UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, et al., 
Plaintiffs, 
v. 
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))) 
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GALE A. NORTON, et al., 
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Defendants. 
____________________________________) 
MEMORANDUM OF THE UNITED STATES IN RESPONSE TO 
PLAINTIFFS' MOTION THAT STEVEN GRILES, JAMES CASON, HORD 
TIPTON, ROBERT MCCALLUM, PETER KEISLER, 
STUART SCHIFFER, CHRISTOPHER KOHN, SANDRA SPOONER, 
JOHN STEMPLEWICZ, GLENN GILLETT, AND JOHN WARSHAWSKY 
BE DEEMED TO HAVE CONCEDED PLAINTIFFS’ MOTION OF 
JANUARY 13, 2004 ASSERTING VIOLATIONS OF COURT ORDERS 
On January 13, 2004, Plaintiffs moved for an order that Secretary Gale Norton and twelve 
non-party individuals (the “Named Individuals”) show cause why they should not be held in civil 
and criminal contempt for alleged violations of the temporary restraining order entered June 27, 
2003, the preliminary injunction issued July 28, 2003, and the Order of December 21, 1999. The 
temporary restraining order and the preliminary injunction addressed the security of the 
Department of the Interior’s computer systems to protect against unauthorized access to 
Individual Indian Trust Data (IITD) through the internet, and the preliminary injunction required 
certifications for systems housing or providing access to IITD which remained connected to the 
internet. The December 21, 1999 Order required Defendants to file quarterly reports, and 
Plaintiffs alleged that certain reports were inaccurate to the extent that the reports discussed 
Civil Action No. 96-1285 (RCL)
security of the Department of the Interior's information technology systems. 
On January 27, 2004, the United States filed a comprehensive memorandum (the 
“Response”) opposing Plaintiffs’ motion. The Response addressed all issues raised in Plaintiffs’ 
motion and demonstrated the motion was utterly baseless. Plaintiffs have now filed a motion 
requesting that eleven of the Named Individuals be deemed to have conceded Plaintiffs’ motion 
because they did not personally file additional, redundant memoranda also showing that 
Plaintiffs’ motion was meritless.1 
Plaintiffs’ motion to default the eleven Named Individuals and the companion motion to 
default “Citizen Norton” have met the considerable challenge of being even more frivolous than 
the contempt motion itself. The responsive memorandum filed by the United States addresses all 
issues raised by Plaintiffs' motion, and the Named Individuals may rely on that response. 
Plaintiffs simply have no basis to claim that the Named Individuals had to file separate briefs in 
their personal capacities or risk default. Moreover, the motion filed by Plaintiffs is so lacking in 
specificity that the Named Individuals could not present individual responses, and Plaintiffs' 
assertion that they were required to do so is inconsistent with their due process rights. 
The Government's Response Addressed All Issues A. 
The Government's Response addressed all issues raised in Plaintiffs’ motion. The 
Response demonstrated that Plaintiffs’ contentions that one or more orders had been violated 
rested on misrepresentation and misinterpretation of four reports on which Plaintiffs relied. 
Response at 7-14, 24, 28-32. The Response demonstrated that Plaintiffs had not established 
that Defendants violated any of the orders at issue, which was sufficient to require that Plaintiffs’ 
1 Plaintiffs have not moved to default Hart Rossman, the twelfth Named Individual. 
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motion be denied. Response at 14-32, 34-35. The Response also demonstrated that all of the 
orders in question were addressed solely to Defendants, and, therefore, Secretary Norton and the 
Named Individuals personally could not be held in civil contempt even if an order had been 
violated. Response at 36-37. The Response demonstrated that the eight Department of Justice 
attorneys who were accused of failing to conduct reasonable inquiry in connection with 
certifications filed pursuant to the preliminary injunction had completely fulfilled their 
professional obligations and, therefore, contempt sanctions or referral to the Disciplinary Panel, 
as requested by Plaintiffs, were totally unwarranted. Response at 25-28. The Response also 
showed that Plaintiffs had not even attempted to fulfill their evidentiary burden to show the 
elements of criminal contempt. Response at 40-41. In sum, the Response covered every issue 
raised by Plaintiffs’ contempt motion directed to the Named Individuals, in any capacity. The 
arguments made in the Government's brief are before the Court, and the Named Individuals may 
rely on them, whether or not they filed additional responses. 
Plaintiffs’ contention that the Named Individuals conceded the motion because they did 
not file a one-sentence pleading adopting the Response or a longer memorandum echoing the 
Response is without merit. Plaintiffs point out that Local Rule 7(b) requires opposing parties to 
respond to a motion within a specified time and authorizes the Court to deem a motion conceded 
if opposing parties do not file a timely opposition. The Government is the opposing party in this 
case, and the Government did file a response. Rule 7(b) is inapplicable to the Named Individuals 
because they are not parties. 
