JN THE UNITED STATES DISTRICT COURT 201 SEP 1 6 AM la: 3 1 FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, al., @ CLERK 
) Plaintiffs, 
V. 
NANCY M. 
rl AY ER - W H ITT 1 H GT 0 N 
Case No. 1:96CV01285 
(Judge Lamberth) 
GALE A. NORTON, Secretary of the Interior, 
@ al., 
) 1 
) 
) 
) 
1 
) 
Defendants. 
) 
DEFENDANTS' MOTION TO STRIKE 
PLAINTIFFS' "COMMENTS," FILED AUGUST 27,2003 
With the filing of Plaintiffs' Comments on Interior Secretary Gale Norton's and Acting 
Assistant Secretary Aureen Martin's Willfd Violations of Preliminary Injunction ("Comments'') 
on August 27,2003, Plaintiffs' counsel have sunk to a new low in acrimony and incivility. The 
Court should not tolerate, nor should it expect any litigant to tolerate, Plaintiffs' counsel's use of 
such invective. Moreover, Plaintiffs' Comments contain numcrous statements that are 
demonstrably false. Defendants therefore move pursuant to Federal Rule of Civil Procedure 
I2(f) to strike Plaintiffs' Comments.' 
The Court Should Strike Plaintiffs' Comments. 
Defendants will not repeat line-by-line Plaintiffs' offensive language, occurring on 
virtually every page, as doing so would merely serve to repeat the libels. It is difficult to imagine 
more libelous statements regarding Secretary Norton and other senior government officials. 
' Counsel for Defendants has consulted with counsel for Plaintiffs, who opposes this 
motion. 
- 1 - Although courts are generally reluctant to grant motions to strike, see Order, March 3,2003 
(denying Defendants' Motion to Strike); Order, June 4,2003 (denying Defendants' Motion to 
Strike); Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distribs. Prop. Ltd., 647 F.2d 200, 
201 (D.C. Cir. 1981) (per curiam), this is not an instance of a motion to strike being a "time 
Order, March 3, 2003 (denying Defendants' Motion to Strike) (quoting 5A waster." 
CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE 5 1382 (2d 
ed. 1990)). Rather than committing the "objectionable sin of frivolity," see Order, March 3,2003 
(quoting United States v. Propertv Identified as Lot Numbered 718, 983 F. Supp. 9, 13 (D.D.C. 
1997)), this motion to strike appropriately asks the Court to stop Plaintiffs' counsel's scumIous 
generally Johnson name-calling. As such, it is a motion that should be summarily granted. 
v. McDow, 236 B.R. 5 10, 523 (D.D.C. 1999) (striking "scandalous and highly insulting 
allegations . . . ."); Alexander v. FBI, 186 F.R.D. 21, 53 (D.D.C. 1998) (finding "no evidence to 
support the claim made by plaintiffs" and therefore striking it from the record ); Piaford v. 
Veneman, 21 5 F.R.D. 2, 4-5 (D.D.C. 2003) (striking unsubstantiated allegations against 
government counsel); see also Stabilisiemngsfonds, 647 F.2d at 201 n. 1 (quoting 5 C. WRIGHT & 
A. MILLER, supra, 9 1382, at 827 ( I 969)) ("[Dlisfavored character [of motions to strike] is 
relaxed 'in the context of scandalous allegations and matter of this type often will be stricken 
from the pleadings in order to purge the court's files and protect the subject of the allegations."'). 
A. Plaintiffs' Counsel's Comments Violate All Rules of Civility. 
Plaintiffs' counsel's outrageous comments violate even the most relaxed interpretation of 
appropriate standards of attorney civility. In Alexander v. FBI, Nos. CIV. 96-2123, C N . 97- 
- 2 - 1288, 1999 WL 314170 (D.D.C. 1999), the Court ordered counsel to read the "D.C. Bar 
Voluntary Standards for Civility in Professional Conduct" where the conduct at issue was 
anticipated in the future and expected to be uncivil so as to require a motion for sanctions. The 
Court even appended a copy of those standards to its opinion. Id. at "2-7. The Preamble of those 
standards reads, in part: 
While lawyers have an obligation to represent clients zealously, we must also be 
mindfuI of our obligations to the administration ofjustice. Incivility to . . . 
adverse parties . . . undermines the administration of justice, and diminishes 
respect for both the legal process and the results of our system of justice. . . . 
Uncivil conduct of lawyers . . . impedes the fundamental goal of resolving 
disputes rationally, peacefuIIy and efficiently. Such conduct may delay or deny 
justice and diminish the respect for law, which is a cornerstone of our society and 
our profession. 
