UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ELOUISE PEPION COBELL, et al., ) ) Plaintiffs, ) Civil Action No. 96-1285 (RCL) ) v. ) ) GALE A. NORTON, et al., ) ) Defendants. ) ) UNITED STATES' OPPOSITION TO PLAINTIFFS' MOTION FOR ENLARGEMENT OF TIME TO FILE BILLS OF PARTICULARS RELATING TO PLAINTIFFS' MOTIONS FOR ORDER TO SHOW CAUSE Some three and a half years after demanding the imposition of severe contempt sanctions against 39 individuals, plaintiffs ask the Court to give them yet another opportunity to specify any factual basis for continuing to hold these individuals in an unconscionable form of legal suspense. Plaintiffs should have specified their grounds in October 2001, when they filed their motion. They were given until May 2003 by the Court and the former Special Master to do so. They failed. Now in a last desperate attempt to keep the Court from finally disposing of these unfounded charges, plaintiffs have filed a motion ("the Extension Motion") asking the Court to refrain from ruling on their inadequate (and, in the case of 22 individuals, non-existent) "bills of particulars," to allow them to engage in discovery, and to permit them to file additional or amended bills of particulars after conclusion of discovery. In so doing, the plaintiffs ask the Court to ignore the Court of Appeals' decision in Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003), and prior decisions by this Court, and to disregard the Constitution. The Court should decline the plaintiffs' invitation. Background Plaintiffs assert that they are refiling their motion for enlargement of time to file Bills of Particulars with respect to the October 19, 2001 Show Cause Motion. (Docket # 892). Extension Motion at 1. Plaintiffs filed this show cause motion seeking civil and criminal contempt sanctions in connection with certain evidence presented at the Phase 1 Trial[ and certain reports filed thereafter. Plaintiffs named Secretary of the Interior Gale Norton and former Assistant Secretary of the Interior Neal McCaleb and 37 individual attorneys and employees of the Department of the Interior and the Department of Justice as the targets of their allegations. _ The Court bifurcated plaintiffs' contempt motion and conducted a trial ("Contempt II") solely on the issue of whether defendants Norton and McCaleb, acting in their official capacities, had acted in civil contempt of court. Order to Show Cause, November 28, 2001, at 1-2. The Court issued its findings of contempt on September 17, 2002. Cobell v. Norton, 226 F. Supp. 2d 1 (D.D.C. 2002) (the "Sept. 17, 2002 Order"), and the Court of Appeals reversed on July 18, 2003. Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003). In a March 15, 2002 hearing, the Court directed the plaintiffs to lay out "individual defendant by individual defendant specifications of what the contempt proceedings would be for those 39 people so that they each have an opportunity to address what the evidence is and what you are citing against any of those 39." Tr. of Mar. 15, 2002 Status Hrg., at 21:10-14. 2 Exhibit 1. To avoid any appearance of prejudgment, the Special Master adopted the term "Named Individuals" to refer to these persons against whom plaintiffs sought contempt findings. That was the term used throughout the briefings before the Master, and we continue that convention here. 2In referring to "39 people," the Court evidently included Secretary Norton and former Assistant Secretary McCaleb. Subsequently, the Court of Appeals' July 18, 2003 decision disposed fully of the contempt allegations made in the October 19, 2001 Motion as to Secretary (continued...) -2- In the Sept. 17, 2002 Order, the Court referred the allegations against the 37 Named Individuals to then-Special Master Balaran. Cobell, 226 F. Supp. 2d at 155, 162. 3 At that time, the plaintiffs had provided a bill of particulars for only a single individual. The Master established a briefing schedule that required the plaintiffs to submit Bills of Particulars ("Bills") setting forth the facts and circumstances in support of their allegations of contempt against the Named Individuals on or before May 1, 2003. Revised Procedures and Schedule for Investigation Into Plaintiffs' Motions for Orders to Show Cause, November 4, 2002 at 3 (Exhibit 2). The Master denied two motions by plaintiffs to extend the date to file Bills. (Exhibits 3, 4). Plaintiffs submitted Bills for only 15 of the 37 Named Individuals by the May 1, 2003 deadline established by the Master. 4 Following the submission of the Bills, the Named Individuals and the Government filed briefs seeking termination of the show cause proceedings. Plaintiffs opposed, and the Named 2(...continued) Norton and Mr. McCaleb in both their personal and official capacities. 3Subsequently, the Court dismissed as moot a show cause motion filed by the plaintiffs on August 27, 2001 and an October 29, 2001 motion by plaintiffs to supplement the October 19, 2001 Motion because it considered those issues incorporated in the October 19, 2001 Motion. See Order dated Sept. 17, 2002 (DKT #1482) (disposing of Oct. 29, 2001 motion to supplement); Cobell v. Norton, 237 F. Supp. 2d 71, 76 n.6 (D.D.C. 2003) (treating Aug. 127, 2001 motion as subsumed by October 19, 2001 Motion). 4plaintiffs submitted Bills by the Master's deadline against Bruce Babbitt, John Berry, Edith Blackwell, Michael Carr, Edward Cohen, Kevin Gover, Robert Lamb, Sabrina McCarthy, Anne Shields, Stephen Swanson, Phillip Brooks, Charles Findlay, Sarah Himmelhoch, Lois Schiffer, and David Shuey. Plaintiffs did not submit Bills for M. Sharon Blackwell, John Bryson, Tom C. Clark II, Peter Coppelman, John Cruden, James Douglas, James A. Eichner, Timothy Elliott, K. Jack Haugrud, John Leshy, Hilda Manuel, Chester Mills, John S. Most, William G. Myers III, Dominic Nessi, Michael Rossetti, Kenneth F. Rossman, Glenn Schumaker, David Shilton, James F. Simon, Terence Virden, or Daryl White. -3- Individuals and the Government filed replies. The 22 Named Individuals as to whom Plaintiffs had not submitted Bills filed a Praecipe with the Master seeking termination of the contempt proceedings as to themselves. Argument I. The Court of Appeals' Ruling Precludes Further Civil Contempt Proceedings. The Court of Appeals definitively declared that the specifications upon which plaintiffs base their allegations against the Named Individuals cannot serve as a platfi?rm for a civil contempt proceeding. Cobell, 334 F.3d at 1146 (treating District Court's contempt citations on all five specifications as "criminal in nature"). As the Court of Appeals