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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ELOUISE PEPLON COBELL, et al.,	)
	)
Plaintiffs,	)	Civil Action No. 96-1285 (RCL)
	)
v.	)
	)
GALE A. NORTON, et al.,	)
	)
Defendants.	)
______________________________________________________________________)
CONSOLIDATED OPPOSITION TO PLAINTIFFS'
AUGUST 27,2001 AND OCTOBER 19,2001 MOTIONS
FOR ORDERS TO SHOW CAUSE WHY INTERIOR DEFENDANTS AND
THEIR EMPLOYEES AND COUNSEL SHOULD NOT BE HELD IN CONTEMPT
Defendants Gale Norton, Secretary of the Interior, and Neal McCaleb, Assistant
Secretary of the Interior for Indian Affairs, (collectively "Interior Defendants") submit this
opposition to Plaintiffs' August 27,2001 and October 19,2001 motions for orders to show
cause why various current and former government officials and attorneys should not be
held in contempt in connection with this case. This brief is submitted on behalf of Secretary
Norton, Assistant Secretary McCaleb and the other persons named in Plaintiffs' two
motions, in their official capacities.'
As set forth in the October 29, 2001 "Notice of Withdrawal of Current
Counsel and Appearance of new Counsel for Defendants," undersigned counsel appear
on behalf of Defendants with respect to the pending contempt motions only. Attorneys
from the Department of Justice ("DOJ") Civil Division will respond separately to
Plaintiffs' October 19, 2001 motion to the extent that it seeks to reopen Trial One to
address whether a receiver should be appointed to take control of the Individual Indian
Money ("TIM") accounts.
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	Even a cursory review of the voluminous record in this litigation reveals a long
history of documented problems with the implementation of an accurate accounting of IIM
accounts, as required by the American Indian Trust Fund Management Reform Act of
1994 ("1994 Act"). The reports of the Court Monitor, relied upon heavily in Plaintiffs'
recent contempt motions, chronicle in great detail the continuing struggle of the
Department of the Interior ("DOL") to carry out that accounting in a manner that is both
prompt and accurate. Although DOL takes issue with a number of the conclusions drawn
by the Court Monitor in his lengthy reports, his commentary undoubtedly sheds light on
ongoing issues that must be addressed by DOI.
	The present contempt motions, however, present a very different issue. Plaintiffs
have asked that the Court hold no fewer than 39 current and former DOL and DOJ officials
in contempt of court, and requested that each individual be imprisoned and sanctioned
financially. See "Plaintiffs' Consolidated Motion to Amend Their Motion to Reopen Trial
One in this Action to Appoint a Receiver and Memorandum of Points and Authorities in
Support Thereof and Motion for Order to Show Cause Why Interior Defendants and Their
Employees and Counsel Should Not Be Held in Contempt for Violating Court Orders and
for Defrauding this Court in Connection with Trial One" ("Oct. 19, 2001 Contempt
Motion"), at 16. Plaintiffs have alleged that invocation of the Court's contempt powers is
appropriate because, in their view, the named DOI and DOJ officials have taken actions
that constitute "an unprecedented fraud on this Court that plainly were designed to
undermine the integrity of this judicial proceeding." Oct. 19,2001 Contempt Motion, at 60-
61; see ~ "Plaintiffs' Consolidated Reply Brief in Support of Motion to Set a Trial Date
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for Phase II of this Action and Memorandum in Support of Motion for Order to Show
Cause Why Past and Present Interior Defendants and Their Employees and Counsel Should
Not Be Held in Contempt" ("Aug. 27, 2001 Contempt Motion"), at 24 ("this case has been
derailed by fraud and abuse").
	This brief will not attempt to address the long history of trust reform efforts or to
chronicle in detail the actions that DOI officials have taken to bring about a workable
accounting system. Whether DOI's actions in that regard are in conformity with law may
properly be addressed under the governing legal standards set forth in the 1994 Act, the
Administrative Procedure Act, and other relevant legal principles. In particular, Interior
Defendants respectfully refer the Court to the November 14,2001 filing from the DOJ Civil
Division in this case, which outlines substantial changes to the structure of DOI's trust
efforts reflecting Secretary Norton's continued commitment to trust reform, and directly
responds to the Court's direction at the October 30, 2001 status conference in this case to
explain "who is in charge of trust reform for the government." See Exhibit 1, Transcript
of Oct. 30, 2001 Status Conference, at 43; Notice of Proposed Department of the Interior
Reorganization to Improve Indian Assets Management (Nov. 14, 2001). This brief will
instead address whether the actions of DOL and DOJ officials are in violation of clear and
specific court orders so as to justify holding these individuals in contempt.
	Based upon the existing record - including the reports and opinions of the Court
Monitor and Special Master and the other available documentary evidence - an order to
show cause simply is not warranted. Even accepting as true many of the concrete factual
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2
assertions contained in the Court Monitor reports, the record does not reflect conduct by
Interior Defendants or their employees or counsel that might justify contempt. Rather,
what this record reflects is genuine, determined and honest efforts by these individuals
both to move trust reform forward and to document their progress for the Court. In light
of the size and importance of the two tasks, DOI has undeniably struggled with how best
to move forward. But contrary to Plaintiffs' suggestion, there is no reason to believe that
contempt should be imposed.
	As explained in detail below, the law governing the contempt sanction makes clear
that it is a drastic remedy, to be imposed only where an individual violates a definite and
specific court order requiring him to perform or refrain from performing a particular act
or acts. The order in question must be clear and unambiguous, and the party moving for
an order to show cause must articulate specific facts constituting contempt of a court order
if proven. Plaintiffs' recent contempt motions in this case barely touch upon this core
requirement of a clear and unambiguous court order, instead calling upon this Court to
invoke its contempt powers for a wide range of conduct that is separate from any specific
	2 The Court Monitor notes that his Reports are not evidence. See Exhibit 2,
at 11. In responding to the individual Court Monitor reports, DOI has made clear that it
contests a number of the assertions and conclusions contained therein. ~ ~g±,
"Department of the Interior's Response to the Third Report of the Court Monitor," at 4
n.1.	DOI has been hard at the task of implementing meaningful trust reform, and a
response to Plaintiffs' motions would ideally include a comprehensive presentation of
all facts regarding Plaintiffs' claims. As anticipated in Interior Defendants' filing of
November 9,2001, that has not proven to be feasible. Yet taking Plaintiffs' motions as
Plaintiffs themselves have chosen to frame them, further factual development beyond
that which is already a matter of record in this case is not necessary to the resolution of
these motions, for when the facts of record are assessed against the governing law, it is
clear that no show cause order should issue.
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order. In addition, the motions are so broad both in their scope and in the number of
individuals alleged to be conteninors that they fail to articulate an adequate basis for
contempt as to each individual. For these reasons alone, the motions should be denied.
	The specific factual allegations raised by Plaintiffs' motions also cannot support a
contempt finding. Plaintiffs' allegations relating to the DOI Federal Register process on
historical accounting methods, which is the primary factual basis for Plaintiff's August 27,
2001 contempt motion, are illustrative. The core of Plaintiffs' complaint with respect to this
process is that Interior Defendants carried out a "sham" Federal Register process
addressing how they might carry out a historical accounting in order "to delay indefinitely
the resolution of this case and the Phase II accounting trial that defendants feared so
much." See Aug. 27,2001 Contempt Motion, at 20. But Plaintiffs' position on this point is
fundamentally flawed on several different levels. First, to the extent that Plaintiffs may be
read to suggest that the choice to utilize statistical sampling was itself inconsistent with this
Court's December 1999 ruling, see Aug. 27, 2001 Contempt Motion, at 19-20, the plain
language of that ruling and the Court of Appeals' decision show otherwise. This Court
stated explicitly:
It should be noted that the court is not ruling upon what specific form
of accounting, if any, the Trust Fund Management Reform Act
requires. For example, the court does not purport to rule on whether
an accounting accomplished through statistical sampling would
satisfy defendants' statutory duties.
Cobell v. Babbitt 91 F.Supp.2d 1,40 n.32 (D.D.C. 1999); see also Cobell v. Norton. 240 F.3d
1081, 1104 (D.C. Cir. 2001) ("The district court explicitly left open the choice of how the
accounting would be conducted, and whether certain accounting methods, such as
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statistical sampling or something else, would be appropriate"). In addition, the fact that
DOL officials anticipated utilizing some form of statistical sampling as part of their efforts
even before receiving public comments is not only not "bad faith," but it is consistent with
the Administrative Procedure Act. DOI never hid from anyone that it believed that a
transaction-by-transaction accounting of every account could be so time consuming and
expensive as to be unrealistic. And the record also demonstrates that, contrary to Plaintiffs'
suggestion, this was a genuine and purposeful process, designed to seek public opinion on
the proper course for a historical accounting.
	Plaintiffs' assertions to the contraly notwithstanding, the record also does not
support a finding of contempt with respect to the manner in which DOI officials have
reported to the Court their progress in trust reform efforts. The lengthy Second Report of
the Court Monitor, for instance, chronicles in great detail many of the Court Monitor's
concerns with respect to development of the TAAMS computer system. The Court Monitor
offers harsh criticism of DOI's failure to recognize sooner the significant problems with this
system. But there is a fundamental difference between failing to anticipate and recognize
all the difficulties of this massive trust reform project, on the one hand, and disobeying
court orders, on the other. And while Plaintiffs have noted several instances when, they
suggest, DOI officials purposely sought either to mislead the Court or to hide from the
Court problems that they knew existed with this system, the facts do not support such
allegations of bad faith.
	In short, there is no reason for an order to show cause because Interior Defendants'
conduct does not suggest that contempt would be appropriate. A fair reading of the record
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makes clear that, although one might complain about the pace of progress on the merits,
contempt is unwarranted here, and no orders to show cause should issue.
ARGUMENT
I.	Legal Standards
A.	Civil Contempt
	This Court undoubtedly has the inherent authority to enforce its orders through the
exercise of its contempt powers. See Shillitani v. United States 384 U.S. 364 (1966);
Armstrong v. Executive Office of the President. I F.3d 1274, 1289 (D.C. Cir. 1993). That
authority, however, is to be exercised sparingly, with "restraint and discretion." Chambers
v. NASCO~ Inc. 501 U.s. 32,44(1991). AsthisCourthasnOted,"the'eXtraordrnalYnahlre
of the remedy of civil contempt leads courts to 'impose it with caution."' S.E.C. v. Life
Partners, Inc.. 912 F. Supp. 4, 11 (D.D.C. 1996), quoting loshi v. Professional Health
Services, Inc. 817 F.2d 877, 879 n.2 (D.C. Cir. 1987). Further, in light of the severity of the
contempt sanction, it should not be resorted to "if there are any grounds for doubt as to the
wrongfulness of the defendants' conduct." Life Partners 912 F. Supp. at 11, citing MAC
Corp. v. Williams Patent Crusher & Pulverizer Co.. 767 F.2d 882, 885 (Fed. Cir. 1985).