- Id. at *2. Under "Principles of General Applicability," the standards state in part: "[Wle will 
treat all participants . . . including . . . parties, . . . in a civil, professional, and courteous manner, 
at all times and in all communications, whether oral or written. . . . We will treat all participants 
in the legal process with respect." Id. at "3. The "Principles of General Applicability" also state: 
Except within the bounds of fair argument in pleadings or in formal proceedings, 
we will not reflect in our conduct, attitude, or demeanor our clients' ill feelings . . . 
toward other participants in the legal process. . . . 
Except within the bounds of fair argument in pleadings or in formal proceedings, 
we will abstain from disparaging personal remarks or acrimony toward such 
participants and treat adverse witnesses and parties with fair consideration. 
Here, the offensive conduct is not merely anticipated; rather, it has become a standard 
practice by Plaintiffs' counsel. Plaintiffs' Comments show an acute disregard for the civility 
- 3 - standards. There can be no justification for directing language of this nature to any litigant or 
counsel, let alone to a member of the President’s cabinet. Plaintiffs’ conduct demeans the 
litigants, the Bar, and indeed even the Court itself. It is time for the Court to direct Plaintiffs’ 
counsel to adhere to basic standards of decency and civility.2 
B. Plain tiffs Disingenuously Criticize Interior Defendants For A Statement 
Taken Out of Context. 
Plaintiffs accuse Interior Defendants of falsely asserting that “there are no allotted lands 
within the external boundaries of the Navajo Reservation.” Comments at 2 (quoting Office of 
Surface Mining Reclaniation and Enforcement Preliminary Injunction Justification (“OSM 
Submission”) at 12 n.8 (Aug. 11, 2003)) (emphasis omitted). Plaintiffs claim this is false based 
on an unrelated report of the Special Master refemng to “ROW’S [rights of way] running across 
Navajo allotted lands.” Comments at 2 (quoting Site Visit Report of the Special Master to the 
Office of Appraisal Services in Gallup, New Mexico and the Bureau of Indian Affairs Navajo 
Realty Office in Window Rock, Arizona (Aug. 20, 2003)) (emphasis omitted). 
Plaintiffs are trying to create confusion and the appearance of inconsistency where none 
exists by taking a sentence in a footnote out of context. The footnote at issue - footnote 8 in the 
OSM Submission3 - is appended to the following text, in which the discussion is clearly limited 
Defendants recognize that these civility standards are “voluntary and are not 
intended . . . to be used as a basis for litigation or sanctions . . . . I’ Alexander v. FBI, Nos. CIV. 
96-2123, CIV. 97-1288, 1999 WL 314170, at “2 (D.D.C. May 17, 1999). Nonetheless, “these 
standards provide useful and appropriate guidance to lawyers when questions are raised about 
professional conduct.” Id. at * I . 
Footnote 8 of the OSM Submission states, in its entirety: 
(continued ...) 
- 4 - to the absence of allotments in permit areas or areas in which mining and reclamation 
operations were conducted under the jurisdiction of OSM 
'(...continued) 
OSM, through numerous telephone inquiries, confirmed with The Bureau 
of Indian Affairs ("BIA") Navajo Regional Office, Realty Services, the ownership 
information as it relates to the Navajo Nation. The BlA office stated that there are 
no allotted lands within the external boundaries of the Navajo Reservation. 
OSM, through a telephone inquiry, confirmed with The BIA Western 
Regional Office that there were no allotments in those parts of the Black Mesa 
and Kayenta Mines permit area (and leases) that are in the Hopi Reservation. 
OSM, through a telephone inquiry, confirmed with the BIA Albuquerque 
Regional Office that the permit area for the La Plata Haulroad, which passes 
through the Ute Mountain Ute Reservation in northern New Mexico, does not 
include any individual Indian allotments, and the permit area for the underground 
coal mining operation at the King Mine in southwestern Colorado did not include 
any individual Indian allotments (the only Ute Mountain allotments were 
northwest of the Ute Mountain Ute Reservation in Utah). 
OSM, through a telephone conversation with the BIA Division of Energy 
and Minerals (Denver, CO), was informed that there is an individual Indian 
surface allotment within the Crow Tribe coal lease for the Absaloka Mine. OSM 
has no information in its records that identifies any allotment in the permit area 
or the lease area for the Absaloka Mine. However, OSM, in a telephone inquiry 
with the mine operator, determined that the allotment could not be within the 
permit area of the Absaloka Mine because the entire surface within the permit 
area is owned by the operator and all coal is owned either by the Crow Tribe or 
the State of Montana and leased by them to the operator. Based on BIA's 
description of the location of the allotment, OSM believes it is on the northern 
edge of the Crow Tribe coal lease more than two miles north of the permit area 
of the Absaloka Mine, and corresponds to an area designated on OSM's copy of 
the Absaloka permit application surface ownership map as "Indian." 
OSM Submittsion at 12 n.8 (emphasis added). The sentence Plaintiffs picked out of this footnote 
is the last sentence in the first paragraph. 
- 5 - OSM’s review of the surface and coal ownership 
information, when responding to Plaintiffs’ Request for Production 
of Documents Number 7, contained no indication that any of the 
eleven Indian lands operations directly regulated by OSM included 
individual Indian allotments within the permit area or within the 
area where coal mining and reclamation operations were conducted 
under the jurisdiction of OSM. OSM verified these results in 
numerous inquiries to relevant BIA offices. 
OSM Submission at 1 1 - 12. 
While the statement that “there are no allotted lands within the external boundaries of the 
Navajo Reservation” is inaccurate if read in isolation, it is not misleading because it did not 
appear in isolation and cannot be so read. Both the text of the OSM Submission quoted above 
and the accompanying footnote 8 are plainly addressing the absence of allotments in permit 
OSM Submission at 12 n.8 (stating that OSM determined, through telephone areas. 
inquiries, that “there were no allotments in those parts of the Black Mesa and Kayenta Mines 
permit areas (and leases) that are in the Hopi Reservation;” “the permit area for the La Plata 
Haulroad . . . does not include any individual Indian allotments;” “the permit area for the 
underground coal mining area at the King Mine . . . did not include any individual Indian 
allotments;” “OSM has no information in its records that identifies any allotment in the permit 
area or the lease area for the Absaloka Mine”). 
Plaintiffs’ disingenuousness is apparent in light of an earlier filing in which they plainly 
understood a similar statement by OSM - that BTA “stated that there are no allotted lands within 
the Navajo Reservation” - to refer in context to permit areas. See Plaintiffs’ Reply re Motion to 
Compel Production of Documents re Plaintiffs’ Seventh Formal Request for Production of 
Documents and Request for Sanctions and Affidavit of Mark Kester Brown in Support Thereof at 
- 6 - 12 & 11.16 (May 30,2002). Indeed, in that filing, Plaintiffs cited the OSM statement as an alleged 
example of "defendants put[ting] great store in various contexts in stating that there are no 
individual Indian interests 'within the permit area' - but never statling] definitively that 
individual Indian interests (and individual trust data) can exist on OSM computers only within 
the permit area." Id. at 12. 
C. 
them. 
Plaintiffs' Comments Contain Demonstrable Falsehoods. 
In addition to Plaintiffs' utter failure to comport with even minimal standards of civility 
and decency, and their willingness to take a statement out of context, their Comments are replete 
with statements that are demonstrably false. Plaintiffs complain that "Norton and Martin have 
proffered no competent evidence that systems that house or access Trust Data have been 
disconnected and provide no justification - specific or otherwise - for these material omissions." 
Comments at 3 n.4 (Plaintiffs' original emphasis). But Plaintiffs ignore the fact that no systems 
that house or access trust data have been disconnected precisely because these systems are 
secure. Therefore, it was unnecessary for Interior to present evidence that it had disconnected 
They also concoct an argument that Associate Deputy Secretary Cason somehow 
"declares that this matter [the injunction] is outside the jurisdiction of this Court . . . [and that] 
this Court has no authority to do anything and must sit heIplessly while Trust Data is destroyed 
and trust funds are misappropriated . . . . " - Id. at 8.* Plaintiffs also argue that Mr. Cason's 
Plaintiffs quote the following language from Mr. Cason's declaration to support this 
argument: 
(continued.. .) 
- 7 - declaration claims Chevron deference. It does nothing of the sort, nor does it claim that the 
Court lacks jurisdiction in this matter. Rather, Mr. Cason's declaration is consistent with the 
2001 decision of the Court of Appeals: "Despite the imposition of fiduciary duties, federal 
officials retain a substantial amount of discretion to order their priorities." Cobell v. Norton, 240 
F.3d 1081, 1099 (D.C. Cir. 2001). 