explained: "Although one may be held in civil contempt for refusing to comply with a court order, a sanction for one's past failure to comply with an order is criminal in nature." Id. at 1146-47. Plaintiffs' Show Cause Motion, as well as the Bills filed with the former Special Master, seek to impose punitive sanctions, rather than a coercive or compensatory measure, and therefore lack the essential characteristics of a civil contempt proceeding. As we pointed out in our June 2, 2003 opposition to plaintiffs' Bills filed with the former Special Master (DKT #2091 at 7-9, 19) and again in our reply (DKT #2196 at 2), the Named Individuals are not in a position to purge any of the supposed contempts of which plaintiffs have accused them, nor did plaintiffs even bother to seek purgation conditions. "get, the Court of Appeals explained that the opportunity to purge contempt is an essential hallmark of a civil contempt proceeding. Cobell, 334 F.3d at 1147. Further, the Court of Appeals made clear that merely seeking reimbursement of attorneys' fees incurred by plaintiffs' counsel in the contempt -4- and, therefore, cannot convert this into a civil proceeding. 5 While plaintiffs insist upon ignoring the clear holding of the Court of Appeals' decision, this Court should not do likewise. Notwithstanding plaintiffs' intentional blindness, the Court of Appeals decision leaves no room for doubt that the proceedings arising from plaintiffs' show cause motion cannot be civil in nature. II. Plaintiffs Are Not Entitled to Conduct Discovery in an Effort to Support Their Contempt Charges. Because these proceedings have potential criminal ramifications, and the allegedly contumacious conduct occurred outside the presence of the District Court, the Named Individuals are entitled to all the due process protections guaranteed by the Constitution, including trial by jury and proof beyond a reasonable doubt. Cobell, 334 F.3d at 1147. Likewise, as we argued in our June 2, 2003 opposition filed with the Special Master, it would not be proper to permit plaintiffs to conduct discovery because the Federal Rules of Criminal Proce, dure do not provide for such activities. In its Sept. 2, 2004 Memorandum Opinion (DKT #2661), the Court expressly refused to permit plaintiffs to engage in discovery directed at obtaining evidence in support of some future criminal contempt proceeding: "Any deposition of defendants' trial counsel would appear to be directed only at uncovering facts useful for the prosecution of criminal contempt. Plaintiffs are ineligible to undertake such an investigation." Sept. 2, 2004 Order at 4-5. 'The Court's September 2, 2004 ruling was consistent with both the Supreme Court's decision in Young v. 5 Indeed, if it were otherwise, a party seeking purely punitive sanctions could deprive another of due process rights guaranteed by the Constitution simply by inserting a claim for attorneys' fees incurred in filing and pursuing the show cause motion. - 5 - United States ex rel. Vuitton et Fils, S.A., 481 U.S. 787, 807 (1987) (plaintiff's counsel was ineligible to serve as special prosecutor of alleged criminal contempt), and the Court of Appeals' holding that district courts are not empowered to appoint agents to function in "an investigative, quasi-inquisitorial, quasi-prosecutorial role that is unknown to our adversarial legal system." Cobell v. Norton, 334 F.3d at 1142. In short, the matters raised in plaintiffs' motion and Bills cannot be continued under the guise of a civil proceeding; plaintiffs cannot engage in discovery in an attempt to bolster their contempt charges; and these proceedings must be terminated because they are plainly not civil in nature. To do otherwise would seriously offend the protections afforded each of the Named Individuals by the Constitution. III. Plaintiffs' Attempt to Further Extend These Proceedings Is Inexcusable. Plaintiffs complain that the Special Master denied them an extension beyond May 1, 2003 to serve their bills of particulars upon the individuals named in their October 19, 2001 motion. However, the date specified by the Special Master to file bills of particulars was more than a year and a half after plaintiffs filed their motions to show cause, more than a year after the conclusion of a month-long trial against the Secretary and Assistant Secretary on the same charges, and more than a year after the March 15, 2002 status conference at which the Court directed plaintiffs to particularize their allegations. Further, the Master gave them another six months to accomplish this task after the matters had been referred to him. Accordingly, plaintiffs" complaint that they were denied adequate opportunity to particularize their charges rings hollow. Especially in view of the serious nature of the charges against these individuals, plaintiffs should never have filed the October 19, 2001 motion at all without adequate factual support. Their filing of the motion, and their persistence in filing additional contempt charges against -6- with ethical practice in the Federal Courts. Indeed, plaintiffs' demand that they be permitted to engage in discovery before specifying the factual and legal bases for accusing the Named Individuals of contempt indicates that they failed to conduct the "reasonable inquiry" required by Rule 11 before they moved three and a half years ago for an order that the 3,9 individuals show cause why they should not be held in contempt. 6 In short, plaintiffs should have had an adequate factual basis for their allegations of contempt against each of the Named Individuals before filing their show cause motions. The appropriate course now is not to perpetuate these proceedings by permitting them to engage in discovery that is both inappropriate and likely unconstitutional, but to termJ[nate the proceedings because plaintiffs have failed to state a prima facie case of contempt against any individual. 7 6 The concern that plaintiffs have pursued their show cause motions for an improper purpose, such as to harass (Rule 1 l(b)(1)), can only be heightened by the repeated offer made by plaintiffs' lead counsel Dennis Gingold at the March 3, 2005 status conference that plaintiffs would drop the contempt charges against the individuals if the Government would agree to a trial date on the merits of the litigation. Tr. 15, 16, 19, 25, 32, 33 (Exhibit 5). ]Lead plaintiffElouise Cobell repeated the same offer before a Congressional subcommittee on March 9, 2005. Exhibit 6 at 7 n.6. Plaintiffs' offer to swap their pursuit of contempt proceedings for a merits trial raises serious questions about the propriety of their initiation of the show cause motions. 