<< COB0000001 >>
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELOUISE PEPION COBELL, ~ aL,	)
		)
	Plaintiffs,	)
		)
	v.	)	Case No. I :96CV0 1285
	)	(Judge Lamberth)
GALE A. NORTON, Secretary of the Interior,	)
etal.	)
	)
Defendants.	)
DEFENDANTS' OPPOSITION TO "BILL OF PARTICULARS"
FOR EDITH BLACKWELL IN SUPPORT OF MOTION FOR.
ORDER TO SHOW CAUSE WHY INTERIOR DEFENDANTS,
AND THEIR COUNSEL, SHOULD NOT BE HELD IN CIVIL
AND CRIMINAL CONTEMPT FOR VIOLATING TilE
DECEMBER 21,1999 ORDER TO CONDUCT AN ACCOUNTING
OF INDIVIDUAL INDIAN TRUST FUNDS
	Defendants hereby oppose the latest of plaintiffs' meritless diatribes against Edith
Blackwell in her official capacity.' In what has unfortunately become a pattern of uncivil and
unfounded personal attacks, plaintiffs seek civil and criminal contempt sanctions against Ms.
Blackwell in their "Bill of Particulars" for Edith Blackwell in Support of Motion for Order to
Show Cause Why Interior Defendants, and Their Counsel, Should Not Be Held in Civil and
Criminal Contempt for Violating the December 21, 1999 Order to Conduct and A~counting of
Individual Indian Trust Funds, served August 21, 2002 ("Plaintiffs' BOP"). To the extent
discernible, plaintiffs' unfocused BOP apparently accuses Ms. Blackwell of violating the Court's
December 21, 1999 ruling by participating in the Department of the Interior's Federal Register
Notice process, about which Interior specifically notified this Court in advance; advising
Department personnel to begin the historical accounting that the Court declared due with the period
from 1994 forward while the December 21, 1999 decision was on appeal; preparing, commenting
	'Ms. Blackwell is separately represented in her individual capacity.
<< COB0000002 >>
upon, and revising draft DOI documents; and meeting with the new Secretary and her staff upon
their arrival in early 2001.
	In this fifth attempt2, plaintiffs have again failed to identify any basis for holding Ms.
Blackwell in contempt, despite the Court's March 15, 2002 directive that they do so? Plaintiffs
make no effort to tie any specific acts allegedly taken by Ms. Blackwell to the legal standards for
civil and criminal contempt. Instead, plaintiffs' BOP is no more than yet another rambling litany of
alleged 'dirty deeds', some supposedly committed by Ms. Blackwell, some which she supposedly
"aided and abetted", and some that have no clear relation to Ms. Blackwell at all.4 Despite
plaintiffs' attempts to skew and spin the facts to cast Ms. Blackwell's actions in the worst possible
light, they fall far short of demonstrating either contemptuous acts or motives on her part.
Moreover, plaintiffs do not even bother to discuss the legal principles at issue, much less attempt
	2See Plaintiffs' Consolidated Reply Brief in Support of Motion to Set a Trial Date for
Phase II of this Action and Memorandum in Support of Motion for Order to Show Cause Why Past
and Present Interior Defendants and Their Employees and Counsel Should Not Be Held in
Contempt (filed Aug. 27, 2001); Plaintiffs' Consolidated Motion to Amend Their Motion to
Reopen Trial One in this Action to Appoint a Receiver and Memorandum of Points and Authorities
in Support Thereof and 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 (filed Oct. 19, 2001); Plaintiffs' Motion for
Order to Show Cause Why Interior Defendants and Their Counsel Should Not Be Held in
Contempt for Destroying E-Mail (filed March 20, 2002) ("Plaintiffs' March 20, 2002 Motion");
Bill of Particulars for Edith Blackwell in Support of Plaintiffs' Motion for Order t~ Show Cause
Why Interior Defendants and Their Counsel Should Not Be Held in Civil and Criminal Contempt
for Destroying E-Mail (3/20/02) and Supplemental Memorandum of Points and Authorities in
Support of Criminal Contempt (filed July 29, 2002) ("Plaintiffs' Blackwell E-Mail Memo").
	3We incorporate here by reference our argument in opposition to Plaintiffs' Blackwell E-
Mail Memo regarding the requirements of a sufficient bill of particulars, which Plaintiffs current
BOP also clearly fails to satisfy. See Govt's Response to Plaintiffs' Bill of Particulars and
Supplemental Memorandum in Support of Plaintiffs' Motion for an Order to Show Cause Why
Edith Blackwell Should Not Be Held in Contempt in Connection with the Overwriting of
BackupTapes (filed Aug. 12, 2002) at 7.
	4lndeed, the first 20 pages of Plaintiffs' BOP are entirely irrelevant because they relate only
to matters that occurred before the Court's December 21, 1999 ruling and therefore could not
possibly have "violated" that ruling.
-2-
<< COB0000003 >>
to address a fatal flaw in their motion: i.e., that a declaratory judgment, such as the one entered by
the Court on December 21, 1999 regarding the historical accounting, as a matter of law cannot
serve as the basis for a contempt finding.
ARGUMENT
A.	Sovereign Immunity Precludes the Imposition of Criminal Penalties
Against Ms. Blackwell in Her Official Capacity.
Plaintiffs once again request that Ms. Blackwell be referred for a prosecution for criminal
contempt. As the government pointed out in previous filings5, sovereign immunity bars criminal
contempt sanctions against Ms. Blackwell in her official capacity.
	Since the government has received notice and an opportunity to respond to the current
contempt claim against Ms. Blackwell, the claim against her in her official capacity is to be treated
as a claim against the government. Coleman v. Espy, 986 F.2d 1184, 1189 (8th Cir), cert. denied
sub nom. Dye v. Espy, 510 U.S. 913 (1993), citing Kentucky v. Graham, 473 U.S. 159 (1985).
See also Wyoming v, United States, 279 F.3d 1214, 1225 (10th Cir. 2002), and cases cited
therein. The doctrine of sovereign immunity bars the imposition of fines or penalties against the
government, except to the extent that the United States has explicitly consented to such sanctions.
United States v. Horn, 29 F.3d 754, 761 (1st Cir. 1994). A waiver of sovereign immunity must be
definitively and unequivocally expressed and must appear in the text of the statut~itself In re
Sealed Case, 192 F.3d 995, 1000 (D.C. Cir. 1999), citing Lane v. Pena, 518
5Government's Opposition to Plaintiffs' March 20, 2002 Motion for Orders to Show Cause
Why Interior Defendants and their Employees and Counsel Should Not be Held in Contempt (filed
April 3, 2002) ("Govt Opp. to 3/20/02 Motion"), at 13-16; Government's Response to Plaintiffs'
Bill of Particulars and Supplemental Memorandum in Support of Plaintiffs' Motion for an Order to
Show Cause Why Edward B. Cohen Should Not Be Held in Criminal Contempt (filed Aug.5,
2002) at 3-4; Government's Response to Plaintiffs' Bill of Particulars and Supplemental
Memorandum in Support of Plaintiffs' Motion for an Order to Show Cause Why Edith Blackwell
Should Not Be Held in Contempt in Connection with the Overwriting of Backup Tapes (filed Aug.
12, 2002), at 3-4.
-3-
<< COB0000004 >>
U.S. 187, 192 (1996); United States v. Horn, 29 F.3d at 762, citing United States v. Mitchell,
445 U.S. 535, 538 (1980), and United States v. Nordic Village. Inc., 503 U.S. 30 (1992).
	The United States has not waived sovereign immunity from citations for criminal contempt.
Coleman v. Espy, 986 F.2d at 1191; Un ited States v. Horn, 29 F.3d at 763; see also In re Sealed
Case, 1.92 F.3d 995, 999-1000.(D.C. Cir. 1999) ("...it is far from clear that Congress has waived
federal sovereign immunity in the context of criminal contempt... We know of no statutory
provision expressly waiving federal sovereign immunity from criminal contempt proceedings.").6
Similarly, the court in In re Neivlin, 29 B.R. 781, 785 (ED. Pa. 1983), held that a criminal
contempt citation by a bankruptcy court against a federal agency violated sovereign immunity
because the government had not expressly waived its immunity from citation for criminal contempt.
