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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELOUISE PEPION COBELL Ct al,	)
		)
	Plaintiffs,	)
		)
	V.	)	Case No. l:96CV01285
)	(Judge Lamberth)
GALE A. NORTON, Secretary of the Interior, et ~L)
		)
	Defendants.	)
____________________________________________________________________________ )
INTERIOR DEFENDANTS' OPPOSITION
TO PLAINTIFFS' EMERGENCY MOTION FOR TEMPORARY
RESTRMNING ORDER AND MOTION FOR A PRELIMINARY INJUNCTION
	Pursuant to Rule 65 of the Federal Rules of Civil Procedure and Local Civil Rule 65.1,
Interior Defendants respectfully submit the following opposition to plaintiffs' Emergency Motion
for Temporary Restraining Order and Motion for a Preliminary Injunction ("TRO Motion").
I.	Plaintiffs' TRO Motion Presents Arguments That Are Not Ripe for
Review by the Court
	At the outset, this Court should reject plaintiffs' TRO Motion because it disregards the
role of the Special Master in reviewing matters affecting Information Technology security issues,
as established by the Court's December 17, 2001 Consent Order Regarding Information
Technology Security ("Consent Order"). Pursuant to the Consent Order, the Court has directed
that the Special Master is to be provided notice and documentation by the Interior Department
with regard to plans or proposals to reconnect systems to the Internet. Consent Order, pages 5-7.
Moreover, and of particular import to the TRO Motion, the Consent Order provides that "the
Special Master shall verify compliance with this Consent Order and may conduct interviews with
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Interior personnel or contractors and conduct site visits wherever information technology systems
or individual Indian trust data is housed or accessed." Consent Order, page 7.
	The TRO Motion is squarely based upon a confidential report, subject to a protective
order issued by the Special Master, which was issued by one of the Special Master's experts
based upon a site visit to the Office of Surface Mining's Denver Internet Portal ("OSM-Denver").
In other words, this matter is currently before the Special Master, the Special Master is fully
aware of every item of information contained in the TRO Motion and additional relevant matters
not contained in the TRO Motion, e.g., OSM-Denver's efforts to address issues raised by the
confidential expert's report, and the Special Master has not ordered OSM-Denver disconnected
from the Internet.
	The Consent Order's well-defined procedures have been scrupulously observed by the
Interior Department with regard to OSM: OSM submitted a proposal to reconnect OSM's
systems, including the Internet portal in Denver; the Special Master's experts conducted a site
visit and issued a report, which the Special Master promptly provided to the Interior Department;
and OSM has provided further information to the Special Master. Plaintiffs, however, have
chosen to disregard the process for review established by the Consent Order and have asked this
Court to intercede before the Special Master's review has been completed. On these facts, alone,
the TRO motion should be denied as not ripe for review.
II.	Plaintiffs' TRO Motion Is Wholiy Lacking in Merit and Should Be
Denied by This Court
	Even if this Court disregards the ripeness problem with the TRO Motion, plaintiffs'
motion is wholly without merit and should be denied. In considering whether to grant an
application for a temporary restraining order or a preliminary injunction, this Court must examine
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(1) whether there is a substantial likelihood that the plaintiff would succeed on the merits, (2)
whether the plaintiff would suffer irreparable injury if the injunctive relief is denied, (3) whether
the granting of injunctive relief would substantially injure the other party, and (4) whether the
public interest would be served by the granting of the injunctive relief ~ Davenport v.
International Brotherhood of Teamsters. AFL-CIO, 166 F.3d 356, 360-6 1 (D.C. Cir. 1999) (citing
Serono Laboratories. Inc. v. Shalala, 158 F.3d 1313, 1317-18 (D.C. Cir. 1998)); Kudiodi v. Wells
Fargo Bank, 181 F. Supp. 2d 1, 2 n. 2 (D.D.C. 2001) (application for temporary restraining order
would be denied when plaintiffs failed to show substantial likelihood of prevailing on merits or
irreparable harm). As we explain below, plaintiffs' TRO Motion, while being highly charged and
inflammatory in its tenor, is fatally flawed because it is based upon unsupported and erroneous
assumptions and allegations which render it incapable of satisfying any of the four elements
required for the issuance of a TRO or a preliminary injunction.
A.	Plaintiffs Have Not Demonstrated a Substantial
Likelihood of Success on the Merits
The Consent Order provides, in pertinent part:
Interior Defendants may reconnect to the Internet any information
technology system that does not house individual Indian trust data
and that does not provide access to individual Indian trust data
seventy-two (72) hours after providing actual notice with
appropriate documentation to the Special Master and Plaintiffs'
counsel or immediately upon concurrence of the Special Master;
Consent Order, pages 5-6. The OSM proposal for reconnection to the Internet was based upon
this provision, and it included a certification that the systems to be reconnected did not house or
provide access to "individual Indian trust data," as defined by the Consent Order. Letters dated
December 21, 2001, and January 22, 2002 (attached as Plaintiffs' Exhibits I and 2 to TRO
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Motion); see Consent Order, page 4 (definition of "individual Indian trust data").
