; r-'T -5 7: 3; 1N THE UNITED STATES DISTRTCT COURT ' + 
FOR THE DISTRICT OF COLUMBIA 
- 
EL,OUISE PEPION COBELL, ct al., 
Plaint i ffs, 
V. Case No. 1 :96CV01285 
(Judge Lamberth) 
) 
1 
1 
GALE A. NORTON, Secretary of the ) 
Interior, et al., ) 
) 
Defendants. 
INTEFUOR DEFENDANTS' REPLY MEMORANDUM IN FURTHER 
suPPoRr OF THEIR MOTION FOR LEAVE TO SUPPLEMENT 
THEIR MOTION FOR RECONSIDERATION OF THE MARCH 5,2003 
MElPlORANDUlPl AND ORDER INSOFAR AS IT IMPOSED 
SANCTIONS ON INTERIOR DEFENDANTS AND THEIR COUNSEL 
Lnterior Defendants respectfully submit this reply memorandum in further support of their motion 
for leave to supplement their motion for reconsideration of the March 5,2003 Memorandum and Order 
insofar as it imposed sanctions on Interior Defendants and their counsel. This motion seeks vacatur of 
the Court's sanctions ruling based upon the recent decision in this case by the Court of Appeals, which 
found that Interior Defendants were entitled to relief with respect to the actions of former SpeciaI 
Master-Monitor Joseph Kieffer. Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003). In opposing this 
motion, Plaintiffs rely upon the remarkable contention that the Court of Appeals decision is "irrelevant" 
to this Court's sanctions ruling, despite the fact that the Court of Appeals considered, and agreed &th, 
arguments that this Court deemcd frivolous and which formed the bases for its sanctions ruling. This 
desperate effort to avoid the substance of the Court of Appeals decision must fail, and Interior 
Defendants' motion should be granted. Norton, 334 F.3d at I 142. 
ARGUMENT 
In the most fundamental sense, the holding of the Court of Appeals decision is that Interior 
Defendants were entitled to the relief they sought with respect to the actions of former Special Master- 
Monitor Kieffer. The foundation of this holding was the appellate court's determination that the scope 
of Mr. Kieffer's authority was "truly extraordinary," and that he "was charged with an investigative, 
quasi-inquisitorial, quasi-prosecutorial role that is unknown to our adversarial legal system." Cobell v. 
The foregoing cannot be disputed. Nor can the fact that arguments Interior Defendants made 
to this Court in seeking a protective order, and for which sanctions were imposed, were expressly cited 
and relied upon by the Court of Appeals in reaching its determination. See id., 334 F.3d at 1142; 
Interior Defendants' Motion for Leave and Supplemental Memorandum in Further Support of Their 
Motion for Reconsideration of the March 5 , 2003 Memorandum and Order Insofar as It Imposed 
Sanctions on Interior Defendants and Their Counsel (Sept. 11,2003) at 8. Even Plaintiffs do not 
dispute that the Court of Appeals agreed that Mr. Kieffer assumed an extraordinary role akin to a party 
litigant. See Plaintiffs' Opposition to Defendants' Motion for Leave and Supplemental Memorandum in 
Further Support of Their Motion for Reconsideration of the March 5,2003 Memorandum and Order 
Insofar As It Imposed Sanctions On Interior Defendants And Their Counsel (Sept. 25,2003) 
("Plaintiffs' Opposition") at 3. Plaintiffs try desperately to dodge this dispositive point by arguing that 
the Court of Appeals "had an entirely different reason" for agreeing with Interior Defendants. See id. at 
3-4. Specifically, Plaintiffs contend that the Court of Appeals reached its conclusion concerning Mr. 
2 Kieffer based on the fact that the parties did not consent to his "powers of investigation and ex parte 
communication." Id. at 4. This semantic argument rings hollow. 
The Court of Appeals' finding that Mr. Kieffer was akin to a party litigant was made in the 
broad context of the court's determination that his "investigative, quasi-inquisitorial, quasi-prosecutorial 
role" was "unkown to our adversarial legal systcm." See Cobell v. Norton, 334 F.3d at 1142. That 
holding parallels the position Interior Defendants took when they sought a protective order from this 
Court: "The Special Master-Monitor has, in essence, assumed the role of a roving investigator who 
identifies issues, seeks related discovery, and develops his own record with respect to those matters." 