	A civil contempt action is "a remedial sanction used to obtain compliance with a
court order or to compensate for damages sustained as a result of noncompliance." Food
Lion, Inc. v. United Food & Commercial Workers Int'l Union. 103 F.3d 1007,1016 (D.C. Cir.
1997), quoting National Labor Relations Board v. Blevins Popcorn. 659 F.2d 1173, 1184
(D.C. Cir. 1981). Without a clear and unambiguous court order, therefore, there can be no
finding of civil contempt. ~ Armstrong. 1 F.3d at 1289. For this reason, the party moving
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for an order to show cause has the burden of showing by clear and convincing evidence
that: "(1) a court order was in effect, (2) the order required certain conduct by the
respondent, and (3) the respondent failed to comply with the court's order." Petties v.
District of Columbia 897 F.Supp. 626,629 (D.D.C. 1995); see also Life Partners. 912 F.Supp.
at 11 (In order to be held in contempt of court, a party must violate "a definite and specific
court order requiring [himi to perform or refrain from performing a particular act or acts
with knowledge of that order."), quoting Whitfeld v. Pennington 832 F.2d 909,913 (Sth Cir.
1987). If the order in question contains any ambiguities, the court has to resolve those
ambiguities in favor of the respondent. See United States v. Microsoft Corp.. 980 F.Supp.
537,541 (D.D.C. 1997), citing Common Cause v. NRC 674 F.2d 921,927-28 (D.C. Cir. 1982).
	In Armstrong for example, several government agencies appealed from an order
by Judge Richey holding them in contempt of a prior order enjoining the Archivist of the
United States to "take all necessary steps" to preserve federal records and requiring the
agencies not to remove, alter, or delete any information until the Archivist took action to
prevent the destruction of federal records. See Armstrong. 1 F.3d at 1277. Because the
agency did not violate a clear order requiring certain conduct, the Court of Appeals
reversed and remanded. Id. at 1277,1288-90. In holding that the District Court had abused
its discretion, the Court of Appeals emphasized that "civil contempt will lie only if the
putative contemnor has violated an order that is clear and unambiguous." Id. at 1289
(emphasis added), quoting Project B.A.S.I.C. v. Kemp. 947 F.2d 11,16(1st Cir. 1991).
	A party charged with contempt is entitled to certain procedural protections. Due
process concerns require that one charged with contempt be advised of the charges against
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him and that he have a reasonable opportunity to defend such a charge. ~ e.g., In re
Oliver 333 U.s. 257, 273 (1948); see also Brotherhood of Locomotive Firemen and
Enginemen v. Bangor & Aroostook R.R. Co.. 380 F.2d 570,581 (D.C. Cir. 1967) ("Like any
civil litigant, a civil conternnor is... clearly entitled to those due process rights, applicable
to every judicial proceeding, of proper notice and an impartial hearing with an opportunity
to present a defense."). Thus, in order to initiate a contempt proceeding, the movant must
set forth specific and detailed factual allegations that would constitute contempt of a court
order if proven. ~ ~±g., Wyatt v. Rogers 92 F.3d 1074, 1078 n.8 (iP Cir. 1996) (court
should examine moving party's allegations to determine whether a case is sufficiently
made out for an order to show cause); Philippe v. Window Glass Cutters League of
America. 99 F.Supp. 369,374 (W.D. Ark. 1951) (movant's accusation of contempt "should
contain a short and plain statement of the grounds upon which the court's jurisdiction
depends and on its face should show facts sufficient to constitute contempt of court"). A
person cannot be punished for contempt not committed in the presence of the court
without due and reasonable notice of the proceeding and the grounds upon which it is
based. Philippe. 99 F.Supp. at 374.
	The party seeking a finding of civil contempt has the "heavy burden of proof" of
demonstrating, by "clear and convincing" evidence, that the respondent violated the
court's prior order. See Washington-Baltimore Newspaper Guild v. Washington Post Co.
626 F.2d 1029,1031 (D.C. Cir. 1980); see also Food Lion, Inc.. 103 F.3d at 1016; Armstrong.
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I F.3d at 1289.~ Moreover, the Court of Appeals has indicated that a party charged with
contempt may defend itself on the ground of "good faith substantial compliance" with the
court order. See Food Lion 103 F.3d at 1017 & n.16 (assuming the existence of the defense);
see also Cobell v. Babbitt. 37 F.Supp.2d 6,9-10 & n.3 (D.D.C. 1999) (noting that, "fa]lthough
the viability of this defense has not been squarely resolved in this circuit. .. the plaintiffs
have not made such a challenge in this case."). To demonstrate good faith substantial
compliance, the respondent may demonstrate that it "'took all reasonable steps within its
power to comply with the Court's order."' Food Lion 103 F.3d at 1017 (citations omitted).
	For the same reason, civil contempt against former government officials is
disfavored. The primary purpose of civil contempt - to obtain compliance with a court
order - is not furthered by holding former government officials in contempt, because they
do not have the power to ensure compliance with the court order. See King v. Greenblatt
489 F.Supp. 105, 108 (D.Mass. 1980) (former State officer could not be held liable for
contempt because he has no power to control funds of any State agency); see ~ Shillitani
384 U.S. at 371 (where grand jury has been finally discharged, a contumacious witness can
no longer be confined since he then has no further opportunity to purge himself of
contempt)~ cf United States v. Bryan 339 U.S. 323, 330 (1950) ("Ordinarily, one charged
with contempt of a court order makes a complete defense by proving that he is unable to
	On October 29, 2001, Plaintiffs filed a Notice of Supplemental Authority,
in which they suggested that criminal contempt might be appropriate in response to
conclusions of the Special Master relating to distribution of his anti-reprisal order. For
the reasons set forth in Interior Defendants' November 9, 2001 response to the Special
Master's October 28, 2001 supplemental opinion on this issue, no finding of civil or
criminal contempt is potentially justified on this issue.
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comply."). The same reasoning would apply to the many alleged contemnors who are
attorneys no longer assigned to or working on this case, as they have no ability to bring
about compliance with any Court order.
	Finally, a party found to be in contempt should be given an opportunity to purge
itself of the contempt prior to the imposition of any penalties. See SEC v. Bilzerian 112
F.Supp.2d 12,16 (D.D.C. 2000) (penalty only should be imposed after recalcitrant party has
been given an opportunity to purge itself of contempt by complying with prescribed
purgation conditions). This requirement stems from the remedial (as opposed to punitive)
nature of civil contempt. S~ Food Lion 103 F.3d at 1016 (unlike a criminal contempt
proceeding, a civil contempt action is "a remedial sanction used to obtain compliance with
a court order or to compensate for damage sustained as a result of noncompliance"),
quoting Blevins Popcorn 659 F.2d at 1184 see also ¶ijllit~ni 384 U.S. at 368-70. Thus, a
contempt order should be imposed, if at all, only at the conclusion of a three-stage
proceeding involving "(1) issuance of an order; (2) following disobedience of that order,
issuance of a conditional order finding the recalcitrant party in contempt and threatening
to impose a specified penalty unless the recalcitrant party purges itself of contempt by
complying with prescribed purgation conditions; and (3) exaction of the threatened penalty
if the purgation conditions are not fulfilled." Blevins Popcorn 659 F.2d at 1184-1185. citing
Oil, Chemical & Atomic Workers Int'l Union v. NLRB. 547 F.2d 575, 581 (D.C. Cir. 1977);
~il~eri~n, 112 F.Supp.2d at 16.
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B.	Court Monitor Findings
	Although not stating so explicitly, Plaintiffs' motions may be read to suggest that
the assertions and conclusions of the Court Monitor may either be entitled to some form
of deference or deemed legally established in this Court, to the extent that Interior
Defendants have not specifically offered contrary evidence in responding to the Court
Monitor's reports. ~ ~ Oct. 19,2001 Contempt Motion, at 2 n.4; Factual Appendix I
to Oct. 19, 2001 Contempt Motion, at 1 n.1; see also Transcript of Oct. 30, 2001 Status
Conference, at 20 (In opposing Interior Defendants' motion for an enlargement of time,
Plaintiffs' counsel stated, "They did not seek leave of this court, they did not file their
comments, so neither Civil nor the United States Attorney's Office has any need for further
time in that regard...").
	If this is what Plaintiffs intend to suggest, they are incorrect. The order authorizing
the Court Monitor's activities clearly and unambiguously states, "In any proceeding before
this Court, Mr. Kieffer's findings of fact shall be reviewed de novo." See Cobell v. Norton.
No. 96-1285 (D.D.C. Apr. 16,2001), at 2; see also Transcript of April 16,2001 Hearing, at 3-4
("Mr. Kieffer's findings of fact will be reviewed by me de novo, so it's somewhat different
than the appointment of a special master because he's being appointed by consent under
the inherent authority of the court."). While the order does authorize the parties to
"submit any objections or comments to the report" within 10 days of the date of notice of
the order, the referral order does not state or suggest that a party is obligated to offer
evidence to contradict a given assertion by the Court Monitor in order to preserve an
objection to it.
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II.	Plaintiffs' Contempt Motions Lack the Requisite Specificity as to why
	Contempt Might Be Warranted for the Thirty-Nine Alleged Contemnors.
A.	Failure to Specify Court Orders that Were Allegedly Violated
	As the above discussion makes clear, the drastic remedy of contempt exists to
punish knowing violations of clear and unambiguous court orders, where the alleged
contemnor did not make a good faith effort at compliance. At the core of this doctrine,
therefore, is the existence of a court order that someone is alleged to have violated. See
Cobell v. Babbitt. 37 F.Supp.2d 6,9 (D.D.C. 1999), citing Armstrong 1 F.3d at 1289.
	Plaintiffs' August 27, 2001 and October 19, 2001 motions devote precious little
attention to either the existence or application of this fundamental requirement. For
instance, the portions of both motions in which the legal requirements for contempt are set
forth fail even to include an explicit statement that the requirement exists. See Aug. 27,
2001 Contempt Motion, at 17-18; Oct. 19,2001 Contempt Motion, at 57-58. They also ignore
the requirement that the order in question be "clear and unambiguous." Id. Plaintiffs
instead emphasize the "considerable discretion" that a District Court enjoys when
imposing sanctions generally. See Oct. 19,2001 Contempt Motion, at 58, citing Perkinson
v. Gilbert Robinson Inc.. 821 F.2d 686, 688 (D.C. Cir. 1987). But nothing~in the Perkinson
decision - or any other controlling decision directly addressing the contempt remedy -
suggests that this discretion undermines the unambiguous requirement that a contemnor
has violated a Court order.
