IN THE UNITED STATES DISTRICT COURT $:? 24 Pfl 3: 16 FOR THE DISTRICT OF COLUMBIA 
Ci..Efi 5 
ELOUISE PEPION COBELL, al., 
Plaintiffs, 
V. 
E[{ - w ii i -T T i K r; T C W 
r b v K Y M. 
Case No. 1 :96CV01285 
(Judge Lamberth) 
) 
) 
1 
) 
1 
) 
GALE A. NORTON, Secretary of the Interior, gt al.,) 
) 
1 Defendants. 
INTERIOR DEFENDANTS’ MOTION FOR AN ORDER 
DIRECTING THE SPECIAL MASTER TO CONFORM HIS 
CONDUCT TO LIMITS STATED BY THE COURT OF APPEALS; 
TO VACATE OR CLARIFY EXISTING ORDERS AS APPROPRIATE; 
AND TO ACT ON THIS MOTION ON AN EXPEDITED BASIS 
Pursuant to Federal Rule of Civil Procedure 7(b) and Local Rule 7.1, Interior Defendants move 
for an order directing the Special Master to conform his conduct to the limits stated by the Court of 
Appeals in Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003). To the extent that the Special Master 
has construed prior orders of this Court to authorize conduct outside these limits, we ask that they be 
vacated or clarified. We further request expedited consideration of this motion. We have conferred 
with plaintiffs’ counsel, who stated that plaintiffs will oppose this motion. 
INTRODUCTION 
In its decision of July 18, 2003, the Court of Appeals clarified the limits on the role of a Special 
Master in this litigation. 334 F.3d 1128 (D.C. Cir. 2003). As the court explained, a master is not a 
“roving federal district court, ” id. at 1143, empowered to initiate inquiries into matters that he perceives 
to be of concern, assemble evidence outside the structure of adversary litigation, and prcsent findings and conclusions of law arrived at by procedures unknown to our judicial system. 
Neither before nor after the decision has Special Master Balardn respected these limits on a 
special inaster's authority. In an "Interim Report" issued April 2 1, 2003,' the Special Master produced 
findings and conclusions based almost exclusively on ex parte evidence, and consulted and even 
employed a complaining witness and former officer of a financially interested corporation that has 
attempted to intervene as a party in this litigation. In his oversight of certain IT security matters, the 
Master took the position that he could perform penetration testing of government computer systems 
(h, "hacking") without the government's consent.2 
His "Appraisal Report" of August 20, 20033 exemplifies the Special Master's continuing 
determination to assume an "investigative, quasi-inquisitorial, quasi-prosecutorial role that is unknown to 
our adversarial legal system," 334 F.3d at 1342, even afler the D.C. Circuit's decision. In that report, 
the Special Master, on his own initiative, examined a claimed disparity between rates earned by 
allottees on rights of way (ROWs) over their property, and those earned by tribes and private parties. 
The Special Master concluded that "As a Result of the Secretary's Appointment of Incompetent 
Appraisers Individual Indian Beneficiaries Do Not Receive 'Fair Market Value' for ROWs Running 
I Interim Report of the Special Master Regarding the Filing of Interior's Eighth Quarterly 
Report (filed April 21,2003) ("NATD Report") (dkt. # 1999). 
Letter from Alan L. Balaran, Special Master, to John Warshawsky, Trial Attorney, 
Department of Justice (November 22, 2002) (Exhibit 1); Letter from John Warshawsky, Trial 
Attorney, Department of Justice, to Alan L. Balaran, Special Master (November 13, 2003) (Exhibit 2). 
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) ("Appraisal Report") (dkt. #2219). 
2 Across Their Land." Appraisal Report at 36. He made a finding that "the Secretary and her delegates 
have abrogated [their] responsibilities" to ensure "that the appraisal process is conducted in a manner 
both competent and beyond professional reproach." Id. at 38. He based these conclusions on 
documents and interviews that were not in the record, without giving the parties an opportunity to 
produce evidence or present arguments in response to his findings or conclusions. See id. at 7-39. 
Instead, as he has done with previous reports, the Master released the Appraisal Report at once, 
thereby producing predictable stigmatizing press coverage. 
We have filed our objections to the Appraisal Report and do not repeat them here. The 
Master's conduct of the NAID investigation and IT security matters are also the subjects of separate 
pleadings. 
This motion, by contrast, asks the Court to clarify immediately that the Special Master must 
conform his conduct to the limits outlined by the Court of Appeals. As discussed below, the type of 
activity in which the Master is engaging is not authorized by this Court's prior orders. To the extent that 
the orders can be construed to permit such conduct, they should be vacated or clarified. 
Even if there were no question as to the Special Master's fitness to serve as a judicial officer in 
this case, the relief requested here would be essential. As the Court is aware, however, Interior 
Defendants on May 29, 2003 moved to disqualify Special Master Balaran. No special master in this 
case may assume the role that this special master has undertaken. That an improper role is being 
performed by an individual whose actions disqualify him from serving as a judicial officer in this case 
underscores the urgency of this motion and the need for expedition. It should be stressed, however, 
that this motion is independent of the motion to disqualify Mr. Balardn. The relief requested here would 
3 be equally applicable to any other individual appointed as a special master in this case. 
Cobell v. 
BACKGROUND 
This Court initially authorized the Special Master to oversee the discovery process. Order of 
February 24, 1999. Subsequently, the Court conferred four other grants of authority. The Special 
Master's interpretation and conduct of these grants have created concerns of the most serious kind. 
On December 1 7, 200 1, this Court entered its Consent Order Regarding Information 
Technology Security ("IT Security Order"). The IT Security Order directed the Special Master to 
review certain plans and conduct certain inquiries with regard to security of individual Indian trust data 
in computer systems. The Special Master moved well beyond the grant of authority contemplated in 
that order, however, and insisted that he was entitled to conduct penetration testing of government 
computer systems without prior consultation.' This Court has stayed the IT Security Order. 
Preliminary Injunction at 5 (July 28, 2003). 
On September 17,2002, the Court referred to the Special Master, for reports and 
recommendations, two of plaintiffs' motions seeking to hold "37 non-party individuals" in contempt and 
to hold Interior Defendants and their counsel in contempt for allegedly destroying e-mail. 
Norton, 226 F. Supp. 2d 1 , 162-63 (D.D.C. 2002). Petitions to recuse the Special Master are 
currently pending before the Court of Appeals.' 
Letter from Alan L. Balaran, Special Master, to John Warshawsky, Trial Attorney, 
Department of Justice (November 22, 2002) (Exhibit 1); Letter from John Warshawsky, Trial 
Attorney, Department of Justice, to Alan L. Balaran, Special Master (November 13,2003) (Exhibit 2). 
Objections concerning the contempt proceedings have been briefed separately from this 
motion by the government and the named individuals. 
4 On November 5,2002, the Court directed the Special Master to investigate allegations by 
NAID that Interior concealed certain information from the Court. The Special Master's extraordinary 
conduct in that investigation is the subject of our pending disqualification motion. 
On August 12, 1999, the Court, with Defendants' consent, entered orders that authorized the 
Special Master to oversee Defendants' "retention and protection from destruction of IIM records 
through, among other things, on-site visits to any Iocation where IIM Records are maintained." Order 
Regarding Interior Department IIM Records Retention (dkt. no. 370) at 2 (Aug. 12, 1999); Order 
Regarding Treasury Department IIM Records Retention (dkt. no. 369) at 2 (Aug. 12, 1999) 
(collectively "Document Preservation Orders"). 
These orders responded to a report issued June 7, 1999, in which the Special Master asserted 
inadequacies in Defendants' physical preservation of records regarding individual Indian trust matters.6 
The Document Preservation Orders, entered as docket numbers 369 and 370, each state: 
Alan L. Balaran, Special Master ("Special Master"), is hereby 
authorized to oversee the [Interior or Treasury] Department's retention 
and protection from destruction of IIM Records through, among other 
things, on-site visits to any location where IIM Records are maintained. 
In his June 7, 1999 Report, the Special Master set forth his observations from site visits to 
IIM record locations that he conducted during April 1999, and noted what he viewed as the 
"substandard" nature of "storage conditionst' at several sites based on conditions such as storage areas 
exposed to elements, open boxes, a lack of sprinkler systems, rodent infestation, and files labeled 
"ALLOTTED" designated for transport to a Federal Records Center. Id. at 8-9. The Special Master 
further noted "recent developments" of document shredding and the inadvertent overwrite of computer 
system backup tapes. Id. at 10. The Special Master concluded his report by recommending that 
"additional safeguards be implemented to insure that all relevant Indian trust documents are properly 
protected and retained." Id. at 19. The Special Master issued an additional report on August 5 , 2003, 
recommending adoption of proposed orders negotiated by the parties, the terms of which were 
adopted in the Court's Order of August 12, 1999 (dkt. # 368). 
5 In the event that the Special Master determines that IIM Records are 
not being protected from destruction or threatened destruction, he may 
recommend to the Department that it take reasonable steps to protect 
HM Records found to be in jeopardy of destruction. He may also 
recommend to the Court such remedial action as he deems appropriate 
pursuant to Rule 53, Federal Rules of Civil Procedure. 
Document Preservation Orders at 2. 
Following entry of the August 12, 1999 orders, the Special Master initially conducted site visits 
and issued reports and recommendations that were appropriately confined to his authority to oversee 
"retention and protection from destruction of IIM record^."^ Document Preservation Orders at 2. 
Thus, the Special Master's site visits and reports were initially consistent with the type of site visits and 
reports that were the subject of his June 7, 1777 Report, and with the types of activities authorized by 
the August 12, 1999 Document Preservation Orders. 
The Special Master's site visit of March 6, 2003, and the report that resulted, were of a 
decidedly different nature. On March 6, the Special Master conducted site visits at both the Office of 
Appraisal Services in Gallup, New Mexico, and the Bureau of Indian Affairs Navajo Realty Office in 
Window Rock, Arizona. In his report entered on August 20, 2003, the Special Master not only 
' - See s, Report Of The Special Master Regarding Site Visits To Area And Agency Offices 
(filed October 27, 1977) (addressing whether records were stored in a fireproof manner and were 
vulnerable to destruction, and concluding that the sites visited lacked the necessary resources for 
infrastructure and employee training to ensure adequate records retention) (dkt. # 385); Third Report 
of The Special Master Regarding Site Visits To Area And Agency Offices (filed Nov. 12, 1777) 
(noting the location of records, whether they were protected from fire, water, or other potential damage 
or destruction and recommending immediate intervention to physically protect records) (dkt. # 389); 
Fourth Site Visit Report Of The Special Master To Area And Agency Offices (filed Nov. 29,2000) 
(noting whether or not IIM records at various sites were vulnerable to destruction from fire or other 
disaster, climate controlled, awaiting transfer, or secured in a vault) (dkt. # 586). 
6 examined the alleged loss of appraisal records, but also purported to investigate and pass judgment on 
the appraisal practices for ROWs over the allotments of Indian beneficiaries. The Master offered 
extensive findings and conclusions, declaring that "AS a Result of the Secretary's Appointment of 
Incompetent Appraisers Individual Indian Beneficiaries Do Not Receive 'Fair Market Value' for ROWs 
Running Across Their Land." Appraisal Report at 36 (capitalization in original). The Master further 
concluded that the Secretary of the Interior had not acted in good faith and had "abrogated" her 
fiduciary duties in imposing an appraisal system that, he alleged, would not obtain full value for Indian 
land. Id. at 36-38. Immediately after making this purported finding, he noted that "even 'honest but 
imprudent' conduct is sufficient grounds for removing a fiduciary." Id. at 38 11.44. 
On June 5 , 2003, the Special Master also announced his intention to investigate the "leasing 
files" of the Minerals Management Service ("MMS"), and on July 3 1, 2003, he propounded document 
production requests concerning MMS audit files.' Interior Defendants informed the Special Master 
that they would comply fully with relevant Court Orders,' but raised concerns with the Special Master 
about the nature and scope of his new investigation as well as his authority to request certain documents 
under the August 12, 1999 Document Preservation Orders. lo 
Letter from Alan L. Balaran, Special Master, to Amalia D. Kessler, Trial Attorney, 
Department of Justice (June 5 , 2003) (Exhibit 3); Letter fi-om Alan L. Balaran, Special Master, to 
Amalia D. Kessler, Trial Attorney, Department of Justice (June 16,2003) (Exhibit 4); Letter from Alan 
L. Balaran, Special Master, to John Siemietkowski, Trial Attorney, Department of Justice (July 3 1, 
2003) (Exhibit 5). 
