IN THE UNITED STATES DISTRICT COURT -*T ELOUISE PEPION COBELL, al., et Plaintiffs, V. Case No. 1:96CV01285 (Judge Lamberth) 1 ) ) 1 GALE A. NORTON, Secretary of the Interior, &,) ) ) Defendants. INTERIOR DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR AN ENLARGEMENT OF TIME TO FILE AN OPPOSITION TO 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 Plaintiffs' Motion for an Enlargement of Time to File an Opposition to Interior Defendants' Motion for an Order Directing the Special Master to Conforni 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 ("Motion for Enlargement") should be dcnied. Plaintiffs seek an enlargement on the ground that 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 ("Motion to Conform the Special Master's Conduct") may be mooted by either Interior Defendants' May 29, 2003 Motion to Disqualify Special Master Balaran or Plaintiffs- Appellees' Petition for Rehearing En Banc filed September 2, 2003. & Motion for Enlargement at 1-2. Plaintiffs are wrong because neither of those motions addresses the specific relief Interior Defendants seek in the Motion to Conform the Special Master's Conduct. Plaintiffs argue that Interior Defendants' Motion to Conform the Special Master's Conduct is ''little more than a restatement of the same arguments." Motion for Enlargement at 1. To the contrary, unlike the Motion to Disqualify Special Master Balaran, which seeks disqualification of Special Master Balaran, the Motion to Conform the Special Master's Conduct seeks an order that will prescribe the proper role of any master or monitor in light of limits stated by the Court of Appeals in Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003). Interior Defendants address this distinction in their motion: 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 . . . It should be stressed, however, that this motion is independent of the motion to disqualify Mr. Balaran. The relief requested here would be equally applicable to any other individual appointed as a special master in this case. Motion to Confomi the Special Master's Conduct at 3-4. Whether the Court grants or denies Interior Defendants' Motion to Disqualify Special Master Balaran, the request for relief in Interior's Motion To Conform the Special Master's Conduct would still be outstanding. Similarly, Plaintiffs' request for rehearing en bane in the Court of Appeals does not address that court's ruling regarding the proper role of a monitor or master but instead, challenges solely the reversal of this Court's contempt findings. Indeed, Plaintiffs request an order "vacating the panel's judgment in part so as to allow for reinstatement of the district court's civil contempt relief as set forth in the September 17, 2002 order[.]'' Plaintiffs-Appellees' Petition for Rehearing En Banc at 15. (Emphasis added). Plaintiffs do not address, make any argument for reversal of, or request relief from the Court of Appeals' ruling regarding the proper role of a master, or seek to overturn its orders vacating the Special Master-Monitor's appointment. Accordingly, even if 2 their rehearing motion were successful, Plaintiffs cannot reasonably expect the Court of Appeals to reverse its ruling concerning the role of a master because Plaintiffs have not sought such relief. Interior Defendants have sought expedited consideration of their Motion to Conform the Special Master’s Conduct because they suffer irreparable harm when either Special Master Balaran or any other master or monitor assumes an “an investigative, quasi-inquisitorial, quasi- prosecutorial role that is unknown to our adversarial legal system.” Cobell v. Norton, 334 F.3d 1128, 1142 (D.C. Cir. 2003). Granting Plaintiffs‘ rneritless motion for an enlargement would only compound that harm. Conclusion For these reasons, Interior Defendants respectfully request that the Court deny Plaintiffs Motion for An Enlargement of Time and accord expedited consideration to Interior Defendants’ Motion to Conform the Special Master’s Conduct. Respectfully submitted, ROBERT D. McCAI,I,UM Associate Attorney General PETER D. KEISLER Assistant Attorney General STUART E. SCHIFFER Dcputy Assistant Attorney General J. CHRISTOPHER KOHN Director SANDRA P. SPOONER Deputy Director D.C. Bar No. 261495 JOHN T. STEMPLEWICZ Senior Trial Attorney 3 Trial Attorney D.C. Bar No. 470450 Commercial Litigation Branch Civil Division P.0. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 (202) 5 14-7 194 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, A, P 1 aint i ffs , V. Case No. 1:96CV01285 (Judge Lamberth) GALE NORTON, Secretary of the Interior, al., ) ) ) 1 ) ) ) ) 1 1 Defendants. . Upon consideration of the SO ORDERED ORDER This matter comes before the Court on the Plaint@s ’ Motion for an Enlargement of Time to File an Opposition to 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 Clarifi, Existing Orders as Appropriate; and to Act on this A4otion on an Expedited Basis, Dkt # Opposition, any Reply thereto, and the entire record of this case, it is hereby ORDERED that the Motion is. DENIED. Hon. Royce C. Lamberth UNITED STATES DISTRICT JUDGE United States District Court for the District of Columbia Date: 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 14-9163 Dennis M Gingold, Esq. Mark Brown, Esq. 607 - 14th Street, NW, Box 6 Washington, D.C. 20005 Fax (202) 3 18-2372 Keith Harper, Esq. Native American Rights Fund 1712 N Street, NW Washington, D.C. 20036-2976 Fax (202) 822-0068 Elliott Levitas, Esq. I100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 Alan L. Balaran, Esq. Special Master 1 7 I 7 Pennsylvania Avenue, N. W., 13th Floor Washington, D.C. 20006 (202) 986-8477 Earl Old Person (Pro se) Blackfeet Tribe P.O. Box 850 Browning, MT 594 I7 (406) 338-7530 CERTIFICATE OF SERVICE I declarc under penalty of perjury that, on September 26,2003 I served the foregoing Interior Defendants Opposition to Plaint@s’ Motion for an Enlargement of Time to File an Opposition to Interior Defendants‘ Motion for an Order Directing the Special Muster to Conform His Conduct to Limits Stated by the Court of Appeals; to Vacate or Clurijj Existing Orders as Appropriate; and to Act on this Motion on an Expedited Basis by facsimile in accordance with their written request of October 3 1, 200 1 upon: Keith Harper, Esq. Native American Rights Fund 1712 N Street, N.W. Washington, D.C. 20036-2976 (202) 822-0068 Dennis M Gingold, Esq. Mark Kester Brown, Esq. 607 - 14th Street, NW, Box 6 Washington, D.C. 20005 (202) 318-2372 By Facsimile and U.S. Mail upon: Alan L. Balaran, Esq. Special Master 1 7 17 Pennsylvania Avenue, N. W., 13 th Floor Washington, D.C. 20006 (202) 986-8477 Per the Court’s Order of April 17, 2003, by Facsimile and by US. Mail upon: Earl Old Person (Pro se) Blackfeet Tribe P.O. Box 850 Browning, MT 594 17 (406) 338-7530 By US. Mail upon: Elliott Levitas, Esq 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530