	The portions of Plaintiffs' brief addressing the factual predicate for their motions
also do not address adequately this core requirement. Their August 27, 2001 motion, for
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also do not address adequately this core requirement. Their August 27, 2001 motion, for
instance, relies primarily upon the charge that the Federal Register process undertaken
during 2000 was a "sham" designed to avoid compliance with the Court's December1999
ruling that DOL is obligated to carry out a historical accounting of tIM accounts. $~ Aug.
27. 2001 Contempt Motion, at 18-19 ("the Federal Register Process was a scheme
orchestrated only to convince the Court and the Court of Appeals that defendants were
supposedly acting to fulfill their fiduciary duty and this Court's orders to provide an
accounting of 'all funds"'); iI~ at 20 ("scheme ... was contrived to justify defendants' failure
to obey this Court's December 21. 1999 Order and to trick this Court and the Court of
Appeals into permitting defendants to evade their duties even longer").
	But the portion of the Court's December 21. 1999 ruling upon which Plaintiffs rely
was a declaratory judgment that DOI has an obligation to carry out such an accounting.
See Cobell v. Babbitt. 91 F.Supp.2d 1, 58 (D.D.C. 1999). Although the Court did issue
several other remedial orders to remedy DOI's breach of its trust responsibilities, it
specifically denied requests for prospective relief that were not affirmatively granted by
that order. id.~, at 59. The distinction drawn by this Court is an important one here,
because noncompliance with a declaratory judgment cannot serve as a basis for contempt.
See Armstrong. 1 F.3d at 1289-90. Quoting the Supreme Court's decision in Steffel v.
Thompson. 415 U.S. 452,471 (1974), the D.C. Circuit has held:
[Elven though a declaratory judgment has "the force and effect of a
final judgment," 28 U.S.C. § 2201, it is a much milder form of relief
than an injunction. Though it may be persuasive, it is not ultimately
coercive; noncompliance with it may be inappropriate, but is not
contempt.
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I F.3d at 1290; see also Perez v. Ledesma 401 U.S. 82, 125-26 (1971). This is not to suggest,
of course, that DOI is free to ignore a declaratory judgment, but instead merely to note that
it is only in response to the violation of a formal order that the drastic remedy of contempt
may be imposed. As a result, even were Plaintiffs correct that the Federal Register process
was not genuine - and it was, as discussed in detail in Section III below - it simply could
not constitute contempt.
	Plaintiffs' October 19,2001 Contempt Motion is similarly vague about which orders
they claim have been violated. For instance, this motion on at least two occasions lists a
series of broad categories of improper conduct in which they claim DOI has engaged,
including the charge of "routine violations of this Court's orders." Oct. 19,2001 Contempt
Motion, at 2-3 see also j4, at 5-6. But while Plaintiffs cite in footnotes to the factual basis
of their other charges, they conspicuously decline to provide any record evidence for this
supposedly "routine" violation of Court orders.4 Merely to point to the factual findings
and conclusions of the Court Monitor - without tying those findings and conclusions to the
core legal framework applicable to the drastic remedy of contempt — does not provide a
sufficient basis for an order to show cause.
	In fact, the only order specifically identified as having been violated in
Plaintiffs' October 19, 2001 motion is the requirement that DOI submit quarterly status
reports regarding trust reform efforts, which Plaintiffs claim was violated when DOI
allegedly provided false or misleading information in those reports. See Oct. 19, 2001
Contempt Motion, at 59. Interior Defendants' response to this allegation is set forth in
Section IV below.
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B.	Failure to Specify How Individual Contemnors Violated Specific Orders
	As set forth in Section I above, an individual accused of actions that might constitute
contempt has a due process right to know precisely the nature of the charges against him
or her. S~, ~ Brotherhood of Locomotive Firemen and Enginemen v. Bangor &
Aroostook R.R. Co. 380 E2d 570,581 (D.C. Cir. 1967); Wyatt v. Rogers. 92 F.3d 1074,1078
n.8 (11~ Cir. 1996). At a minimum, this must include a specific articulation of the order the
person is alleged to have violated and the proof that he or she has violated it.
	In this case, Plaintiffs' pending contempt motions are so far-reaching in their scope
that they fail to provide the necessary specificity as to how the individuals named as
contemnorS might be in violation of specific orders. Plaintiffs present a broad array of
factual allegations and a long list of alleged contemnors, without explaining specifically
what each individual has allegedly done that supposedly rises to the level of contempt of
this Court. Although it is beyond the scope of this brief to address in detail the application
of these legal principles to each named contemnor, a review of Plaintiff's "omnibus"
motion of October 19, 2001 demonstrates the deficiency of that submission on this point:
•	Fourteen of the thirty-nine named contemnors appear only ~ time
in the text of the brief, in the long paragraph on pages 14-16,where the
alleged contemnors are named without any substantive discussion of
any actions they are alleged to have taken or orders violated.5
•	An additional twelve of the named contemnors appear only two times
in the text of the brief, once in the long paragraph on pages 1446 and
once elsewhere. Of these twelve:
	John Deny, Sharon ]3lackwell, John Bryson, Michael Carr, Edward Cohen,
Peter Coppelman, James Douglas, John Leshy, Hilda Manual, Chester Mills, Glen
Shumaker, Anne Shields, Terrence Virden, and Daryl White.
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•	Five are mentioned in footnote 23 on pages 7-8 for having
received some form of award or honor in connection with this
case or their trust reform efforts.6
•	Four are mentioned in footnote 34 on pages 14-15, in
connection with the process adopted to verify the content of
Quarterly Reports to the Court.7 For the reasons set forth in
DOI's response to the Fourth Report of the Court Monitor
(filed separately today), that process plainly does not support
a finding of contempt.
•	Two are mentioned in footnote 27 on pages 9~1O.8 This
footnote also addresses Plaintiffs' meritless charges with
respect to the verification process for DOI's Quarterly Reports.
•	One is mentioned in footnote 19 on page 6.~ The individual is
mentioned only as having been the author of a letter to the
Special Master, in which it was represented that an assessment
would be undertaken of the condition of tapes containing trust
data.
•	Six more of the individuals are mentioned three times in the brief,
once in the long paragraph on pages 14-16 and twice elsewhere. Of
these four:
•	One is mentioned in footnote 23 on pages 7-8 for having
received an award, and on page 63 for having asked a question
during Trial One.'0
•	One is mentioned in footnote 23 on pages 7-8 for having
received an award, and in footnote 34 on pages 14-15
	6 James Eichner, Charles Findlay, Jack Haugrud, Robert Lamb, and David
Shilton.
John Cruden, Lois Schiffer, James Simon, and Steve Swanson.
8	William Myers and Michael Rosetti.
John Most.
10	Tom Clark.
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referencing the Court Monitor's Supplemental Report.1'
•	One is mentioned in footnote 27 on pages 9-10 and in footnote
34 on pages 14-15, both with respect to the verification process
for DOL's Quarterly Reports.'2
•	One is mentioned in two separate footnotes (footnote 23 on
pages 7-8 and footnote 78 on page 50) for having authored
documents critical of certain aspects of trust reform efforts.'3
•	One is mentioned in footnote 32 on pages 13-14 for having
submitted a response to Plaintiffs' August 27,2001 Contempt
Motion, and in footnote 34 on pages 14-15 with respect to the
•	verification process for DOI's Quarterly Reports.'4
•	One is mentioned in footnote 23 on pages 7-8 for having
received an award, and in footnote 32 on pages 1344 in
connection with filing an opposition to Plaintiffs' August 27,
2001 Contempt Motion.'5
Thus, a substantial majority of the thirty-nine alleged conteninors are barely mentioned in
Plaintiffs' most recent motion, and none of the alleged contemnors are discussed in
circumstances that could credibly be characterized as contemptuous.
	Plaintiffs' August 27, 2001 motion is equally vague concerning which named
contemnors are alleged to have engaged in what conduct. That motion specifically
identifies twelve individuals who are alleged to be in contempt of this Court. L~, at 24-25.
But eleven of the twelve individuals are not even mentioned in the portion of the August
		David Shuey.
	12	Sabrina McCarthy.
		Dominic Nessi.
		Tim Elliott.
		Edith Blackwell.
- 18-
<< COB00019 >>
27, 2001 brief (pages 17-24) addressing Plaintiffs' request for an order to show cause. The
only individual named as a contemnor in this portion of the brief, appellate attorney David
Shilton, is implicated merely because he truthfully informed the Court of Appeals at oral
argument that "the [Federal Register] administrative process has only recently begun." ~
Aug. 27, 2001 Contempt Motion, at 19. Elsewhere in that brief, L~. not in the portion
specifically addressing contempt, Plaintiffs also take issue with a DOJ attorney's opposition
to Plaintiffs' request to take certain discovery. Id at 5 n 4. And Secretary Norton is
mentioned because of her July 10, 2001 decision to create a new Office of Historical
Accounting, which Plaintiffs characterize as "one more plan to make a plan." 14., at 7.
None of these actions, however, is sufficient to state a prima facie case of contempt.
	Plaintiffs appear to claim that the scope of the contemptuous conduct is so broad
that they need not provide specificity in their allegations in order to be entitled to a show
cause order. They point to the lengthy factual appendices submitted along with their
August 27, 2001 and October 19, 2001 Contempt Motions - which in turn quote liberally
from the series of Court Monitor Reports - as voluminous evidence of misconduct and bad
faith on the part of these individuals. DOI and the alleged contemnors take issue with a
large number of these factual allegations and, especially, with a great many of the
conclusions drawn by Plaintiffs and the Court Monitor. But the legal authority set forth
above establishes that contempt is a drastic remedy in place to address a specific form of
misconduct, jg.., the knowing violation of a clear and unambiguous court order. In the
absence of particularized allegations specific to how any individual alleged contemnor
violated this standard, an order to show cause should not issue.
-19-
<< COB00020 >>
III.	The Undisputed Record Establishes that DOI's Consideration of the
Proper Method for a Historical Accounting Is Not a Basis for Contempt.
A.	There is No Basis to Issue an Order to Show Cause Based on
the Use of Statistical Sampling for the Historical Accounting.
	In their contempt motions, Plaintiffs argue that misconduct occurred that warrants
the issuance of an order to show cause with respect to the choice of statistical sampling for
the preparation of the historical accounting. Plaintiffs' attempt to show that Interior
Defendants violated an order of this Court is fundamentally flawed because this Court
entered no order requiring an immediate transaction-by-transaction accounting or, indeed,
any specific methodology; instead, it entered a declaratory judgment setting forth one
aspect of the defendants' accounting duty with the specific recognition that other aspects
of the accounting duty were subject to later determination.
