special Master-Monitor until 
March 28, 2003. 
3/ One exception to this prohibition is that Rule 27(b) permits a district court to allow, upon 
motion that sets forth certain prescribed information, the taking of depositions of witnesses to 
perpetuate testimony “for use in the event of further proceedings in the district court,” pending 
appeal of a judgment. Fed. R. Civ. P. 27(b). Plaintiffs have not filed any such motion to take the 
depositions noticed here and therefore have obviously not met the requirements of Rule 27. 
4/ To the extent Plaintiffs are seeking discovery for the purpose of investigating potential 
criminal contempt allegations, see, e.g., Opposition at 7, this Court’s decision in Landmark Legal 
Foundation v. EPA, 272 F. Supp. 2d 70, 76-77 (D.D.C. 2003), makes clear that the Plaintiffs 
cannot assume a prosecutorial role. See also Young v. United States ex rel. Vuitton et Fils, S.A., 
481 U.S. 787, 814 (1987) (reversible error to appoint the attorney for an interested private 
beneficiary as prosecutor of contempt allegations). 
3
depositions because “all information of this trust belongs to the plaintiffs and they have a right to 
such information irrespective of litigation but by right as beneficiaries.” Opposition at 9. Even if 
applicable restrictions on discovery in APA cases were disregarded,5 Plaintiffs’ attorneys are not 
entitled to use the Federal Rules of Civil Procedure to discover all information that might 
otherwise be obtainable by an IIM trust beneficiary. They only represent the certified class of 
IIM beneficiaries with respect to the issues and claims in this lawsuit. Simply alleging that a 
beneficiary has a right to certain information about the IIM trust is not enough to make that 
information relevant to this lawsuit, and thus discoverable under the Federal Rules. If 
beneficiaries believe that they have a right under trust law to certain information they should ask 
the appropriate Interior official for that information in the ordinary course of business. The 
Plaintiffs in this class action, however, are not entitled to use the formal discovery mechanisms 
in the Federal Rules to gather information that beneficiaries would merely like to obtain. The 
requested information must be relevant to an issue in this litigation.6 
In their Opposition, Plaintiffs identify the position and some of the responsibilities of 
each of the noticed deponents, and allege that each has personal knowledge of information 
5/ Plaintiffs acknowledge in their Opposition that discovery is impermissible in APA cases, but 
argue that such a restriction should not apply here because this case is “not a conventional APA 
case where discovery restrictions apply.” Opposition at 9. Defendants are unaware of a 
uniqueness exception in the APA that would permit otherwise unauthorized discovery in any 
APA case that a plaintiff designates as special. In short, the restrictions on discovery in all APA 
cases apply with equal force to this APA case, notwithstanding its supposedly unconventional 
status. 
6/ Plaintiffs are surely aware of the relevancy requirement because they quote the appropriate 
language from Rule 26(b) in their Opposition. Opposition at 5. They are also surely aware of the 
issues in this case because they were framed in the Complaint filed by Plaintiffs. It is therefore 
puzzling that at this late date Plaintiffs are apparently still unaware that information relevant to 
the IIM trust is not coextensive with information relevant to the issues in this case. 
4
related to the IIM trust. See Opposition at 2-4. However, Plaintiffs do not, and cannot, explain 
how any information they could possibly elicit from the proposed deponents would be relevant to 
a claim that is being litigated in any current proceeding requiring discovery. 
As Defendants have discussed repeatedly, there are no current proceedings that require 
discovery. However, even if this changes, Plaintiffs would only be entitled to the discovery of 
information related to the claims at issue in such a proceeding. They are not entitled to discover 
any information they seek merely because it has some relation to the IIM trust. 
CONCLUSION 
For these reasons, Defendants’ Motions for a Protective Order should be granted and 
Plaintiffs’ Motion to Compel should be denied. 
Respectfully submitted, Dated: December 8, 2003 
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/ Sandra P. Spooner 
SANDRA P. SPOONER 
D.C. Bar No. 261495 
Deputy Director 
JOHN T. STEMPLEWICZ 
Senior Trial Counsel 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 514-7194 
5
CERTIFICATE OF SERVICE 
I hereby certify that, on December 8, 2003 the foregoing Defendants’ Consolidated Reply 
in Support of Motions for a Protective Order Regarding Plaintiffs’ Notices of Deposition of 
David L. Bernhardt, Lucy Querques Denett and Gabriel Sneezy and Opposition to Motion to 
Compel 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 
6
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, et al., ) 
Plaintiffs, 
v. Case No. 1:96CV01285 
(Judge Lamberth) 
)
)
)
)
) 
GALE NORTON, Secretary of the Interior, et al., ) 
Defendants. 
)
) 
__________________________________________) 
ORDER 
This matter comes before the Court on Defendants’ Motions for a Protective Order 
Regarding Plaintiffs’ Notices of Deposition of David Bernhardt, Gabriel Sneezy, and Lucy 
Querques Denett, and Plaintiffs’ Motion to Compel these depositions. Upon consideration of the 
Motions, the responses thereto, and the record in this case, it is hereby 
ORDERED that Defendants’ Motion for a Protective Order Regarding Plaintiffs’ Notice 
of Deposition of David Bernhardt (Dkt. # 2372) is GRANTED; it is further 
ORDERED that the Plaintiffs are precluded from deposing David Bernhardt at this time; 
ORDERED that Defendants’ Motion for a Protective Order Regarding Plaintiffs’ Notice 
of Deposition of Gabriel Sneezy (Dkt. # 2375) is GRANTED; 
ORDERED that the Plaintiffs are precluded from deposing Gabriel Sneezy at this time; 
ORDERED that Defendants’ Motion for a Protective Order Regarding Plaintiffs’ Notice 
of Deposition of Lucy Querques Denett (Dkt. # 2380) is GRANTED; 
ORDERED that the Plaintiffs are precluded from deposing Lucy Querques Denett at this 
time;
ORDERED that Plaintiffs’ Motion to Compel the depositions of David Bernhardt, Lucy 
Querques Denett, and Gabriel Sneezy (Dkt. # 2398) is DENIED; 
SO ORDERED. 
Date: _________ 
ROYCE C. LAMBERTH 
United States District Judge 
2
cc: 
Sandra P. Spooner 
John T. Stemplewicz 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
Fax (202) 514-9163 
Dennis M Gingold, Esq. 
Mark Kester Brown, Esq. 
607 - 14th Street, NW, Box 6 
Washington, DC 20005 
Fax (202) 318-2372 
Keith Harper, Esq. 
Richard A. Guest, Esq. 
Native American Rights Fund 
1712 N Street, NW 
Washington, D.C. 20036-2976 
Fax (202) 822-0068 
Elliott Levitas, Esq. 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
(406) 338-7530