Letter from Sandra P. Spooner, Deputy Director, Department of Justice to Alan L. 
Balaran, Special Master (Aug. 22, 2003) (Exhibit 6). 
l o Letter from Amalia D. Kessler, Trial Attorney, Department of Justice, to Alan L. 
Balaran, Special Master (June 16,2003) (Exhibit 7); Letter from Timothy E. Curley, Trial Attorney, 
7 beyond" that limited task. Id., 
ARGUMENT 
The decision of the Court of Appeals in Cobell v. Norton, 334 F.3d 1128, outlined the 
boundaries for activities of court-appointed officials such as special masters. The court observed that, 
under certain circumstances, a district court may appoint a special master to "superintend[] compliance 
with [a] district court's decree," as long as the master is precluded from "consider[ing] matters that go 
334 F.3d at 1143 (quoting Ruiz v. Estelle, 679 F.2d 11 15, 1162 (5th 
Cir.), amended in part. reh'a denied in part on other mounds, 688 F.2d 266 (5th Cir. 1982)). The 
court explained that this limitation ensures that the special master would not be an "advocate" for the 
plaintiffs or a "roving federal district court." Td. (quoting m, 679 F.2d at 1162). The court stressed, 
however, that in this case, 'Ithere [is] no decree to enforce[.]" Cobell, 334 F.3d at 1143. 
The Court thus held that the appointment of Special Master-Monitor Kieffer "entailed a license 
to intrude into the internal affairs of the Department" that "simply is not permissible under our adversarial 
system of justice." Id. The Court noted that the Master-Monitor's "portfolio was truly extraordinary; 
instead of resolving disputes brought to him by the parties, he became something like a party himself." 
- Id. at 1 142. The Court explained that such conduct constituted "an investigative, quasi-inquisitorial, 
quasi-prosecutorial role that is unknown to our adversarial legal system," and that without consent of 
the parties, "the district court must confine itself (and its agents) to its accustomed judicial role." Id. 
Special Master Balaran, like the Special Master-Monitor, has assumed "an investigative, quasi- 
Department of Justice, to Alan L. Balaran, Special Master (Aug. 2 1, 2003) (Exhibit 8); Letter from 
Sandra P. Spooner, Deputy Director, Department of Justice to Alan L. Balaran, Special Master (Aug. 
22, 2003) (Exhibit 6); Letter from Sandra P. Spooner, Deputy Director, Department of Justice, to Alan 
L. Balaran, Special Master (Sep. 5 , 2003) (Exhibit 9). 
8 inquisitorial, quasi-prosecutorial role that is unknown to our adversarial legal system.” Id. It is thus the 
duty of this Court to confine its agents to the “accustomed judicial role.” Id. 
The Special Master’s interpretation and implementation of his several grants of authority have 
consistently demonstrated a disregard for the proper limits on his role. In investigating allegations 
brought to the Court’s attention by NAID, the Master relied on evidence procured “outside of normal 
channels,” NAID Report at 1 n. 1, and put NAID’s complaining witness and former vice president on 
his payroll. 
In his Appraisal Report, the Master, on his own initiative, engaged in extensive findings and 
conclusions regarding a host of issues regarding the conduct of appraisals. These include issues of 
policy, Appraisal Report at 25, 36, the legal standards and duties governing benefits due to allottees 
from leases, id. at 25,36, 39, whether appraisal systems and methodologies comply with statutory and 
regulatory obligations and standards, id. at 3 1, 36-37, whether Interior’s appraisers are “competent,” 
- id. at 36, and sufficiently “trained ... to negotiate with [Oil and Gas] companies,” id. at 35, whether IIM 
beneficiaries receive fair market value on leases, and whether interests on allotted lands are valued less 
than on tribal and private lands, & at 33. Moreover, echoing themes he has sounded before, the 
Master, based on his solitary perusal of evidence gathered without the benefit of an adversary process, 
felt qualified and authorized to announce the conclusion that the Secretary of the Interior had not acted 
in good faith and had “abrogated” her fiduciary responsibilities in imposing an appraisal system that, he 
alleges, would not obtain full value for Indian land, id. at 36-37. Indeed, the Master insinuated that the 
Secretary should be removed as a fiduciary. See id. at 38 n.44. 
This extraordinary intrusion into the operation of an executive branch department constitutes 
9 precisely the unprecedented role condemned by the Court of Appeals. The improper nature of the 
Master's report is compounded by the failure to provide the parties with the opportunity to address the 
evidence or reasoning of his Report. And the Master's action is made still more extraordinary by the 
fact that no claim of appraisal practices is even being litigated in this suit. The Special Master, "instead 
of resolving disputes brought to him by the parties [has become] something like a party himself." 334 
F.3d at 1142. 
Because of the manner in which the Special Master has assembled his evidence, it is unclear at 
this point whether the Special Master has again relied on evidence acquired "outside of normal channels 
and to which the parties may have no familiarity," as he admittedly did in his NAID Report. NAID 
Report at 1 n. 1. However, media reports released after the Appraisal Report indicate that, at some 
point, Mr. Balaran may have been contacted about an alleged appraisal issue by Kevin Gambrell, a 
former Interior employee and a purported whistle blower." It is in the nature of self-generated reports 
based on evidence assembled and judged by one individual that the precise nature of contacts and 
influences cannot readily be ascertained. Even if the Special Master did not again rely on ex parte 
evidence and communications, his actions plainly exceed the scope of any authority that a Master could 
properly exercise." 
- See s, Jerry Reynolds,"Navajo Allottees Short-Changed States Special Cobell Report," 
Indian Country Today (Aug. 2 1,2003) ("Balaran made investigative site visits to Gallup, N.M., and 
Window Rock, Ariz., following the 'whistle-blower' accusations of Kevin Gambrell[ .I") (Exhibit 10). 
The Master does not state in his Appraisal Report whether he had ex parte conversations with Mr. 
Gambrell and, if he did, what facts he became privy to. 
l 2 Nor has the Special Master conducted his activities in the transparent manner required by 
Rule 53. He has ignored requests by Interior Defendants that he disclose the names and professional 
affiliations of assistants who, as indicated by his own invoices, assist him in drafting his reports and 
10 The government has already filed its objections to the Appraisal Report. The issue here is not 
the proper treatment of that Report or the disposition of the motion to disqualify or the extent to which 
the Master overstepped his authority with regard to IT Security. The issue here is the need to cabin the 
Master’s authority to ensure compliance with the Court of Appeals’ ruling. Consistent with the Court 
of Appeals’ decision, it should be clarified that the Master is not enforcing a decree, that he may not 
continue to perform an “investigative, quasi-inquisitorial, quasi-prosecutorial role,” 334 F.3d at 1 142, 
and that evidence on any issue asserted to be germane to this lawsuit may be presented only by the 
parties to the Court as fully consistent with the adversary process. 
None of this Court’s previous orders authorizes the Special Master to assume his present role. 
But to the extent that any are construed to confer such authority, they must be revoked or clarified in 
light of the Special Master’s conduct and the decision of the Court of Appeals. As noted, this Court, 
with Interior Defendants’ consent, authorized the Master to engage in oversight of the Department of 
the Interior’s retention and protection from destruction of TIM Records. See Document Preservation 
Orders. Nothing in those Orders remotely suggests that the Master was authorized to pass judgment 
on appraisal procedures and the persons appointed to perform them. Nor did Defendants acquiesce 
to oversight that extended beyond site visits evaluating the physical conditions affecting document 
retention - the concern cited by the Special Master in the June 7, 1999 report that gave rise to the 
recommendations. See Letter from Tracy L. Hilmer, Trial Attorney, Department of Justice, to Alan L, 
Balaran, Special Master (June 6,2003) (Exhibit 11); Letter from Tracy L. Hilmer, Trial Attorney, 
Department of Justice, to Alan L, Balaran, Special Master (July 9, 2003) (Exhibit 12). The Special 
Master’s unwillingness to disclose such information is of particular concern in light of his conduct in 
failing to disclose his employment of Mike Smith for his NAID Investigation. 
11 Document Preservation Orders. Likewise, the general authority conferred by the Court's Order of 
February 24, 1999 to "oversee the discovery process in this case to ensure that discovery is conducted 
in the manner required by the Federal Rules of Civil Procedure'' and to "do all acts and take all 
measures necessary or proper for the efficient performance of the master's duties, as set forth in this 
order," Order at 2, plainly furnishes no authority for independent investigations into issues of the 
Master's choosing.13 
In short, the government did not consent to every type of investigation that the Master might 
later seek to fit within the terms of existing orders. And the Master cannot expand the terms of Interior 
Defendants' consent by peppering a report on appraisals with references to document de~truction.'~ 
Moreover, Interior Defendants are fully entitled to revisit their agreement in light of the way in which the 
Master has actually implemented the Document Preservation Orders. And, of course, Interior 
Defendants can revisit their consent to oversight by an individual who has demonstrated his unfitness for 
a judicial role as described in Interior Defendants' motion for disqualification. 
In sum, Interior Defendants respectfully ask the Court to issue an order directing the Special 
I 3 The Special Master's authority to oversee discovery was significantly limited by the Court's 
Cobell v. Norton, 226 F. Supp. 2d 1, 163. September 17,2002 Order. 
l 4 Indeed, the Appraisal Report frequently states a significant conclusion about a substantive 
matter having nothing to do with the Special Master's assigned duties, and then tacks on an allegation 
about missing records, almost as an afterthought, as though that will bring the extraneous conclusion 
within his purview. See, e.z, Appraisal Report at 33 (''Yet notwithstanding the foregoing body of 
precedent, ROWs running across Navajo allotted lands are valued at a rate 'much less' than ROWs 
crossing tribal and private lands. And there is no documentation in any of the files reviewed by the 
Special Master explaining this discrepancy." (emphasis added)); see also id. at 25 (asserting that a 
certain appraisal methodology ''runs afoul of the Secretary's obligation to ensure that allottees are 'justly 
compensated,' [citation and quotation omitted], but also it is exacerbated by the fact that the valuations 
are undocumented and unsupportable." (emphasis added) (citation and quotation omitted)). 
12 Master to conform his conduct to the limits established by the Court of Appeals. No Master may, as 
Mr. Balaran has done, assume an "investigative, quasi-inquisitorial, quasi-prosecutorial role that is 
unknown to our adversarial legal system." 334 F.3d at 1142. To the extent that this Court's prior 
orders are claimed by the Master as a source of authority to act in this fashion, they should be vacated 
or clarified. 
Swift resolution of this motion is required. As noted, on June 5 , 2003, the Special Master also 
announced his intention to investigate the "leasing files" of the Minerals Management Service ("MMS"), 
and on July 3 1,2003 and September 10,2003, he propounded document production requests 
concerning MMS audit files. Once more, the Master appears on the verge of investigating, prosecuting 
and judging matters of his own choosing outside the boundaries of the adversary system. l 5 
l 5 Because the Special Master's request for specific files regarding MMS is a departure from 
his site visit activities, Interior Defendants have asked that he provide a specific reason for requesting 
documents related to a particular corporation. See Letter from Timothy E. Curley, Trial Attorney, 
Department of Justice, to Alan L. Balaran, Special Master (August 2 1, 2003) (Exhibit 8); Letter from 
Sandra P. Spooner, Deputy Director, Department of Justice, to .41an L. Balaran, Special Master 
(August 22,2003) (Exhibit 6); Letter from Sandra P. Spooner, Deputy Director, Department of 
Justice, to Alan L, Balaran, Special Master (Sep. 5, 2003) (Exhibit 13). The Master has declined to 
provide any explanation other than purporting to oversee document retention and thus, claiming he is 
entitled to request the documents because the referenced corporation conducts business on allotted 
lands. See Letter from Alan L. Balaran, Special Master, to Timothy E. Curley, Trial Attorney, 
Department of Justice (Aug. 12,2003) (Exhibit 14); Letter from Alan L. Balaran, Special Master, to 
Timothy E. Curley (Aug. 13,2003) (Exhibit 15); Letter from Alan L. Balaran, Special Master, to 
Sandra P. Spooner, Deputy Director, Department of Justice (Aug. 29,2003) (Exhibit 16); Letter from 
Alan L. Balaran, Special Master, to Sandra P. Spooner (Sep. 10,2003) (Exhibit 17). The Master has 
asserted further that he is "under no obligation to inform [Interior Defendants] of [his] motives provided 
[his] requests fall within the authority set out in Court Orders," thereby adding to Interior Defendants' 
concerns that he indeed has other motives for requesting documents that do not relate to overseeing 
document retention and protection fi-om destruction. See Letter from Alan L. Balaran, Special Master, 
to Sandra P. Spooner (Sep. 10,2003) (Exhibit 17). 