Consequently, to the extent that plaintiffs now are attempting to have Ms. Blackwell in her official
capacity prosecuted for criminal contempt, the plaintiffs' motion must be denied.
B.	As a Matter of Both Law and Fact, Plaintiffs' "Bill of Particulars" Fails to Support a
	Referral for Criminal Contempt or a Show Cause Order for Civil Contempt.
1.	Legal Standards for Contempt
	Standards for civil contempt have been set forth in the initial contempt hearing in this case,
Cobell v. Babbitt, 37 F. Supp. 2d 6 (D.D.C. 1999), and other cases in this circuit. The court's
power to find a party in civil contempt for violation of discovery orders may be b~sed either on
Federal Rule of Civil Procedure 37(b)(2) or the court's inherent power to protect its integrity and
prevent abuses of the judicial process. Cobell, 37 F. Supp. 2d at 9. However, remedies drawn
upon under the court's inherent power should be exercised only when the rules do not provide the
court with sufficient authority to protect its integrity and prevent abuse of the judicial process;
	6 In re Sealed Case, 192 F.3d 995 (D.C. Cir 1999), was not decided on the issue of
whether sovereign immunity precluded criminal contempt against the United States, since the Court
determined that aprimafacie case of criminal contempt had not been alleged. 192 F.3d at 1000.
.4..
<< COB0000005 >>
therefore, when a discovery order has been violated, the court should turn to its inherent powers
only as a secondary measure. Id. at 11.
	A party seeking a finding of contempt must initially show, by clear and convincing
evidence, that (1) a court order was in effect, (2) the order required certain conduct by the
respondents, and (3) the respondents failed to comply with the court's order. SEC v. Bilzerian,
112 F. Supp. 2d 12, 16 (D.D.C. 2000); Petties v. District of Columbia, 897 F. Supp. 626, 629
(D.D.C. 1995). Once the movant has made aprimafacie showing that the respondent did not
comply with the court's orders, the burden shifts to respondent to produce evidence justifkjing the
noncompliance. Bilzerian, 112 F. Supp. 2d at 16.
	As this Court has noted, "the 'extraordinary nature' of the remedy of civil contempt leads
courts to 'impose it with caution."' SECv. Life Partners, Inc., 912 F. Supp. 4, 11 (D.D.C. 1996),
quoting Joshi v. Professional Health Services, Inc., 817 F.2d 877, 879 n.2 (D.C. Cir. 1987).
Further, in light of the severity of the contempt sanction, it should not be resorted to "if there are
any grounds for doubt as to the wrongfulness of the defendants' conduct." Lfe Partners, 912 F.
Supp. at 11, citing MAC Corp. v. Williams Patent Crusher & Pulverizer Co., 767 F.2d 882, 885
(Fed. Cir. 1985).
	A civil contempt action is "a remedial sanction used to obtain compliance with a court
order or to compensate for damages sustained as a result of noncompliance." Food Lion, Inc. v.
United Food & Commercial Workers Int'l Union, 103 F.3d 1007, 1016 (D.C. Cir. 1997), quoting
National Labor Relations Board v. Blevins Popcorn Co., 659 F.2d 1173, 1184 (D.C. Cir. 1981).
The goal of a civil contempt order is not to punish, but to exert only so much of the court's authority
as is required to assure compliance. Petties, 897 F. Supp. at 629. Finally, a party found to be in
contempt should be given an opportunity to purge itself of the contempt prior to the imposition of
any penalties. Bilzerian, 112 F. Supp. 2d at 16. This requirement stems from the remedial nature
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<< COB0000006 >>
of civil contempt. See Food Lion, 103 F.3d at 1016 (a civil contempt action is "a remedial
sanction used to obtain compliance with a court order or to compensate for damage sustained as a
result of noncompliance"), quoting Blevins Popcorn, 659 F.2d at 1184. Thus, a contempt order
should be imposed, if at all, only at the conclusion of a three-stage proceeding involving:
(1)	issuance of an order; (2) following disobedience of that order,
issuance of a conditional order finding the recalcitrant party in
contempt and threatening to impose a specified penalty unless the
recalcitrant party purges itself of contempt by complying with
prescribed purgation conditions; and (3) exaction of the threatened
penalty if the purgation conditions are not fulfilled.
Blevins Popcorn, 659 F.2d at 1184, citing Oil, Chemical & Atomic Workers hit '1 Union v.
NLRB, 547 F.2d 575, 581 (D.C. Cir. 1977); Bilzerian, 112 F.Supp.2d at 16.
	Plaintiffs also ask that the Court refer Ms. Blackwell for prosecution under 18 U.S.C. §
401(3); which permits the court "to punish by fine or imprisonment, at its discretion, such contempt
of its authority ... as ... [d]isobcdience or resistance to its lawful ... order." To convict a
defendant of criminal contempt under this statute, the Court must find, beyond a reasonable doubt,
that Ms. Blackwell willfully violated a "clear and reasonably specific" order of the court. United
States v. Roach, 108 F. 3d 1477, 1481 (D.C. Cir. 1997), citing United States v. NYNEX Corp., 8
F.3d 52,54 (D.C. Cir.1993), and United States v. Turner, 812 F.2d 1552, 1563 (11th Cir.1987);
—	cf L~fe Partners, Inc., 912 F. Supp.at 11 ("definite and specific" court order must-~be in effect for
there to be civil contempt finding). For a violation to be "willful," the defendant must have acted
with deliberate or reckless disregard of the obligations created by the court order. Id., citing In re
Holloway, 995 F.2d 1080, 1082 (D.C. Cir.1993), cert. denied, 511 U.S. 1030 (1994), and United
States v. Greyhound Corp., 508 F.2d 529 (7th Cir.1974). Thus, in order to support a referral for
criminal contempt, plaintiffs must initially show, by clear and convincing evidence, that (1) a clear
-6-
<< COB0000007 >>
and reasonably specific court order was in effect, (2) the order required certain conduct by Ms.
Blackwell, and (3) that Ms. Blackwell willfully violated the court's order.
	Plaintiffs' "bill of particulars" meets neither the legal nor factual requirements ofaprima
facie showing for the imposition of civil contempt sanctions, much less the more demanding
requirements for imposition of criminal contempt sanctions, upon Ms. Blackwell.
2.	The Court's Declaratory Judgment of December 21, 1999 Is Not an Order
That Can Give Rise to a Contempt Finding.
	Plaintiffs' "bill of particulars" is fatally flawed at the outset by its reliance upon the Court's
declaratory judgement in Cobell v. Babbitt, 91 F. Supp. 2d 1, 58 (D.D.C. 1999), as the "order"
that Ms. Blackwell supposedly violated by the actions set out in Plaintiffs' BOP. Plaintiffs flOP at
1 n.1. The Court explicitly labeled the portions of its ruling upon which plaintiffs rely as a
"Declaratory Judgment."7 As the government has previously pointed out on numerous occasions,
the Court of Appeals for the D.C. Circuit has held unambiguously that noncompliance with a
declaratory judgment is not contempt. Armstrong v. Executive Office of the President, I F.3d
1274, 1289 (D.C. Cir. 1993) (vacating a contempt order based in part on failure to comply with
the declaratoryjudgment). See Defendants' Proposed Findings of Fact and Conclusions of Law
Following Contempt Trial (filed March 1, 2002) ("Defendants' Proposed Findings"), at 130-32;
Govt Opp. to 3/20/02 Motion at 10-il. As noted in Defendants' Proposed Findings at 130, the
Court of Appeals explained in Armstrong:
[E]ven though a declaratory judgment has "the force and effect of a
final judgment," 28 U.S.C. § 2201, it is a much milder form of relief
than an injunction. Though it may be persuasive, it is not ultimately
	7Plaintiffs make much of a line taken from a filing by defendants that referred to the Court's
judgment regarding an accounting as an "order." Plaintiffs' BOP at 20 n. 15. Defendants'
imprecise passing reference, however, cannot change the legal character of the Court's ruling: it
was and remains a declaratory judgment, as recognized by the Court itself.
