UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
____________________________________ 
ELOUISE PEPION COBELL, et al., 
Plaintiffs, 
v. 
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)
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GALE A. NORTON, Secretary of the 
Interior, et al., 
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)
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Defendants. 
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DEFENDANTS' OPPOSITION TO "PLAINTIFFS' BILL OF COST" 
Defendants respectfully submit this opposition to Plaintiffs' Bill of Cost [sic]. Plaintiffs 
continue to clutter the record in this case with inappropriate filings that lack any basis in law. In 
this instance, Plaintiffs request that the Clerk of the Court immediately tax costs in their favor. 
The request is improper on its face. First, under this Court's local rules, a request for costs to be 
taxed may only be made after a judgment terminating the case as to the party seeking costs has 
been entered by the Court. Second, the Clerk may not tax costs until such judgment has become 
final. Obviously, no such judgment has been entered, much less become final. Third, only a 
prevailing party may seek costs. A substantial portion of the costs Plaintiffs seek relate to the 
Phase 1.5 trial, in which Plaintiffs' litigation position was expressly rejected by the Court. 
Having not prevailed at the 1.5 trial, Plaintiffs may not submit a bill of costs with respect to that 
trial. Frivolous in every respect, Plaintiffs' Bill of Cost[s] should be rejected in its entirety. 
Case No. 1:96CV01285 
(Judge Lamberth) 
ARGUMENT 
The prerequisites for obtaining taxation of costs by the clerk are plainly set out in the 
Court's rules: 
Costs shall be taxed as provided in Rule 54(d), Federal Rules of 
Civil Procedure. A prevailing party may serve and file a bill of 
costs which shall include all costs the party seeks to have taxed. 
This bill of costs shall specifically designate which costs fall within 
paragraph (d) of this Rule. A bill of costs must be filed within 20 
days after entry of judgment terminating the case as to the party 
seeking costs, unless the time is extended by the court. Any cost 
omitted from the bill of costs shall not be allowed, except for postjudgment 
costs. 
LCvR 54.1(a) (emphasis added). If the foregoing requirements are met, the rules direct the clerk 
to "tax costs after the judgment has become final or at such earlier time as the parties may agree 
or the court may order." LCvR 54.1(c) (emphasis added). For purposes of the rule, a judgment is 
considered final "when the time for appeal has expired and no appeal has been taken, or when the 
court of appeals issues its mandate." Id. However, any order that "adjudicates fewer than all the 
claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to 
any of the claims or parties," and such order "is subject to revision at any time before the entry of 
judgment adjudicating all the claims and the rights and liabilities of all the parties." Fed. R. Civ. 
P. 54(b). Thus, costs may only be taxed if the party seeking such costs has prevailed, and if a 
final judgment terminating the case as to that party has been entered. 
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Plaintiffs' Bill of Cost[s] runs clearly afoul of these fundamental rules.1 They ask the 
Clerk of the Court to tax costs based, ostensibly, on final judgments being issued with respect to 
both the 1999 and 2003 trials held by the Court. Plaintiffs' Bill of Cost[s] at 1 ("Judgments 
having been enter [sic] in the above-entitled action on the 21st day of December 1999 (Trial 1.0), 
and on the 25th day of September 2003 (Trial 1.5), against defendants, the clerk is requested to 
tax the following as costs . . ."). Yet, there has been no "judgment terminating the case" that 
would allow the bill to be filed, nor, a fortiori, has any such judgment become "final" such that it 
would be appropriate for the Clerk to now tax costs. Indeed, the Court's structural injunction 
order, from which a large portion of the costs Plaintiffs seek arises, is presently on appeal. Given 
this fact, it is inconceivable that Plaintiffs have represented to the Court that the structural 
injunction order constitutes a judgment (and, presumably, a final one) that can give rise to an 
immediate taxation of costs by the Clerk. Plaintiffs' position is utterly at war with the clear rules 
governing the taxation of costs in this Court, and warrants summary rejection. See LCvR 
54.1(a), (c); Fed. R. Civ. P. 54(b); Machesney v. Bruni, 905 F. Supp. 1122, 1137 (D.D.C. 1995) 
("The Court finds that the costs should not be taxed until the judgment becomes final. 
1 Defendants reserve their right to object to specific costs that Plaintiffs seek in the event that 
taxation of costs in Plaintiffs' favor becomes appropriate in this case. Though not relevant to 
disposing of Plaintiffs' application at this time, even a cursory examination of the invoices 
attached to Plaintiffs' application reveals manifest impropriety in the costs sought. See Plaintiffs' 
Bill of Cost[s] (attaching invoices, e.g., for a June 11, 2003 charge for "lock maintenance"; a 
January 22, 2003 charge for an overnight stay by Laura Maulson at the Excalibur Hotel and 
Casino in Las Vegas, as well as for a rental car there; airfare charges of $2,264, $2,269 and 
$2,389 for three trips between Phoenix and Washington for Plaintiffs' witness Dwight Duncan; 
individual meal charges of $126.96, $101.55, and $95.35 for Plaintiffs' witness Richard Fasold; 
an individual meal charge of $249.45 for Plaintiffs' witness John Wright; a $1334.79 charge for a 
3-day stay at the Willard Hotel by Mr. Wright; and charges for in-room hotel movies for Mr. 
Duncan). 
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Accordingly, the motion for approval of bill of costs is premature.") (quoting Local Civil Rule 
214(c), now 54.1(c)). 
In addition to seeking taxation of costs prior to the issuance of a final judgment 
terminating the case, Plaintiffs' Bill of Cost[s] is also improper because it asks for costs to be 
taxed with respect to proceedings in which Plaintiffs did not prevail. In the Phase 1.5 trial that 
gave rise to the Court's structural injunction order of September 25, 2003, Plaintiffs urged the 
Court to adopt a proxy accounting model, based on the argument that an historical accounting 
was impossible. See Plaintiffs' Accounting Plan. The Court rejected Plaintiffs' approach. Cobell 
v. Norton, 283 F. Supp. 2d 66, 209 (D.D.C. 2003) ("The bottom line is that to constitute a 
historical accounting, the Plan advocated by plaintiffs would require significant modifications . . 
."). Because only a prevailing party may seek costs under Local Civil Rule 54.1(a), Plaintiffs' 
request for costs to be awarded them with respect to the Phase 1.5 trial is patently deficient. 
Because no final judgment has been entered that terminates this litigation, Plaintiffs' 
request for taxation of costs is improper. Even if an appropriate final judgment had been entered, 
Plaintiffs' request for costs relating to proceedings in which they did not prevail would remain 
improper. Their request for taxation of costs should be denied. 
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CONCLUSION 
For all of the foregoing reasons, Defendants respectfully request that Plaintiffs' Bill of 
Cost[s] be denied in its entirety. 
Dated: December 19, 2003 
Respectfully submitted, 
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 
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CERTIFICATE OF SERVICE 
I hereby certify that, on December 19, 2003 the foregoing Defendants' Opposition to 
“Plaintiffs' Bill of Cost” 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