	In seeking a TRO, plaintiffs have the burden of demonstrating a substantial likelihood of
success in showing that the OSM systems do, in fact, house or provide access to individual
Indian trust data. Notwithstanding the wholly unsubstantiated allegations in the TRO Motion,
plaintiffs make no showing that the Interior Department's certification was false or that the OSM
systems do, in fact, house or provide access to individual Indian trust data.'
	Since plaintiffs cannot adduce any evidence of actual individual Indian trust data on any
OSM IT systems, their only apparent basis for seeking emergency injunctive relief rests with
their claim that OSM could not possibly have made a valid certification regarding the presence of
individual Indian trust data because there is no established definition of this term within the
Interior Department. TRO Motion at 1-2. In support of this position, plaintiffs rely upon a draft
report prepared by the Computer Security Expert Assist Team ("CSEAT"), an organization
within the Commerce Department's National Institute of Standards and Technology. TRO
Motion at 2, n. 2, and Plaintiffs' Exhibit 3.
	Plaintiffs' argument wholly disregards the fact that the Consent Order contains a
definition of individual Indian trust data. See Consent Order, page 4. The Interior Department's
OSM systems were certified in accordance with the definition set forth in the Consent Order, and
plaintiffs have not submitted ~ evidence to contradict this certification.
	Subsequent to plaintiffs' filing of the TRO Motion, the Government provided the
Special Master and plaintiffs' counsel with further information responsive to the Special Master's
protected expert's report. After receiving this letter, which we will provide to the Court under
seal, plaintiffs filed their "Notice of Supplemental Authority" in apparent recognition that their
TRO Motion was not soundly grounded. As we explain further below, the Notice of
Supplemental Authority also fails to provide any basis for concluding that the OSM systems
house or provide access to individual Indian trust data.
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	Plaintiffs further argue that OSM's systems house or provide access to individual Indian
trust data based upon a confidential, protected report of the Special Master's expert. While
plaintiffs filed the expert's report under seal as Plaintiffs' Exhibit 4 to the TRO Motion, plaintiffs
purported to disclose publicly the substance of this report, notwithstanding the Special Master's
May 2, 2002 Protective Order and the legend appearing on the Special Master's transmittal letter
accompanying the report, which stated that it was "CONFIDENTIAL" and "SUBJECT TO
PROTECTIVE ORDER." Plaintiffs' Exhibit 4 (Special Master's June 24, 2002 transmittal
letter). As we explain in the following paragraph, which is redacted from the non-confidential
version of this pleading, plaintiffs' assertions based upon the expert's report are false, misleading,
and without merit.
[NOTE: TWO PARAGRAPHS OMITTED FROM THIS PUBLIC FILING. THESE ARE
INCLUDED IN INTERIOR DEFENDANTS' UNOPPOSED MOTION TO FILE UNDER SEAL
DISCUSSION REGARDING PROTECTED REPORT ISSUED BY SPECIAL MASTER'S
EXPERT.]
	After plaintiffs were served with a copy of the Interior Defendants' Exhibit 1 (under seal),
plaintiffs filed their "Notice of Supplemental Authority" which they assert confirms that OSM
knew or should have known that its systems house or provide access to individual Indian trust
data prior to the certifications submitted in support of the OSM reconnection proposal. Notice of
Supplemental Authority ("Supp. Auth.") at 1. This filing only attaches an unexecuted
Memorandum of Understanding ("MOU") among BIA, BLM, and OSM entitled "Management of
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Coal Mining on Indian Lands." Supp. Auth., Plaintiffs Exhibit I •2
	Contrary to plaintiffs' assertion, nothing in the MOtJ establishes that OSM's systems
house or provide access to individual Indian trust data. In fact, that term is not even used in the
MOU, which plaintiffs implicitly concede by their assertion that the MOU "expressly
contemplates Individual Indian Trust Data in its definitions section." Supp. Auth. at 2 (emphasis
added). If, in fact, the MOU imposed upon OSM specific responsibilities for individual Indian
trust data, it is fair to assume that the MOU would have done more than "contemplate" such data;
such data would have been defined and such responsibilities would have been specifically
delineated. Moreover, nothing in the three bullet points listed in plaintiffs' Notice of
Supplemental Authority describe any specific role for OSM with regard to housing or providing
access to individual Indian trust data. See Supp. Auth. at 2.