	On December 21, 1999, this Court rendered its decision on the Phase I issues. See
Cobell v. Babbitt 91 F. Supp. 2d 1 (D.D.C. 1999). With respect to DOI, this Court found that
Plaintiffs had "proved four statutory breaches of IIM trust duties by the Secretary of the
Interior that warrant prospective relief." Id. at 40. With respect to Plaintiffs' claim for a
retrospective accounting, the Court stated that, "the second phase of this case will involve
a trial regarding defendants' rendition of an accounting. In general terms, that process will
involve the government bringing forward its proof on IIM trust balances and then plaintiffs
making exceptions to that proof." I~, at 31. The Court also declared that the 1994 Reform
Act "requires defendants to provide plaintiffs an accurate accounting of all money in the
IIM trust held in trust for the benefit of plaintiffs, without regard to when the funds were
deposited." Id. at 58.
-20-
<< COB00021 >>
	The Court, although declaring the duty to account, left open significant questions
regarding the nature and scope of the accounting owed. This Court specifically kept open
the prospect of statistical sampling:
It should be noted that the court is not ruling upon what specific form
of accounting, if any, the Trust Fund Management Reform Act
requires. For example, the court does not purport to rule on whether
an accounting accomplished through statistical sampling would
satisfy defendants' statutory duties. Moreover, the court will not now
address other arguments that the government may make in the future
on the "historical" nature of the accounting ~ statute-of-limitations
arguments).
Cobell v. Babbitt 91 F. Supp. 2d at 41, n.32.'6
	The Court of Appeals' review of this Court's decision verifies that the Court did not
order any specific form of accounting. The Court of Appeals emphasized that "the choice
of how the accounting would be conducted, and whether certain accounting methods, such
as statistical sampling or something else, would be appropriate.., are properly left in the
hands of administrative agencies." Cobell v. Norton 240 F. 3d at 1104. Similarly, the Court
of Appeals explained:
The district court also identified "significant legal issues" to be
resolved in the second phase, such as. .. the use of statistical
sampling.... Presumably, the district court plans to wait until
a proper accounting can be performed, at which point it will
assess appellants' compliance with their fiduciary obligations.
16 Similarly, the Court noted that: "significant legal issues that remain
matters for the second phase of this case include: (1) whether an applicable statute of
limitations, if any, precludes any of plaintiffs' claims for an accounting; (2) whether an
accounting accomplished through a sampling technique will satisfy the requirements of
the Trust Fund Management Reform Act; and (3) the precise scope of plaintiffs' certified
class." Id. at n.22.
- 21 -
<< COB00022 >>
240 F. 3d at 1110.
	Thus, the Court of Appeals plainly contemplated that the historical accounting
would be worked out by the agency, but neither the Court of Appeals nor this Court
foreclosed any methodology. And the Court of Appeals recognized that the matter would
be reviewed when completed. This emphasis on the administrative agency process is
important because it establishes the lack of legal merit to Plaintiffs' contempt motions on
the choice of statistical sampling as the mechanism for the historical accounting.
B.	There Is No Basis to Issue an Order to Show Cause Based on
the Federal Register Process.
	Plaintiffs claim that the decision to employ the Federal Register process to consult
with those affected by the historical accounting as well as others was a sham and warrants
the issuance of an order to show causetl Those contentions reflect a misunderstanding of
the notice and comment process in general and the decision in this case in particular. In
the first place, the process is known and commonly used by agencies, and DOI has also
employed it in consulting with Native Americans on other matters. In the second place,
this Court and the Court of Appeals were notified at the outset that the Federal Register
notice and comment process would be relied on here.
	Courts have consistently recognized that obtaining public input is a beneficial
process. See United States v. Allegheny-Ludlum Steel Corp. 406 U.S. 742, 758 (1972);
Action for Children's Television v. FCC 564 F. 2d 458,470 (D.C. Cir. 1977); Independent
17 Although the Federal Register process and the notice addressed more than
historical accounting, that is the short-hand that has been previously used, and we will
use it here.
- 22 -
<< COB00023 >>
U.S. Tanker Owners Comm. v. Lewis 690 F. 2d 908,917 (D.C. Cir. 1982). Courts have also
made clear that the agency is not, at the end of the process, obliged to adopt the views of
a majority, even an overwhelming majority, of participants. See Seacoast Anti-Pollution
League v. Costle 572 F. 2d 872, 877 (1st Cir. 1978) ("Witnesses may bring in new
information or different points of view, but the agency's final decision need not reflect the
public input. The witnesses are not the only source of evidence on which the
Administrator may base his factual findings.").
	Notably, the notice and comment process is employed by the Department of the
Interior when consulting Native Americans and their tribal governments on a variety of
topics. For example, after the Supreme Court decided Seminole Tribe of Florida v. State
of Florida. 517 U.S. 44(1996), Interior employed the Federal Register process of an advance
notice of proposed rulemaking to acquire information about what direction to take under
the Indian Gaming Regulatory Act in light of the Supreme Court's decision. See 61 Fed.
Reg. 21394. And the President by Executive Order has directed consultation with Indian
Tribal Governments. ~ ~g, EQ 13084 of May 14,1998 "Consultation and Coordination
with Indian Tribal Governments," 63 Fed. Reg. 27655 (May 19, 1998); EQ 13175 of
November 6,2000 "Consultation and Coordination with Indian Tribal Governments," 65
Fed. Reg. 67249 (Nov. 9, 2000). Therefore, the choice of a Federal Register notice and
comment process was consistent with the DOI's consultative practice, which was well
established at the time of this Court's December 1999 opinion.18 Equally important, this
18 This Court, sua sponte, certified its December 21, 1999 order for
interlocutory appeal pursuant to 28 U.S.C. 1292(b). 91 F. Supp. 2d at 57. As this Court
-23-
<< COB00024 >>
Court and the Court of Appeals were notified at the outset that the notice and comment
process would be used.
	DOI's commitment to pursue the historical accounting using a Federal Register
notice and comment process as the initial step was explained by the Assistant Attorney
General ("AAG") for the Environment & Natural Resources Division in the United States'
Corrected Petition for Permission to Appeal:
[Wie have been informed by Interior that it will implement a
process under the APA to meet its remaining obligations
regarding reconciliation and accounting, including
interpretation of the Act to specify in greater detail the nature
and scope of these obligations and determination of reasonable
and appropriate methods to meet them. That process will
include consultation with Indian Tribes, an opportunity for
comment by account beneficiaries and the public, and will
commence with a notice published in the Federal Register on
or before March 1, 2000.
Corrected Petition for Appeal, at 13 (January 5, 2000).
	Consistent with the statements made in the petition, DOL prepared a proposed
Federal Register notice. Recognizing that members of the Plaintiff class would read the
Federal Register notice and attend the public hearings, Interior Defendants on March 1,
2000, moved this Court for an order declaring that the proposed Federal Register process
did not violate ethical rules concerning attorney contacts with represented parties.
Significantly, as part of this motion, Interior Defendants attached the proposed Federal
Register notice.
knows, that certification triggered a 10-day period during which defendants had to
decide whether to appeal, get the authorization of the Solicitor General to pursue the
appeal, and file a motion for permission to appeal.
- 24 -
<< COB00025 >>
	By order dated March 28,2000, this Court found that the communications contained
in and contemplated by the Federal Register notice did not contravene applicable ethical
rules. The notice was then published on April 3,2000. See 65 Fed. Reg. 17525. The April
3,2000 Federal Register notice advised interested parties of several options for completing
a historical accounting. See 65 Fed. Reg. 17,521,17,525-27 (Apr. 3,2000). Although asking
for comments on accounting options, the notice made it clear that it was unlikely that a
complete transaction-by-transaction approach would be adopted. ~ id. at 17,526 ("it is
unlikely to expect that the Congress would provide the Department with the staggering
appropriations needed to fund such a process.") The notice further provided interested
persons an opportunity to comment on the proposals through submission of written data,
views, or arguments with or without opportunity for oral presentation. See id. at 17,523.
And it scheduled meetings throughout the country. See id. at 17,521-23.
	After the conclusion of the notice and comment process Special Trustee Slonaker
and Assistant Secretary Gover wrote separate memoranda dated December 21,2000. The
Special Trustee's memorandum stated that" ft]he basic methodology used (for the projecti
will be a sampling technique, given the massive amount of records, the complexity, and
the condition of the records." Special Trustee Memorandum at 1. Special Trustee
Slonaker's memorandum to Secretary Babbitt attached a memorandum from Assistant
Secretary Gover that the Special Trustee reported "also suggests that sampling is the most
practical approach.. ." Id. The period the project was to cover was from 1952 through
1993. Id. Assistant Secretary Gover's memo analyzed the comments-overwhelmingly in
favor of the latter method—and concluded that "given the massive number of records, the
-25-
<< COB00026 >>
complexity, and the condition of the records," the choice should be statistical sampling.
Gover mem. at 5.
	In his December 29,2000, memorandum, Secretary Babbitt adopted this approach.
In his memorandum the Secretary assigned the task of pursuing the statistical sampling to
the Special Trustee. Id. For her part, by memorandum dated February 27,2001, Secretary
Norton, within a month of her confirmation and following the Court of Appeals decision,
extended the period covered to begin on June 24,1938 (rather than 1952), and run through
1993.'~
	Plaintiffs point to claims that some individuals at Interior apparently had misgivings
regarding the wisdom of the Federal Register process. As part of this process, statistical
sampling options remained a part of a larger, continuing process about how properly to
conduct an historical accounting. The fact that some individuals at Interior may have
disagreed with these conclusions and recommendations during the deliberative process
does not make those conclusions improper. The deliberative process cannot be faulted
simply because not everyone agreed with the choice made. It is true that Secretary Babbitt
	19 Secretary Norton later created the Office of Historical Trust Accounting,
which has produced its blueprint that encompasses more than statistical sampling.
Secretarial Order No. 3231. In its Report Identifying Preliminary Work for the
Historical Accounting (Nov. 7,2001), 01-ITA noted that a number of projects that do not
involve statistical sampling were in progress before Ol-ITA was created and will be
continued (background information/analyses, Report at 7-9; large dollar transaction
project, Report at 13-14; judgment and per capita accounts project, Report at 14-15;
special deposit account project, Report at 20-21). And the Secretary has announced a
reorganization that further focuses Department of Interior resources on its trust
responsibilities. See Notice of Proposed Department of the Interior Reorganization to
Improve Indian Trust Management (filed Nov. 14,2001).