7 Plaintiffs characterize their Extension Motion as a refiling of a motion for an enlargement of time to file bills of particulars with respect to individuals identified in the October 19, 2001 Show Cause Motion. Extension Motion at 1, 2, 3. Currently, three other motions for orders to show cause filed by plaintiffs are pending, the March 20, 2002 Show Cause Motion (DKT #1203), the February 26, 2003 Show Cause Motion Concerning Office of Historical Trust Accounting (DKT #1831), and the Motion to Amend March 20, 2002 Show Cause Motion regarding the Zantaz System and Its Implementation (DKT #2778). All of the motions seek sanctions for alleged past failures to comply with orders issued in this case. Therefore, the motions seek criminal, not civil, sanctions, and plaintiffs are precluded from conducting discovery. Plaintiffs have not requested, much less tried to justify, extensions to file new or supplemental bills of particulars on the other outstanding show cause motions. -7- CONCLUSION Plaintiffs' failure to have stated an adequate factual basis for the severe contempt sanctions they seek cannot be excused. Plaintiffs should have conducted the necessary inquiry as to each person named before ever filing their motions for orders to show cause. Plaintiffs are forbidden from pursuing discovery where, as here, there can be no civil contempt remedy, and such a course is particularly inappropriate given the many years plaintiffs have already had to particularize their allegations. Enough is enough. The Court should rule on the legal adequacy of plaintiffs' allegations based on the many briefs already filed and should terminate these proceedings promptly for lack of merit. Respectfully submitted, ROBERT D. McCALLUM, JR. Associate Attorney General PETER D. KEISLER Assistant Attorney General STUART E. SCHIFFER Deputy Assistant Attorney General MICHAEL F. HERTZ Director -8- Dodt_dls C7" - / -' / Assistant Direct_t / D.C. Bar No. 425194 Tracy L. Hilmer D.C. Bar No. 421219 Trial Attorney Commercial Litigation Branch Civil Division P.O. Box 261 Ben Franklin Station Washington, D.C. 20044 (202) 307-0474 DATED: March 22, 2005 -9- 01 UNITED STATES DISTRICT COURT 02 FOR THE DISTRICT OF COLUMBIA 03 Elouise Cobell, et al. Docket No. CA 96-1285 RCL 04 Plaintiffs 05 Washington, D.C. 06 vs. Friday, March 16, 2002 07 2:11 p.m. 08 Department of Interior, et al. 09 Defendants 10 Transcript of Status 11 Before the Honorable Royce C. Lamberth 12 United States District Judge 13 APPEARANCES: 14 For the Plaintiff: Dennis Gingold, Esq. 15 Keith Harper, Esq. 16 Mark Brown, Esq. 17 For the Defendant: John Stemplewicz, Esq. 18 John Warshawsky, Esq. 19 Reporter: WILLIAM D. MC ALLISTER, CVR-CM 20 Official Court Reporter 21 Room 4806-B 22 333 Constitution Avenue, N.W. 23 Washington, D.C. 20001-8306 24 (202) 371-6446 25 Reported by Stenomask and transcribed using SpeechCAT 26 Pages 1 through 23 EXHIBIT I UNITED STATES' OPPOSITION TO PLAINTIFFS' MOTION FOR ENLARGEMENT OF TIME TO FILE BILLS OF PARTICULARS RELATING TO PLAINTIFFS' MOTIONS FOR ORDER TO SHOW CAUSE 00020 01 information for you as well, sir. 02 THE COURT: Anything else you wanted to say on the 03 payment to Indians issue? 04 MR. STEMPLEWICZ: No, Your Honor 05 THE COURT: I'll await your report and set further 06 proceedings after I get that report. I do have one other issue 07 that I wanted to raise. 08 You want to say something else about that? 09 MR. GINGOLD: One point, Your Honor. There are a 10 number of accounts in IM trust that are not individual Indian 11 trust accounts. You've heard testimony with regard to special 12 deposit accounts. 13 THE COURT: Right. 14 MR. GINGOLD: Those are large accounts. What is 15 important here, Your Honor, is not that the account holders be 16 paid, it's that the trust beneficiaries get paid. 17 THE COURT: Right. 18 MR. GINGOLD: So whether or not there is an oil 19 company or whether or not there is an automobile company or 20 whether or not there is something else in the IM trust, the 21 priority is to pay the individual Indian trust beneficiaries 22 and not those other accounts that are improperly the IM trust, 23 Your Honor. 24 THE COURT: The other issue I wanted to raise was for 25 the plaintiffs. The court monitor indicated to me that he 00021 01 attended a hearing in the House yesterday where Mr. Griles 02 testified along with Mr. Slonaker and that in the course of 03 that hearing one of the congressman was questioning Mr. Griles 04 about the impact of the ongoing contempt motions and that Mr. 05 Griles indicated that progress was being thwarted because I had 06 not acted on the 39 motions for individual contempt and that he 07 had asked me to act on those and I had not yet acted. 08 What I would like to suggest to the plaintiffs is 09 that you start working on a memorandum to supplement your 10 orders to show cause where you layout individual defendant by 11 individual defendant specifications of what the contempt 12 proceedings would be for those 39 people so that they each have 13 an opportunity to address what the evidence is and what you are 14 citing against any of those 39. 15 Part of what they had raised and part of why I had 16 deferred acting on that was they thought there was not enough 17 evidence cited and individual charges made against individuals 18 and I think the time has come for the plaintiffs to lay it out. 19 You saw what I did in the order to show cause to the 20 Secretary and the Assistant Secretary where I laid out what the 21 specific charge they would have to defend against was and then 22 lay out what the, in your view, the evidence that would be 23 supporting that in your amended motion for order to show cause 24 or supplemental order or supplemental motion or however you 25 want to style it. 00022 01 I'll let each of those 39 respond and I will address 02 Mr. Griles's desire that I move quickly on that. 03 MR. GINGOLD: Your Honor, may I address the court. 04 THE COURT: Yes. 05 MR. GINGOLD: We have no problem doing that, Your 06 Honor. I would like to point out a couple of things. We have 07 some notes of Mr. Griles's testimony. He made a few statements 08 suggesting that this litigation is interfering with what they 09 are doing. As you know, Your Honor, we've heard that before 10 now for several years. 