	Indeed, a review of both the MOU and the December 1997 version of the MOU confirm
that BIA — not OSM — has the responsibility for acting on behalf of the allotees. MOU, page 14,
Article D. I; Interior Defendants' Exhibit 2, page 13, Article D. 1. OSM's responsibilities are with
regard to the environmental aspects of the Permit Application Package ('PAP"), as defined on
page 3 of both versions of the MOTJ, and compliance with the permit issued under the Surface
Mining Control and Reclamation Act of 1977. MOU, pages 3 and 14 (Article D.3); Interior
Defendants' Exhibit 2, pages 3 and 13 (Article D.3).
	As we explained earlier, the TRO Motion lacked any merit, even before considering the
protected and confidential Special Master's expert's report. Plaintiffs' Notice of Supplemental
	2 Although the MOU is dated December 2001, it has not yet been executed and, in
fact, the OSM's relationship with BIA and BLM is currently governed by an April 1997 MOU.
Interior Defendants' Exhibit 2.
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Authority, however, is an apparent concession that the actions taken by the Interior Defendants
subsequent to their receipt of the Special Master's expert's report removes any previously
arguable merits alleged in the TRO Motion. The Notice of Supplemental Authority, however,
provides no further basis for this Court to find that plaintiffs are substantially likely to prevail on
the merits.
	Plaintiffs finally claim that the evidence they lack of any individual Indian trust data on
OSM's IT systems could be found in the information that they asked for in their Seventh Request
for Production. TRO Motion, page 3, n. 2. As they acknowledge, this issue has been fully
briefed in connection with plaintiffs' Motion to Compel Production and, as with the issues of this
TRO Motion, is also currently before the Special Master for decision. Id. Contrary to the
allegations made by plaintiffs id Interior Defendants made no "admissions" — either direct or
indirect — of the existence of individual Indian trust data on OSM systems in their response to the
plaintiffs' Motion to Compel. Interior Defendants' response speaks for itself and is incorporated
herein by reference. Suffice it to say that Interior Defendants made it quite clear in their response
that the OSM systems do not contain any individual Indian trust data and that the previous
certification to that effect is still accurate. See Defendants' Responses and Opposition to
Plaintiffs' Motion to Compel.
	Thus, for the reasons set forth above, plaintiffs cannot demonstrate that any individual
Indian trust data is housed on or accessible by OSM's systems. They cannot demonstrate a
substantial likelihood of success on the merits.
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B.	Plaintiffs Cannot Demonstrate Any frreparable
Injury if Injunctive Relief is Denied
	Since plaintiffs have not provided a scintilla of evidence that individual Indian trust data
is housed or accessible by OSM's systems, it follows that they also have failed to meet their
burden of showing irreparable injury should their request for emergency injunctive relief be
denied. Since there is no such data on the OSM systems, there can be no harm, much less
irreparable harm, if the OSM systems remain connected to the Internet. Moreover, as discussed
above, because this issue is currently before the Special Master, this Court should defer to the
Special Master for his review of the issue. Suffice it to say, if the Special Master concludes that
individual Indian trust data is at risk on OSM's systems, the Consent Order contemplates that he,
initially, will act upon such concerns.
C.	The Granting of Injunctive Relief Would
Substantially Injure the Government
	If the emergency relief requested by plaintiffs is granted, the Government and the public
will suffer substantial injury. The responsibilities of OSM are statutorily prescribed in 30 U.S.C.
§ 1211 and include the administration of a broad array of programs for controlling surface coal
mining and reclamation operations. See 30 U.S.C. § 1211(c) (setting forth 13 categories of
duties to be carried out by OSM). As the Court is aware, any abrupt disconnection from the
Internet will entail substantial disruption to the functions and activity of OSM personnel. Such
harm to the Government and the public is even more unjustifiable in light of the already-
established Consent Order process whereby the Special Master is empowered, initially, to
consider any claims regarding the OSM systems.
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D.	The Public Interest Will Not Be Served by Granting
Emergency Injunctive Relief
	In light of the foregoing — plaintiffs' failure to establish the substantial likelihood of
prevailing on the merits, the absence of any harm, irreparable or otherwise, to plaintiffs from
denial of injunctive relief, and the apparent substantial injury to be suffered by the Government
and the public if the TRO Motion is granted, the public interest will plainly be furthered by
denial of the injunctive relief sought in the TRO Motion.
Conclusion
	For the foregoing reasons, Interior Defendants respectfully request that the Court deny
plaintiffs' TRO Motion.
Respectfully submitted,
ROBERT MeCALLUM, JR.
Assistant Attorney General
STUART E. SCHIFFER
Deputy Assistant Attorney General
J.	CHRISTOPHER KOLiN
Director
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Deputy Director
JOHN T. STEMPLEWICZ
Senior Trial Attorney
JOHN WARSHAWSKY
JOHN T. BERGIN
Trial Attorneys
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
(202) 514-7194
July 1,2002
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