- 26 -
<< COB00027 >>
could, perhaps, in March or April 2000, have embarked upon statistical sampling as the
principal mechanism for the historical accounting without notice to and comments from
those affected. But it certainly is not contempt not to have done so.
	In addition, Plaintiffs also suggest that Interior Defendants perpetrated an
"unprecedented fraud" on the Court of Appeals by relying on the Federal Register process.
Id. at 20-21. But it is simply false to assert that the Federal Register process was "central"
to the government's argument on appeal, or that Defendants engaged in "fraud," when all
the government did was alert the Court of Appeals to the existence of the process.
	The Opening Brief of Appellants in the context of a 5-page discussion of the
Administrative Procedure Act contains a single sentence, noting the fact that "(tihe
historical effort has recently been initiated by a Federal Register announcement." Brief at
60.	The only other mention of the process in the brief is one sentence in the statement of
facts. Brief at 17. These are the only mentions of the Federal Register process in the
government's brief, and are simply true statements regarding the status of the Federal
Register process. Contrary to Plaintiffs' allegation, no argument was premised on the
process; in fact, the Government's reply brief did not even mention it.
	Indeed, during the appeal, Plaintiffs themselves recognized that the legal effect of
the Federal Register process was simply not an issue before the Court of Appeals.
Although Appellees' Brief discussed the Federal Register process at 33-34, and made the
same basic charges that the Federal Register process was not a legitimate effort to obtain
public input but was "initiated by Interior with the express intent of supporting the
appeal" (Brief at 34, citing to deposition of Thompson). Appellees explained that:
- 27-
<< COB00028 >>
Our position in the district court is that this 'process' was initiated for the
purpose of further delay and as a means of communicating directly with the
plaintiff class members so as to affect this litigation. Such questions need not
be considered here....
Br. at 34 (emphasis added).
	Consequently, to the extent the Federal Register process was mentioned in the Court
of Appeals, it was accurately and appropriately portrayed, and Plaintiffs have provided
no evidence that would support their charge of "deception." More importantly, Plaintiffs
cannot possibly establish the required elements that the alleged "fraud" was material
(when the Court of Appeals neither relied upon nor even mentioned the Federal Register
process in its opinion) or that it was conducted with intent to defraud. Plaintiffs have
fallen far short of making the necessary prima facie case that would warrant any contempt
proceedings based on the appeal. Hence, even if this Court had jurisdiction over these
matters,~ it should deny the motion for an order to show cause, on the Federal Register
The power to sanction for conduct during an appeal is reserved to the
appellate court, unless the appellate court specifically authorizes the trial court to fix the
amount of a sanction. Conner v. Travis County 209 F.3d 794, 800-801 (5th Cir. 2000); see
also Villa West Assoc. v. Kay. 146 F.3d 798, 808 (1O~ Cir. 1998)("'[T]he determination of
the right to sanctions ... for conduct during an appeal is reserved to the appellate court,
although it may allow the trial court to fix the amount of the fees and cOsts"'), quoting
Morris by Rector v. Peterson 871 F.2d 948, 951 (10~ Cir. 1989); Schoenberg v. Shapolsky
Publishers. Inc. 971 F.2d 926, 935 (2nd Cir. 1992)("it is improper for a district court to
impose sanctions for appeals taken to this Court"); ~L Cheng v. GAF Corp. 713 F.2d
886, 891-892 (2d Cir. 1983)("We are surprised by the district judge's willingness to
sanction appellant's attorney, not for a motion made in the district court, but for
appeals taken to this court and the Supreme Court."). Although our Circuit has not
considered the issue, it has emphasized that the Court of Appeals has ample authority
to assess "'sanction[s] for procedural abuse,"' in connection with an appeal, where they
are warranted. South Star Communications Inc. v. FCC 949 F.2d 450,452 (D.C. Cir.
1991), quoting Chambers v. NASCO. Inc. 501 U.S. at 59 (Scalia, J., dissenting); see Fed.
R. App. P. 38. Accordingly, to the extent Plaintiffs seek sanctions in this Court for
- 28 -
<< COB00029 >>
process in general and certainly insofar as it relates to matters occurring in the Court of
Appeals.
lY.	The Record Establishes that DOI Officials Have Undertaken to Inform the
Court Fairly and Honestly of the Status of Trust Reform Efforts, and Their
Efforts To Do So Do Not Support a Finding of Contempt.
	Plaintiffs have also argued that a finding of contempt is warranted based upon
supposed misstatements and material omissions by some number of the alleged
contemnors, relating to the status of the TAAMS program and data cleanup efforts. See
Oct. 19,2001 Contempt Motion, at 59-60. In support of this view, they have pointed to the
Court's December 21, 1999 order, which provides, in relevant part:
1.	Beginning March 1, 2000, defendants shall file with the court
and serve upon plaintiffs quarterly status reports setting forth and
explaining the steps that defendants have taken to rectify the breaches
of trust declared today and to bring themselves into compliance with
their statutory trust duties embodied in the Indian Trust Fund
Management Reform Act of 1994 and other applicable statutes and
regulations governing the IIM trust.
2.	Each quarterly report shall be limited, to the extent practical,
to actions taken since the issuance of the preceding quarterly report.
Defendants' first quarterly report, due March 1, 2000, shall encompass
actions taken since June 10, 1999.
Cobell v. Babbitt. 91 F.Supp.2d 1,59 (D.D.C. 1999).
	As an initial matter, Interior Defendants of course acknowledge that an order
requiring them to submit periodic reports requires that the reports be truthful. At the same
time, the law is also clear that contempt should not be imposed "if there are any grounds
conduct occurring in the Court of Appeals, that relief should be denied as beyond this
Court's jurisdiction.
- 29-
<< COB00030 >>
for doubt as to the wrongfulness of the defendants' conduct." Life Partners 912 F. Supp.
at 11, citing MAC Corp. v. Williams Patent Crusher & Pulverizer Co.. 767 F.2d 882, 885
(Fed. Cir. 1985). Therefore, where the moving party calls for contempt based upon
allegedly untruthful or misleading statements in a court-ordered submission, that party
necessarily must establish that the statements or omissions at issue were plainly and
unambiguously false at the time they were made.
	In this case, the statements relied upon by Plaintiffs fall well short of this level.
While Plaintiffs may fairly criticize DOI employees for their failure to recognize sooner the
major problems that arose with these efforts - particularly with respect to TAAMS - that
is a matter very different from contempt. In fact, the submissions made by DOI in response
to the Court's December 21, 1999 order have included frank descriptions of the status of
these efforts as they were viewed at the time. As a result, no finding of contempt can be
based upon them.
A.	TAAMS
	The allegations relating to reporting on the status of TAAMS, which are referenced
in Plaintiffs' motion and set forth in detail in the Second Report of the Court Monitor, can
be grouped in three separate categories. First, Plaintiffs charge that DOI offered false
testimony at Trial One. See Oct. 19, 2001 Contempt Motion, at 5; Oct. 19, 2001 Contempt
Motion, Factual Appendix 1, at 2. Second, Plaintiffs suggest that DOI improperly failed to
bring to the Court's attention problems with TAAMS as DOI became aware of those
problems between Trial One in June 1999 and the submission of a revised HLIP and First
Quarterly Report in March 2000. And finally, Plaintiffs allege that the Quarterly Reports
- 30 -
<< COB00031 >>
and other documents submitted to the Court from March 2000 forward have not accurately
described the problems with the system. These will be addressed in turn.
1.	Accuracy of Trial Testimony
	Plaintiffs suggest that DOI officials, principally Dominic Nessi, "willfully
misrepresented" the status of the system at Trial One. See Oct. 19,2001 Contempt Motion,
Factual Appendix I, at 2. Their primary allegation on this point is that there were sufficient
"data conversion and user requirement problems with TAAMS" even prior to the trial that
Mr. Nessi should have known that the goals and schedules set forth at trial could not be
met. I~±, at ¶ 4; see also id at ¶ 13 ("... there were significant problems with the ability of
BIA to provide the requisite user information. There were management issues that had not
been resolved that [Nessi] knew could delay or disrupt implementation").21
	As an initial matter, it is important to emphasize that Plaintiffs' argument on this
point is not that Mr. Nessi falsely testified as to then-existing facts at trial, but instead that
he should have known that predictions as to future events were not realistic. Thus, while
it is unquestionably true that some of the schedules articulated by Mr. Nessi were not
actually met, that fact in and of itself does not make his testimony untrue at the time it was
offered. In order to establish that the testimony "willfully misrepresented TAAMS," as
Plaintiffs now suggest, they must offer strong evidence that Mr. Nessi could not actually
21 Plaintiffs' factual appendix contains ten separate paragraphs under the
heading "Dominic Nessi and Defendants' Witnesses Willfully Misrepresented TAAMS
During Trial One." See Oct. 19,2001 Contempt Motion, Factual Appendix, at 2-4. Only
three of those ten paragraphs, however, directly address the content of Trial One
testimony. j~ at ¶¶ 4-5 & 13.
-31 -
<< COB00032 >>
have believed the schedule to be possible at the time he testified.
	This Plaintiffs plainly cannot do. Although data conversion had not been completed
at the time of the trial, Mr. Nessi had been assured at the time by the responsible
contractor, ATS, that the errors could be fixed promptly. See Second Report of the Court
Monitor, at 33 ("They could not get the data converted into TAAMS from IRMS as quickly
or efficiently as they would have liked. But ATS assured him that the system would be
ready for the July 1999 user acceptance test"). In addition, Mr. Nessi also testified that the
set milestones were aggressive, and that there was no guarantee that it would be possible
to meet them See ~ Exhibit 3, Transcript of Trial One Testimony, at 2280 (deployment
schedule is "tentative until we know that we have a good system that's well tested and
ready to move forward"); 2281 (milestones were "aggressive")7~ Where Mr. Nessi had
been assured that data conversion problems could be solved quickly, and made clear that
the deployment schedule was tentative, one simply cannot say that he knowingly
presented false testimony at Trial One. Plaintiffs very brief treatment of his testimony in
their Factual Appendix I does nothing to undermine this view.
	Excerpts from Trial One testimony cited herein are compiled at Exhibit 3,
They are referenced in the brief below by the witness's name and the pages of the
transcript, ~ "Nessi 2280."