Interior Defendants' Motion For A Protective Order As To Discovery By The Special Master-Monitor 
And As To The Rule Announced By The Special Master-Monitor Concerning Deposition Questioning 
(Jan. 23,2003) ("Protective Order Motion") at 16. Plaintiffs' contention that the express adoption by 
the appellate court of this position should be cast aside as "irrelevant" to a motion to reconsider this 
court's determination that the position was frivolous, simply because Interior Defendants did not 
consent to the Special Master-Monitor's excesses, defies logic and is untenable.' 
I Plaintiffs also assert that Interior Defendants "objected in many ways . . . as to how they 
contended the Special Master-Monitor was abusing his power in their view, but they did not assert that 
he did not have the continuing power or jurisdiction to do so." Plaintiffs' Opposition at 6-7 (footnote 
omitted). The relevance of this baffling assertion is dubious, and it is, in any event, a gross misstatement 
of fact. See Cobell v. Norton, 334 F.3d 1128 (ruling on, inter alia, Interior Defendants' appeal of Mr. 
Kieffer's reappointment); Interior Defendants' Response To Court Order Dated April 3,2002 
Regarding Court Monitor (Apr. 1 1 , 2002) (objecting to Mr. Kieffer's reappointment under the terms 
established by the Court); Protective Order Motion at 16 ("the Court did not - and could not - vest in 
the Special Master-Monitor the broad investigatory powers that he has assumed for himself") (citation 
omitted); id. at 21 (arguing that Mr. Kieffer's claimed authority to resolve substantive discovery 
disputes during depositions was "contrary to the appointment order and, in any event, improper"). Plaintiffs devote the balance of their brief to the proposition that "cven after a court loses 
jurisdiction over the action by settlement or dismissal, it may still sanction improper conduct that 
occurred before it," Plaintiffs' Opposition at 9- 10, and the notion that "an order of a court must be 
obeyed even if ultimately found to have been incorrect," id. at 10-12. Those concepts, and Plaintiffs' 
discussion related thereto, have nothing to do with the motion before the Court. Neither the jurisdiction 
of the Court nor the duty to obey its orders is an issue presented by this motion. Here, the Court's 
determination that Interior Defendants' arguments were frivolous has been determined to have been 
erroneous; hence, the very basis for the sanctions ruling has been eviscerated. The authorities Plaintiffs 
discuss and purport to interpret simply are not gennane to that issue. 
Dated: October 6,2003 
CONCLUSION 
For all of the foregoing reasons, Interior Defendants respectfully request that the Court enter an 
order granting leave to file these supplemental memoranda, granting their motion for reconsideration, 
vacating the imposition of sanctions, and denying Plaintiffs' application for fees. 
Respectfully submitted, 
ROBERT D. McCALLUM, JR. 
Associate Attorney General 
PETER D. KETSLER 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
Director 
4 D.C. Bar No. 261495 
Deputy Director 
JOHN T. STEMPLEWICZ 
Senior Trial Counsel 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 5 14-7 194 
5 CERTIFICATE OF SERVICE 
I declare under penalty of perjury that, on October 6,2003 I served the foregoing Interior 
Defendants' Reply Memorandum in Further Support of Their Motion for Leave to Supplement 
Their Motion for Reconsideration of the March 5, 2003 Memorandum and Order Insofar as it 
Imposed Sunctions on Iriterior Defendants and Their Counsel by facsimile in accordance with 
their written request of October 3 1, 2001 upon: 
Dennis M Gingold, Esq. 
Mark Kester Brown, Esq. 
607 - 14th Street, NW, Box 6 
Washington, D.C. 20005 
(202) 3 18-2372 
Keith Harper, Esq. 
Native American Rights Fund 
1712 N Street, N.W. 
Washington, D.C. 20036-2976 
(202) 822-0068 
By Facsimile and U.S. Mail upon: 
Alan L. Balaran, Esq. 
Special Master 
1 7 1 7 Pennsylvania Avenue, N. W ., 1 3 th Floor 
Washington, D.C. 20006 
(202) 986-8477 
Per the Court's Order of April 17,2003, 
by Facsimile and by U.S. Mail upon: 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
(406) 338-7530 
By U.S. Mail upon: 
Elliott Levitas, Esq 
I 100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530