Plaintiffs failed to specify whether their allegations applied to the Named Individuals in 
their official or individual capacities. Because Plaintiffs failed to make this distinction, and 
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because all of the allegations pertained to actions taken by the Named Individuals in the course 
of their official duties, the Government responded to all the allegations as to them. 
At bottom, Plaintiffs are arguing that if the Court agrees with the United States that 
Plaintiffs' motion is without merit, it should nevertheless grant Plaintiffs' motion because the 
Named Individuals did not file separate responses. Plaintiffs' contention is clearly incorrect. 
B. Plaintiffs' Motion Lacks Sufficient Specificity to Allow or Require Separate 
Response 
Plaintiffs’ contention that the Named Individuals should be deemed to have conceded 
contempt liability would lack merit even if the United States had not filed an opposition. As 
movants for a show cause order, Plaintiffs have an initial burden of establishing a prima facie 
case. Until they do so, Defendants and the non-party individuals are not required to do anything. 
Plaintiffs' motion fell woefully short of discharging their burden. 
As discussed in the Response, at 16 and 34, in order to require Defendants to respond to a 
charge of civil contempt, Plaintiffs have the burden of showing, by clear and convincing 
evidence, that (1) a court order was in effect, (2) the order clearly and unambiguously required 
certain conduct by the respondents, and (3) the respondents failed to comply with the Court's 
order. Plaintiffs' motion did not identify any order which required conduct by the Named 
Individuals in their personal capacities, and there is none. The December 21, 1999 Order, the 
TRO and the Preliminary Injunction by their terms were directed to Defendants. Therefore, 
Plaintiffs’ motion falls by its own weight because Plaintiffs have failed to make the threshold 
showing of an order which required certain conduct by the Named Individuals in their personal 
capacities. 
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Even if Plaintiffs had identified an order binding the Named Individuals personally, 
Plaintiffs' motion was insufficient to require them, or even allow them, to present responses. 
Indeed, Plaintiffs' attempt to default them for not filing separate briefs runs afoul of due process. 
As noted in the Response, Plaintiffs failed to specify which acts taken by the Named Individuals 
allegedly violated the court orders in question. This Court has recognized that such a 
specification is required even for civil contempt proceedings. After Plaintiffs had filed a motion 
accusing dozens of individuals of committing civil and criminal contempt, the Court directed 
Plaintiffs to lay out "individual defendant by individual defendant specifications of what the 
contempt proceedings would be for those 39 people so that they each have an opportunity to 
address what the evidence is and what you are citing against any of those 39." Transcript of 
March 15, 2002 Status Hearing, at 21:10-14. The Court concluded that "you need to specify by 
person so that each of them can respond to what the specifications would be and what the 
evidence would be so that each of them can have an opportunity to have due process." Id. at 
23:7-10. Plaintiffs failed to particularize their allegations as to specific individuals in their 
January 13, 2004 motion. Accordingly, Plaintiffs did not meet the minimum measure of due 
process that this Court has already required for allegations of contempt. In the absence of 
specific allegations addressed to their personal behavior, the Named Individuals could neither 
present a written response nor show cause why they should not be held in contempt. 
Plaintiffs’ request that the Named Individuals be deemed to have conceded allegations 
that they committed criminal contempt is even more frivolous. First, Plaintiffs did not even 
attempt to establish the elements of criminal contempt. Criminal contempt requires an initial 
showing that evidence exists that, if believed, could establish beyond a reasonable doubt that (1) 
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a clear and reasonably specific court order was in effect, (2) the order required certain conduct by 
a Named Individual, and (3) the Named Individual willfully violated the court's order. As 
discussed in the Response at 41, Plaintiffs fail to establish any of the elements. Plaintiffs’ 
motion did not specify any evidence which, if believed, would establish beyond a reasonable 
doubt that any Named Individual willfully violated any order. Until each Named Individual is 
provided with a prima facie case of criminal contempt, he or she could not frame a response. 
Moreover, requiring the Named Individuals to respond to charges of criminal contempt, as 
Plaintiffs request, would violate their rights of due process. The Court of Appeals made it 
abundantly clear that a criminal contempt proceeding is a criminal proceeding, and an accused is 
entitled to the full measure of due process rights guaranteed by the Constitution. Cobell v. 
Norton, 334 F.3d 1128, 1147 (D.C. Cir. 2003). A person accused of criminal liability cannot be 
deemed to have conceded liability by remaining silent. 
At a minimum, each Named Individual has a right to know what he or she is personally 
accused of, whether the accusation is civil or criminal in nature, and whether the accusation 
pertains to his or her official or individual capacity. Yet, Plaintiffs' January 13, 2004 motion 
made no distinction between acts allegedly constituting civil contempt and acts allegedly 
constituting criminal contempt, or between acts taken by a Named Individual in an official 
capacity versus acts in a personal capacity. In sum, to the extent that Plaintiffs' January 13, 2004 
motion attempts to state a case against the Named Individuals personally, the allegations are 
insufficient to allow them to respond, and, in any event, they would not be required to respond on 
risk of default, even if the motion had stated a case against them personally. 
Additionally, the Court must make an independent determination of whether a party 
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requesting a contempt proceeding has stated a prima facie case, particularly when the party is 
alleging criminal contempt. As this Court recognized in Landmark Legal Foundation v. EPA, 
272 F. Supp. 2d 70, 77 (D.D.C. 2003): "[I]t is the court that makes the initial decision whether a 
criminal contempt proceeding should take place." Plaintiffs' effort to default the Named 
Individuals is an improper attempt to short-circuit the contempt process, to shift the burden of 
proof, and to deprive them of their rights of due process. 
CONCLUSION 
Plainly, neither a legal nor factual basis exists for Plaintiffs' motion. For the reasons 
stated above, the Court should enter an Order denying Plaintiffs’ motion that the Named 
Individuals be deemed to have conceded the contempt motion and admonishing Plaintiffs against 
filing such frivolous and reckless pleadings in the future. 
Respectfully submitted, 
ROBERT D. McCALLUM, JR. 
Associate Attorney General 
PETER D. KEISLER 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
MICHAEL F. HERTZ 
Director 
/s/ Dodge Wells 
Dodge Wells 
D.C. Bar No. 425194 
Tracy L. Hilmer 
D.C. Bar No. 421219 
Trial Attorney 
Commercial Litigation Branch 
Civil Division 
P.O. Box 261 
Ben Franklin Station 
Washington, D.C. 20044 
(202) 307-0407 
February 6, 2004 DATED: 
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CERTIFICATE OF SERVICE 
I hereby certify that, on February 6, 2004 the foregoing Memorandum of the United States 
in Response to Plaintiffs' Motion That Steven Griles, James Cason, Hord Tipton, Robert 
McCallum, Peter Keisler, Stuart Schiffer, Christopher Kohn, Sandra Spooner, John Stemplewicz, 
Glenn Gillett, and John Warshawsky Be Deemed to Have Conceded Plaintiffs’ Motion of 
January 13, 2004 Asserting Violations of Court Orders was served by Electronic Case Filing, 
and on the following who is not registered for Electronic Case Filing, by facsimile: 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
Fax (406) 338-7530 
/s/ Kevin P. Kingston 
Kevin P. Kingston
__________________________________________
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ELOUISE PEPION COBELL, et al., ) 
Plaintiffs, 
v. 
GALE NORTON, Secretary of the Interior, et al., ) 
Defendants. 
)
) 
__________________________________________) 
This matter comes before the Court on Plaintiffs’ Motion to Treat as Conceded Plaintiffs' 
Motion for an Order to Show Cause Why the Department of the Interior, Interior Secretary Gale 
Norton, and Her Senior Managers and Counsel, Should Not Be Held in Civil and Criminal 
Contempt for Violating Court Orders, Including the Temporary Restraining Order and 
Preliminary Injunction Entered to Protect Trust Data and Assets (January 13, 2004) with 
Respect to Citizens Griles, Cason, Tipton, McCallum, Keisler, Schiffer, Kohn, Spooner, 
Stemplewicz, Gillett, And Warshawsky (Dkt. # 2454). Upon consideration of the Plaintiffs’ 
Motion, Defendants’ Opposition, any Reply thereto, and the entire record of this case, it is hereby 
ORDERED that the Motion is DENIED. 
SO ORDERED. 
Date:______________ 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
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ORDER
___________________________________ 
Hon. Royce C. Lamberth 
UNITED STATES DISTRICT JUDGE 
United States District Court for the 
District of Columbia 
Case No. 1:96CV01285 
(Judge Lamberth)
cc: 
Dodge Wells 
Tracy L. Hilmer 
Sandra P. Spooner 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
Dennis M Gingold, Esq. 
Mark Brown, Esq. 
1275 Pennsylvania Avenue, N.W. 
Ninth Floor 
Washington, D.C. 20004 
Keith Harper, Esq. 
Richard A. Guest, Esq. 
Native American Rights Fund 
1712 N Street, NW 
Washington, D.C. 20036-2976 
Fax (202) 822-0068 
Elliott Levitas, Esq. 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
Fax (406) 338-7530