- 32 -
<< COB00033 >>
	2.	Alleged Failure to Correct Trial Testimony Prior to December 1999
Plaintiffs devote more attention to an argument that DOI should have supplemented
the testimony it provided at Trial One, once it became apparent in the months after the trial
that the goals set forth in the HLIP and testified to at the trial would not be met during the
time period originally envisioned. ~ ~ Oct. 19,2001 Contempt Motion, at 59 ("they
knowingly omitted forthright discussions of the chronic TAAMS failure"). In support of
their allegations on this point, Plaintiffs in particular point to the fact that DOI officials
actually prepared a draft report to be submitted to the Court in September 1999 on this
issue, but, for reasons that have not been explained, did not submit it. See Oct. 19, 2001
Contempt Motion, Factual Appendix I, at ¶¶ 14-21. Plaintiffs' argument on this point is
not that the trial testimony was inaccurate at the time it was given, but instead that DOI
had an obligation to bring delays and changes to the attention of the Court.
	As an initial matter, of course, the December 1999 order requiring DOI to submit
quarterly reports was issued approximately six months after Trial One, and it therefore
cannot serve as a basis for a contempt finding for alleged failure to disclose information to
the Court prior to its issuance. Similarly, once this Court issued its December 21, 1999
ruling, DOI was specifically obligated to submit on March 1,2000 both a revised HLIP and
a report on "actions taken since June 10, 1999." See Cobell 91 F.Supp.2d at 59. In light of
the specificity of the Court's order, it cannot be deemed contemptuous to compile the
recent changes in the comprehensive statement on the status of the project submitted in
March 2000. In short, there is simply no "order," much less a "clear and unambiguous"
order, that Plaintiffs can point to as having been violated by the alleged failure to disclose
- 33 -
<< COB00034 >>
information prior to the March 1, 2000 submissions.
	Nevertheless, Plaintiffs have questioned whether DOI officials should have reported
developments in the TAAMS plan and schedule in the fall of 1999, prior to the issuance of
the Court's December 21, 1999 summary judgment ruling. It is well established that an
attorney in litigation has a duty of candor to the Court. See ~ Tiverton Board of License
Commissioners v. Pastore. 469 U.S. 238, 240 (1985); Hazel-Atlas Glass Co. v. Hartford-
Empire Co. 322 U.S. 238, 246 (1944). Although separate and distinct from the law of
contempt, this duty of candor requires counsel "to inform the Court of any development
which may conceivably affect the outcome of the litigation." Tiverton Board. 469 U.S. at
240, quoting Fusari v. Steinberg 419 U.S. 379,391 (1975) (Burger, C.J. concurring). Because
Plaintiffs' allegations do implicate the duty of candor to the Court, they merit a response.
a.	DOI Emphasized at Trial One that There
Would Undoubtedly Be Significant
Change to Both the Schedule and Course
of the Reform Effort.
	Although there were delays from and alterations to the plan that had been presented
at Trial One, any evaluation of DOI's actions after Trial One and prior to the Court's
December 21, 1999 ruling must take into account the fact that its witnesses and attorneys
at Trial One emphasized repeatedly and forcefully that th~re would undoubtedly be
changes to the system and the timetable for its rollout. DOI has always recognized both
the seriousness of the challenges facing it in trust reform and the probability that such
significant reforms will require changes to planned activities as new lessons are learned
and problems encountered. It was these very factors that caused DOI to emphasize to the
-34-
<< COB00035 >>
Court during Trial One that the HLIP was a living document that was subject to change.
For instance, DOI specifically explained this fact to the Court prior to the trial:
It is important to note that the HLIP is a planning document that will
be amended and evolve as needed. The document itself states that
each of the "Sub projects may be modified during the process of their
implementation to reflect change and/or unanticipated
circumstances, including, for example, the availability of funding and
personnel."
Defendants' Trial Memorandum (June 9, 1999), at 16. Similarly, former Secretary Babbitt
testified during Trial One that HLIP "is, by consent of all, a truly dynamic document ... it
should be under revision all the time." Babbitt, 3969. Defendants made the same point in
post-trial submissions:
As evidence of the fluid nature of the HLIP, since its promulgation in
July 1998, it has been undergoing revisions intended to strengthen
and describe in more detail its key activities. At the time of trial,
Interior was about to issue an amendment to the HLIP, "sort of a mid
course correction." As a result of this amendment process, some sub-
projects will apparently be combined, some milestones changed, and
some key activities (and associated milestones) added. These
revisions and amendments improve the HLIP as an implementation
and performance measurement tool.
Defendants' Proposed Findings of Fact and Conclusions of Law at 45 n.28 (Aug. 4,1999),
citing Gover, 1081; Thompson, 2983-84, 2992, 2994, 2997~98, 3003, 3006-07, 3022. And the
Acting Special Trustee at the time of trial testified that it is common and appropriate, in a
complex management environment, to continually revise and change plans. Thompson,
2981-82. As Mr. Thompson testified, "IIy]ou can pretty much say that once a plan is
published, it's outdated, and so you need to start working on the next one." Id.
The HLIP subprojects were developed without traditional project development
- 35 -
<< COB00036 >>
methods, and often without a complete understanding of the existing conditions and
business practices used by the various BIA agencies and offices. For instance, with regard
to the TAAMS subproject, Assistant Secretary Gover acknowledged that he knew there
were risks with moving quickly but that it was important to him that TAAMS get
underway during his administration:
We could have done more research and more work before developing
TAAMS that would have reduced the risk. There's no question about
it. But if we had done that, then two years from now we would still
not have a TAAMS system. We made a calculated judgment that it
was worth the risk. We knew that there was a risk, but it was worth
it to - to expedite the deployment of TAAMS.
Gover, 1117.
	Defendants' witnesses also recognized that the plans for such projects as TAAMS
and BIA Data Cleanup were subject to change and were particularly aggressive.
Defendants presented extensive testimony at Trial One about the TAAMS pilot project that
had just begun in Billings, Montana, and was designed to test whether the functionality of
the basic TAAMS system was able to meet all the varied needs of the Department. S~. ~
Babbitt, 3709-10. As the testimony reflected, inherent in such systems testing is the
possibility that the results will demonstrate the need for further changes in the proposed
system. Assistant Secretary Gover testified:
THE WITNESS: Even after it is deployed - - in Billings, for example
we're going to learn more about the system - -
THE COURT: Right.
THE WITNESS: - - and know what more things we would like for it
to be able to do, and the software will again be modified.
-36-
<< COB00037 >>
Gover, 1119. Mr. Gover also acknowledged that this process would require repeated
testing of the system until it was shown that it had all the functionality required to meet
the BIA's needs, and expressed his commitment to making sure that goal was attained. "In
any software development, there are going to be some bugs" but that "we will continue
to debug and otherwise modify the software until it can do what we want it to do." Gover,
1156-58; accord Thompson, 3027-29. Similarly, Mr. Orr, the Vice President of the contractor
providing TAAMS, testified that there were issues, such as user dissatisfaction with the
basic TAAMS system, which if they arose could delay TAAMS deployment. Orr, 2919; see
also Defendants' Proposed Findings of Fact, at ¶ 229.
	Acting Special Trustee Thompson also testified that he believed the TAAMS rollout
schedule was going to be tough to realize, largely because of the complexity of the TAAMS
system and the compressed planning and implementation schedule:
Well, the way the thing was rolling out on these system development
pieces, the [TAAMS] schedule was highly compressed. There was
very little time in my mind to finish the work between the time we
published the high level plan and when the final action was due,
which was 12 months away. I pointed out that we had taken a couple
of years, in the case of 0517, to get to that same point, and that
assuming and thinking that the work in BIA was going to be more
complex, that that time frame was going to be tough.
Thompson, 2964-65.
	In sum, at Trial One Defendants presented their plans for the reform of the
individual Indian money trust - a complex and challenging task that was underway but
far from complete. Defendants acknowledged expressly that their plans were aggressive
and specifically argued that they were not final and were subject to change as trust reform
- 37-
<< COB00038 >>
proceeded. Any review of the propriety of DOI's actions prior to the Court's December
1999 ruling must be judged in this context.
b.	No Contempt Is Warranted for Events in the Summer
and Fall of 1999.
	At the core of Plaintiffs' position on this issue is the fact that, due largely to
recurring difficulties converting trust data from legacy systems to TAAMS, it took DOT
longer than expected actually to run the Billings pilot project on live data, thereby
impacting the roll-out of the system to other parts of the country. The schedule
contemplated by DOT at the time of Trial One was for a 100-day pilot project to be carried
out in Billings, Montana in the summer of 1999, during which both TAAMS and the legacy
computer systems would run in parallel. See Nessi, 2280. If the results of the pilot were
acceptable, TAAMS could then be run in other parts of the country. IL This pilot would
run on "live data," so it was important not only that the computer hardware and software
be ready for use, but that supporting data be sufficiently converted from the legacy system
to make the system capable of performing adequately. ~ Nessi, 2352.
	Shortly after trial, DOI officials learned that there were sufficient problems,
principally with data conversion, that the system was not ready for actual operation on live
data. See Second Report of the Court Monitor, at 4041. Though ATS officials continued
to express confidence that the problems could be solved within a reasonable period, j4, at
40, delays continued through July and August. Further contributing to these delays was
a series of "significant modifications in the software to accommodate the different trust
-38 -
<< COB00039 >>
operations carried out in each separate region." ii2~
	The status of TAAMS was the subject of a September 8, 1999 meeting among top
DOI officials, including DOI Chief of Staff Anne Shields, Assistant Secretary Kevin Gover,
Assistant Secretary John Berry, Deputy Assistant Secretary Robert Lamb, Acting Special
Trustee Tommy Thompson, and Chief Information Officer Daryl White. See Exhibit 4.
Among the items noted on a summary of that meeting are that data conversion "has been
repeatedly delayed due to numerous problems" and that "[un effect, the TAAMS pilot is
just beginning." II It concludes that DOI "needs to quickly inform ... U.S. District Judge
	As Mr. Nessi testified at trial, TAAMS was initially envisioned as an "off
the shelf" system that would, with some modifications necessary to address specific BIA
needs, also assist to standardize the quite disparate business practices of different
offices around the country. See Nessi, 2300-01. In essence, DOL hoped and expected
that TAAMS, beyond simply providing better record-keeping, could itself drive
separate BIA offices to do business in a more uniform and generally accepted fashion in
order to make their practices "fit" TAAMS. But this approach was jeopardized in the
summer of 1999, due to much publicized complaints about the "user-friendliness" of a
new and entirely separate computer system developed by DOI's Bureau of Land
Management. See Second Report of the Court Monitor, at 42. In response to complaints
from users of that BLM system - and ultimately from Congress - DOI came to the
conclusion that it could not repeat this problem with respect to TAAMS. As the Court
Monitor explained:
The DOI did not want TAAMS to also be rejected by BIA users who
were complaining that it was a COTS system incapable of meeting
their needs and was not user-friendly. DOI changed the nature of
the contract with ATS to reflect the goal of meeting BIA user needs.