11 Your Honor, I would like to point out that it is more 12 than 39 people. We have several motions for an order to show 13 cause including the solicitor's office destruction of evidence 14 in this case. 15 THE COURT: l am working on that one at the moment so 16 I don't need anything additional on that one. And I'm working 17 on the one regarding Mona Infield but I'm talking about all the 18 other ones. 19 MR. GINGOLD: Your Honor, with regard to the other 20 ones, actually there is one which is just 39. With regard to 21 the other ones, we would also like to clarify something. When 22 we lay this out in the detail that we understand that you would 23 like, we also would like the court to entertain once the 24 information is laid out, whether or not the court should 25 recommend that the Attorney General appoint a special 00023 01 prosecutor. 02 We have document destruction in this case that has 03 far exceeded anything in the Enron case and we believe this 04 court should view that as seriously as the Attorney General 05 views it with regard to the private sector. 06 THE COURT: Okay. But as I say, because you have 39 07 law firms in here now, you need to specify by person so that 08 each of them can respond to what the specifications would be 09 and what the evidence would be so that each of them can have an 10 opportunity to have due process. 11 MR. G1NGOLD: Your Honor, we will lay it out sort of 12 in an indictment form if that's convenient. 13 THE COURT: I will take a short recess before I call 14 the next case. 15 (Proceedings concluded at 2:44 PM) 16 CERTIFICATE OF REPORTER 17 I CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT 18 FROM THE RECORD OF PROCEEDINGS 1N THE ABOVE-ENTITLED MATTER. 19 WILLIAM D. MCALLISTER 20 OFFICIAL COURT REPORTER 21 LAw OFFIC_ f-, ALAN L. BAL_, P.L.L.C. 1717PENm_V_,r_AVE.,N.W AD_taTTED IN DC _ MD TWELFTH FLOOR WASHINGTON, D.C. 20006 TELEPHONE (202) 466-5010 FAX (202) 986-8477 E-MAIL abalaran@erols.com MEMORANDUM To: All Counsel /_ (_˘c/_/" From: Special Master Alan L. Balara_ _ __.___. M..__ ..... Re: Revised Procedures and Schedule for Investigation Into Plaintiffs' Motions for Orders to Show Cause Date: November 4, 2002 On September 17, 2002, the Honorable Royce C. Lamberth referred the following matters to the Special Master: (1) plaintiffs' October 19, 2001 Motion for Order to Show Cause Why ( Interior Defendants and Their Employees and Counsel Should Not Be Held in Contempt for Violating Court Orders and for Defrauding This Court In Connection With Trial One and (2) plaintiffs' March 20, 2002 Motion for Order to Show Cause Why Interior Alleged Contemnors and Their Counsel Should Not Be Held in Contempt for Destroying E-mail._ By memorandum dated October 7, 2002, the Special Master set out a proposed schedule and rules to which he invited comment. On October 30, 2002, a case management conference was convened to discuss these comments. Upon consideration of both the written submissions of counsel and oral representations made during the case management conference, the proposed schedule set out in the October 7, 2002 memorandum is amended as follows. i Regarding the first matter, the Court directed the Special Master to "develop a complete record with respect to these 37 non-party individuals .... [and] upon completing his review of these matters, issue a report and recommendation regarding whether each individual should be ordered to show cause why he or she should not be held in (civil or criminal) contempt of court, or whether other sanctions are appropriate against such individuals." Memorandum Opinion at 255 (September 17, 2002). By separate order, Judge Lamberth ordered "that the plaintiffs' motion for order to show why Interior defendants and their counsel should not be held in contempt for destroying e-mail, filed March 20, 2002, shall be referred to Spec, ial Master / Balaran. Special Master Balaran shall issue a report and recommendation on the issues raised in the plaintiffs' motion." Order at 4 (September 17, 2002). EXHIBIT 2 UNITED STATES' OPPOSITION TO PLAINTIFFS' MOTION FOR ENLARGEMENT OF TIME TO FILE BILLS OF PARTICULARS RELATING TO PLAINTIFFS' MOTIONS FOR ORDER TO SHOW CAUSE _- SCHEDULE OF PROCEEDINGS The Special Master will initially address those issues relevant to plaintiffs' March 20, 2002 Motion for Order to Show Cause Why Interior Alleged Contemnors and Their Counsel Should Not Be Held in Contempt for Destroying E-mail and then turn his attention to plaintiffs' October 19, 2001 Motion for Order to Show Cause with respect to each of the 37 Named Individuals. In accordance with the position urged by the majority of counsel for the Named Individuals, the Special Master will preliminarily decide whether the individual Bills of Particular warrant dismissal before initiating any discovery. Schedule For The Investigation Regarding E-Mail Backup Tape Destruction • November 11, 2002: Special Master issues memorandum setting out revised schedule. • December 2, 2002: Deadline for plaintiffs to provide Bills of Particulars with respect to the following individuals named in their Motion for Order to Show Cause Why Interior Alleged Contemnors and their Counsel Should Not be Held in Contempt for Destroying E-Mail (March 20, 2002): Secretary Gale A. Norton; Assistant Secretary Neal A. McCaleb; Department of Justice attorneys Phillip A. Brooks, Charles W. Findlay UI, James Simon; former Assistant Solicitor Willa Perlmutter; and former Assistant Attorney General Lois Schiffi_r. Plaintiffs' Bills of Particulars shall articulate with specificity whether the conduct alleged against each of these Named Individuals warrants the imposition of civil sanctions, criminal sanctions and/or constitutes a fraud on the court. _ • January 6, 2003: Deadline for Named Individuals to file briefs explaining why plaintiffs' Bills of Particulars should be dismissed with respect to them. • February 17, 2003: Deadline for plaintiffs to respond to briefs ]lied by Named Individuals explaining why plaintiffs' Bills of Particulars should be dismissed with respect to them. • March 3, 2003: Deadline for Named Individuals to reply to plaintiffs' response to briefs filed by Named Individuals explaining why plaintiffs' Bills of Particulars should be dismissed with respect to them. • March - April 2003: Oral arguments on Bills of Particulars - schedule to be determined, 2 Plaintiffs have already filed Bills of Particulars with respect to Deputy Associate Solicitor Edith Blackwell and former Deputy Solicitor Edward Cohen. -2- regarding the legal sufficiency of the claims lodged against each of the Named Individuals. Schedule for Investigation of Allegations Concerning Violation of Court Orders and Defrauding the Court in Connection with Trial One • May 1, 2003: Deadline for plaintiffs to file Bills of Particular,; with respect to the conduct of the following individuals named in their Motion for Order to Show Cause Why Interior Defendants and Their Employees and Counsel Should Not Be Held in Contempt for Violating Court Orders and for Defrauding This Court In Connection With Trial One (October 19, 2001): Former Secretary of the Interior Bruce Babbitt; Former Assistant Secretary for Policy, Management and Budget John Berry; Deputy Associate Solicitor Edith Blackwell; former Deputy Commissioner for Indian Affairs M. Sharon Blackrwell; former Assistant Solicitor Michael Carr; former Deputy Solicitor Edward B. Cohen; Office of the Special Trustee Chief of Staff James Douglas; Deputy Solicitor Timothy Elliott; former Assistant Secretary for Indian Affairs Kevin Gover; Deputy Assistant Secretary for Budget and Finance Bob Lamb; former Solicitor John Leslhy; former Deputy Commissioner for Indian Affairs Hilda Manuel; Assistant Solicitor Sabrina McCarthy; former TAAMS Project Manager Chester Mills; Solicitor William Myers; National Park Service Chief Information Officer Dominic Nessi; Counselor to the Secretary Michael Rossetti; Office of Trust Records Director Kenneth Rossman; Management Information System specialist Glenn Schumaker; former Chief of Staffto the Secretary Anne Shields; former Assistant Solicitor Stephen Swanson; Office of Trust Responsibility Director TeiTence Virden; former Department of the Interior Chief Information Officer Daryl White; Department of Justice attorneys Phillip A. Brooks; John A. BIyson; Tom C. Clark; Peter Coppelman; James A. Eichner; Charles W. Findlay Ill; K. Jack Haugrud; Sarah D. Himmelhoch; John S. Most; David Shilton; David F. Shuey and James Simon; Acting Assistant Attorney General John C. Cruden; and former Assistant Attorney General Lois Schiffer. Plaintiffs' Bills of Particulars shall articulate with specificity whether the conduct alleged against each of these Named Individuals warrants the imposition of civil sanctions, criminal sanctions and/or constitutes a fraud on the court. • June 2, 2003: Deadline for Named Individuals to file briefs explaining why plaintiffs' Bills of Particulars should be dismissed with respect to them. • August 4, 2003: Deadline for plaintiffs to respond to briefs filed by Named Individuals explaining why the Bills of Particulars should be dismissed with respect to them. -3- • beptemoer - ucto0er 2003' oral argument on tS]lls ot Particulars - schedule to be determined. • Thereafter: The Special Master issues a report and recommendation to the Court I. CIVILITY different. Ad hominem attacks, spurious accusations and inappropriate tacticswill not be tolerated. Named Individuals will be addressed either by title and name or as a "Named Individual(s)." 'b/" r aItoraea the opportumty to partlmpate and/or comment will not be considered during these proceedings. 1II. PROTECTIVE ORDER I','OUaU'.Z',.'*LO _.,._.,_.'_t tU llUtU Lii_t Oat)" lii.t,t,,,ti.uo.t.lvllt_ ui_., lJt_UJlt., Ulbk, IU_tU_ UI Wlltt.;l[l llli:l.y jeoparcllze the security of Interior's computer systems, will be placed under seal. into conduct whether they be judge, lawyer, witness, or court personnel.'" Bruce S. Mencher, CIVILITY: A CASUALTY OF MODERN LITIGATION, The Washington Lawyer, Sept.- Oct. 1993, at 19, 20. ALAN L. BALA._-tN, P.L.L.C. m7 _,a,v_.,_,w. N.w. Deoembec 4. 2002 _-_a_ aba_,_.,o_ VIA FACSIM I 1._ Detmis M. Gingold, Esq. 1275 Pennsylvania Ave,, N.W. Nimh Floor W_lfiagton, DC 20004 RE: (_obell et ale v. Nortoln et al., Civil Action No. 96-1285 Proposed Protocol for Moven'_em of'Frust Records Dear Mr. Gir_gold: This letter responds to your correspondence of this date regarding the procedures rha! will govern the inve,st[gation into _he conduct of the .39 Named Iadividuals': ] Unt.[ the report and recommendation issues regarding the legal sufficiency of the claims lodged a_ainst ead_ of the Named Ii_dividu.als, no dis˘ovc:ry will com_eflce, 2, Any requests for additional time to Iile tlae second set of Bills of Particulars or to segreg'ate the issues rlxereita will require the consonc of counsel for the Name6 Indivkluals or the mtervemJon of the Court, Sincerely, Alan L. Bal_a_ SPIECIAL MASTF.R ee: Sandra Spooner, Esq. Auached Distribution List : ] wi_)! "_._ksume, for _he last time) _a) my direction concerning the manner h3 which these i:'.d!x-d::._s -,,ire r.O be addressed _as not clear and d'mt your referral to them as "'putative ."3n'L"m:,.o_'" was an oversight, EXHIBIT 3 UNITED STATES' OPPOSITION TO PLAINTIFFS' MOTION FOR. ENLARGEMENT OF TIME TO FILE BILLS OF PARTICULARS RELATING TO PLAINTIFFS' MOTIONS FOR ORDER TO SHOW CAUSE Dmc-O_,-02 02:3_ Frc_-THE LAW OFFICE OF ALAN DALARAN Z02_868_77 T-27T P._3/08 F-'_,t] DISTRLBUTION LIg.T - VIA F[RS']'-C_SS POSTAGE D_m_i_ M, GingoM, E_q. Etliott Levitaa, Esq. i275 P_nnsyIvanj_ Ave., N,\_,. Ninth Floor Washington, DC 20004 T_cy L, Hilmer, Esq, Dodge Wells, Esq. Commercial Litigation BrmxciVCivil Division United States Depat_tmetlr of Justice P.O. Box 261 Ben Ftanklin Station Waihin_on, D.C, 2004; E. Lv._ertce Barcclla, Jr., Esq_ Pa_t, Hasting, Janof_ky & Walker LIP 1299 Pennsylvania Avenue, NW Wasl_ington, DC 20004-2400 Barry Boss, Esq. Asbil], Jtmkin, MoI'fit_ & Bose I 6 l 5 New Hampshire Avenue, NW Snit_ 200 Washington, DC 20009 Dwight Bostwiek, Esq. Melissa McNiven, Esq. Baaeh, Robinson & Lewis One Thomas Circle Suite 200 Washington, DC _0005 Stanley Brand, Esq. Andrew D. Herman, Esq. Brand & Frull_. 923 Fifteenth Street, NW Washir.gton, DC 20005 Willi_.l H. Brig,s, J_., Esq. Marc E. Rindn_r, Esq, Ross, Dixon & Bell 2001 K Street, b,W˘ Wnshb_gton, DC 20006-1040 Oic-O_-02 02:3g Froe-THE LAW O;;ICE O; ALAN 8kLkRAN ZO2_SG_4U T-2T_ P04/08 F-341 Michael Bromwich, Esq. Anne perry, Esq. Fded Frank Harris gl_iver & JT_cobson i001 Penrlsylvaraa Avenue, NW $ trite 800 Washington, DC 20004-2505 Steve Byers, Esq. Miguel Rodrig,aez, l_sq. Crowell & Moring 100! Pennsylvania Avenue, .Nrw Washington, DC 20004-2595 R. Christopher Cook, Esq. Jones Day Reaves & Pogue 51 Louisiana Avenue, .NB,V Washington, DC 20001-2113 Russell D. Duncan, Esq. (_oburn & Sel_crtler 1150 lg _r' Street, N_V Suite 8a0 Washington, DC _90036 Herbert Fcn_ter, Esq. McKenna & C_meo, LLP 1900 K Street, NW Washin_on, DC 20006 Eugene R. Fidell, E_q Matthew S. Froedus Fe[desman, Tucker, Leifur, Fidell & B_mk, L[,P 2001 L Street, NW Second Floor Wml_i-agton, DC 20036 Elizabeth Wallace Fl_ming, Esq. 7t 5 15 ;:_ Street, NW Suite 25 W_hington, DC 20009 -3- Hamilton P. Fox, m, Esq. Kathleen M. Devereaux Gregory S. Smith Sutherland,,Asbill & Brennan, LLP [275 Pennsylvania Avenue, NW Washington, DC 20004-2415 Bill Gardner, Esq. Morgan, Lewis & Bockius I 