-7-
<< COB0000008 >>
coercive; noncompliance with it may be inappropriate, but is not
contempt.
Id. at 1290 (emphasis added). Yet plaintiffs make no mention of the Armstrong holding in their
BOP. Given this unequivocal statement by the Court of Appeals, there is simply no legal basis for
a contempt finding against Ms. Blackwell — or anyone else for that matter —. for allegedly failing to
comply with the declaratory judgment of December 21, 1999. Plaintiffs themselves elected the
form of action — they chose to forego a suit for money damages (over which district courts lack
jurisdiction) and instead pursued a declaratoryjudgrnent and other non-monetary relief. They
cannot now be heard to complain about the limitations inherent in the very relief they sought.
	Since plaintiffs' latest salvo relies exclusively upon the Court's December 21, 1999
declaratory judgment, their BOP fails— as a matter of law — to establish aprimafacie case for
imposing either civil or criminal contempt sanctions upon Ms. Blackwell. Accordingly, the BOP
and the previous motions of August 27, 2001 and October 19, 2001, upon which plaintiffs purport
to build the HOP, should be summarily dismissed.
3.	Even assuming the December 21, 1999 declaratory judgment could give rise to
a contempt finding, plaintiffs have failed to demonstrate that Ms. Blackwell
personally did not comply with the judgment.
	As noted above, in order for civil contempt to lie, there must first be aprimafacie
showing that the person accused of contempt has violated a "clear and reasonably~pecific" order.
Roach, supra. While the portions of the Court's December 21, 1999 ruling upon which plaintiffs
base their current BOP are part of the Court's declaratory judgment, and therefore not a proper
legal basis for a contempt finding under binding precedent, plaintiffs have also failed to
demonstrate that any of the conduct with which they charge Ms. Blackwell violated any specific
portion of that judgment.
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<< COB0000009 >>
	In declaring the plaintiffs' right to an accounting, this Court also acknowledged the limits of
its constitutional authority to decide upon the means and methods defendants might use to
accomplish the accounting:
The court cannot simply take over the role of the agency or bring all
actions of defendants under its authority. Courts cannot "become..
enmeshed in the minutiae" of agency administration. Bell v.
Wolfish, 441 U.S. 520, 562 (1979).
The court feels that it is therefore its constitutional duty to allow
defendants the opportunity to cure the breaches of trust declared in
this Memorandum Opinion.
Cobell, 91 F. Supp. 2d at 54; see also Cobell v. Babbitt, 240 F.3d 1081, 1109 (D.C. Cir. 2001)
(noting the "judicial policy of granting agencies that have acted in an unlawful manner 'discretion
to determine in the first instance,' how to bring themselves into compliance" and concurring with
District Court that "'the proper course is to remand the case for further agency consideration in
harmony with the court's holding."') (internal citations omitted). Although plaintiffs have offered
no coherent legal analysis for their accusations against Ms. Blackwell in the current BOP, it
appears that they charge her with (1) supporting the use of statistical sampling in conducting the
accounting; (2) participating in what they claim was a "sham" Federal Register Notice process
whose sole intent supposedly was to delay the performance of an accounting and4o bolster
defendants' appeal; (3) "aiding and abetting" defendants' election to commence the historical
accounting with the period from 1994 forward; (4) commenting upon and revising various draft
documents for presentation to Secretary Babbitt; and (5) briefing Secretary Norton and her staff
upon their arrival in office, and revising draft documents to reflect the Secretary's viewpoint.
Each of these contentions lacks a proper legal foundation and fails to meet the plaintiffs'
-9-
<< COB0000010 >>
substantial burden of demonstrating aprimafacie case of contempt by clear and convincing
evidence.
(a)	No Court Order Prohibits Defendants from Utilizing Statistical
Sampling as Part of the Historical Accounting.
	Significantly, this Court identified several legal issues relating to the accounting that its
December 21, 1999 ruling intentionally did not address, but left open for the Phase II trial to be
conducted after defendants have had a reasonable opportunity to cure the identified breaches. The
accounting issues that this Court left open were: "(1) whether an applicable statute of limitations,
if any, precludes any of plaintiffs' claims for an accounting; (2) whether an accounting:
accomplished through a sampling technique will satisfy the requirements of the Trust Fund
Management Reform Act; and (3) the precise scope of plaintiffs' certified class." Cobell, 91 F.
Supp. 2d at 32 & note 22 (emphasis added).
	The Court of Appeals also acknowledged that defendants should have "sufficient discretion
in determining the precise route they take' to correct the breaches identified by this Court. Cobell,
240 F.3d at 1106. Indeed, the Court of Appeals observed that "[t]he actual legal breach is the
failure to provide an accounting, not [defendants'] failure to take the discrete individual steps that
would facilitate an accounting." id. Finally, the Court of Appeals specifically took note of the
open issues identified by this Court, including the possible use of statistical sampTing in
performing the required accounting. Id. at 1110. Like this Court's ruling of December 21, 1999,
the Court of Appeals' decision did not direct defendants to exclude statistical sampling from their
accounting methodology. To the contrary, the Court of Appeals observed that decisions as to how
to conduct an accounting, "and whether certain accounting methods, such as statistical sampling or
something else, would be appropriatef,] . . . are properly left in the hands of administrative
agencies." fri. at 1104.
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<< COB0000011 >>
	It is, of course, logically untenable to seek to hold a person in contempt for "violating" a
ruling that the Court expressly declined to make. Yet plaintiffs attempt to do just that in the current
BOP when they repeatedly malign Ms. Blackwell and others for discussing the possible use of
sampling techniques in internal discussions and in the Federal Register Notice published on April
3, 2000. Because no court has ever prohibitcd defendants from rclying upon statistical sampling
as the agency's chosen method of providing plaintiffs the accounting they are legally due, there
clearly can be no basis for holding any person in contempt — in her official or individual capacity
— for failing to comply with a non-order Moreover, plaintiffs certainly cannot claim that Ms.
Blackwell or anyone else concealed the fact that Interior officials were actively considering the
use of statistical sampling in some form as part of the accounting methodology beginning at least
when the Court issued its December 21, 1999 ruling. Interior's belief that some statistical
sampling might be incorporated into the accounting methodology was clearly laid out in the
Federal Register Notice published on April 3, 2000, and that Notice was provided to the Court on
March 1, 2000 for review in advance of its publication. Accordingly, none of plaintiffs'
allegations of "misconduct" against Ms. Blackwell concerning Interior's intent to rely upon
statistical sampling in performing the accounting could possibly form the basis for a contempt
sanction.
(b)	The Federal Register Notice Process Cannot Serve as a Basis for a
Contempt Finding.
	Plaintiffs criticize defendants for initiating the Federal Register Notice process. However,
they fail to cite any court order that prohibited Interior from undertaking this course of action. In
fact, the Court of Appeals recognized that the Indian Trust Fund Management Reform Act (the
"1994 Act"), Pub. L. No. 103-412 (1994), did not Jay out precisely what steps Interior should take
to perform the remedial accounting that this Court and the Court of Appeals held was due to
—Il—
<< COB0000012 >>
plaintiffs, and that decisions regarding the methods to be used in conducting the accounting "are
properly left in the hands of administrative agencies." 240 F.3d at 1104.
	As the government explained at length in its Consolidated Opposition to Plaintiffs' August
27, 2001 and October 19, 2001 Motions for Orders to Show Cause Why Interior Defendants and
Their Employees and Counsel Should Not Be Held in Contempt (filed Nov. 15, 2001) ("Govt's
Consolidated Opp.") at 22-29, the notice and comment process is commonly used by Federal
agencies, and agencies have broad discretion to utilize the process in advance of making policy
decisions like the ones made by Secretaries Babbitt and Norton regarding the use of statistical
sampling in carrying out the historical accounting pursuant to the December 21, 1999 decision.
Notably, Interior has engaged in the process on other occasions for the purpose of consulting with
Native Americans.8 Courts have consistently recognized that obtaining public input is a beneficial
process. See United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 758 (1972); Action
for Children~ Television v. FCC, 564 F.2d 458, 470 (D.C. Cir. 1977); Independent US. Tanker
Owners Comm. v. Lewis, 690 F.2d 908, 917 (D.C. Cir. 1982). Courts have also made clear that
the agency is not, at the end of the process, obliged to adopt the views of a majority, or even an
overwhelming majority, of participants. See Seacoast Anti-Pollution League v. Costle, 572 F.2d
872, 877 (1st Cir. 1978) ("Witnesses may bring in new information or different points of view, hut
the agency's final decision need not reflect the public input. The witnesses are not the only source
of evidence on which the Administrator may base his factual findings."). Interior's decision to
employ the Federal Register notice and comment process conceming the methodology for a
8As the government has noted previously, Interior utilized the Federal Register process
following the Supreme Court's decision in Seminole Tribe of Florida v. Florida, 517 U.s. 44
(1996), in order to elicit comments about what action to take under the Indian Gaming Regulatory
Act in view of the Supreme Court's decision. See Govt's Consolidated Opp. at 23 (citing 61 Fed.
Reg. 21394).
-12-
<< COB0000013 >>
historical accounting was also an efficient and entirely appropriate means of complying with the
President's Executive Order directing consultation with Indian Tribal Governments.9 Further, the
government specifically informed this Court and the Court of Appeals before publishing the
Federal Register Notice of its intent to initiate the notice and comment process. Motion for Entry
of an Order Regarding a Public Administrative Process to Implement the American Indian Trust
Fund Management Reform Act of 1994 (filed Mar. 1, 2000), Ex. I and 2. Despite plaintiffs'
criticism of the process on essentially the same grounds as those upon which they base their
current BOP'0, neither this Court nor the Court of Appeals indicated to Interior that it was
improper to utilize the Federal Register notice and comment process in these circumstances.
	While not necessary to defeat plaintiffs' legally untenable contention that the use of the
Federal Register Notice process was somehow contemptuous, it is nevertheless worth noting that
the witnesses at the most recent contempt trial agreed that there had been no final decision before
August 2, 2000 to use statistical sampling to conduct the historical accounting. See Govt's
Proposed Findings at 12 ¶ 14. However, even if those Interior officials involved in carrying out
the accounting had already concluded that some form of statistical sampling should be utilized, that
would not have made the Federal Register Notice process a "sham," since the notice and
opportunity for comment served the plainly legitimate purposes of consulting with the Indian
beneficiaries before the Secretary's directive on the matter and eliciting from the beneficiaries and
the public at large information that the Interior officials had not considered that could affect either
	9E.g., EQ 13084 of May 14, 1998 ("Consultation and Coordination with Indian Tribal
Governments"), 63 Fed. Reg. 27655 (May 19, 1998); EQ 13175 of November 6, 2000
("Consultation and Coordination with Indian Tribal Governments"), 65 Fed. Reg. 67249 (Nov. 9,
2000), both cited in Govt's Consolidated Opp. at 23.
	'0Plaintiffs' Opposition to Defendants' Motion for Entry of an Order Regarding a Public
Administrative Process to Implement the American Indian Trust Fund Management Reform Act of
1994 (filed Mar. 20, 2000).
-13-
<< COB0000014 >>
their inclination to use sampling at all or. the manner in which they could most effectively use
sampling to produce accurate results. Interior officials identified both of these goals as reasons
for conducting the Federal Register Notice process. See First Report of the Court Monitor (July
11, 2001) at 28 ('[Former Assistant Secretary for Indian Affairs] Gayer understood that the
decision to do a Federal Register notice was driven as much by the need to consult with the UM
account holders as it was to support an appeal."); Testimony of Robert Lamb, Deputy Assistant
Secretary for Budget and Finance (Jan. 11, 2002) at 27 18-19 (describing the purposes of the
Federal Register Notice process identified at Interior meetings)."
"Mr. Lamb's cited testimony on this point is illuminating and worth quoting in full:
Q.	Although you weren't in any of the deciding meetings, were you in meetings
that discussed the Federal Register notice process?
A.	Yes.
Q.	Did you come to understand the basis or have an understanding of the basis
for initiating the Federal Register notice process?
A.	Yes. The reasons that were talked about was that this was a thing that we
had to do. It was the proper thing to do. It was important to comply with the
Administrative Procedures Act. The lawyers sometimes talked about the
jurisdiction of the Court as well on the Administrative Procedures Act issues,
something I never fully understood, but they seemed to understand. And it was also
viewed as something important in terms of trying to get some outside information
potentially.
Q.	Do you know what outside information was being looked at as part of that
process?
A.	I sent our deputy chief financial officer, Sky Lesher, who heads the Office of
Financial Management, I sent to some of the meetings that were occurring because I
wanted to be sure that he could weigh in and say in a way that the Federal Register
notice would be crafted that it might invite outside organizations that he would be
familiar with to send in comments. This was a, I thought, potential bonanza for
accounting firms and management firms and so forth, if they saw that we were
embarking on what was going to be a very large project.
Q.	Now during your -- the discussions that you attended involving the Federal
(continued...)
-14-
<< COB0000015 >>
	Plaintiffs have offered no legal basis for challenging the agency's discretion to consult and
gather additional information in this manner, particularly given Interior's broad discretion to
determine the appropriate accounting methodology recognized both by this Court in its December
21, 1999 ruling and by the Court of Appeals in its decision. Plaintiffs contend that the Federal
Register Notice process was undertaken not for any legitimate reason, but simply to delay the
accounting and to persuade the Solicitor General to authorize the appeal of the Court's December
21, 1999 decision. As shown above, there clearly were other, indisputably proper motives
(consultation with beneficiaries and solicitation of new information) that underlay the decision to
initiate the Federal Register Notice process. That the initiation of the process also satisfied the
Solicitor General that Interior was moving forward with its responsibility to perform the historical
accounting in compliance with the December 21, 1999 ruling does not vitiate the legitimacy of the
process itself or the agency's discretion to use the process as one means of informing the public
and of eliciting new information before the Secretary committed to any particular accounting
methodology.
"(...continued)
Register process, was there -- did you ever get a sense, did anyone convey a sense
that there was any other purpose for the Federal Register process than those that
you described?
A.No.
Q. Did anyone convey the decision was somehow -- there was no legitimate
purpose for the Federal Register process?
A. No.
Testimony of R. Lamb, Tr. 2718-19 (Jan. 11, 2002); see also id. at 2912-13 (noting that when he
served at Minerals Management Service, Federal Register Notices would be put out by agency
even though agency officials "knew quite well what the industry and environmental community
would say, even before putting the regulation out.... But it is an effort to bring in additional
information and any new pertinent information. And the fact those individuals have a long term
history in these areas doesn't in any way deride the fact that they use the Federal Register
process.").
-15-
<< COB0000016 >>
	Plaintiffs' charges of delay also fall far short of the mark they are aiming for: the Federal
Register Notice was prepared and ready to go within just two and a half months after the Court
handed down its ruling on December 21, 1999. The government informed both this Court and the
Court of Appeals in early January 2000 of its intent to initiate the Federal Register process. On
March 1, 2000, the government submitted the Notice itself to this Court to rule on whether the
represented parties rule of the District of Columbia Rules of Professional Responsibility permitted
Interior to conduct the hearings anticipated in the Notice. This Court ruled on March 28, 2000 that
the process was not barred by the ethical rules, and the Notice was promptly published in the
Federal Register on April 3, 2000. By August 2, 2000, the public hearings had been conducted.
Eight months is not an unduly long period for a notice and comment process on such a substantial
question as the proper methodology to employ in rendering the required accounting to hundreds of
thousands of Indian beneficiaries.
	There was a delay between the conclusion of the hearings and Secretary Babbitt's
execution of the policy decision to employ statistical sampling methods in the accounting, but there
is no basis in the record for holding Ms. Blackwell liable for the delay. Indeed, the Court Monitor
described his views of the reasons for the delay in his first report as follows:
Interviews of the parties to this process made clear that this four
month delay in the publication of the Gover and Slonaker
memoranda after the August 2, 2000 meeting was caused, in part,
due to DOT officials and SolicitOr's attorneys' negotiations over its
and the other memoranda's substance. It is evident from
correspondence between the Office of Solicitor's attorneys working
on the draft memoranda and the key participants that the delay was
caused because of strong disagreements between the key players
about the substance and order of the memoranda.
First Report of the Court Monitor (filed July 11, 2001) ("Monitor's First Rpt."), at 21. The
Monitor further observed that:
[a]nother possible reason for the delay in publishing the memoranda
was believed by some officials to be the ongoing settlement
-16-
<< COB0000017 >>
discussions with plaintiffs' counsel and the purported view of the
Special Trustee that the historical accounting issue could be
resolved through settlement as the Congress has encouraged in the
Conference Committee report.
Id at 27. Indeed, it appears from the Monitor's First Report that Ms. Blackwell — rather than
seeking to delay the conclusion of the Federal Register Notice process — took steps to move the
process along:
According to Edith Blackwell, the Solicitor's office had encouraged
the August meeting due to their concern that a decision on a means to
accomplish an historical accounting was taking too long. It was
August, five months since the decision had been announced to this
Court and the Court of Appeals about the Federal Register
information-gathering process. No decision had been made based
on the Federal Register notice results, which had not been tallied.
She went and talked to Anne Shields. The August 2, 2000 meeting
was called to discuss the historical accounting.
Id at 23.
	Plaintiffs' BOP does not does not come close to demonstrating by clear and convincing
evidence an effort by Ms. Blackwell to use the Federal Register Notice process as delaying tactic.
Plaintiffs have clearly not met their burden to demonstrate a basis for holding Ms. Blackwell
personally in contempt for any actions she took or advice she gave in connection with the Federal
Register Notice process.
(c)	There Is No Basis for Holding Ms. Blackwell in Contemyt Because of
Her Recommendation that Interior Begin the Historical Accounting
with the Years from 1994 Forward.
	Plaintiffs charge Ms. Blackwell with contemptuous motives for advocating that Interior
begin its historical accounting obligations with data for the years 1994 forward. Plaintiffs'
position is not only legally baseless but totally lacking in common sense. Although they fail in
their BOP to specify how this advice could constitute contempt, it appears that they are essentially
arguing that Interior's appeal regarding the scope of the required accounting and the arguments
-17-
<< COB0000018 >>
made as part of that appeal were frivolous. While Interior ultimately lost its argument that the
obligation to account commenced only in 1994, the Court of Appeals did not suggest in any part of
its decision that the government's argument on this point was frivolous. Moreover, as part of the
December 21, 1999 ruling, this Court certified its decision for interlocutory appeal. In doing so,
this Court specifically found that "this orde~ involves controlling questions of laxv as to which
there is substantial ground for difference of opinion and that an immediate appeal from this order
may mat~ria1ly advance the ultimate termination of this litigation." 91 F. Supp. 2d at 57. Given
this Court's recognition of the "substantial ground for difference of opinion," plaintiffs' assertion
that Interior's argument regarding the scope of the required accounting was frivolous has no merit.
	Plaintiffs' complaints regarding Interior's decision to start with the 1994 forward period
also defy common sense. Given that the Court had certified the appeal of its ruling, including the
scope of the accounting it had declared was due, it was perfectly appropriate for Interior to begin
the historical accounting with the period of time that was not at issue in the appeal — i.e., the
period from 1994 forward. Obviously, Interior had to start somewhere, and it made perfect sense
to begin with the period that everyone on both sides agreed was covered by the Department's
accounting obligation. Further, there is no genuine dispute that Interior's data regarding JIM
account transactions was more complete for more recent time periods because of computerization,
e.g. Plaintiffs' POP Ex. 34-36, and for this reason too, it made sense to start with the most recent
time period.
	In any event, plaintiffs offer no evidence that the decision to start the accounting process
with the 1994 forward period caused any delay in conducting the required accounting. To the
contrary, even before the Court of Appeals had issued its decision rejecting the government's
argument regarding the scope of the required accounting, Secretary Babbitt had observed that "the
Department, the Court, Congress, and JIM beneficiaries believe that we must examine past account
-18-
<< COB0000019 >>
activity to discover information that will enable beneficiaries and the Department to evaluate
whether income from individual trust assets was properly credited, maintained, and distributed to
and from HIM accounts before October 25, 1994.t Memorandum from Bruce Babbitt, Secretary of
the Interior, to Chief of Staffs Solicitor, Special Trustee for American Indians, Assistant Secretary
— Policy, Management and Budget, Assistant Secretary — Indian Affairs, Assistant Secretary —
Land and Minerals Management, Chief Information Officer, dated Dec. 29, 2000 (emphasis
added). Whatever Ms. Blackwell and others may have advised; this memorandum demonstrates
that the ultimate policymaker, Secretary Babbitt, did not limit the historical accounting to 1994
forward even before the Court of Appeals had issued its ruling.
	The Court expressly recognized Interior's discretion to determine how to conduct the
accounting, and this discretion necessarily included the determination as to the most appropriate
starting point. Thus, even if there had been no dispute as to the scope of the required accounting,
it would have been entirely legitimate for Interior to begin with the 1994 forward period. Plainly,
there is no legal or factual basis for plaintiffs' contention that Ms. Blackwell was somehow in
contempt for advocating that Interior begin the accounting with the 1994 forward period.
(d)	Ms. Blackwell's Involvement in Preparing, Revising and Commenting
Upon Draft Documents is Not a Basis for Contempt.
—	Ms. Blackwell was a Deputy Associate Solicitor at the time of the events ~n which
plaintiffs rest their charges of contempt. In this capacity, it was obviously Ms. Blackwell's job to
prepare, review and conunent upon internal documents and to revise them as necessary.
Preparing, reviewing, commenting upon and revising — or even re-writing entirely — draft
memoranda before finalization and public dissemination — are an inherent part of the deliberative
process of government. There is, of course, nothing unlawful or improper about agency employees
engaging in the sort of deliberative process that followed the Federal Register Notice process and
-19-
<< COB0000020 >>
led up to Secretary Babbitt's December 29, 2000 policy memorandum. To the contrary, both the
courts and Congress have recognized the value of; and sought to protect, the deliberative process
from unnecessary intrusion. E.g., NLRB v. Sears, Roebuck & Co., 421 U.s. 132, 150-51 (1975);
EPA v. Mink, 410 U.S. 73,87(1973); Dow Jones & Co. V. Department of Justice, 917 F.2d 571,
573 (D.C. Cir. 1990) (the deliberative process privilege is "ancient.. . [and] predicated on the
recognition 'that the quality of administrative decision-making would be seriously undermined if
agencies were forced to operate in a fishbowl."') (quoting Woift v. HHS, 839 F.2d 768, 773 (D.C.
Cir. 1988) (en banc)); see also Freedom of Information Act, 5 U.S.C. § 552(a)(5) (providing
exemption from FOIA's disclosure requirements for "inter-agency or intra-agency memorandums
or letters which would not be available by law to a party other than an agency in litigation with the
agency."). The purpose of the deliberative process privilege was explained by Mr. Justice Reed
in KaiserAluminum & Chemical Corp. v. Un ited States, 157 F. Supp. 939, 945-46 (Ct. Cl.
1958):
Free and open comments on the advantages and disadvantages of a
proposed course of governmental management would be adversely
affected if the civil servant or executive assistant were compelled
by publicity to bear the blame for errors or bad judgment properly
chargeable to the responsible individual with power to decide and
act. Government from its nature has necessarily been granted a
certain freedom from control beyond that given the citizen. It is true
that it now submits itself to suit but it must retain privileges for the
good of all.
There is a public policy involved in this claim of privilege
for this advisory opinion — the policy of open, frank discussion
between subordinate and chief concerning administrative action.
See NLRB i.'. Sears, 421 U.S. at 149, 150 (citing Kaiser in discussion of deliberative process
privilege and its contours). Thus, as an initial matter, the courts and Congress have not only
acknowledged that Executive agencies routinely engage in deliberative processes as part of policy
development, but they have deemed such deliberative processes beneficial to the public.
-20-
<< COB0000021 >>
	Plaintiffs claim that "Ms. B!ackwell Altered Memoranda that Were Filed with this Court in
Order to Cover-up Interior Defendants' Willful Violation of the December 21, 1999 Order."
Plaintiffs' BOP at 37. Plaintiffs' accusation falls flat first because plaintiffs never identify what
part of the December 21, 1999 ruling Ms. Blackwell supposedly violated by preparing,
commenting upon, and revising draft memoranda relating to the Federal Register Notice process.
	Second, plaintiffs disingenuously suggest that Ms. Blackwell altered final documents, when
the facts they recite pertain only to draft, pre-decisional documents. Specifically, plaintiffs
accuse Ms. Blackwell of contempt for taking a draft memorandum prepared by Interior employee
James Pace for then-Assistant Secretary for Indian Affairs Kevin Gover that described the process
and the responses received in the Federal Register Notice process. Monitor's First Rpt. Ex. 15
(the "Pace draft"). The Pace draft was simply a report, and was not in the form of a policy
recommendation. See U.S. Dept. of Interior Office of Inspector General, "Report: Allegations
Concerning Conduct of Department of the Interior Employees Involved in Various Aspects of the
Cobell Litigation," No. 2001-1-412-PSI (June 2002) (the "OIG Report") at 14 (In interview with
OIG, Jim Pace stated he "'personally made it clear' to both Edith Blackwell and Gover that [his
office] did not have the expertise to analyze the FRN results, and instead they could only collect
the information."). Ms. Blackwell's supposed "crime" consisted of writing a policy
recommendation that included parts, but not the entirety, of the Pace draft and that explained the
decision to use a form of statistical sampling to conduct the accounting in a format the Secretary
could sign. As Ms. Blackwell observed in her e-mail circulating her draft for comment, "I have
tried to create a decisional document which provides the rational[e] for the decision." Monitor's
First Rpt. Ex. 16 ("Blackwell draft"). Thus, Ms. Blackwell was completely honest about the
purpose of her draft.
-21-
<< COB0000022 >>
	Plaintiffs accuse Ms. Blackwell of "summarily dismiss[ing] Mr. Pace's findings and
materially alter[ing] the Pace memorandum solely to rationalize the imprudent decision in which
she had participated to commence the bogus Pederal Register Notice process... ." Plaintiffs' BOP
at 37. It is difficult to understand how plaintiffs could have reached this conclusion when Ms.
Blackwell's draft incorporates large elements of Mr. Pace's draft, including the point that "The
majority of commentors wanted to see a transaction-by-transaction reconciliation in spite of the
discussion [in] the Notice that Congress may be unwilling to fund an expensive transaction-by-
transaction reconciliation.' Blackwell draft at 3; compare with Pace draft, third page ...... an
overwhelming majority of those who voiced their preferences at the public meetings wanted to see
a transaction-by-transaction reconciliation, in spite of the discouraging language containcd in the
Federal Register Notice stating that such a solution was not very likely since Congress had already
dismissed such a solution."). The above comparison shows that there is no material difference
between the two drafts. Significantly, there is no evidence of any intent by Ms. Blackwell to
falsely depict the conimentors' stated preferences, even though those preferences did not align with
the recommendation contained in her draft.12 Contrary to plaintiffs' arguments, Ms. Blackwell did
not "summarily dismissE]" the Pace draft: she incorporated relevant portions of it and then went
beyond simply reporting on the Federal Register Notice process to create a decisional document
for the Secretary's signature. Moreover, Ms. Blackwell's draft was also just that — a draft, an
	'2Ms. Blackwell included in her draft, almost word for word, other language about the
commentors' views from the Pace draft. See Blackwell draft at 3 ("On the issue of how to fairly
compensate JIM account holders, there were fourteen mailed in responses along with numerous
comments voiced at the public meetings. There were no specific comments that stood out as being
more desirable or any more important than any others. The one common thread was that all
respondents wanted some form of compensation based upon a complete of [sic] record as
possible."); compare with Pace draft, third-fourth pages ("With regard to the second issue,
compensation, there were fourteen mailed in responses along with numerous comments voiced
during the public meetings. There were no specific comments that stood out as being more
desirable or any more important than any of the others. The one common thread was that all of the
respondents wanted some form of compensation based upon as complete a record as possible.").
-22-
<< COB0000023 >>
element in the agency's deliberative process regarding the selection of an appropriate accounting
methodology, that was distributed for comment and discussion.
	Obviously, what plaintiffs really object to is Interiors exercise of its reasoned discretion —
discretion that both this Court and the Court of Appeals acknowledged in their rulings in this case
— to adopt an accounting methodology that plaintiffs do not like.'3 There is no foundation for
plaintiffs' reckless accusations of a "cover-up", and accordingly, the accusations amount to no
more than a complaint that Ms. Blackwell engaged in a deliberative process that resulted in a
policy choice they find ~9imprudent.t Plaintiffs are free to disagree with the policy adopted by
Secretaries Babbitt and Norton and to seek whatever review of those policy directives the law
allows, but they should not be permitted to attack government employees like Ms. Blackwell
simply for offering "[f]ree and open comments on the advantages and disadvantages of a proposed
course of governmental management." Kaiser, supra.
	If possible, plaintiffs are on even thinner ice when they demand contempt sanctions against
Ms. Blackwell's for her critical comments on former Special Trustee Thomas Slonaker's draft
memorandum to the Secretary concerning the use of statistical sampling. Plaintiffs' BOP at 39-41.
For starters, it is far from self-evident how plaintiffs conclude from Ms. Blackwell's comments
that she "believe[d] that the Special Trustee's endorsement of the bogus Federal Register Notice
process was essential," Id. at 39-40, when the comment plaintiffs quote does not even mention the
	'3The Blackwell draft recommends the following course of action to the Secretary:
We believe that using statistical sampling we can perform a
transaction-by-transaction analysis on a statistically significant
portion of the total number of accounts. With a high degree of
confidence we believe we can extrapolate to all account holders an
error rate. We believe that this approach is best given the massive
number of records, the complexity, and the condition of the records.
We also note that GAO and Congress have suggested sampling.
Blackwell draft at 4.
-23-
<< COB0000024 >>
Federal Register Notice process. There simply is nothing nefarious in Ms. Blackwell's suggestion
that Mr. Slonaker revise his draft to reflect the receipt of congressional funding. It is a complete
mystery why plaintiffs cite Mr. Elliott's comments on the Slonaker draft memorandum (Plaintiffs'
BOP at 40 ~ 79) as a supposed basis for finding Ms. B!ackwell in contempt. Likewise, it is
puzzling that plaintiffs accuse Ms. Blackwell of being in contempt for recommending the use of
statistical sampling, but make no similar accusation against Mr. Slonaker when he also
recommended statistical sampling.'4 In any event, Ms. Blackwell was entitled — indeed, she was
required by the duties of her position — to provide "free and open comments", Kaiser, sup ra, on
the Slonaker draft and to contribute to the deliberative process.
	In a similar vein, although plaintiffs accuse Ms. Blackwell of"aid[ing] and abettEing]"
Secretary Norton in furtherance of the fraud perpetrated on this Court and the Court of Appeals,"
Plaintiffs' BOP at 46, in three pages of discussion on this topic, plaintiffs mention Ms. Blackwell
only twice and assert only that she attended meetings with Secretary Norton and her Deputy Chief
of Staff, Sue Ellen Wooldridge. Id. 46-48. Plaintiffs do not even bother to identify the supposed
"fraud" perpetrated by Secretary Norton, much less explain Ms. Blackwell's alleged role in it. Of
course, if plaintiffs mean to argue that Ms. Blackwell was in contempt simply by virtue of meeting
	"Government Exhibit 3 may explain why plaintiffs have not included Mr. Slonaker in their
criminal and civil contempt motions. Exhibit 3 is a series of letters (which have not been sealed)
between the Special Master and plaintiffs' counsel Dennis Gingold concerning communications
Mr. Gingold had with Mr. Slonaker before the contempt trial earlier this year. In these letters, Mr.
Gingold admitted to the Master that as part of what Mr. Gingold termed a "due diligence" process,
he had advised Mr. Slonaker that his name would be removed from the list of people plaintiffs
intended to charge with contempt if Mr. Slonaker took certain action discussed in the letters. We
understand that the Special Master is in the process of producing a report based on recent
depositions of both Mr. Slonaker and his former deputy, Thomas Thompson, that may bear on the
issues in this BOP and in the numerous other pending contempt motions. See Interior Defendants'
Motion and Supporting Memorandum for Release of the Report of the Special Master
Regarding IT Security and any Information Reported to the Court Regarding the Special
Master's Investigation or Report (filed Sept. 3, 2002). We accordingly reserve the right to seek
leave to supplement this brief, if appropriate, once the Master has issued his report.
-24-
<< COB0000025 >>
with the new Secretary and her Deputy Chief of Staff to discuss IIM trust reform, their motion
again runs afoul of the constitutional discretion afforded to the Executive to deliberate upon and
arrive at policy decisions, which both this Court and the Court of Appeals have acknowledged.
Although it is far from clear, it may be that the "fraud" charged by plaintiffs is no more than
Secretary Norton's decision to adopt former Secretary Babbitt's policy directive regarding the
role of statistical sampling in performing the required accounting.
	While plaintiffs baldly assert that "[e]veryone knew that the 'statistical accounting' would
not comply with" this Court's December 21, 1999 judgment (Plaintiffs' BOP at 41), they do not
bother to identify "everyone", nor do they cite any evidence in support of their unfounded claim
besides the testimony of Mr. Thompson)5 The scope of the Secretary's discretion to select a
methodology for performing the accounting did not change simply because a new Secretary had
arrived. Nor do plaintiffs cite any basis for their claim that Secretary Norton was not entitled to
rely upon the policy directive made by Secretary Babbitt regarding the use of statistical sampling
and had to begin afresh to study the issue.'6 Indeed, it was shortly after Secretary Norton's arrival
at Interior that the Court of Appeals issued its decision confirming the Department's discretion to
determine the means by which the accounting would be performed. Further, Secretary Norton did
not simply adopt the Babbitt directive as is; rather she directed the Department to provide an
	'5Curiously, though, plaintiffs accept at face value Mr. Thompson's assertion that he
believed all along the statistical sampling would fail, despite the fact that Mr. Thompson's
superior, Mr. Slonaker, joined in recommending to Secretary Babbitt in late 2000 that statistical
sampling at least be attempted as part of the accounting. See Govt Ex. 1. If Mr. Thompson and
Mr. Slonaker actually had believed the statistical sampling would fail, it was clearly their
obligation to report their concerns to Secretary Babbitt. Mr. Slonaker's memorandum mentions no
such concerns, and therefore casts considerable doubt upon the veracity on Mr. Thompson's
assertion.
	'6There can be little doubt that plaintiffs would have loudly accused Interior of stalling if
Secretary Norton had thrown out all of the work done under her predecessor and commenced a
new study andlor notice and comment process concerning the feasibility of a pure transaction-by-
transaction accounting versus an accounting that included sampling methods.
-25-
<< COB0000026 >>
accounting of all funds held in trust by the United States since the act of June 24, 1938, see Govt.
Ex. 2, consistcnt with the Court of Appeals' conclusion that the accounting must include "all funds,
irrespective of when they were deposited (or at least so long as they were deposited after the Act
of June 24, 1938)." Cobell, 240 F.3d at 1102 (emphasis in original).'7 Plaintiffs have provided
absolutely no basis for their claims that the Secretary conirnitted any fraud on the courts by
adopting a modification of the Babbitt policy directive on statistical sampling. Nor have plaintiffs
demonstrated any grounds for holding Ms. Blaekwell in contempt simply for attending meetings
with the new Secretary and her staff
	Plaintiffs conclude their diatribe with a sweeping claim that Ms. Blackwell "has exhibited
a long-standing and comprehensive practice of expending great effort in keeping highly relevant
evidence from this Court and plaintiffs." Plaintiffs' BOP at 49. Characteristically, plaintiffs'
charges are backed up by, at most, the thinnest of evidence. Plaintiffs offer only two examples of
this supposedly "long-standing and comprehensive practice", the first of which is the e-mail
backup tape issue, which plaintiffs not only exaggerate, but also purposefully mischaracterize.
Despite plaintiffs' insistence on referring to the backup tape overwriting as "destruction of e-
mails", in none of the numerous motions they have filed seeking contempt on this issue have they
	'7plaintiffs' accusations that Secretary Norton conducted no research before adopting a
modified version of the Babbitt policy decision apparently are based on conclusions made by the
Court Monitor (Plaintiffs' BOP at 47). Ms. Wooldridge, however, refuted those conclusions in
interviews with Interior's Office of Inspector General. QIG Report at 28-31. The 010 Report
was filed with on the record in this action on August 5, 2002. Although the statements reported by
the OIG are not sworn testimony, the Court can and should take judicial notice of the 010 Report
since it addresses many of the matters plaintiffs condemn in their BOP. E.g., Glaxo Inc. v.
Novopharm Ltd., 931 F. Supp. 1280, 1295 & n.16 (E.D.N.C. 1996) (taking judicial notice of a
discovery deposition of an expert witness after the expert had testified at trial). Moreover, the
plaintiffs have cited the OIG Report as supplemental authority for another of their contempt
motions. See Plaintiffs' Notice of Supplemental Authority in Support of "Bill of Particulars" for
Edward B. Cohen in Support of Plaintiffs' Motion for Order to Show Cause Why Interior
Defendants, and Their Counsel, Should Not Be Held in Criminal Contempt for Destroying E-Mail
and Supplemental Memorandum of Points and Authorities in Support of Criminal Contempt (July
22, 2002 (filed Aug. 13 or 14, 2002).
-26-
<< COB0000027 >>
offered proof that Ms. Blackwell destroyed e-mail correspondence or failed to substantially meet
Interior's obligation to produce e-mail correspondence responsive to plaintiffs' discovery
requests. See Govt Opp. to 3/20/02 Motion; Govt's Response to Plaintiffs' Bill of Particulars and
Supplemental Memorandum in Support of Plaintiffs' Motion for an Order to Show Cause Why
Edith Blackwell Should Not Be Held in Contempt in Connection with the Overwriting of
BackupTapes (filed Aug. 12, 2002). Likewise, plaintiffs have never proven that they suffered any
actual harm as a result of receiving e-mail correspondence that was produced from paper records
as opposed to being derived from data on backup tapes.18
	Plaintiffs' second "particular" in support of this supposed "long-standing and
comprehensive practice" attacks Ms. Blackwell simply for agreeing with a colleague that the
proper manner for the Special Trustee to express criticisms of Quarterly Reports is by separate
letter. As the government has noted in Defendants' Memorandum of Points and Authorities in
Support of Motion for Protective Order and to Quash Deposition Subpoenas (filed Aug. 21, 2002)
at 9-10, the Executive is entitled to speak with a single voice. Mr. Slonaker certainly was entitled
to his opinions, but the Secretary was entitled to file a report that reflected her own reasoned
viewpoints, and she was not required to report on all the varying viewpoints that were raised but
rejected in the course of the deliberative process undertaken in preparing the report. In any event,
plaintiffs point to no Court order requiring her to do the contrary, and so there is no basis for
contempt.
	'8Plaintiffs apparently also seek to hold Ms. Blackwell in contempt for not writing c-mails
at all. This Court has entered no order requiring Ms. Blackwell or anyone else to communicate by
e-mail.
-27-
<< COB0000028 >>
4.	Even If Plaintiffs Could Show a Violation of a "Clear and
Reasonably Specific" Order, Imposing Civil Contempt Sanctions
Upon Ms. Blackweli Based on Plaintiffs BOP Would Be
Inappropriate Because She Could Not Comply with Such an
Order, Nor Have Plaintiffs Suffered any Damages from the
Alleged Misconduct.