Congress also passed appropriation language to ensure BIA users
were satisfied with the system before its implementation. This
change in philosophy and direction invited the BIA users to
demand significant modifications in the software to accommodate
the different trust operations carried out in each separate region.
Id.
-39 -
<< COB00040 >>
Royce C. Lamberth." Id.
	Another contemporaneous record of this meeting is a September 9, 1999 e-mail
message from Ms. Shields to Edward Cohen of the DOI Solicitor's office. See Exhibit 5. It
summarized briefly the conclusions of the previous day's meeting and explained that,
while there appeared to be no legal requirement to provide updated information to the
Court, it would be wise to provide this information to the Court prior to Secretary Babbitt
testifying in Congress on the same subject. The e-mail reflected a still upbeat prognosis
about TAAMS, tempered somewhat by the recent slippage in deadlines:
[Wihile the consensus [of the meeting] was that no one had testified
[at Trial One] to an exact schedule so we probably don't have to
correct anything, everyone thinks that the court has the schedule in
some of the documents and since we will be giving the Hill
clarification, we should give it to the court as well. Dom [Nessi] said
he had send [sic] a one-pager to SQL (I have a copy) which should
suffice. Dom seems to think we are reaching our goals in a timely
fashion, that everyone should expect changes along the way. The
biggest issue seems to be the need for intensive training for users so
that they know how to use the system and are confident that they
know how so they will use it. That is under way.
Id. K2, Tab 4H. Included with the Second Report of the Court Monitor is a document that
appears to be the "one-pager" from Mr. Nessi referenced in Ms. Shields' e-mail. See
Exhibit 6. That document summarizes briefly the revisions to the TAAMS schedule that
had occurred since the beginning of July 1999.24 In the following weeks leading up to
	24	That document refers to three TAAMS developments since July 1, 1999.
First, actual operations in Billings, originally scheduled to begin shortly after the June
25, 1999 ceremony there, were postponed until September 1999. It explained that "Itihe
impact on the over-all schedule is negligible as all agencies will be operational on the
same dates as the earlier schedule. Second, the beginning of the Billings system test was
delayed by two weeks, from September 13, 1999 to September 27, 1999. Third, the
-40-
<< COB00041 >>
Secretary Babbitt's testimony, several drafts of a short submission were circulated within
DOI. See Exhibits 5B-5F to the Second Report of the Court Monitor. Ultimately, for
reasons that are articulated in neither the contemporaneous e-mail correspondence nor
interviews conducted by the Court Monitor, no report was filed with the Court at that time.
	Especially given that DOI officials themselves determined that these delays and
changes should be brought to the Court's attention in the fall of 1999, it would have been
the right course for them to have done so at that time. That they did not, however, does
not imply that contempt is appropriate. As explained in detail above, DOL witnesses and
attorneys repeated frequently before, during and after Trial One that the proposed
schedule was aggressive and that there would likely be delays and problems as
development proceeded. The very nature of this extraordinarily complicated computer
system necessarily makes it difficult for anyone to know with a high degree of confidence
how and when problems may or may not be solved in the future. In addition, DOL officials
ultimately did report this information - in a frank and straightforward fashion, as
discussed below - in their March 2000 Quarterly Report and revised HLIP; in light of the
remedial nature of civil contempt and the fact that a party is entitled to bring itself into
compliance before any sanction is imposed, this fact alone precludes a show cause order.
And of course, there was no judicial order in place at the time that might now trigger
invocation of the Court's contempt powers. Indeed, Plaintiffs have cited no case (and
original plan was modified first to put in operation the Title module, and delay
operation of the Realty module. These changes are later documented in the revised
HLIP, submitted to the Court in March 2000.
- 41 -
<< COB00042 >>
Interior Defendants are aware of none) in which an alleged violation of the duty of candor
was recognized as even a possible basis for a contempt finding. In light of all of these
factors, Plaintiffs' allegations on this point simply cannot support the issuance of a show
cause order.
3.	Accuracy of Quarterly Reports and Revised HLIP
	After the Court's December 1999 ruling, DOI provided regular reports to the Court
regarding the status of TAAMS through its Quarterly Reports and, along with the First
Quarterly Report submitted on March 1, 2000, a revised HLIP. Plaintiffs have suggested
that these submissions to the Court have not accurately described the status of the TAAMS
project. See Oct. 19, 2001 Contempt Motion, at 5?~ With respect to TAAMS, they focus
upon DOI's March 1, 2000 submissions, arguing that these documents did not disclose that
tests "had failed to prove the system was even close to deployment and certainly not
implementation." See Oct. 19, 2001 Contempt Motion, Factual Appendix I, at ¶ 22; see
generally j~±, at ¶¶ 22-33.
	Any after-the-fact scrutiny of the adequacy of DOI's submissions - particularly
when reviewing those submissions for the possible imposition of contempt — must keep
firmly in mind the position of the drafters of these documents at the time they were
	To the extent that Plaintiffs' August 27, 2001 and October 19, 2001 motions
seek contempt based upon issues presented in the Fourth and Supplemental Reports of
the Court Monitor, Interior Defendants will not present a separate factual response in
this brief, but will instead rely upon the response to those reports filed separately by the
DOJ Civil Division today. Similarly, to the extent that Plaintiffs' current contempt
motions rely upon issues raised in their three contempt motions filed prior to August
27, 2001 (L~±, those motions filed on August 15, 2000, April 9, 2001, and May 17, 2001),
Interior Defendants rely upon their responses to those motions already on file.
-42-
<< COB00043 >>
prepared. While the documents contain frank assessments of the delays that had occurred
and the continuing challenges still ahead, they cannot be expected to anticipate every
possible future problem. Predictions about the future are undoubtedly informed by the
past, but inform is all that the past can do. Indeed, the Court's order calling for the
submission of these documents recognizes the point, as it requires DOI reports to include
"the steps that defendants have taken to rectify the breaches of trust declared today and
to bring themselves into compliance with their statutory trust duties," and provides that
each report "shall be limited, to the extent practical, to actions taken since the issuance of
the preceding quarterly report."
	When judged with these considerations in mind, the record demonstrates that DOI's
submissions are more than reasonable under the circumstances, and do not support a
finding of contempt. While any review can - with the benefit of hindsight - reveal
problems that DOI might have better foreseen or communications that might have been
more clearly worded, this is quite different from suggesting that alleged defects in the
submissions warrant contempt. In fact, the plain language of DOI's submissions
communicated the major problems encountered with TAAMS development in a manner
that was accurate and in keeping with the Court's order.
	The delays and problems reported in these March 2000 submissions are many. An
introductory "Observations" section of the TAAMS portion of the revised HLIP begins
with the recognition that "[tihe original plan for modification and deployment of TAAMS
has undergone considerable change since the unveiling of the initial prototype in June
1999." See Exhibit 7, at 69. It explains the nature of the two most important structural
-43-
<< COB00044 >>
changes:
While the original vision for TAAMS was as an "off-the-shelf system
with minor modifications," that approach had been fundamentally
altered to "a user-centric design effort that allows for the development
of numerous system releases, each one closer to the final target than
the last. This is an accepted process for rapid system development
and helps to ensure that the user community has a significant
opportunity for input on the design." Id.
•	During development, "it became apparent that the lack of consistent
business rules and processes across BIA (many resulting from statutes
and probate laws that vary from state to state) placed the software
vendor in a very difficult position as it attempted to modify the
software to meet BIA's needs. Although it was always assumed that
additional adjustments would be necessary after the first prototype,
it was initially believed that a large part of the basic functionality was
present in the late-June 1999 release of TAAMS. This was not the case
and it became apparent during the system tests conducted with BIA
users during July 1999 and August 1999 that a significant level of
analysis and system modification remained in order to ensure that all
of the BIA's unique business functions were addressed." Id.
These are, by any measure, frank assessments of the nature of the changes that had
occurred since Trial One.
	The Observations section then goes on to explain the ramifications of these
fundamental changes in "real world" terms. Because of the dramatic nature of the changes
revealed in this portion of the report, it is quoted here at some length:
The combined impact of these two factors was that many more
releases would be necessary than originally anticipated when the
initial prototype was released. Throughout this period, the TAAMS
team would project that the "next" version would satisfactorily meet
the core functionality of the users, only to find that the users
determined that additional modification was necessary. It should be
noted that BIA staff have limited experience in system design and it
is not surprising that they would not be able to articulate their needs
without a significant level of interaction with the software vendor —
a level of interaction that often competed with other pressing
-44-
<< COB00045 >>
demands for their time.
As a result, in order to more clearly define the core requirements, the
software vendor and TAAMS team began to focus primarily on the
needs of the Billings Regional Office with a reduced level of input
from other BIA regions. Chosen as the pilot, Billings represented a
good target for TAAMS because their workload represented the
overwhelming majority of types of realty transactions and their
workforce followed the most common BIA realty practices.
An unanticipated result of the frequent version releases was that the
data migration did not have a consistent target from July 1999
through approximately September1999. As a result, test conversions
would have to be adjusted every time the underlying data structure
was adjusted. With versions being released in a rapid manner, there
were times when system testing was difficult because the data did not
properly match the data structure.
Furthermore, while the Billings data was sufficient for the legacy
systems, it required significant modification for the TAAMS database
structure. For example, fee owners in the legacy system did not need
a unique identifier. However, in TAAMS, a unique identifier was
necessary to ensure database normalization. This necessitated both
an immediate business decision and a conversion process that would
create a unique identifier. Each time a new version was released, all
of these features would need to be reviewed to ensure that they did
not conflict with some aspect of TAAMS not previously decided
upon.
Another unanticipated result of the design effort was that it did not
lend itself to system testing in the fraditional sense. Testing was
conducted continuously after each version was released. 1-lowever,
the data conversion issues discussed above oftentimes interfered with
a full test. Unit, integration and system testing was conducted
routinely by the software vendor throughout the modification
process.
Similarly, training was conducted frequently during the summer and
early fall 1999 for BIA regional personnel with the expectation that the
last release would be the final release. Training often illustrated that
the latest release did not meet the user's needs and also that business
rules continued to need refinement. An important lesson learned
during the training effort was that the legacy systems and TAAMS
-45 -
<< COB00046 >>
were so different in approach, technology and concept that longer,
more intensive training classes than originally considered would be
required. A new concept for training emerged that is now being
implemented. A central facility will be used for all training — the
Applied Terravision System, Inc (ATS) facility in Dallas — with the
instructors provided by ATS. BIA co-trainers will be available to
answer questions about the business aspects of TAAMS, whereas ATh
instructors will teach the proper use of the software.
iL, at 69-70. The report then summarizes the cumulative effect of these changes:
The net result of these events during the late summer and early fall
was that the deployment schedule outlined in the TAAMS contract
could not be achieved as originally planned. In retrospect, the
Department concedes that the plan was overly optimistic given the
complexity of the task at hand.
j~t, at 70-71. While the language of this report is professional, its conclusions certainly are
both negative and far-reaching. In light of its frankness and self-criticism, it is difficult to
imagine how Plaintiffs can characterize DOI as having failed to reveal the mounting
problems with the system or to conceal the problems that had beset it.