13 / 
Conclusion 
For these reasons, hterior Defendants respectfully request that the Court issue an order 
directing the Special Master to conform his conduct to limits stated by the Court of Appeals; to vacate 
or clarify existing orders as appropriate; and to act on this motion on an expedited basis. 
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 
Director 
SANDRA P. SPOONER 
Deputy Director 
D.C. Bar No. 261495 
JOHN T. STEMPLEWICZ 
Senior Trial Attorney 
Trial Attorney 
D.C. Bar No. 470450 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 514-7194 
14 IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, al., gt 
Plaintiffs, 
V. 
) 
) 
1 
1 Case No. 1 :96CV01285 
(Judge Lamberth) 
) GALE NORTON, Secretary of the Interior, al., 
Defendants. 
hereby 
and it is further 
further 
) 
This matter comes before the Court on Interior Defendants’ Motion for an Order 
Directing the Special Master to Conform his Conduct to Limits Stated by the Court of Appeals; 
To Vacate or Clarify Existing Orders as Appropriate; and to Act on this Motion on an Expedited 
Basis. Upon consideration of the Motion, the responses thereto, and the record in this case, it is 
ORDERED that Interior Defendants’ Motion for Expedited Consideration is GRANTED; 
ORDERED that the Special Master shall at all times conforni his conduct to the limits 
stated by the Court of Appeals in Cobelf v. Norton, 334 F.3d 1128 (D.C. Cir. 2003). The Special 
Master shall immediately cease performing any investigative, quasi-inquisitorial, or quasi- 
prosecutorial role in this litigation. Evidence on any issue asserted to be germane to this lawsuit 
may be presented only by the parties to the Court, consistent with the adversary process. It is 
ORDERED that the Special Master’s authority to oversee Defendants’ retention and 
protection from destruction of 11M records, granted by the Court in two orders (docket nos. 369 & 370) entered August 12, 1999, shall be limited to reporting on the physical conditions affecting 
the protection from destruction or threatened destruction of ILM records. It is further 
ORDERED that the Special Master shall conduct future proceedings, if any are referred 
to him by the Court in accordance with Federal Rule of Civil Procedure 53, on the record, with 
evidence presented only by the parties. The Special Master shall not collect or present evidence. 
In any such proceeding, all parties shall be afforded notice and an opportunity to be heard, and 
shall be permitted to present evidence and respond to evidence presented by the opposing party 
or parties. The Special Master shall, in any such proceeding, conform his conduct to Federal 
Rule of Civil Procedure 53 and the Court of Appeals opinion. 
SO ORDERED. 
Date: 
ROYCE C. LAMBERTH 
United States District Judge 
2 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) 5 14-91 63 
Dennis M Gingold, Esq. 
1275 Pennsylvania Avenue, N. W. 
Ninth Floor 
Washington, D.C. 20004 
Fax (202) 3 18-2372 
Mark Kester Brown, Esq. 
607 - 14th Street, NW 
Box 6 
Washington, DC 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 Levit as, Esq. 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
Alan L. Balaran, Esq. 
Special Master 
17 1 7 Pennsylvania Avenue, N. W. 
13 th Floor 
Washington, D.C. 20006 
(202) 986-8477 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 5941 7 
(406) 338-7530 2029668477 Nov-ZZ-02 01:44 
LAW OFFICE 
.G.<u-lTfD IN LX n‘D MD 
From-THE LAW OFFICE OF ALAN @ALARAN 
MAN L. BALARA-N, P.L.L.C. 
Novzmbsr 22,2002 
RE: Cobell 1’. Norton Civil ActioIx No. 86-1285 
VIA FACSIMILE ONLY 
Jolm Warshawsky, Esq. 
Unired Srarcs Depanment of Jusiice 
Civil Division, Commercial Branch 
P.O. Box s75 
Ben Franklin Station 
Washngon, DC 20044-0875 
Dear hfr. 1Vn.hm sky: 
During okir metring of November 14, 2002, yoit assurcd rn? i h x you would submit fw my 
review, 110 l a t t l rhan r l x beginning of this week, a revised “rulcs of cnpgctment” that would 
guide USi’s resring of Inrerior’s computer systems. You indicared rhar you appreciated The 
urgency of producing such a document give11 the fact tha: USi has volunranly consenrtd, several 
monrhs aso, 10 nor go forward with the final pha2;es of!esiing unril a ser of protocols was in 
place. 
1 f I do ~ O T recsive the requested doc.iiimxaricn from you by close of business, Monday 
Noveinbcr 2 5 , 2002, I will irstrucr USi to proceed norwitiismiding [he absence of 3 formal 
asrccmenr . 
cc: D m i s Gingold, Esq. 
Rules ofEn, aaaemcnt 
Since rely, 
Alan L. Balar-an 
SPECIAL blAS TER 
T-246 P 02/02 F-223 
Def s Motion for Order for SM 
to Conform to Limits Stated 
Exhibit t 
by Court of Appeals John Warshawsky 
Bv Facsimile 
Mr. Alan Balaran, Special Master 
1717 Pennsylvania Avenue, N.W. 
Twelfth Floor 
Washington, D.C. 20006 
Dear Mr. Balaran: 
0 
0 
U.S. Department of Justice 
Civil Division, Commercial Branch 
1100 L Street, N.W., Room 10030 
Washington, D.C. 20005 
Telephone: (202) 307-0010 Facsimile: (202) 514-9163 
November 13,2002 
Re: Cobell v. Norton - Rules of Engagement for Testing by Usinternetworking, Inc. 
(Network Discovery, Vulerability/Penetration Testing, and Exploitation Limits Testing) 
As you are aware, during the past few months, we have undertaken to develop with you an 
agreed-upon protocol for you to conduct unilateral, unsponsored IT security testing in your capacity as 
Special Master in the Cobell litigation. Pursuant to such a protocol - referred to as the "Rules of 
Engagement" - your experts from Usinternetworking, Inc. ("USi") would perform specified forms of IT 
security-related testing, with the consent of the Interior Department and in a fashion that would be 
deemed to be "authorized," in accordance with 18 U.S.C. 5 1030. 
'10 achieve the desired goal of agreeing upon the Rules of Engagement, the Interior Department, 
its experts from SAIC, and Government counsel have engaged in the following activities: 
We provided you, for discussion purposes, (a) a draft document entitled "Penetration 
Testing Rules of Engagement" setting forth our proposal for USi's testing and (b) a 
document entitled "Information Technology Controls Review, Security Vulnerability 
Assessement & Penetration Study Rules of Engagement for the United States 
Department of the Interior Departmental Offices" (May 29,2002), which sets forth the 
protocol for testing performed at the direction of the Interior Department's Office of the 
Lnspector General. 
. We participated in a two-day demoiistrative effort at USi's offices in Annapolis, 
Maryland, during which USi's representatives described their proposed approaches for 
testing and demonstrated some of their testing methods. 
We met with you and USi's representatives both before and after the two-day effort in 
Annapolis (a) to discuss the draft Rules of Engagement, (b) to listen to your concerns 
and the concerns of US1 about the Interior Department's views about the proposed 
Exhibit 2 
Dcfs Motion for Order for SM 
to Conform to Limits Stated 
by Court of Appeals - 2 - 
testing, and (c) to express the Interior Department's concerns about the needs for 
sufficient documentation of testing, notice to one or more "trusted" individuals at the 
Interior Department regarding USi's plans for testing, and the opportunity to prevent or 
remediate any damage to the Interior Department's systems or data inadvertently 
resulting from USi's testing. 
During our last meeting, on November 4,2002, we discussed hture steps needed for the 
development of the Rules of Engagement. The Interior Department has, in fact, investigated the 
possibility of making procedural changes that would, among other things, address your concerns about 
USi's testing being inhibited by the Interior Department's normal incident-reporting procedures. 
During the course of the November 4th meeting, you advised us that USi's testing was 
authorized by the Court and that you did not need any further authorization to proceed with the testing. 
You also stated that you wanted to go forward promptly with USi's testing program, with or without 
agreed-upon Rules of Engagement. 
As I have advised you in the past, the Interior Department is fully willing to work with you and 
USi in an effort to develop a protocol that would both serve your concerns and would potentially 
provide the Interior Department with valuable information about IT security matters. The Interior 
Department, however, has an obvious and undeniable interest in ensuring that its IT systems are not 
damaged and that data contained on its IT systems are not corrupted or improperly disseminated, either 
inadvertently or deliberately. 
Insofar as you have advised us of your desire to proceed with USi's testing promptly, based upon 
the authority that you state you already possess, it is essential that we have a full understanding of the 
basis for your assertion that USi's testing is "authorized." As you are aware, we respectfully disagree 
that such testing is authorized, based upon the information that has been provided to us to date. 
Accordingly, to assist us in understanding your position fully and, where appropriate, to incorporate 
such an understanding into the Rules of Engagement, we respectfully request that you advise us of the 
basis for your asserted authority to direct USi to conduct its testing program on the Interior 
Department's IT systems. 
We look forward to working with you to resolve the remaining issues related to Rules of 
Engagement and US'S testing. 
- 
Trial Attorney 
Commercial Litigation Branch 
Civil Division 
cc: Mr. Dennis Gingold (by facsimile) 
Mr. Keith Harper (by facsimile) MODE = MEMORY TRRGMISSION 
FILE NO.-096 
CM*M. STN NO. ABBR NO. 
O I ( n 001 
002 O K s 
OK P 
United States Department of Justice 
Commercial Litigation Branch, Civil Division 
1100 L Street, K.W., Room 10030 
Washington D.C. 20005 
Office telephone: (202) 307-0010 
003 
*****************C*h**************** 
&: 
Comments: 
- 
Facsimile number: (202) 514-9163 
Pases (includine cover Dage): 3 
Date of transmission: Wednesday, November 13,2002 
NOTE ??ns FACSIhff LE IS PJTENDED ONLY FOR THE ABOVE-DESIONATED ADDRESSBE. IT MAY 
CONTAN WFORMATIOS WHICH IS PRIVILEGED, COhlDENTIAL. OR OTHERWISE PROTECTED 
Mr. Alan L. flalaran [Facsimile number (202) 986-8477] 
Mr. Keith Harper [Facsimile number (202) 822-0068] 
Mr. Dennis M. Gingold [Facsimile number (202) 3 18-23721 
m: John Warshawsky, Trial Attorney 
- 
- ***** - 
FACSIMILE TRAN SMITTAL 
FROM DISCLOSURE TO ANYONE OTHER THAN THE ADDRESSEE 
(1) PLEASE DO NOT REX'IEW, DISSWA7%, OR OTHERWISE USE 
ANY OF THE TRANSMISSION, AND 
PLEASE ADVISE THE SENDER OF THIS F A C S W E IMMEDUTELY. (2) 
P 
S T W T W - 1 3 16:01 
STATION MFXIE/TEL NO. 
99868477 
93182372 
98;22E&8 
END-NOV-13 16:0S 
PRGES DWATION 
-WJ COW FIN L I T - 
- 202 307 0494- ********* 
- Jun-05-03 05:07 from-THE 1AW DFFICE OF ALAN BALARAN 
ALAN L. BALARAN, Y.L.L.C. 