Plaintiffs next state, in the context of the submission of the National Business Center 
("NBC"): "Perhaps it might occur to Norton and Martin that the segregation of Trust Data is 
essential to ensure its integrity." Id. at 9 n. 17 (referencing Preliminary Injunction Justification, 
National Business Center, Aug. 1 1 , 2003 at 1) ("NBC Submission"). Plaintiffs obviously have 
not read the NBC Submission which describes the process of placing Individual Indian Trust 
Data ("IITD") "systems in isolated server environments; restricting access to isolated network 
segments; configuring routers, switches, and firewalls to isolate IITD from the Internet; 
restricting internal support access to specific identified workstations; and implementation of a 
variety of monitoring and protection systems . . . .'I NBC Submission at 2-3. 
Plaintiffs also state, with no evidentiary support whatsoever, that NBC "functions as the 
hub of the Department of the Interior, accessible by every single Interior bureau and agency as 
8(...continued) 
[Tlhe decision whether or not to connect an IT system to the Internet should be 
made by heads of agencies or businesses in the exercise of their sound 
discretion . . . [who] must consider the benefits and advantages to the agency or 
office and to the public in being connected to the Internet, as well as the risks of 
harm that could result from unauthorized access. 
Comments at 8 (quoting Declaration of James E. Cason, Associate Deputy Secretary, Supporting 
Continued Connection to the Internet of the Department's Reconnected Systems, Aug. 11, 2003). 
- 8 - well as over 100 non-Departmental organizations. All Trust Data is potentially accessible to 
Norton, her employees, agents, contractors and over 100 other organizations external to Interior." 
Comments at 15. This is not so, as even a cursory review of the NBC Submission demonstrates. 
- See NBC Submission at 14-15 (stating that the Land Records Information System ("LRIS") is not 
accessible from the Internet); id. at 15 (stating that the National Indian Irrigation Management 
System ("NIIMS") is not accessible from the Internet and is on an isolated network segment); id. 
at 17 (describing a private virtual local area network ("PVLAN") for IITD users); &. at 23 
(stating that Denver NI3C isolated the three IITD applications in a separate logical partition with 
no Internet access and the personal computers containing IITD were likewise isolated with no 
Internet access); id. at 25 (stating that at NBC Washington, three servers containing IITD were 
isolated through a variety of security measures including multiple firewalls, filters, access control 
restrictions, and physical security measures); id. at 45-48 (describing how NBC IITD is isolated 
from other parts of Interior's system). In addition, NBC's independent assessment, which 
Plaintiffs claim is concealed, Comments at 15-16, is actually described at pages 39-40 of its 
submission. Id. at 39-40. 
In their Comments, Plaintiffs quote from the NBC Submission: "The WAN Risk 
Assessment report identified three findings that were perceived to affect the Approval to Operate 
decision," Comments at 16 11.29 (quoting NBC Submission at 39-40) (Plaintiffs' original 
emphasis), and allege that "[tlhese findings were not disclosed to the Court or plaintiffs and there 
is no competent evidence that these, or other, weaknesses have been corrected . . . ." - Id. 
Plaintiffs, however, misleadingly fail to complete the quote: 
- 9 - Two of those findings were immediately fixed and the third resulted in a 
recommendation to provide formal training for IT personnel in the configuration 
and management of new equipment prior to installation. That recommendation 
was added to the NBC Plan of Actions and Milestones (POA&M) process for 
resolution and tracking. Based on the results of this assessment, management 
granted the Interim Approval to Operate on May 30,2003. 
NBC Submission at 40. 
Plaintiffs' Comments also state: "Importantly, Norton represents that such reporting [of 
oil and gas company data to the Minerals Management Service ("MMS")] is secured by MMS's 
contractor, Inovis. However, no evidence has been presented, competent or otherwise, to support 
a conclusion that there is any - let alone adequate - security covering oil and gas companies' 
access to Trust Data." Comments at 17. Plaintiffs further assert that "[nleither Inovis [MMS IT 
security contractor], nor Norton, nor any other person has attested that Trust Data, in fact, is 
properly secured from unlawful manipulation or accidental (or deliberate) deletion by third party 
oil companies." Id. Plaintiffs have obviously missed the wealth of evidence presented in the 
Minerals Management Service Preliminary Injunction Justification, Aug. 1 1,2002 ("MMS 
Submission"). For example, the MMS Submission states that "strict data center access 
restrictions" are in place; that application logon and passwords are required of users; that 
documents are associated with the user that submitted them; that passwords are encrypted when 
stored and transmitted; that three failed attempts at entry locks the user out; that only registered 
MMS reporting companies are allowed access; that only MMS reporting company data is on the 
system and reporting companies can only access their own documents; that reporting companies 
cannot modify documents once submitted; and that audit trails provide a traceable record of user 
- 10- actions. at 60-65. All these facts support the conclusion that the data are adequately 
safeguarded. 
Plaintiffs' Comments misleadingly state: "As recently as March 27, 2003, the Master's 
information technology contractor discovered that certain Bureau of Land Management ('BLM'') 
information technology systems were vulnerable to attack from the Internet." Comments at I 8. 
Plaintiffs fail to disclose, though, that "[nlone of these servers contained ITTD and no additional 
access or damage was able to be perpetrated by using these servers to launch additional exploits." 
Preliminary Injunction Justification, Bureau of Land Management, Aug. 1 1 , 2003 ("BLM 
Submission") at 25. Plaintiffs also fail to note BLM's statements that it changed the passwords 
and that previously vulnerable servers were moved to a more secure location. Id. BLM also 
"conducts self-scanning on a monthly basis to ensure that the network remains secure." Id. at 48. 
This involves use of a "Top Twenty" list of "security vulnerabilities provided by the Federal 
Bureau of Investigation." Id. 
Finally, Plaintiffs baldly assert that "NBC forms IT backbone [sic] for each agency and 
bureau within Interior and therefore facilitates unmonitored - and in many cases unrestricted - 
access to Trust Data housed in each such linked agency and bureau." Comments at 22. This is 
simply not so. Along with not serving as the "backbone" for the rest of Interior, even a cursory 
reading of NBC's submission reveals that the IITD segments are isolated and access is restricted. 
In fact, the diagrams at the end of NBC's submission make clear that the trust systems are 
segregated behind the "trust boundary" or in a "trust zone." See NBC Submission at figs. 4,7. 
- 11 - Plaintiffs' Comments in their entirety. 
Dated: September 16, 2003 
Conclusion 
Plaintiffs' Comments demonstrate an utter lack of decency and civility and a cavalier 
disregard for factual accuracy. The Court should not entertain such conduct and should strike 
Respectfully submitted, 
ROBERT D. McCALLUM, JR. 
Associate Attorney General 
PETER D. KEISLER 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
SANDRA P. SPOONER 
D.C. Bar No. 261495 
Deputy Director 
JOHN T. STEMPLEWICZ 
Senior Trial Attorney 
JOHN J. SIEMIETKOWSKI 
GLENN D. GILLETT 
Trial Attorneys 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D. C. 2 0044-0 8 75 
(202) 5 14-3368 
(202) 5 14-9 163 (fax) 
- 12- TN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, al., gJ 
Plaintiffs, 
V. 
1 
1 
1 
) 
) 
1 
Case No. I :96CV01285 
(Judge Lamberth) 
GALE A. NORTON, Secretary of the Interior, 1 
) - et -7 al. 
Defendants. 
) 
1 
Dated: 
ORDER 
This matter comes before the Court on Defendaizts'hlotioiz to Strike Plaint$@' 
"Comments, " Filed August 27, 2003. Upon consideration of Defendants' motion, any responses 
thereto, and the entire record of this case, it is hereby 
ORDERED that the Motion is GRANTED. 
Royce C. Lamberth 
United States District Judge cc: 
Sandra P. Spooner 
John T. Stemplewicz 
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. 
607 - 14th Street, NW 
Box 6 
Washington, D.C. 20005 
Fax (202) 3 18-2372 
Keith Harper, Esq. 
Native American Rights Fund 
1712 N Street, NW 
Washington, D.C. 20036-2976 
Fax (202) 822-0068 
Elliott Levitas, Esq. 
1 100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 5941 7 
(406) 338-7530 CERTIFICATE OF SERVICE 
I declare under penalty of perjury that, on September 16, 2003 I served the foregoing 
Defendants Motion to Strike Plainti#.i “Comments, “ Filed August 27, 2003 by facsimile in 
accordance with their written request of October 3 1,2001 upon: 
Keith Harper, Esq. 
Native American Rights Fund 
1712 N Street, N.W. 
Washington, D.C. 20036-2976 
(202) 822-0068 
Per the Court’s Order of April 17,2003, 
by facsimile and by US. Mail upon: 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
(406) 338-7530 
Dennis M Gingold, Esq. 
Mark Kester Brown, Esq. 
607 - 14th Street, NW, Box 6 
Washington, D.C. 20005 
(202) 3 18-2372 
By U.S. Mail upon: 
Elliott Levitas, Esq 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
Kevin P. Kjngston df-&p-