	The First Quarterly Report also addresses several important changes in the TAAMS
project. It explains that "interfaces between TAAMS, TFAS and MMS are not yet
complete," and that there had been a change to deploy on a "functional" rather than a
"geographic" basis. First Quarterly Report, at 13. It notes that the plan presented at Trial
One called for deployment of the system to all regions by June 2000, but that that deadline
was no longer in consideration and no other goal had been imposed to replace it. Id. "The
actual deployment schedule, whether geographic, functional, or some combination thereof,
is dependent upon progress in data cleanup at all locations and software development and
testing." Id.
- 46 -
<< COB00047 >>
	Plaintiffs' second-guessing of the contents of this report is not justified, and cannot
support a finding of contempt. They assert, for instance, that "[tihe uninformed person
reading this TAAMS section of the Quarterly Report would have no idea of the major
software, data conversion, testing, and user acceptance problems that TAAMS had
developed." Oct. 19,2001 Contempt Motion, Factual Appendix I, at ¶ 23. While Plaintiffs
are technically correct that the lion's share of the bad news was conveyed in the revised
HLIP and not in the TAAMS section of the First Quarterly Report, the lengthy portions of
the HLIP quoted above convey precisely this information. Similarly, Plaintiffs' complaints
about the contributions of DOL counsel to these documents, ~j4, at ¶¶ 24~25,26 are beside
the point: because the HLIP and First Quarterly Report conveyed accurate and frank
information about the status of the project, there is simply no reason to call into question
the attorneys' contributions to this process.
	Plaintiffs' suggestion that the March 1,2000 submissions somehow lulled the Court
into a false sense of security about the status of TAAMS are also belied by the strongly
worded criticism offered by the Court at an April 4, 2000 hearing, shortly after those
submissions were filed. Expressing frustration at the pace of these efforts — particularly
when contrasted with the more optimistic testimony provided at Trial One - the Court
	26 It is also worth noting that the disparaging reference to Mr. Elliott in the
Factual Appendix to Plaintiffs' most recent motion, see Oct. 19, 2001 Contempt Motion,
Factual Appendix I, at ¶ 24, is apparently in error. Specifically, Plaintiffs' assert that it
was Mr. Elliott who, according to contemporaneous notes of a February 22, 2000
meeting, commented that there was "perhaps too much candor" in the draft HLIP. In
fact, the notes themselves attribute that comment not to "TE," but instead to "T2." See
Exhibit 8.
- 47 -
<< COB00048 >>
addressed at length the ways in which the revised HLIP and First Quarterly Report
demonstrated significant changes from earlier expectations. See Exhibit 9, Transcript of
April 4, 2000 Hearing, at 6-9. In sum, while there had been substantial changes in the
TAAMS plan by March 2000 and the Court had ample justification to be concerned about
those changes, the record clearly reflects that they were brought fully and fairly to the
Court's attention.
B.	Data Cleanup
	Relying heavily upon the conclusions of the Third and Fourth Reports of the Court
Monitor, Plaintiffs also assail the representations made by DOI regarding data cleanup in
its Quarterly Reports. ~ generally Oct. 19,2001 Contempt Motion, Factual Appendix II,
at ¶¶ 14-19; Factual Appendix III, at ¶¶ 20-29. For instance, they take issue with the fact
that the data cleanup sections of the Quarterly Reports relied heavily upon information
received from the data cleanup contractor, Datacom, but did not include significant
discussion of the progress of BIA personnel in carrying out data cleanup work assigned to
them. See Factual Appendix II, at ¶ 19. They suggest that a statement in the Seventh
Quarterly Report that "Iltihe exact status of the BIA Data Cleanup and Management,
including work performed by BIA personnel, will be in the next quarterly report," see
Seventh Quarterly Report, at 13, is a tacit admission that the "exact status" of work by BIA
personnel had never been provided previously. 14.. at ¶ 15. Plaintiffs conclude that "BIA
subproject managers and senior management have either failed to understand the true
nature of data cleanup operations or, more likely, have sought to avoid reporting it to their
superiors and this Court" Id. at ¶ 18.
-48 -
<< COB00049 >>
	A foundation for Plaintiffs' attack upon DOI reporting of data cleanup activities is,
therefore, that BIA personnel are doing a sufficiently significant portion of the data cleanup
work that not including some measure of their progress materially misleads the Court. A
review of the record before the Court on this topic, however, reveals that there is no clear
evidence on the precise role that BIA personnel are performing in this effort. While there
have been statements that BIA personnel carry out some of this work, the DOI subproject
manager has reiterated his own understanding that the work carried out by BIA personnel
is not a significant percentage of the total work done. Because the existing record is
unclear, because DOI has indicated that it will investigate the matter further and prepare
a summary of its findings, and because there is no indication that the subproject manager
did not have a good faith basis for his belief on the point, contempt proceedings are not
warranted.
	Since the institution of the quarterly reporting requirement1 DOI has struggled with
the question of how best to report the progress of data cleanup activities in some
statistically meaningful way. In the Third Quarterly Report, for instance, DOI explained
that the "Special Trustee will ... work with the BIA subpro;ect manager to obtain
meaningful metrics on the progress of the BIA data cleanup effort." See Third Quarterly
Report, at 3. In the next report, DOT noted that it had decided upon a format for charting
progress on that issue in each region, and that "Iltihat information will appear in a chart
that will be refined for use in the next quarterly report, and will provide observers a more
useful monitoring tool." See Fourth Quarterly Report, at 7. The two following reports m
fact did include these charts, though DOI ultimately concluded that "progress
-49 -
<< COB00050 >>
measurement tin this format] ... continues to be insufficient" and discontinued the charts.
See Sixth Quarterly Report, at 4.
	The Third Report of the Court Monitor, issued on September 17,2001, raises a more
specific concern about DOL's reporting on the status of data cleanup. The Court Monitor
notes that the charts submitted with the Fifth and Sixth Quarterly Reports reflected only
Datacom progress. See Third Report of the Court Monitor, at 21. "The BIA Data Cleanup
reports have not addressed the activities of the local [131A1 data cleanup personnel and do
not provide and accurate or complete picture of what the overall status of data cleanup is
in any Region." Id.: see also id at3l("These reports ... did not reveal any hint of the exact
status of data cleanup or what the BIA personnel had or had not accomplished"). The
precise factual basis for the Court Monitor's conclusion that BIA personnel carry out a
substantial portion of this work is not stated, other than the fact that he attended an August
28, 2001 meeting of data cleanup managers where "the activities of BIA data cleanup
personnel were painfully apparent." i~, at 31.
	In response to these and other criticisms in the Court Monitor's report, the
subproject manager for data cleanup, Terrence Virden, submitted additional information
for inclusion in the Seventh Quarterly Report to be filed at the end of September 2001. In
that submission, Mr. Virden explained:
The BIA has been asked to assess and report on the status of data
cleanup work accomplished by BIA staff. A regional data call has
been initiated and results will be reported in the next quarterly report.
Based on preliminary feedback, however, this will not be a significant
percentage of the total.... The BIA subproject manager will submit a
white paper on the efficiency of collecting information that falls into
the category of data cleanup that is conducted as part of regular job
-50 -
<< COB00051 >>
duties to the Special Trustee during the next quarter.
Exhibit 10, at 2 (emphasis in original). The submission then summarizes briefly the types
of data cleanup work performed by BIA staff in the various regions. Id. Similarly, the
Fourth Report of the Court Monitor notes that Mr. Virden explained in interviews that
"[he did not believe that there was very much data cleanup work performed by BIA
personnel. Also, what they were performing was an additional duty to their regular duties.
He believed that most of the data cleanup was being accomplished by the DataCom
contractor." Fourth Report of the Court Monitor, at 15.
	What is striking about this discussion is the apparent disagreement between Mr.
Virden and the Court Monitor over a factual issue that, one would expect, should lend
itself to a factual resolution. The Court Monitor's report does not explain in detail the basis
for his conclusion that BIA personnel perform a substantial amount of this work, relying
instead upon his assertion that it was "painfully apparent" at the August 28,2001 meeting
he attended. Mr. Virden's view, based upon his contact with regional offices, was, by his
own admission, preliminary, and he was relatively new to his position. In addition, he has
now indicated that he will have staff investigate the matter more fully and submit a report.
Indeed, it appears that the question of whether the submission of Datacom statistics might
not accurately account for the status of data cleanup efforts by BIA personnel was first
raised by the Court Monitor in his September 17,2001 report. In light of the ambiguity of
the record, the relatively short time that the issue has been presented squarely, and Mr.
Virden's apparent good faith belief that what he reported was accurate, contempt
proceedings are unwarranted.
- 51 -
<< COB00052 >>
CONCLUSION
	For the foregoing reasons, Plaintiffs do not raise factual or legal allegations that
would support an order of contempt, and no order to show cause should issue.
Respectfully submitted,
~	~
ROSCOE C. HOWARD, JR.
D.C. Bar No. 246470
United States Attorney
—7
MAR E. NAGLE
D.C. Bar No. 416364
Assistant United States Attorney
	R. CRAIG L	NCE
D.C. Bar No. 171538
Assistant United States Attorney
SCO~~RRI
D.C. Bar No. 449037
Assistant United States Attorney
555 Fourth Street, N.W.
Washington, D.C. 20001
(202) 307-0338
<< COB00053 >>
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ELOUISE PEPION COBELL, et al.,	)
)
		Plaintiffs,	)	Civil Action No. 96-1285 (RCL)
			)
	v.		)
)
GALE A. NORTON, et al.,	)
)
		Defendants.	)
			)
ORDER
	Upon consideration of Plaintiffs' August 27,2001 Motion for Order to Show Cause
Why Past and Present Interior Defendants and Their Employees and Counsel Should Not
Be Held in Contempt, it is hereby ORDERED that Plaintiffs' motion is DENIED.
Upon consideration of Plaintiffs' October 19,2001 Motion for Order to Show Cause
Why Interior Defendants and Their Employees and Counsel Should Not Be Held in
Contempt for Violating Court Orders and for Defrauding This Court in Connection with
Trial One, it is hereby ORDERED that Plaintiffs' motion is DENIED.
UNITED STATES DISTRICT JUDGE
Date: