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., ) ) ) Defendants. _________________________________) DEFENDANTS' MOTION TO PLACE UNDER SEAL PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO REQUIRE PLAINTIFFS' COMPLIANCE WITH ORDER REQUIRING REMOVAL FROM WEBSITE OF REFERENCES TO "ATTACHMENT C" Defendants, pursuant to Local Civil Rule 5.1(j), respectfully move for an Order placing under seal Plaintiffs' Opposition to Defendants' Motion to Require Plaintiffs' Compliance with Order Requiring Removal from Website of References to "Attachment C" (July 2, 2004).1 Plaintiffs' Opposition should be placed under seal because it discusses the content of and refers to Attachment C, which is itself under seal. Order at 1 (Oct. 18, 2002) ("counsel for the parties shall protect the seal on Attachment C and limit access to it and any communications about it"). More specifically, Plaintiffs' Opposition not only attaches material posted on Plaintiffs' website that the Court ordered stricken from the record, Order at 3-4 (April 11, 2003), and removed from Plaintiffs' website, www.indiantrust.com, Order at 2-3 (June 1, 2004), but describes the content of Attachment C, Plaintiffs' Opposition at 6-7 (purporting to explain what 1 Defendants' counsel discussed this motion with Plaintiffs' counsel, who stated Plaintiffs would oppose it. Case No. 1:96CV01285 (Judge Lamberth) Attachment C "is about"). Plaintiffs unnecessarily and improperly attached to their Opposition the partially redacted sections IV(5) and IV.E., claiming that they provided the attachment "so that this Court may review the relevant sections." Plaintiffs' Opposition at 4. Yet Defendants had already filed the same material with the Court under seal as an exhibit to Defendants' Motion (June 22, 2004). Defendants filed Exhibit F to show the Court how Plaintiffs had failed to comply with the Court's June 1, 2004 Order. Thus, not only did the Court already have the offending text in its possession under seal, but Plaintiffs again violated the Court's multiple orders concerning Attachment C by including the same text as an attachment to their unsealed Opposition. Finally, the Court has already twice considered those sections, deciding that they should be stricken in their entirety from the record and should be fully redacted from Plaintiffs' website, so the Court has no need to review them again. Similarly unnecessary and improper was Plaintiffs' attachment of the Special Report of the Court Monitor on Potential Evidence Regarding the Alleged Suppression by White House and Department of Justice Attorneys of the Written Testimony of the Special Trustee Prepared for the Senate Committee on Indian Affairs' July 25, 2002 Hearing Regarding the Department of the Interior's Historical Accounting (Aug. 8, 2002). Whether the Court has sealed the report is not dispositive to whether it violates the Court's Order that Plaintiffs' "make no further references to the contents of 'Attachment C' unless such references are made under seal." Order at 3 (June 1, 2004).2 2 Plaintiffs also violated the Court's Order by posting their Opposition on www.indiantrust.com on July 2, 2004. Order at 3 (June 1, 2004) (ordering that "plaintiffs take all steps necessary to ensure . . . that there be no further displays on their website of any reference to 'Attachment C'"). - 2 - The report references the content of Attachment C and belongs under seal as part of this filing. Therefore, Defendants respectfully request that the Court enter an Order placing Plaintiffs' Opposition under seal. Respectfully submitted, July 6, 2004 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 JOHN R. KRESSE Trial Attorney D.C. Bar No. 430094 Commercial Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 (202) 514-7194 - 3 - CERTIFICATE OF SERVICE I hereby certify that, on July 6, 2004 the foregoing Defendants' Motion to Place Under Seal Plaintiffs' Opposition to Defendants' Motion to Require Plaintiffs' Compliance with Order Requiring Removal from Website of References to "Attachment C" 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 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' Motion to Place Under Seal Plaintiffs' Opposition to Defendants' Motion to Require Plaintiffs' Compliance with Order Requiring Removal from Website of References to "Attachment C," and any responses thereto. The Court finds that the Motion should be GRANTED. Therefore, it is hereby ORDERED that Plaintiffs' Opposition to Defendants' Motion to Require Plaintiffs' Compliance with Order Requiring Removal from Website of References to "Attachment C" shall be placed under seal; and it is FURTHER ORDERED that Plaintiffs' Opposition to Defendants' Motion to Require Plaintiffs' Compliance with Order Requiring Removal from Website of References to "Attachment C" shall be removed from Plaintiffs' website, www.indiantrust.com. SO ORDERED this _____ day of __________, 2004. __________________________________ ROYCE C. LAMBERTH United States District Judge cc: Sandra P. Spooner, Esquire John T. Stemplewicz, Esquire Commercial Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 Fax (202) 514-9163 Dennis M Gingold, Esquire Mark Kester Brown, Esquire 607 14th Street, N.W., Ninth Floor Washington, D.C. 20005 Fax (202) 318-2372 Keith M. Harper, Esquire Richard A. Guest, Esquire Native American Rights Fund 1712 N Street, N.W. Washington, D.C. 20036-2976 Fax (202) 822-0068 Elliott Levitas, Esquire 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 Earl Old Person (Pro se) Blackfeet Tribe P.O. Box 850 Browning, MT 59417