\’IA FACSIMILE 
h a h a Kessler 
Civil Division 
Commercial Litigation Branch 
P. 0. Box 875 
Ben Franklin Sration 
Washington, DC 20044-0875 
Dear Ms. Kessler: 
June 5,2003 
UNITED STATES DEPARTMENT OF JUSTICE 
RE: Cobell v. Norton Civil Action Na.96-1285 
Audir of the Minerals Managemeat Service Audit; 
Offices (No. 2003-1-0023) March 4003 
In March 2003. rhe Depanmeiir ofthe Interior Olfice orthe Inspeqtor General (“OIG’) 
issued its Audit of the Minerals Maiugenient: Service Audir Offices (“MMS Audit Repon”). (An 
elecuonic copy orthe MMS Audit Report will bc rtansrmrted for your review.) Thc sTarcd 
objecrive of rhar repon “was to dzrermine wherhzr MMS’ interna1 quality control system 
provides reasonable assurance that MMS audits are performed in accordmce with established 
policies, procedures, and the Govemmenr Auditing Standards (Standards).” $ee Memorandum 
fiom Anne Richards, Regional Audit Maiager, Central Region to rhe Assisrant Secretary for 
Land and Minerals Maiagerneiil. 
Since MMS is responsible for the annual collection of $6 billion in royalties and fees for 
minerals produced froin federal, lribal and allotted lands, I became conccyned upon reading a 
section of llie MMS Audir enrirled “Professionalism,” where the OiG reponed thar it selected for 
rcview an audir involving Navajo Indian leases. According to the MMS Audit Repon, 
[wlhen MMS officials could not locate [his audit file, instead of iqforming [the 
OIG] or that fact, they recreated and backdared the working papers. The recreared 
papers were dared 16 &hen MMS believed the work had been done rather than 
when the replacemenr: worlting papers were actually created. 
IvlMS Audit Report a1 8. The OIG also rcported that MMS ”rhen granred a cash award, citiiig 
‘creativity,’ 10 the audilor who reconsrmctsd rhr Lvorking papers.” rd. At 8. 
Exhibit 3 
Defs Motion for Order for SM 
to Conform to Limits Stated 
by Court of Appeals 
2029868477 T-823 P 02/03 F-846 Jun-05-03 05:07 From-THE LAW OFFICE OF ALAN PALARAN 
The MMS Audit Repon mentions two other instances of missing eles penaining to 
Indian leases; a statistical possibility that working papers for as many as 62 audits are missing; 
rbe existence of“incomp1ete tiles” for the audirs perfonned by thz same employees responsible 
for recrenring and bacltduing rhe Navajo leases file; and 30 “incompIete se~s” of files (lacking 
working papers or masrer indjces). Id. at 9.’ 
Aside from the vlolarion of Coun orders implicated by the loss of ‘Navajo leasing files 
coilraining trust informarion, MMS failed to infonn Ihe Court, the plaintiffs (or, I suspect, the 
Navajo allortees) that \rust dociirnciiiation was missing and/or that files csntaining IIhl 
information were “incomplete.”’ Instead, MMS auditors ”recreated” and !‘backdared” the records 
in an attempt lo deceive the OIG. And one was awarded a cash bonus for his duplicify. Beyond 
this, trust information missing froin these inconiplete files and work papers are germane to the 
underlying litigarion and thus discoverable by plaintiffs. Given the findinss of the OIG, plaintiffs 
can not delemine wherhcr documents produced by the agency are “origipals” or “recreations” 
generated by “creative” employees nwairing cash bonuses. 
I am confident that had the OIG not uncovered this problem in the course of performing 
irs audit, the loss of the Navajo trust information would not have come to light. 
J am therefore informing you of my intention to investigate MMS’ leasing files to detmnine 
wherhzr individual Indian trust information is properly maintained and safrguarded. 
Thank you 
Eltcrronic artachmm 
cc: Dennis Gingold, Esq. (wlattachmenr) 
‘ These figures were based on sratistical and judgment samples and not an exhausrive 
review of each file. Td. ar S-9. 
’ As the MMS Audit Repon is dated March 2003, I suspecr that the agency was aware 
that ~mst documenrarion was missing at rhe rime the audit was undertakeq in 2001. 
Sincerely, 
SPECIAL MASTER 
T-823 P 03/08 F-846 2029868477 Jun-16-03 06:Ot 
h W OFtlCn 
From-THE LAW OFFICE OF ALAN BALARAN 
ALAN L. BALARAN, P.L.L.C. 
VIA F-4CSIMIZ.E 
Amalia Kessler 
UNITED STATES DEPARTMENT OF JUSTICE 
Civil Division 
Commercial Litigation Branch 
June 16,2003 
P. 0. Box 875 
Ben Franktin Station 
Washinston, DC 20044-0875 
Dear Ms. Kessler: 
cc: 
Thank you for your lerrer this dare in which you seek clm*ficarion sf my June 5 , 2003 
coiiespondence conceniing the March 2003 Departmmr of rhe Interior Orlice of rhe Inspeclor 
General Audit Repoa. To be precise, ir is my inrention to ensure that all dpcurnenrs relcvanr ro 
the Minei-als Management Service’s duties 10 IIM beneficiaries are rerainep and preserved in 
accordance wirh the agency’s fiduciary duties. To rhe exrent thar some of those documents, such 
as those comained in leasing files, are mainrained by organizarions such 
Affrtirs or die Bureau of Land Managemenr, rhey will bz inspected as well, 
Dennis Gingold, Esq. (Wartaclment) 
Alan L. Balaran 
SPECIAL MASTER 
Re: Cobell v. Norton Civil Action No. 96-1285 
March 2003 OIG Audit of MMS 
rhe Bureau of Indian 
Def’s Motion Exhibit for Order 4 for SM 
T-839 P 02/02 F-903 
1717 PENNSYLVANLh AVE., N.W. 
TIiIRl%~NTH PLOOR 
WhSl-LlNCTON. D.C ?LUi‘aoo6 
TELEPHONE (20% 4665310 
FAX (2132) 15%-b477 
t - W L abr)+rLn@cmkcon1 
to Conform to Limits Stated 
by Court of Appeals Jut-31-03 04:58 T-981 P 02/03 F-306 From-THE LAW OFFICE OF ALAN BALAPAN 
ALAN L. ]BALAKAN, P.L.L.C. 
July 3 1,2003 
VTA FACSIMILE 
John J. Siemietkowski, Esq. 
UNITED STATES DEPARTMENT OF JUSTICE 
P.O. Box 875 
Ben Franklin Station 
Washington, DC 20044-0875 
CORRECTED 
Dew Mr. Siemietko\vski: 
1. 
7 
R&: Cobell et al. v. Norton et al,, Civil. Action No. 96-1285 
'MMS-Request for Documents 
On June 5 and 16, 2003, I informed Justice Artorney Amalia Ressler that. in view of the 
findings conrained in the March 2003 Audir of the Minerals Management Service Audit Offices 
("MMS Audit Reporr") generated by ihe Office of the fnspcctor General ("QIG"), it was my 
intenrion to examine MMS' audit files (as well as similar files in the custogy and control of other 
agencies) to derermine whether individual 'Indian tmst information was beipg properly 
maintained and safeguarded. The MMS Audit Report, as you may recall, qposed an incident 
involving die loss of an audir file involving Navajo allorted leases; rlie subqequenr attempt by 
MMS employees ro "recreate" and "backdate" informarion conrained in thqt file; and die 
subsequent cash incemive award given to one of those employees. 
Accordingly, and pursuant to the August 12, 1999 coilsent order au{honzing me to ensure 
rhar trusr informaion is properly maintained and safeguarded, I am requesting producrion of the 
following documenrs no later than Monday, August 11, 2003: 
A list of all oil aid gas companies that have operated on Incllian allotred lands 
since 1982; and 
A complete set of compliance audit files ("audit files") genarated by the Minerals 
Management of the Dugan Production Corporation inchdin$, but not limited 10, 
audit requests or proposals; workplans; workpapers; conespondence, internal and 
exrernal exhibits; and reports of findings, concIusions, and recommendations. 
Exhibit 5 
Defs Motion for Order for Shf 
to Conform to Limits Stated 
by Court of Appeals Jul-31-03 04:58 2029068477 T-981 P 03/03 F-306 From-THE LAW OFFICE OF ALAN BALARAN 
Thank you in advance for your cooperation. 
Sincerely, 
Alan L. Balaran 
SPECIAL MASTER 
cc: Dennis Gingold, Esq. Sandra P Spooner 
Deputy Director 
BY FACSIMILE 
Alan Balaran, Esq. 
17 17 Pennsylvania Avenue, N. W. 
Thirteenth Floor 
Washington, DC 20006 
Re: Cobell v. Norton 
Dear Mr. Balaran: 
On August 2 I, 2003, we requested that you explain how your July 3 1,2003 request for 
information and documents concerning MMS audit files relates to your authority to oversee 
retention and protection from destruction of TIM records. We also asked that you identify for 
conflict purposes any individuals who would assist you in reviewing any records provided. 
Because this is the datc by which you requested production of the requested material, I 
am writing to advise that we will comply fully with relevant court orders. If your July 3 1, 2003 
requests prove consistent with your authority, and we are provided with information allowing us 
to make conflict determinations for any individuals who will assist you, we will make responsive 
documents available. The documents described in request number 2 in your July 3 1 , 2003 letter 
have been identified and collected, and will be reviewed for privilege and other forms of 
protection while we await your response to our August 21 letter. As noted in our letter, your 
request number 1 seeks a document that does not exist. 
Please note that Interior Defendants object, and do not consent, to any review, 
investigation, findings or conclusions concerning these documents that does not directly pertain 
United States Department of Justice 
Civil Division 
Commercial Litigation Branch 
P 0 Box 875. Ben Franklin Station Tel (202) 5 14-71 94 
Washington, D,C 20044-0875 
August 22,2003 
Exhibit 6 
Fax (202) 307-0494 
Email Sandra spooner@usdoj gov 
Defs Motion for Order for SM 
to Conform to Limits Stated 
by Court of Appeals to retention and protection from destruction of IIM records, as set forth in the Court’s August 12, 
1999 Order. 
Thank you. 
r\ Sincerely, 
Sandra P. Spooner ,++ 
cc: Dennis M. Gingold, Esq. (by facsimile) 
Keith M. Harper, Esq. (by facsimile) 
2 08/22/2003 17:07 FAX 2023533565 
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ERROR INFORMATION 
S m h P. spooncr 
Deputy oircctor 
TO: 
CC: 
DATE: 
NUMBER OF PAGES SENT (INCLUDING COVER PAGE): 3 
SPECIAL INSTRUCTIONS: 
IMPORTANT; This facsimile is intended only for the use of the individual or entiv to which it is addressed. It may 
contain infomzion that is privileged, confidential, or athenvise protected from disclosure under applicable law. If 
August 22,2003 
the reader 0ft)lifi hnq&q,cinn ir not r h m ;n+-nAorl-&-:--+ 
@loo1 
2198 
3 
_ _ _ _ - 
( 2 ) 
(1) 99868477 
93182372 
(3) 98220068 
__--- 
COBELL-LIBRARY 
United States Department of Justice 
Civil Division 
Commercial Litigation Branch 
P.0, Box 875, Bsll Franklin Station Td: (202) 514-7194 
Wmhinpm D.C. 20044-0875 Fu: (202) 307-0494 
:sanhspooncr@usdoj.f;ov 
FAX COVER SHEET 
202-986-8477 
202-3 18-2372 
Alan L. Balaran, Special Master 
Dennis M. Gingold, Esq, 
202-822-0068 Keith M. Harper, Esq. 
CobclI v. Norton - NMS Audit 
. -- A- ". .. _ _ . . U.S. Department of Justice 
Civil Division 
Express Delivery: 
1100 L Street, N.W. 
Regular Mail: 
P.O. Box 875 
Ben Franklin Station 
Washington, DC 20044-0875 
Amalia D. Kessler 
Trial Attorney 
BY FACSIMILE 
Alan L. Balaran, Special Master 
1717 Pennsylvania Ave., N.W., 13th Floor 
Washington, DC 20006 
Re: Your June 5,2003 Letter Regarding the March 2003 OIG Audit of MMS 
Dear Mr. Balaran: 
I write in regard to your June 5,2003 letter (“Letter”) concerning the March 2003 
Department of the Interior Office of the Inspector General Audit of the Minerals Management 
Service Audit Offices (“MMS Audit Report”), wherein you state that you “inten[d] to investigate 
MMS’ leasing files to determine whether individual Indian trust information is properly 
maintained and safeguarded.” Letter at 2. 
As MMS does not maintain leasing files, we take it that by “MMS’ leasing files” you are 
referring to the MMS audit files discussed in the MMS Audit Report, some of which, as stated in 
that Report, “pertain[] to Indian leases.” MMS Audit Report at 9. In addition, we presume that 
your investigation will be limited to “the Interior Department’s retention and protection,” Order 
Regarding Interior Department IIM Records Destruction (Aug. 12, 1999) at 2, of these MMS 
audit files and will not extend to the other matters, such as auditing procedures, discussed in the 
MMS Audit Report. 
We would appreciate it if you would please confirm that our understanding of the 
investigation you contemplate is correct. 
Thank you. 
&4& 
Room 10048 
Washington, DC 20005 
Tel.: (202) 305- I759 
Facsimile: (202) 514-9163 
E-mail: amalia.kessler@usdoj.gov 
June 16,2003 
Sincerely, 
Amalia D. Kessler 
Trial Attorney 
Commercial Litigation Branch 
Exhibit 7 
nefs Motion for Order for Shl 
to Conform to Limits Stated 
by Court of Appeals Dennis M. Gingold, Esq. cc: 
Keith M. Harper, Esq. 
James E. Cason, Associate Deputy Secretary 
Abraham E. Haspel, Assistant Deputy Secretary 
3renda Riel, Esq. 
2 MODE = MEMORY TWNSMISSION 
FILE NO.499 
STN ON-TOUCH/ 
FlRW M. M. 
STRTION P W G T E L NO. 
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98228068 
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92085567 
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Regular blril: 
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Bcn Frantlin StariOO 
Wubington, M3 20044-0875 
Organization: Special Master 
I Semtary 
To: James E. Cason, Associate Deputy 
To: Abraham E. Haspel, Assistant Deputy 
U.S. Department of Justice 
Commercial Litigation Branch 
NUMBER OF PAGES SENT (INCLUDING COVER PAGE): 3 
Tel.: (202) 208-7471 
Fax: (202) 219-0559 
Tel.: (202) 208-3714 
BUSY ac 
OK 
OK 
h l i n D. Kwsler 
Trial homey 
I To: Alan L. B a l m , Esq. 
Organirahon, 
To: Keith M. Harper, Esq. 
Organization: 
Organization: 
Secretary 
Organization: 
To: Brcnda Riel, Esq. 
Organization: 
REMARKS: 
E N D ~ J N - I ~ 1'7:- 
PFIGES DCRRTION 
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Wsshingtoq DC 26005 
Td.: (202) 30s-1759 
Fpx: (202) 514-9163 
Erpnrns Delivery: 
Room 10048 
E - 4 urulia.kcssh@u&doj.gov 
June 16,2003 
I Fax: (202) 9868477 
Td.: (202) 466-5019 
Tcl.: (202) 661-6380 
Fax: (202) 822-0068 
Tel.: (202) 785-4166 1 Fax: (202) 208-1873 
Tcl.: (202) 208-6291 
Fax: (202) 208-5567 
I 
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U.S. Department of Y ~ s t i c e 
Commercial Litigation Branch 
- **** - 
Exprc$# Dellvery 
T& (202) 305-1759 
Fix: (202) 514-9163 
1100 L S W t , N.W. 
Room 10048 
~ M ~ ~ I W O U , DC 20005 
B - ~ i l : u n a l i r k ~ l ~ ~ . g o ~ 
.................................... - 
Regular Mail: 
~gUlhttiOll: 
Organization: 
P.O. Box 875 
Bm F d n Statioa 
W&inNn. DC 20044-0875 
To: Alan L. B a d , Esq. 
Organizution: Special Master 
To: I k d s M. Gingold, Esq, 
To: Keith M. Harper, Esq. 
TO: James E. Cason, Associate Deputy 
Secretary 
Organization: 
Organization: 
To: Brenda Riel, Esq. 
Organization: 
NUMBER OF PAGES SENT (INCLUDMG COVER PAGE): 3 
Tel.: (202) 208-3714 
Fax: (202) 219-0559 
PAGES WRFlTION 
003~303 BB:o6:4 
- -WJ/CIUIL DIUISION 
June 16,2003 
Fa: (202) 986-8477 
Tel.: (202) 466-5019 
Fax: (202) 318-2372 
Tel.: (202) 661-6380 
Fw: (202) 822-0068 
Tel.: (202) 78-5-4166 
Fu: (202) 208-1 873 
Tcl.: (202) 208-6291 
Tel,: (202) 208-7471 
202 514 9163- ********* 
1 Timothy E. Curley 
Trial Attorney 
U.S. Department of Justice 
Civil Division 
Commercial Litigation Branch 
P.O. Box 875, Ben Franklin Station 
Washington, D.C. 20044-0875 
Tel: (202) 514-6638 
August 21,2003 
BY FACSIMILE 
Mr. Alan Balaran, Special Master 
17 17 Pennsylvania Avenue, N. W. 
Thirteenth Floor 
Washington, DC 20006 
Re: Cobell v. Norton 
Dear Mr. Balaran: 
This letter responds to your letter of July 3 1,2003, requesting information and documents 
concerning MMS audit files. Pursuant to the Court's August 12, 1999 Order, you are "authorized 
to oversee the Interior Department's retention and protection from destruction of IIM Records 
through, among other things, on site visits to any location where IlM Records are maintained." 
Order at 2 (Aug. 12, 1999) ("August 12, 1999 Order"). In addition, the "Final Draft Memorandum'' 
attached as Exhibit A to the August 12, 1999 Order further states that you are "authorized to 
oversee and independently verify [Interior Defendants'] compliance with [Interior Defendants'] 
document retention responsibilities" and "may exercise [your] responsibilities by visiting any 
location where IIM records are maintained and inspecting the ID4 records at that location." Id. at 
Exhibit A. 
Your request number 1, that Interior Defendants create and provide "[a] list of all oil and 
gas companies that have operated on Indian allotted lands since 1982[,]" does not appear to be 
related to retention and protection from destruction of IM records. In addition, it would require 
lnterior Defendants to conduct research, compile data and create a list, which is not contemplated 
by the August 12, 1999 Order. Please advise us of the relevance of this request to retention and 
protection of IIM records and the source of authority to require data compilations. 
Your request number 2 is for "a complete set of compliance audit files ("audit files") 
generated by the Minerals Management [Service] of the Dugan Production Corporation[.]" Please 
advise us as to why you have requested documents related to this particular corporation and how 
such a request relates to your authority to oversee retention and protection fiom destruction of 
records related to Interior's obligation to perform an accounting of IIM trust accounts. 
In order to address any conflict concerns, we also respectfully request that you provide us 
with the names and other relevant conflict information for any individuals who will be assisting 
Fax: (202) 514-9163 
Defs Motion for Order for SM 
Exhibit 8 
to Confonn to Limits Stated 
by Court of Appeals you in reviewing or working with any documents Interior Defendants produce in response to these 
requests. 
Thank you. 
cc: Dennis M. Gingold, Esq. (by facsimile) 
Keith M. Harper, Esq. (by facsimile) 
Sincerely, Q Timothy E. iA\ Curley 
2 a001 08/21/2003 10:38 FAX 2023533565 COBELL-LIBRARY 
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FROM: Department of Justice 
Civil Division 
(202) 353-3565 , 
(202) 616-9668 
Dennis M. Gingold 
Labat-Anderson, Inc. 
August 21,2003 
Keith Harper Allan Balaran 
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NUMBER OF PAGES SENT (JNCLUDING COVER PAGE): 3 
CurZey 08-21-03 to Balaran re July 31, 2002 Request for MMS Audit Files 
IMPORTANT This facsimile is idtended only for the use of the individual or entity to which it is addressed. It may 
contain information that is privileged, confidential, or otherwise protccted from disclosurc under applicable law. If 
the reader of this transmission is not the intendcd recipient or the employee oc agent responsible for delivering the 
I . 
transmission to the intended . , recipient, 
. you are . hereby .. .. 1 
notified that my . dissemination, 
* 4 1 .- distniutioq 
:--:-- I- 
copying 
-I....-.. 
or use ..._ of 
ii 
1: 
i 
! 
l Sandra P. Spooner 
Deputy Director 
United States Department of Justice 
Civil Division 
Commercial Litigation Branch 
P.O. Box 875, Ben Franklin Station Tel: (202) 514-7194 
Washington, D.C. 20044-0875 Fax: (202) 307-0494 
September 5, 2003 
Emaikandra spooner@usdoj.gov 
Defs Motion for Order for SM 
to Conform to Limits Stated 
BY FACSIMILE 
Alan Balaran, Esq. 
1717 Pennsylvania Avenue, N.W. 
Thirteenth Floor 
Washington, DC 20006 
Re: Cobell v. Norton 
Dear Mr. Balaran, 
This letter is in response to your letter of August 29,2003, concerning your July 3 1,2003 
document request. 
In your July 3 1 document request and in your subsequent letters, you refer to your 
authority to oversee document retention and protection kom destruction in accordance with the 
August 12, 1999 Order. The August 12, 1999 Order states that the Special Master is "authorized 
to oversee the Interior Department's retention and protection &om destruction of IM Records, 
through, among other things, on-site visits to any location where IlM Records are maintained." 
August 12, 1999 Order at 2. 
As you know, the parties consented to the August 12,1999 Order after you issued your 
Recommendation and Report of the Special Master Regarding Document Preservation and 
Protection (dated June 7, 1999) ("June 7, 1999 Report") reporting on site visits you conducted 
during April 1999. The nature of those site visits, as described by you in your June 7, 1999 
Report, included noting the type of records stored at a particular location and then reporting on 
whether the documents were being retained, were properly indexed, were adequately safeguarded 
from dangers such as fire, water, and rodent infestation, and the potential for loss during records 
transfers. Consistent with the events leading up to the August 12, 1999 Order and the language 
of that Order, your subsequent site visits conducted in October and November 1999 were similar 
in nature. Interior Defendants do not dispute your authority to conduct site visits of that nature, 
which in this instance may include a site visit to Minerals Management Service offices or other 
Exhibit 9 
by Court of Appeals locations where the type of documents you requested are maintained, to determine whether they 
are being retained and protected fiom the destruction.' Interior Defendants object, and do not 
consent to, a roving factual investigation by the Special Master into how particular documents 
bear on issues that may or may not be relevant to this litigation. It is the law of this Circuit and 
this case that for a master to assume an "investigative, quasi-inquisitorial, quasi-prosecutorial 
role [I is unknown to our adversarial legal system." Cobell v. Norton, 334 F.3d 1128, 1142 
(2003). 
The reason Interior Defendants have asked why you are requesting specific documents 
related to the Dugan Corporation is that such a request is different in character from a site visit. 
Whereas a site visit to the locations where the documents are kept would, consistent with the 
August 12, 1999 Order and your previous site visits, enable you to inspect the facilities, 
production to you of specified files would not. In addition, the documents you have requested - 
audit files and related papers - are not obviously related to whether particular sites are properly 
retaining documents and safeguarding them from destruction. 
Interior Defendants object, and do not consent to, investigations into the contents of 
particular files where there is no basis to believe those documents contain evidence that 
documents are not being retained or protected. To interpret the August 12, 1999 Order to permit 
you to require the production of IlM records without any nexus to document retention, would 
permit you to conduct roving investigations that do not relate to you referenced authority to 
oversee document retention. Interior Defendants do not consent to any such activities.* 
Moreover, if the basis of your requests is ex parte contacts, Interior Defendants object to the 
request on that basis. 