111 Pennsylvania Avenue, NW WashJn_on, DC 20004 Michael Goods:˘in, Esq, Deanna Chang, Esq. Resolution L_w Group, P.C. 5335 Wisconsin Avenue, NW Suite 350 Washington, DC 200 l 5 K_vin (]over, Esq. Steptoe and Jolmson, I.LP 1330 C0m:cfi_ut Avenue, NW Washington. DC 20036 John F. Hundley, Esq. Sydney J. Hoffmann Baker & McKeaazie 815 Cortacc_icu_ Avenue, NW Washin$,r.on, DC 20006 Amy Berman Jackson, Esq. Trout & Richards 1 ] o0 Connecticut Avenue, N W Suite 730, Washington, DC 20036 James Jotm_on, Esq. Jam_e Levitt, E_. Morrison & Foerster 1290 Sixth Avenue New York, NY 10104 -4- D)c-O_-O2 02:40 From-THE LAW OFFICE OF ALAN BALARAN ZO2086647T T-277' P 06/09 F-341 David S, .K.mkofl. Esq. Beveridg˘ & Dimnond, Y,C, 1350 1 Su-e,t, NW Suite 300 P,.ob_t Luskh), Esq. Parton Boggs 2550 M Street. NW Suite 500 Washingtort, DC 20037-1350 Christopher Mead. E,_q. Londor_ & Mead 1225 19 t_ Street, NW Suit_ 320 Washington, DC 20036 Larry A, Na_ans, Esq. .Robert W. Biddle Bennett & Nathans, LLP Suite 301 Baltimore, MD 2 ! 202 /3, M[e,hael Rauh, E_. Manatt, Phelps & Phillips, LLP 1501 M Street, NW Suite 700 Washington, DC 20005 Jeffrey D. Robinson, E,sq. Baach, Robinson & _s, PLLC One Thomas Circle. NW Washington, DC 20005 Martha R.ogers, Esq. Leon Rodnguez 1410 H Street, NW -5- Dec-04-02 02:40 Fr_-T_E LA_ OFFICE OF ALAN BALARAN ZO2186i_TT T-277 P.07/08 F-341 Suite 500 Wsshing_toi-_ DC 20005 Mary Lou Sol]er, Esq. Miller & Chovalier, Esq. 655 ]5th Street, NW Suite 900 Washington, DC 20005 Earl J. S_lbert. _sq. Robert A. Salerno, Esq. Adm_ g, Hoffmger. Esq. Piper Rudnick. LLP 1200 19 '_' StreeT, NW ?_ Floor Washington, DC 20036 W]lEma_ Taylor, E._1. Le_t/e Kieman, Esq. Zuck_n'_an, Spader, Gold$_˘it_, Ta)tor & Kolker, LLP 1201 Connecticut Avenue, NW Sui_˘ 700 Washh_gton, DC 20036 B_bata Van Geldcr, Esq. WiLey, Rein & Fielding, LLP !776 K Su'eet, NW Washin_on, DC 20006.2304 Kamleen E. Voelker, Esq. ! 101 Connectiout Avenue, NW Strife 1000 W_hington, DC 20036 Thomas E. Wilson., Esq_ John A, Ordway Bcrliner, Corcoran & Rowe, LIP ] 100 17 a' Street, NW Suite 1 _00 \V_h;.ng[on. DC 20036 -6- DIc-O_-OZ 02:40 Free-THE LAW OFFICE OF ALkN BALARAN 2029865477 T-2Ti' P08/08 F-3_1 Ro$˘r Z_,ckcrm_, _sq. LesLie Kie_,, Esq, Zuckerrnan, Spader, GoldsTein_ Taylor & Kolker, LLP 1201 Cormeeticut Avcat_e, NW Suite 700 Washinston, DC 20036 -7- APR-24-2_03 18:36 US DOI CIU DIU FRAUD SECT 282 616 3085 P.03 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLU_IBIA ELOUISE PEPION COBI_LL, e; at., ) ) Plaintiffs, ) ) v. ) Civil Action No. 1:96CV01285 _CL) ) GAL_E NORTON, Secretary o f :he ) Interior, e: al., ) ) Defendants. ) ) OPINIOh" AND ORDER This matter comes before the Special Master on P]aintiffs' Motion for Enlarg nent of Time to File Bills of Particulars With Respect to the Misconduct of Various Individu_ .s Idm_ti_ed in Ptatntiffs' Motion for Order to Show Ca_e, Filed October 19, 2001 ("M it/on for Enlargement") and the Oppositions of the United S_ates, John _. Bryaon, PhilIip A. Brooks, Sarah Himmelhoch, Michael Car., K. Jack Haugrud, Brace Bahb{_t, iob.zx Leshy, Edw_˘i Cohen, James F. Simon, John Berry, Glenn Schumaker, Lois Schiffer, Tom Clark, James A. _ich_er, Jame_ Dot_g]_. Stephen Swanson, _obert Lamb, Hilda Manuel, Timothy E_liott, M. _h_on Blacl_,ell, Daryl WhJ_e, William Myem and Dominic Nes_i. i { Upon review of'the motions and the entire record herein, i_ is the opinion ofth_ Special Master that [he 37 individuals implicated in Plaintiffs' October 19, 200] Motion for Grder to Show Cause a:'e entitled to have the issues pending for more r.hzn eighteen monthŁ adjudicated with all dispatch. Accordingly, plaintiffs' Motion for Enlargemem be and hereby is DENIED. S 0 ORDERED. /_.(,) _(_.___..._ Alan L. Balaran DATE'. April 24, 2003 SPECIAL MASTER. EXH1B|T t UNITED STATES' OPPOSITION TO _LAINTIFFS' MOTION FOR ENLARGEMENT OF TIME TO F1LI_ BILLS OF PARTICULARS RELATING TO PLAINTIFFS' MOTIONS, FOR ORDER TO SHOW CAUSE TOTIqL P. 133 Elouise Cobell, et al. CV 96-1285 March 3, 2005 U.S. Department of Interior, et al. Page 1 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 2 3 ELOUISE PEPION COBELL, et al., : 4 Plaintiffs : Civil Action No. 96-1285 5 v. : Washington, D.C. 6 SECRETARY OF THE INTERIOR : Thursday, March 3, 2005 7 et al., 8 Defendants : 10:00 a.m. 9 ................. X 10 11 TRANSCRIPT OF STATUS CONFERENCE BEFORE THE HONORABLE ROYCE C. LAMBERTH 12 UNITED STATES DISTRICT JUDGE 13 14 APPEARANCES: 15 For the Plaintiffs: DENNIS GINGOLD, ESQUIRE 16 MARK K. BROWN, ESQUIRE AUKAMP & GINGOLD 17 1275 Pennsylvania Avenue, N.W. Ninth Floor 18 Washington, D.C. 20004 202-824-1448 19 ELLIOT H. LEVITAS, ESQUIRE 20 DAVID M. ZACKS, ESQUIRE KILPATRICK STOCKTON, LLP 21 1100 Peachtree Street Suite 2800 22 Atlanta, Georgia 30309-4530 404-815-66100 23 KEITH M. HARPER, ESQUIRE 24 NATIVE AMERICAN RIGHTS FUND 1712 N Street, NW 25 Washington, D.C. 20036-2976 EXHIBIT 5 202-785-4166 UNITED STATES' OPPOSITION TO PLAINTIFFS' MOTION FOR ENLARGEMENT OF TIME TO FILE BILLS OF PARTICULARS RELATING TO PLAINTIFFS' MOTIONS FOR ORDER TO SHOW CAUSE United States District Court kingreporter@aol.com Rachel Rebecca King, RPR, CRR For the District of Columbia 202-898-9398 Official Court Reporter 720e144e-4fb8-40ca-abTd-O270faa28ffb Elouise Cobell, et al. CV 96-1285 March 3, 2005 U.S. Department of Interior, et al. Page 15 1 are not fit to practice before this Court. That's the 2 prerogative of the Attorney General. We don't care about 3 whether the Solicitor's Office will continue to undermine the 4 litigation and help retaliate against Interior officials who 5 tell the truth to this Court, and we don't care if the Secretary 6 of the Interior has declared war on our clients. We want to get 7 to a resolution of this case on the merits. Nearly nine years 8 is too long. Our clients are dying; more will die tomorrow. We 9 have to get a resolution and treat them fairly. 10 The record is -- there is no stronger and more 11 disgusting record you will see in this district than the record 12 that the Government has presented before you. There is no more 13 disrespect for a United States District Court judge than any of 14 us have ever seen than the disrespect they have demonstrated to 15 you, and with that, their utter disdain for the fiduciary duties 16 that they owe our clients, and have owed them for 118 years. 