	For the reasons cited in Section A above, sovereign immunity precludes the imposition of
criminal sanctions on Ms. Blackwell in her official capacity. Civil contempt sanctions are used
either to obtain compliance with a court order or to compensate for damages sustained as a result
of noncompliance. Food Lion, Inc. 103 F.3d 1016. Coercive contempt sanctions are intended to
force the offending party to comply with the court's order. Coleman v. Espy, 986 F.2d 1184, 1190
(8th Cir.). cert. denied sub nom. Dye v. Espy, 510 U.S. 913 (1993). Compensatory contempt
sanctions compensate the plaintiff for damages that the offending party has caused by its contempt.
Id. Plaintiffs do not say in their BOP whether they seek coercive or compensatory sanctions
against Ms. Blackwell. In any event, neither form of sanctions is appropriate.
	Plainly, coercive sanctions could not force Ms. Blackwell to "undo" recommendations and
comments that she made or advice that she gave many months or even years ago. Plaintiffs fail to
specif~y what corrective action they believe Ms. Blackwell can take. Ms. Blackwell has been
recused from working on the case since last year and therefore has no ability to implement any
corrective action, even assuming there could be some type of corrective action. The remedial
purpose of a contempt order cannot be served where, as here, the allegedly violative act cannot be
corrected. See In re Sealed Case, 250 F.3d 764, 770 (D.C. Cir. 2001) ("Because the Government
could not undo the July 18 disclosure [of grand jury material], holding the Government in civil
contempt would serve no useful purpose. ..
-28-
<< COB0000029 >>
	Because of sovereign immunity, neither criminal nor civil fines are available against Ms.
Blackwell in her official capacity.'9 As is discussed at length in our Govt. Opp. to 3/20/02 Motion
at 13-16, the doctrine of sovereign immunity bars the imposition of fines, penalties or monetary
damages against the government, except to the extent that the United States has explicitly consented
to such sanctions. Plaintiffs have not specified any compensatory damages they claim to have
suffered as a result of Ms. Blaclcwell's alleged non-compliance with the declaratory judgment. To
the extent that plaintiffs are seeking money damages other than attorneys' fees and costs, their
claims are barred because the United States has not waived its immunity to the imposition of
compensatory monetary damages based on contempt. Coleman v. Espy, 986 F.2d at 1191; United
States v. Horn, 29 F.3d at 763; McBride v. ('oleman, 955 F.2d 571, 577-78 (8th Cir.), cert.
denied sub nom. McBride v. Madigan, 506 U.S. 819 (1992); Barry v. Bowen, 884 F.2d 442, 444
(9th Cir. 1989).
Conclusion
	Plaintiffs have now filed five show cause motions and "bills of particulars' against Ms.
Blackwell, and not one of them has set forth a colorable legal or factual basis for the Court to hold
her in contempt. These pleadings have been devoid of any merit and characterized by uncivil
invective. Since Ms. Blackwell has not been in a position for nearly a year to do anything that
plaintiffs could cite as a basis for contempt, the Court should restrain plaintiffs from filing any
further show cause motions or "bills of particulars" against her. To permit plaintiffs to continue
filing what are essentially no more than poison pen letters, to which Ms. Blackwell and the
	'9"As long as the government entity receives notice and an opportunity to respond, a suit
against a government employee in his official capacity is to be treated as a suit against the entity."
Coleman, 986 F.2d at 1189, citing Kentucky v. Graham, 473 U.S. 159 (1985). See also,
Wyoming v. United States, 279 F.3d 1214, 1225 (10th Cir. 2002), and cases cited therein.
-29-
<< COB0000030 >>
government must respond, would not only violate Ms. Blackwell's due process right to a clear
statement of the precise charges against her, but would also continue to cause an inexcusable waste
of Ms. Blackwell's resources, the government's resources and the Court's resources. Accordingly,
Plaintiffs' BOP should be dismissed along with the motions upon which it is purportedly based to
the extent they implicate Ms. Blackwell, and plaintiffs should be restrained from filing any further
show cause motions or "bills of particulars" against Ms. Blackwell in this case.
Respectfully submitted,
ROBERT D. McCALLUM, JR.
Assistant Attorney General
STUART E. SCHiTTER
Deputy Assistant Attorney General
J.	CHRISTOPHER KOHN
MICHAEL F. HERTZ
D.C Bar .261495
Senior Trial Counsel
D.C. BarNo. 425194
Tracy L. Hilnier
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:	September 4, 2002
-30-
<< COB0000031 >>
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ELOUISE PEPION COBELL, et al.,	)
)
		Plaintiffs,	)	Civil Action No. 96-C V-1285 (RCL)
			)
	v.		)
)
GALE A. NORTON, et al.,	)
)
	Defendants.	)
ORDER
Upon consideration of Plaintiffs' "Bill of Particulars" for Edith Blackwell in Support of
Motion for Order to Show Cause Why Interior Defendants, and Their Counsel, Should Not Be
Held in Civil and Criminal Contempt for Violating the December 21, 1999 Order to Conduct an
Accounting of Individual Indian Trust Funds, the Government's Opposition thereto, and the
entire record in this case, it is this ______ day of	,2002, hereby
ORDERED that Plaintiffs' "Bill of Particulars" be, and hereby is, DISMISSED; and it is
FURTHER ORDERED that Plaintiffs' Consolidated Reply Brief in Support of Motion to
Set a Trial Date for Phase II of this Action and Memorandum in Support of Motion for Order to
Show Cause Why Past and Present Interior Defendants and Their Employees and Counsel
Should Not Be Held in Contempt (filed Aug. 27, 2001), and Plaintiffs' Consolidated Motion to
Amend Their Motion to Reopen Trial One in this Action to Appoint a Receiver and
Memorandum of Points and Authorities in Support Thereof and 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 (filed
<< COB0000032 >>
Oct. 19, 2001) are DISMISSED as they relate to Edith Blackwell; and it is
	FURTHER ORDERED, that plaintiffs shall not file any additional "bills of particulars" or
motions seeking a finding of civil or criminal contempt against Edith Blackwell in this matter as
to any alleged action that occurred before March 15, 2002.
Honorable Royce C. Lamberth
United States District Judge
<< COB0000033 >>
cc:
Tracy Hilmer
Dodge Wells
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
Fax (202)616-3085
Sandra P. Spooner
John T. Stemplewicz
Cynthia L. Alexander
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 Brown, Esq.
1275 Pennsylvania Avenue, N.W., Ninth Floor
Washington, D.C. 20004
Fax (202) 318-2372
Keith Harper, Esq.
Native American Rights Fund
1712 N Street, N.W.
Washington, D.C. 20036-2976
Fax (202) 822-0068
Elliott Levitas, Esq.
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
Amy Berman Jackson
Trout & Richards
1100 Connecticut Avenue, N.W.
Suite 730
Washington, D.C. 20036
Fax:	(202)463-1925
<< COB0000034 >>
CERTIFICATE OF SERVICE
	I declare under penalty of perjury that, on September 4, 2002 I served the foregoing
Defendants' Opposition to "Bill of Particulars "for Edith Blackwell in Support of Motion for
Order to Show Cause Why Interior Defendants, and Their Counsel, Should Not Be Held in Civil
and Criminal Contempt for Violating the December 21, 1999 Order to Conduct an Accounting of
Individual Indian Trust Funds by first-class mail, postage prepaid, and by facsimile transmission,
pursuant to agreement, upon:
Keith Harper, Esq.	Dennis M Gingold, Esq.
Native American Rights Fund	Mark Kester Brown, Esq.
1712 N Street, N.W.	1275 Pennsylvania Avenue, N.W.
Washington, D.C. 2003 6-2976	Ninth Floor
Fax No.: (202) 822-0068	Washington, D.C. 20004
	Fax No.: (202) 318-2372
and by U.S. Mail only upon:
Elliott Levitas, Esq
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
Courtesy copies provided to:
Alan L. Balaran, Esq.
Special Master
1717 Pennsylvania Avenue, N.W.
12th Floor
Washington, D.C. 20006
Joseph S. Kieffer, III
Court Monitor
420 7zh Street, N.W.
Apartment 705
Washington, D.C. 20004
Amy Berman Jackson
Trout & Richards
1100 Connecticut Avenue, NW.
Suite 730
Washington, D.C. 20036
AK~  _____
'27
kevin P. Kingston