The stated basis for your document request is that the Dugan Corporation conducts 
business on allotted lands and that the Minerals Management Service (MMS) is responsible for 
auditing Dugan's compliance with federal regulations. Neither of those facts suggest that the 
documents you request relate to your oversight of document retention or that any deviation from 
the prior practice of conducting general site visits is warranted. Your reference to the MMS 
Audit Report prepared by the Office of the Inspector General does not provide a basis for your 
request of documents related to the Dugan Corpomtion. There is no reference to the Dugan 
Corporation in that report and our understanding is that the referenced audit workpapers involved 
As you know, Interior Defendants continue to object to your presiding over any 
matters in this litigation, as set forth Interior Defendant's Motion to Disqualify Special Master 
Balaran (filed May 29,2003). 
Consistent with Interior's position, Interior Defendants' objections to your March 6, 
2003 site visits and resulting report are set forth in Interior Defendants' 1) Response And 
Objections To Special Master's Site Visit Report To The Office Of Appraisal Services In Gallup, 
New Mexico And The Bureau Of Indian Affairs Navajo Realty Office In Window Rock, Arizona 
("Site Visit Report") And 2) Opposition To Plaintiffs' Motion To Adopt Site Visit Report (filed 
Sept. 4,2003). 
2 a different corporation. Please advise us how documents related to the Dugan Corporation have 
specific relevance to your oversight of document retention and protection. 
Thank you. 
cc: Dennis M. Gingold, Esq. (by facsimile) 
Keith M. Harper, Esq. (by facsimile) 
Sincerely, 
Sandra P. Spooner &+ 
3 09/05/2003 15:04 FAX 2023533565 
****************a************* 
88s 
COBELL-LIBRARY 
TX/RX NO 
PGS . 
TX/RX INCOMPLETE 
TRANSACTION OK 
2246 
4 ----- 
(I) 99868477 
( 2 ) 93182372 
( 3 ) 98220068 
---__ 
WLTI TX/RX REPORT v v s 
*************a**************** 
United Statei Department of Justice 
Civil Division 
Commercial Litigation Branch 
P.O. BOX 875, € 3 ~ Fmklin S W ~ J I TCl: (ZOZ) 514-7194 
WwhingpJn, 0.c. 200446875 
Email:srmh.&ppwn~udq.~ov 
202-986-8477 
202-3 18-2372 
ERROR INFORMATION 
Smdrn P. Spoona 
Depu~y Direcwr 
Alan L. Balaran, Special Master 
Dem~is M. Gingold, Esq. 
Keith M. Harper, Esq. 
September 5,2003 
- 
TO: 
cc: 
DATE: 
SPECIAL INSTRUCTIONS: 
" B E R OR PAGES SENT (INCLUDING COVER PAGE): 4 
Cobell v. Norton 
LMPOKTANT This facsimile is intended only for f€u use of the iddividual or entity to which it is addressed. It may 
202-822-0068 
. C I . . 
c o d information that 
I . 
is pIivileged, . . . . . . confidential, . . or . . otherwise protected &om disclosure under .. , 0 
applicable . 3. . law. ., If 
m o o 1 
Fax: (2m) 307-0494 Navajo allottees short-changed-states special Cobell report 
Posted: Auqust 22, 2003 - 11:24am EST 
by: Jerrv Revnolds f Washington D.C. correspondent f Indian Country Today 
WASHINGTON, D.C. - A special report to the court in the Cobell litigation over federal mismanagement of 
Indian trust funds charges that Navajo land allottees are being short-changed by undervalued rights-of-way 
appraisals. 
Alan L. Balaran, appointed by U.S. District Court Judge Royce C. Lamberth as a special master in the long- 
running case, did not quantify the losses he alleged. But he provided a handful of examples showing that 
tribes and private landowners have obtained up to $575 per rod for permitting oil and gas pipelines to 
traverse their land. By contrast, individual Navajo allottees may have received $25 to $40 per rod for 
permitting similar rights-of-way on similarly situated land. (A rod is a traditional unit of measure equaling 5.5 
yards.) 
"The potential range of loss to Trust beneficiaries is as much as $1 70-$550 per rod," Balaran writes. 
Balaran made investigative site visits to Gallup, N.M., and Window Rock, Ariz., following the "whistle-blower" 
accusations of Kevin Gambrell, director of the federal Farmington Indian Minerals Office. Gambrell warned 
superiors at Interior and the BIA of longstanding discrepancies in rights-of-way appraisal valuations between 
individual Indian lands and similar privately owned lands. 
Gambrell's remarks echoed the assertions of allottee associations, especially in the eastern Navajo 
reservation. These associations have claimed for some years now that Interior and the BIA customarily 
accept oil and gas industry valuations of rights-of-way on allottee land. 
Gambrell too got no adequate response from federal agencies in his view. Eventually he got in touch with 
Balaran. Interior has placed him on paid leave. 
Because most individual Indian land allotments are held in trust by the federal government, the Interior 
Department and its lead agency on Indian issues, the Bureau of Indian Affairs, are responsible for individual 
allottee rights-of-way appraisals and pricing negotiations based on them. 
The Balaran report was immediately seized upon by interested parties. President Joe Shirley of the Navajo 
Nation called the rights-of-way devaluations tantamount to swindling, and part of a recurring pattern of 
federal control over tribal resources. Attorneys for the plaintiff class of Individual Indian Monies 
accountholders in the Cobell lawsuit termed it further evidence of Interior mismanagement, and repeated 
their charge that interior Secretary Gale Norton is "unfit" for her position. Dan Dubray, communications 
director for Interior's office of the BIA, repeated the department's charges that Balaran is biased against 
Interior, and added that Balaran has no expertise in the complex field of appraisal. 
Interior has 10 court days to file a response to the latest Balaran report. Dubray said it will do so in great 
detail. 
Among the points that will be discussed in the Interior response, Dubray said, are cost factors. Allottee trust 
lands may have multiple owners due to the "fractionation" of landholdings among heirs, and this might raise 
the cost to a company of rights-of-way on such land (every heir must be contacted), compared with adjacent 
single-owner land. In addition, allottee land, usually held in trust by the federal government, might be 
encumbered by regulatory requirements that adjacent privately owned land is free of, further raising the cost 
to a company of rights-of-way on such lands. 
In theory then, this higher cost to companies of doing business might be thought to justify their paying a 
Exhibit 10 
Det's Motion for Order for SM 
to Conform to Limits Stated 
by Court of Appeals lower fee to allottees. 
Interior and BIA officials readily admitted to Balaran that allottee land rights-of-way appraisals are discounted 
compared with the same on private lands. Balaran acknowledges cost factors at several points in the report, 
mentioning Interior's claim of inadequate funding for detailed assessment of individual allottee tracts, as well 
as footnoting Interior's current special trustee on trust funds, Ross Swimmer, at some length. 
Rights-of-way prices are always negotiated, and the private sector oil and gas companies that lay natural gas 
pipeline always seek a price advantage where they can find it. Pipelines run for many rods, and rights-of-way 
prices are a significant cost factor in their construction. The San Juan Basin, where approximately 1,000 
Navajo have allotments and which Balaran depicted as a "spider web" of pipelines, provides 10 percent of 
the nation's natural gas. 
Balaran was appointed in part to give the court some handle on document management pertaining to 
Interior's trust-related functions. The court has leveled withering criticism at Interior for faulty document 
management in the past, and Balaran finds occasion for more of the same in his Aug. 20 report. 
Balaran states that Anson Baker, a former chief appraiser in the Navajo regional office of Interior's Office of 
Appraisal Services, erased computer files that contained information on his appraisal evaluation methods, 
misplaced two important memoranda that guided his appraisal methodology, did not maintain documents in 
support of the "market rate" he arrived at in his appraisal process, and perhaps never generated working 
papers that could not be located. 
Balaran found "no documentary evidence in the appraisal file substantiating that ... research was actually 
conducted, confirming past and present market conditions." 
Elsewhere he notes, "One possibility is that these documents were never generated in the first place." 
The lack of such documents makes it impossible for Navajo trust beneficiaries to challenge Interior 
appraisals of the rights-of-way prices they assign, Balaran reports. MFH:THilmer 
DJ 145-7-1468 
Bv Facsimile (202)986-8477 
Alan L. Balaran, Esq. 
Special Master 
17 17 Pennsylvania Ave., NW 
12th Floor 
Washington, DC 20006 
Dear Mr. Balaran: 
cc: 
Re: Cobell v. Norton, Civ. Action No. 96-1285 (RCL) (D.D.C.) 
In reviewing the compensation request attached as Exhibit 5 to your May 2003 Report, we 
noted that you seek payment for work performed by individuals identified only as “JW and “AW.” 
These individuals are apparently assisting you with the backup tape contempt matter that was argued 
before you on April 23 and 25,2003. As you know, the government has in the past raised objections 
to proposals to ”subcontract” work on the contempt matters that the Court has referred to you as the 
Special Master. In order that we may determine whether the employment of “JW” and “AW raises 
any conflict of interest issues or is otherwise objectionable, we request that you inform us of the 
identities of these individuals, their legal qualifications and any affiliations they may have other than 
their employment by you in this matter. 
Thank you for your attention to this matter. 
Attached service list 
Tracy L. 
Trial Attorne 
Hi 1-8 Commercial Litigation Branch 
Def’s Motion for Order for SM 
to Confonn to Limits Stated 
U.S. Department of Justice 
Civil Division 
Atty: Tracy L. Hilmer 
TcI: (202) 307-0474 
Post Ofice Box 261 
Benjamin Franklin S f m n 
Washington. D. C. 20044 
June 6,2003 
Exhibit 11 
by Court of Appeals 06/06/2003 14:31 FAX 2023533303 
I 
TX/RX NO 
PGS . 
TX/RX INCOMPLETE 
TRANSACTION OK 
SENT BY: John O'Connor 
Voice No. (202)307-3013 
Dennis M. Gingold 
202.318.2372 
(202)353-3303 
ERROR INFORMATION 
FROM: 
TO: 
F-AX No. 
NUMBER OF PAGES SENT (INCLUDING COVER PAGE): 6 
SPECIAL INSTRUCTIONS: Tracy Hiher lettcr of 06/06/03 re: May report 
WORTANT: This facsimila is intended only for the use of the individual or entity to which it is addressed. It may 
contain information that is privileged, confidential, or otherw~sc protccted from disclosure under applicable law. If 
the reader of thw transmission IS not thc intended recipienf or the employee or agent responsible for delivenng the 
transmission to the intended n:cipienf you ate hereby notified that my dissemination, distribation, copying or use 
of this transmission or its contents i s strictly prohibited, If you have recdved this transmission in mor, p l w e 
nntifv I I C hv rrlrnhrrnino and wtum the nri'oinal rmrxmicn'nn tn IIE fit rhr- rAArcsc ~ V O , hclnw 
*%d: 
COBELL VERIONT 
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MULTI TX/RX REPORT *+* 
1641 
6 
_ _ _ _ _ 
[ 71193182372 
I 72198220068 
Department of Justice 
CiviI Division 
Cobell Litigation Support 
Fax ivo. 
************P***************** 
Keith Harper 
202.822.0068 
001 
DENNIS GINGOLD 
KEITH HARPER MFH:THilmer 
DJ: 145-7-1468 
Bv Facsimile (202)986-8477 
Alan L. Balaran, Esq. 
Special Master 
17 17 Pennsylvania Ave., N W 
12th Floor 
Washington, DC 20006 
Dear Mr- Balaran: 
Re: Cubell v. Norton, Civ. Action No. 96-1285 (RCL) (D.D.C.) 
On June 6 , 2003, I sent you a letter requesting information about two individuals identified 
only by the initials "JW1 and "AW" who were listed in the invoice included in your May 2003 Report 
as hzving assisted you with the backup tape contempt matter. Possibly, my letter went astray in the 
press of other business. I am attaching a copy of it to this letter. We noted that "AW" was listed again 
in the invoice included in your June 2003 Report. At this time, we again request the information 
sought in my June 6,2003 letter. 
Thank you for your attention to this matter. 
cc: Attached service list 
. 
Trial Attgmey 
Commercial Litigation Branch 
Def s Motion for Order for SM 
to Conform to Limits Stated 
U.S. Department of Justice 
Civil Division 
Atty: Tracy L. Hilmer 
Tel: (202) 307-0474 
Post Ofice Box 261 
Benjamin Franklin Stalion 
Washingfun. U. C. 20044 
July 9,2003 
Exhibit 12 
by Court of Appeals I 
BY Facsimile (20219868477 
Sppial Master 
TX/RX NO 
CONNECTION TEL 
CONNECTION ID 
ST. TIHE 
USAGE T 
PGS. SENT 
RESULT 
Alan L. Bdamn, Ekq. 
1717 Pennsylvania Ave., NW 
12th Floor 
washington,Dc 20006 
Dear Mr. Balaran: 
On: June 6,2003, I sent you a letter qu&g infomtation about two individuals ichtifid 
only by tho initials "JW" and "AW" who were iisted in the hvoioe hcluded in yow May 2003 Report 
as having assisted you with tho backup tape contempt matter. Possibly, my letter went astray in the 
prgs of other business. I am iipacbing a w y of it to this letter. We noted that "AW" was listed agdn 
in the invoice includcd in your June 2003 Report. At this time, we again request the i n f o d o n 
sought ia my June 6,2003 letter. . . 
hank you'for your atteidon'to this mattcr. 
Re: &&eU v. Norton, Cfv. Action No. 96-12-85 @CL) 0.D.C) 
st* *** TX REPORT 
****$*******t******** 
******L***Y**L******* 
TRANSMISSION OK 
99868477 
I720 
ALAN B A W 
OK 
07/09 16:42 
01'35 
6 
U.S. Department of Justice 
Civil Division 
July 9,2003 Sandra P. Spooner 
Deputy Director 
BY FACSIMILE 
Alan Balaran, Esq. 
17 17 Pennsylvania Avenue, N. W. 
Thirteenth Floor 
Washington, DC 20006 
Re: Cobell v. Norton 
Dear Mr. Balaran, 
This letter is in response to your letter of August 29,2003, concerning your July 3 1,2003 
document request. 
In your July 3 1 document request and in your subsequent letters, you refer to your 
authority to oversee document retention and protection from destruction in accordance with the 
August 12, 1999 Order. The August 12, 1999 Order states that the Special Master is "authorized 
to oversee the Interior Department's retention and protection from destruction of IIM Records, 
through, among other things, on-site visits to any location where IIM Records are maintained." 
August 12, 1999 Order at 2. 
As you know, the parties consented to the August 12, 1999 Order after you issued your 
Recommendation and Report of the Special Master Regarding Document Preservation and 
Protection (dated June 7, 1999) ("June 7, 1999 Report") reporting on site visits you conducted 
during April 1999. The nature of those site visits, as described by you in your June 7, 1999 
Report, included noting the type of records stored at a particular location and then reporting on 
whether the documents were being retained, were properly indexed, were adequately safeguarded 
from dangers such as fire, water, and rodent infestation, and the potential for loss during records 
transfers. Consistent with the events leading up to the August 12, 1999 Order and the language 
of that Order, your subsequent site visits conducted in October and November 1999 were similar 
in nature. Interior Defendants do not dispute your authority to conduct site visits of that nature, 
which in this instance may include a site visit to Minerals Management Service ofices or other 
United States Department of Justice 
Civil Division 
Commercial Litigation Branch 
Fax: (202) 307-0494 
P.O. Box 875, Ben Franklin Station Tel: (202) 514-7194 
Washington, D.C. 200444875 
September 5,2003 
Email:sandra.spoone@usdoj.gov 
Exhibit 13 
Def s Motion for Order for SM 
to Conform to Limits Stated 
by Court of Appeals locations where the type of documents you requested are maintained, to determine whether they 
are being retained and protected from the destruction.' Interior Defendants object, and do not 
consent to, a roving factual investigation by the Special Master into how particular documents 
bear on issues that may or may not be relevant to this litigation. It is the law of this Circuit and 
this case that for a master to assume an "investigative, quasi-inquisitorial, quasi-prosecutorial 
role [] is unknown to our adversarial legal system." Cobell v. Norton, 334 F.3d 1128, 1142 
(2003). 
The reason Interior Defendants have asked why you are requesting specific documents 
related to the Dugan Corporation is that such a request is different in character from a site visit. 
Whereas a site visit to the locations where the documents are kept would, consistent with the 
August 12, 1999 Order and your previous site visits, enable you to inspect the facilities, 
production to you of specified files would not. In addition, the documents you have requested - 
audit files and related papers - are not obviously related to whether particular sites are properly 
retaining documents and safeguarding them from destruction. 
Interior Defendants object, and do not consent to, investigations into the contents of 
particular files where there is no basis to believe those documents contain evidence that 
documents are not being retained or protected. To interpret the August 12, 1999 Order to permit 
you to require the production of IIM records without any nexus to document retention, would 
permit you to conduct roving investigations that do not relate to your referenced authority to 
oversee document retention. Interior Defendants do not consent to any such activities,* 
Moreover, if the basis of your requests is ex uarte contacts, Interior Defendants object to the 
request on that basis. 
The stated basis for your document request is that the Dugan Corporation conducts 
business on allotted lands and that the Minerals Management Service (MMS) is responsible for 
auditing Dugan's compliance with federal regulations. Neither of those facts suggest that the 
documents you request relate to your oversight of document retention or that any deviation from 
the prior practice of conducting general site visits is warranted. Your reference to the MMS 
Audit Report prepared by the Office of the Inspector General does not provide a basis for your 
request of documents related to the Dugan Corporation. There is no reference to the Dugan 
Corporation in that report and our understanding is that the referenced audit workpapers involved 
As you know, Interior Defendants continue to object to your presiding over any 
matters in this litigation, as set forth Interior Defendant's Motion to Disqualify Special Master 
Balaran (filed May 29,2003). 
Consistent with Interior's position, Interior Defendants' objections to your March 6, 
2003 site visits and resulting report are set forth in Interior Defendants' 1) Response And 
Objections To Special Master's Site Visit Report To The Office Of Appraisal Services In Gallup, 
New Mexico And The Bureau Of Indian Affairs Navajo Realty Office In Window Rock, Arizona 
("Site Visit Report") And 2) Opposition To Plaintiffs' Motion To Adopt Site Visit Report (filed 
Sept. 4, 2003). 
2 a different corporation. Please advise us how documents related to the Dugan Corporation have 
specific relevance to your oversight of document retention and protection. 
Thank you. 
Sincerely, 
cc: Dennis M. Gingold, Esq. (by facsimile) 
Keith M. Harper, Esq. (by facsimile) 
3 I 
09/05/2003 15:04 FAX 2023533565 
TX/RX NO 
PGS . 
TX/RX INCOMPLETE 
TRANSACTION OK 
ERROR INFOMATION 
TO: 
cc: 
DATE: 
XVUMBER OF PAGES SENT (INCLUDING COVER PAGE): 4 
SPECIAL INSTRUC”K)NS: 
1MPORTANT: This facsimile is intended only for thc use of the irldividual or entity to which it is addressed. It may 
coxl,tain . information 
I.. 
that is privileged, confidentiai, or otherwise prbtccted &om disclosute under applicable ... . law. ,. If 
Alan L. Balaran, Special Master 
Dennis M. Gingold, Esq. 
Keith M. Harper, Esq. 
September 5,2003 
Cobell v. Norton 
_ _ _ _ - 
@ 001 
1 
COBELL- L IBRARY 
sat WLTI TX/RX REPORT 888 
2246 
4 ____- 
(1) 99868477 
(2) 93182372 
( 3 ) 98220068 
FAX COVER $mET 
.............................. 
**t*****t**********+**~***** 
United Shtea Department of Justice 
Civil Division 
Cammercial Litigation Branch 
202-986-8477 
202-3 18-2372 
202-822-0068 
..,c . . . . . r . . , , . . Aug-12-03 0 5 : 2 6 . From-THE LAW OFFICE OF ALAN BALARAM 
&AN L. BALAKAN, P.L.L.C. 
August 12,3503 
VIA FACSIM1I.E 
Timothy Curley, Esq. 
UNJTED STATES DEPARTMENT OF .lWSTICE 
P.O. Box 875 
Ben Franklin Sration 
Washingon, DC 20044-0875 
Dear ‘Mr. Curley: 
RE: Cobell et al. v. Norton et a!., Civil Action No. 96-1285 
MMS-Requesr for Documents 
I have received your leiier dated Aitg~st 7,2003 responding to my July 3 I , 2003 requesi 
for documcnts related to the auditing h c t i o n s of the Minerals Managemerpt Service (“MMS”). 
This requesr, as you h o w , was a follow up to my leriers of Julie 5 and lG, 2003 lo h a l i a 
Kesslcr stating my intention 10 examine MMS’ audit files. Your letrer seclcs additional rimc 10 
consider my requesrs and an extension uiitil Friday, Augusr 22, 2003 to respond. 
By relephonc conference this dare, I granted your request for ;in extension of time. To 
avoid any misunderstanding, rhe extensioii I granted was to allow additional time to gather 
responsive documenrs - not to decide whether you would comply with my requesr in the first 
instance. My right 10 inspect MMS ’ audir files is squarely grounded in the bugust 12, 1999 
Order which stares, in pertineni pan: “It is fimher ORDERED, that Alan L. Balaran, Special 
Masrer (“Special Master”), is hereby authorized to oversee the Interior Depwment’s rerelition 
‘and prorecrion fioni desrrucrion of IlM Records . . . .” This order was exulicirlv consented to by 
the Deparrrnent of Justice, the Depanrnem of rhc Interior and the Depnrtmcnl of the l’reasur-y 
and, to my knowledge, has not been mended.’ 
’ _I See Augusr 5, 1939 Recommcndarion and Report o f the Special Master Regarding 
Docunenr Preservation and Prorcction (adopted by The Cour~ on Augusc 12, 1999) (“During the 
past month, the parties have ensaged in exrensive negoriarions aimed at dcfining the respzctive 
obligations of the Department of rhe hrerior and ihe Department of ihe Treqsq VIS a vis HM- 
relarcd records. . . . These negotiations have resulted in an ageemenr beweeen the pafiies, the 
!ems ofwhich are set out in the Order Regarding lntenor Depminenr HIM Records Rerention 
and the Order Regarding Treasury Deparrinent HIXI Records Retenlion 10 which I S appended a 
final 1is1 of the predecessors in intmest (‘Proposed Orders’)”]. 
Def s Motion for Order for SM 
to Conform to I.imits Stated 
Exhibit 14 
by Court of Appeals 
2 0 2 9 e 6 e m T-991 P 02/03 F-360 
1717 PENNS\‘LVhNlhAVE;.. N.W. 
THll\TEENTH FLOOR 
WASHINGTON. D.C. Zoo06 
TU2PHOI\IE (20a 46f4010 
FAX (202) 096-6477 
E-MAIL d h @ c l o l . , corn Aug-12-03 05:26 FroM-THE I A W OFFICE OF ALAN BALARAN 
Amplifying The -4ugusr 12, 1999 Order, the Chief of Sraff, Depm~penr or the Lnrerior 
generated a meinorandurn which stated: 
As rhc Order of July -, 1999 directs, die Special Master appointed by the Goun, 
Alan Balarm, is authorized lo oversee and independently verify our compliance 
with our documenr retenrion responsibilities. Mr. Balami may exqrcise his 
responsibilities by visiting m y locarion where HIM records are niaiiirained and 
inspecting the HIM records at that location. These inspections may occur with no 
advance notice. Please provide h l l cooperarion should Mr. Balarap visir your 
office. 
Memorandum Re: Reremion of Documents and Dara Relating ro Individual lndian Monty m) 
Accounts Identified in Airachmenr A. at 2. 
The March 2003 MMS Audit Reporr, which precipitated my requesi to examine MMS 
audit files, uncovered a missing file involving Navajo allorted leases that was subsequently 
"recreated." Pursuant to the above-ciled Augus~ 12, 1999 Consent Order apd atrached 
memorandum, ir is my intention to conduct a diorough examination to deieirmirie wherlier similar 
MMS documents have been lost or fabricated. If your request for an exrension of rime is to 
dispute my r i a 1 ro proceed, it is denied. 
If your request lor additional time is to secure responsive documenq, rhen, as stated, you 
may have until close-of-business Augusr 22, 2003. 
Sincerely, 
Alan L. Balaran 
SPECIAL MASTER 
cc: Dennis Gingold, Esq. 
T-991 P 03/03 F-360 2029866477 1-993 P 02/02 F-367 
Aug-13-03 03:31 From-THE LAW OFFICE OF ALAN BALARAN 
ALAN L. BNARAN, P.L.L.C. 
August 13,2003 
MMS-Requesr for Dociunents 
\'h FACSIMILE 
Tiinothy Curley, Esq. 
W T E D STATES DEPARTMENT OF JUSTICE 
P.0. Box 575 
Ben Franklin Station 
Washingon, DC 20044-0875 
Dear Mr. Curley: 
be locared. 
cc: Dennis Gingold, Esq 
RE: Cobell et al. v. Norton et nl., Civil Action No. 96-1285 
Thank you for your lerier {his dare responding 10 mine of yesterday. As 1 have not been 
previously apprised in writing of the Department of Justice's romal policyconcerning contact 
with the Special Master, I initialed yesterday's call. I will respect your wishes and, henceforrh, 
cease all infonnal communications with your office. I naturally ask that ~ Q U instrucl your 
colleagues to abide by the same resrriciion. 
On a more substantive note, I am denying your petition to "consider" the requests set out 
in my lerler of July 3 1, 2003 and gaming you unril Augost 22,2003 lo provide the requested 
documenrs. It is my inlenrion to take whatever steps necessay, in keeping with rhe later and 
spirit ofthe consem order of August 12, 1999, and examine MMS' audir files wherever they may 
Sincerely, 
Alan L. Baiaran 
SPECIAL MASTER 
Def s Motion for Oider for Shl 
to Conform to Limits Stated 
Exhibit 15 
by Court of Appeals Aug-29-03 03:14 
ADMIl77Il) W DC AND hlD 
From-THE LAW OFFICE OF ALAN BALARAN 
ALAN L. &LLARAN, P.L.L.C. 
August 29,2003 
V1.4 FACSIMILE 
Sandra Spooner. Esq. 
LWITEZ, STATES DEPARTMENT OF JUSTICE 
Civil Division - Commercial Litigation Branch 
P.O. Box 875 
‘Ben Franklin Station 
Washington, DC 20044-0875 
Dcar Ms. Spooner: 
11M Records are maintainsd.” 
Finally, both Mr. Curley and you rsquesr thar I “idemif)/ for conflict purposes any 
individuals who would assisr me in reviewing any records provided.” 1 clp not anticipate sharing 
the Dugan files wirh anyone beyond my imniediale adminisnative staff. Should I need outside 
assistance, however, I will idenrify all individuals K intend to consult in advance or disclosure so 
you i m y file objections with the Court. 
RE: Cobell et aI. v. Norton et al., Civil Action No. 96-1285 
MMS Document Request 
This letrer is in response to Timothy Curley’s lerw dared August ~2 1, 2003 and yoiirs of 
AU~UST 22, 2003. Borh leuers concern my July 3 1, 2003 requesl for MM$ audit files. 
Mr. Curley questions the relevance o f my request for a lisr o i oil wid gas companies thar 
have operated on Indian allotred lands since 1982 and rhe source of my authority for making such 
a requtsr. You response of Augur 22,2003 that such a list does no1 ex$ renders my request 
moot aid obviates the need for me to address Mr. CLtrlcy’s inquiry into rhe “source of [my] 
aurhority 10 require data compilations.” 
Mr. Curley next quesrions why I have requested documenrs related to the Dugan 
Production Corporation (Dugan”). Dugan conducrs business on allotted lands. MMS is 
responsible for auditing Dugan’s compliance wirh federal regulalions. Dpcuments relared TO 
Dugan audits conrain individual Indian trust information enrirled to protection pursuant ro the 
consent order of Augusr 12, 1999. As to Mr. Curley’s query how MMS audit files of rhe Dugan 
Production Corporarion “relates to my autlionty to oversee retention and protection &om 
destruction of records related to Inlerior’s obligarion ro perform an accounting of ILM trusr 
accounrs,” the answer is contained in h4r. Curley’s own AU~LLSI 21, 2003 letter wherein he 
acknowledges that I am “authorized to oversee the Inreiior Department’s rerenrion and promtioil 
from desrruction of KIM Records through, among other Things, on site visirs to any location where 
Det’s Motion for Order for SM 
to Conform to I.imits Stated 
Exhibit 16 
by Court of Appeals 
2029060477 T-006 P 02/03 F-455 
1717 k“SYLVhMA A%.%., N.W. 
171lRTEENTH FLOOR 
WASHINGTON. D C. 2 W 
ramworn (2021 46ao1a 
FAX (202) 9hb-8477 
E-MAIL abd+TZO@cmL.com 2029868477 
documenis. I trus? this letter has addressed these concerns and there will be no funhcr delay in 
producing ihe requesied files. 
1 ask rhar you produce these files no later rhan clase-of-business, Friday, September 5 , 
you expressed 
T-006 P 03/03 F-455 From-THE LAW OFFlCE OF ALAN BALARAN 
On June 5 and 16, 2003, I conveyed to h a h a Kessler my inrention to examine MMS’ 
audit files On July 3 1,1003, I requestcd of John Siemietkowslti specific information and 
docummalion related 10 those files. It was no? until August 2 1,2003 
concerns about polen~inl conflicts and questioned my authority to receive and review these 
Sincerely, 
Al& L. Balaran 
SPECIAL MASTER 
Aug-29-03 03:IS 
2003 
cc: Dciuiis Gingold, Esq. Sep-10-03 02:40 
LAW OFFICE 
From-THE LAW OFFICE OF ALAN EALARAN 
ALAN L. &ILARAN, P.L.L.C. 
VIA %Acsimrx 
Sandra Spooner, Esq. 
UNITED STATES DEPARTMENT OF JUSTICE 
Civil Division - Cominercial Litigation Branch 
Seprmiber 10, 2003 
P.O. Box 575 
Ben Frallklin Starion 
Washingon, DC 3,0044-0875 
Dear M s . Spoontr: 
site visi~s." 
I hav? wad your September 5, 2003 letter refusing to rum over the Qclgan Producrion 
Company (Dugan) files 1 requesred on July 3 1,2003. I ofrer the following response. 
Your letter indicates you btlicve my request exceeds my authority 3pd my reasons for 
making ir ~lnsarisfactory. It is clear you have no knowledge of, or have choSen to ignore, the 
cvciits leading 10 issuance of the February 32 and 34, 1999 Orders of Reference and the August 
12, 1999 Consent Order. As you did nor a m i d any of the conferences or Cpurr hearings leading 
to the issuance of rhese Orders, aid apparenlly have not consulted those who did, allow me 10 
respecLfully enlighten you as to what transpired. 
On Fcbruary 22 and 23, i.399, in riccordance with the Depmniait of lustice's request f i r 
"a ~oitgh" Special Master, the Coun appomrcd and auihoiized me to "do all acts and take all 
measures necessary or proper for [lie efficient performance of rhe master's durie(;." SIX monrhs 
lam. in response to Justice's insisrcnce that the Special Master assume resppnsibiliLy for 
o\,ersceing the preservation and rerenrion of trust records, the Court entered the August 12, 1993 
Consent Order - rhe terms of which \wre di-afled jointly by Justise auld plainnfis. The Consent 
Order aulhorizes the Special Master to discharge his obligarions "through, nmonc other rhinrs, 
The Dzparrmenr ofJustice, ar no rime, sought LO limit rhe Special hlpsrur's overiigJ1t of 
trust infomiation. lndced, had your predecessors inrznded 10 rejIrict those duties, as you now 
S I I , S ~ L ' S ~ , ro "rcpoorrine, on u.hrther documents were bein; retained, \vci-e properly indexed, were 
adequately safeguarded from dangers such as fire, walrr, and rodent infestation, and rlie porential 
(or loss during records transfers," they. wou!d hdve included language to rhar eflect in tlic order. 
They did no\. 
MhlS Document Requesr 
W: Cobelt et al. v. Norton e t al., Civil .4ction No. 96-1285 
Defs Motion for Order for SM 
to Conform to limits Stated 
Exhibit 17 
by Court of Appeals 
2029060477 T-029 P.02/03 F-523 
1717 PENNSYLVANL4AVE. N.W 
THIRTEENTH ROOK 
WASHINGTON. D.C. 1 O W 
TELEPHONE (2WJ 466-Sdlt1 
FAX (202) %a477 
E U L ahahcn@crok.com Sep-10-03 02:40 2029868477 
*? 
T-029 P 03/03 F-523 
.. 
From-THE LAW OFFICE OF ALAN BALAFAN 
Your selective iiirhpreration violares the letter and spirit of the Orders of Reference and 
Conscnr Order. Notwithstanding any reger you may have wirh xespecr to rhe actions of your 
predecessors who entered inro these agreements, you may not revise rhe terns of these Orders 
and i g o r e rhose ponions that ill suii your present purposcs. 
In accordance with these Orders, on July 3 1,2003, I requested thar you produce rhe 
MMS Dugan audit files so I could report to the Court whether documents containing tnw 
information were missing, lost, misplaced, or dcswoycd. You recenrly produced similar files in 
response to my request for Office of Appraisal Services records. In that ins~ance, my request 
followed a Pvfxcli 6, 2003 sire visit. In this instance, I wish 10 first review !he Dugan files in my 
office and then, if necessary, visit rhe locations wherr: these records arc srored and interview 
h o s e responsible for rhcir maintenance. I am oprjmisric these files are complete and site visits 
and interviews will be unnecessary. Your inquiries, protestations, requests lor extensions of 
rime to “consider” my request, and last-minute refusal, however, suggest othexwise. 
Let me be clear. 1 am under no obligation 10 inform you of my motives provided my 
production reclues‘s fall wilhiii the authoriry sot out in COUR Orders. The expiicir terms of rhe 
February and Augusr Orders of Reference affirm that authority - notwirhsrmding your atrempr 
10 reinvent their terms four years h e r and obsnuct my rtbiliry to discharge my responsibilities. 
Findlly, you correctly point our rhar [he Office of the Inspector General (OIG) did nor 
review files pertainins to the Dugan Production Company. I am therefore directing that you also 
produce, forthwith, all MMS audit files related to J.K. Edwards and Associates leases on allotred 
laiids It was a missing J.K. Edwards file, as you know, rhar led to the OIG invesriganon and the 
issuance of its March 2003 repon. 
Sincerely , 
c - Alan L. Balarm 
SPECIAL MASTER 
cc: Dennis Gingold, Esq. CERTIFICATE OF SERVICE 
I declare under penalty of perjury that, on September 24, 2003 I served the foregoing 
Interior Defendants ’ Motion for an Order Directing the Special Master to Conform His Conduct 
to Limits Stated by the Court of Appeals; to Vacate or CIarify Existing Orders as Appropriate; 
And to Act on this Motion on an Expedited Basis by facsimile in accordance with their written 
request of October 31, 2001 upon: 
Dennis M Gingold, Esq. 
Mark Kester Brown, Esq. 
607 - 14th Street, NW, Box 6 
Washington, D.C. 20005 
(202) 3 18-2372 
Keith Harper, Esq. 
Native American Rights Fund 
1712 N Street, N.W. 
Washington, D.C. 20036-2975 
(202) 822-0068 
By Facsimile and U.S. Mail upon: 
Alan L. Balaran, Esq. 
Special Master 
1 7 1 7 Pennsylvania Avenue, N. W., 1 3 th Floor 
Washington, D.C. 20006 
(202) 986-8477 
Per the Court’s Order of April 17,2003, 
by Facsimile and by U S . Mail upon: 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 5941 7 
(406) 338-7530 
By U.S. Mail upon: 
Elliott Levitas, Esq 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530