17 Your Honor, enough. We've got to stop this. We've got 18 to make sure what happens is done properly. We would easily 19 forego contempt and allow these people to continue their lives 20 without any further interference from us if we can go to a trial 21 on the merits. We believe the corruption in the data and the 22 systems, and their absolute dishonesty with regard to their 23 declared accounting duty and their declared obligations to 24 protect the data, we believe everything they've told you about 25 that is a lie, and we've identified in detail with United States District Court kingreporter@aol.com Rachel Rebecca King, RPR, CRR For the District of Columbia 202-898-9398 Official Court Reporter 720e144e-4fbS-40ca-ab7d-O270faa28ffb Elouise Cobell, et al. CV 96-1285 March 3, 2005 U.S. Department of Interior, et al. Page 16 1 documentation, including perjurious testimony by government 2 witnesses in that regard. 3 Your Honor, we are prepared to spend the next several 4 years in this Court involved in litigating contempt and 5 assisting in the prosecution of criminal contempt. We believe, 6 however, we want to get to the end of this. We want to get to 7 the trial and a judgment on the merits. We want justice for our 8 clients. It's been a long time. 9 The Government is going to argue they don't understand 10 what they've done wrong, that it could be misinterpreted, that 11 judgments were made that turned out to be wrong. Your Honor, if 12 any of them read the deplorable history, observed the testimony 13 of their own witnesses, the admission of Kevin Gover that we're 14 going to perpetuate the myth until reality sets in, the every -- 15 this Court pointed out quite clearly every single government 16 official has testified and said, we're going to take care of 17 this tomorrow, and waits until the next administration, because 18 it's the next administration that might take care of it. This 19 isn't a Republican or Democratic issue. 20 And indeed, I might point out that since this Court 21 reissued its structural injunction, the Secretary has testified 22 before both the Senate Energy Committee and the House Resources 23 Committee, raised and complained about the structural 24 injunction, complained that the burdens imposed by the Court 25 were even greater than they had been before, ignoring completely United States District Court kingreporter@aol.com Rachel Rebecca King, RPR, CRR For the District of Columbia 202-898-9398 Official Court Reporter 720e 144e-4fb8-40ca-ab7d-O270faa28ffb Elouise Cobell, et al. CV 96-1285 March 3, 2005 U.S. Department of Interior, et al. Page 19 1 Tribal Trust, let alone even begin to look at the individual 2 trust, because too many documents have been destroyed and the', 3 database is so corrupted. 4 Your Honor, this is not a Kabuki game. There are lives 5 at stake. But Your Honor, we would forgo contempt to move 6 forward with a Phase II trial promptly - I would suggest 7 June 10th of this year - to move forward with receivership, get 8 to the end of this. Not a single lawyer who has lied to you in 9 the past, as far as we're concerned - it's up to the Court to 10 deal with those people as it chooses - would be the target of 11 anything we're trying to do in the future because they don't 12 matter anymore. We care about one thing only, our clients. And 13 if people are harming our clients, we want it to stop. 14 And as this Court pointed out to everybody in this 15 courtroom at counsel table in 1997, if this Court's orders 16 aren't obeyed, everyone should know he will put people in jail. 17 Financial sanctions don't mean anything, Your Honor. They 18 haven't. Evidentiary and issue preclusion could very well mean 19 something, Your Honor. If we can fashion, for example, some 20 relief with the Treasury Department, who has been dealing with 21 us honestly since June 2nd, 2000 -- and I might give you a 22 footnote on that. 23 This Court might recall the absolute perjurious 24 representations made to the Court about the GAO settlements of 25 account. Notwithstanding the fact that at the same time the United States District Court kingreporter@aol.com Rachel Rebecca King, RPR, CRR For the District of Columbia 202-898-9398 Official Court Reporter 720e144e-4fb8-40ca-ab7d-O270faa28ffb Elouise Cobell, et al. CV 96-1285 March 3, 2005 U.S. Department of Interior, et al. Page 25 1 counsel. But Your Honor, it's time we move forward. They ask 2 for speedy action and then they block the Special Master from 3 going forward. They complain there's no specificity, and they 4 don't want any more information. 5 Give us the right to take discovery, Your Honor, give 6 us the right to go forward in this, and we will demonstrate to 7 you who is at fault and who isn't, and how the good and the bad 8 should be separated. We don't want to put people on the stand 9 or try them if they're not guilty. We believe the evidence is 10 so clear and so equivocal that it exists to proceed today with a 11 contempt trial with everyone who has been named, based on the; 12 standards for contempt in this circuit, the established findings 13 of this Court in the Norton contempt, based on the record of 14 documentation that hasn't been destroyed. 15 But Your Honor, we want this to stick and we want this 16 to stick with these people for the rest of their lives; that is, 17 unless we can go to trial on the merits in Phase II and we can 18 go to a receivership, because then we don't care what happens to 19 those people. Thank you very much. 20 THE COURT: What is it you're envisioning for the trial 21 two if you were to try it this summer? 22 MR. GINGOLD: Your Honor, as the Government itself 23 argued recently in the Philip Morris case with regard to 24 spoliation, we believe a tremendous amount of the information in 25 its databases is now no longer usable because of the massive ,_,_,_, _,_,_,_v _:_:_:_:_:_ ,_ _ _ * e ,,: _ _ _ _ _, _,, _ _ _ _ _ ::: _:_._;,_ _ _,_ _, _,, _, _ _ _ _: _ _:_:_ _: :_:_:_ _: :_:: _ _: :_ _:_:_:_:_:_:_:_:_ :_..................... .. _ _ _ _, _ _,_ _,_,_,_,_ _,_,_ _,_,_ _, _,_, _,_,_ _,_,_ _ _,_ _ ,_ ,_ _ _ _ : _ _ _,:_ : _ _ _ ,_, _, _ _ _ _,_, _ ,_ _, _,_,_,_,_, _ _,_,_ _, ,_,_,_,_,_,_,_,_, ,_,_,_,_,_,_,_,_,_,_,_,_,_,_,_,_,_,, _,_,_,_,_,_,_,_,_ _,_,_,_,, ,_,_,_,_,_ _ _ _, _ _v ,_ _˘_ United States District Court kingreporter@aol.com Rachel Rebecca King, RPR, CRR For the District of Columbia 202-898-9398 Official Court Reporter 720e 144e-4fb8-40ca-ab7d-O270faa28ffb Elouise Cobell, et al. CV 96-1285 March 3, 2005 U.S. Department of Interior, et al. Page 32 1 conclusion. 2 In addition to the CFR issues that I mentioned, the 3 36 CFR 1234.36 and 1220.14, the compensatory sanctions that 4 exist in civil contempt include issue and evidentiary sanctions. 5 And this is official capacity. By demonstrating what I'm 6 stating this morning, we are also entitled to those same 7 sanctions, and that will also allow us to go forward with regard 8 to a Phase II trial and demonstrate the inadmissibility of 9 anything the Government purports to be evidence of their 10 accounting. 11 Your Honor, everything they have done in that regard is 12 pernicious, including using statistical sampling for what is 13 characterized by the former acting Special Trustee, Tom 14 Thompson, as a low-lying fruit. Judgment funds, you don't have 15 to go back to the land records, you don't have millions of 16 transactions. And what did they use for that? Statistical 17 sampling. They didn't even use an accounting for each 18 transaction, and they didn't use an accounting for each Trust 19 beneficiary. Indeed, their own experts provided memoranda that 20 said, we don't even know who the Trust beneficiaries are. We 21 need verification. 22 Your Honor, you have demonstrated the patience that 23 none of us at plaintiffs' table have ever seen before. We think 24 the structural injunction that you structured was designed to 25 protect the Government. You are telling them what they needed United States District Court kingreporter@aol.com Rachel Rebecca King, RPR, CRR For the District of Columbia 202-898-9398 Official Court Reporter 720e 144e-4fb8-40ca-ab7d-O270faa28ffb Elouise Cobell, et al. CV 96-1285 March 3, 2005 U.S. Department of Interior, et al. Page 33 1 to minimize or reduce their liability. If they did that, they 2 would have been able to discharge their duty to you and minimize 3 their liability. But Your Honor, they won't do it. They didn't 4 do it. They won't even have the courtesy to come back to this 5 Court today to tell you under paragraph five of the reissued 6 injunction that by the way, there is something that might affect 7 our ability to do it, and that's a discussion that the Secretary 8 had with members of Congress yesterday where they're talking 9 about reenacting a midnight rider. 10 Your Honor, that's precisely what the imperative 11 language requires them to tell you. We didn't see a notice to 12 the Court filed yesterday and we didn't see anything filed this 13 morning. It will be very interesting to hear how they describe 14 it to you today. But Your Honor, there is no order, there's no 15 provision of any order, there's no law, there's no regulation, 16 there's no rule that they haven't violated and are continuing to 17 violate today. 18 Your Honor, while civil contempt can't reverse a delay, 19 we can certainly make sure it doesn't continue. And if the 20 Government wants to consent to go forward with Phase II trial on 21 June 10th, we don't need to do it. If we can apply the law with 22 regard to the evidentiary and issue sanctions that exist and we 23 can brief those issues, we don't have to go through contempt. 24 And Your Honor, these are not collateral proceedings. This is 25 the integrity of this litigation itself. If there is no United States District Court kingreporter@aol.com Rachel Rebecca King, RPR, CRR For the District of Columbia 202-898-9398 Official Court Reporter 720e 144e-4fb8-40ca-ab7d-O270faa28ffb TESTIMONY OF ELOUISE C. COBELL, LEAD PLAINTIFF IN COBELL V. NORTON COMMITTEE ON INDIAN AFFAIRS UNITED STATES SENATE OVERSIGHT HEARING ON TRUST REFORM MARCH 9, 2005 EXHIBIT 6 UNITED STATES' OPPOSITION TO PLAINTIFFS' MOTION FOR ENLARGEMENT OF TIME TO FILE BILLS OF PARTICULARS REI_,ATING TO PLAINTIFFS' MOTIONS FOR ORDER TO SHOW CAUSE appeal will be truly expedited, and will lead to the resolution of these legal issues. Elderly class members' hopes of receiving an accounting in their lifetimes are diminishing year by year by year as the government fights - and re-tights - every legal battle. For example, the defendants continue to contend today that this is a simple record-review Administrative Procedures Act case - a proposition that has been squarely rejected by this Court on more than one occasion, as well as by three different Court of Appeals panels in Cobell VI, Cobell XII, and Cobell XIII. In this case the government has not only set the gold standard for mismanagement, it is on the verge of setting the gold standard for arrogance in litigation strategy and tactics. 5 It is these insidious litigation tactics by the government that have led to numerous contempt proceedings 6 and our calls in 2001 for a receivership. Let me be clear on this point, the record amply supports the conclusion that the Interior Department does not have the political will or the institutional competence to reform itself. A receiver - temporarily appointed during the pendency of reform - with the requisite competence and charged with, and singularly focused on, instituting reforms that permit the safe and sound management and administration the Individual Indian Trust is, in my view, the sole way to ensure reform will occur. But I also understand that the government is highly resistant to the receivership approach and has called it a "non-starter." So while plaintiffs will continue to pursue this relief, among others, through judicial proceedings, I understand that this is not likely an acceptable avenue to attain the requisite political support for settlement legislation. It is with this baseline 5Cobell v. Norton, __ F. Supp. 2d __, 2005 WL 419293 at *7 (D.D.C. February 23, 2005) (emphasis added). 6While plaintiffs would prefer not to have to resort to contempt, we have been left with no alternative in light of the government's persistent violation of court orders and other serious misconduct. In addition, we note, that we have offered to drop all contempt charges if the government would agree to stop its obstructionist behavior and consent to a prompt accounting trial date. To date, the government has not accepted this offer. -7- 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 Plaintiffs' Motion for Enlargement of Time to File Bills of Particulars with Respect to Various Individuals" Identified in Plaint_' Motions for Order to Show Cause, Dkt # 2875. Upon consideration of Plaintiffs' Motion, Defendants' Opposition, any Reply thereto, the applicable law and the entire record of this case, it is hereby ORDERED that the Motion is DENIED. SO ORDERED Hon. Royce C. Lamberth UNITED STATES DISTRICT JUDGE United States District Court for the District of Columbia Date: cc_ Dodge Wells Tracy L. Hilmer Commercial Litigation Branch Civil Division P.O. Box 261 Ben Franklin Station Washington, D.C. 20044-0261 Fax (202) 616-3085 Dennis M Gingold, Esquire Mark Kester Brown, Esquire 607 14th Street, NW, Box 6 Washington, D.C. 20005 Fax (202) 318-2372 Keith Harper, 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 (406) 338-7530