FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, et al., 
Plaintiffs, 
V. Case No. I :96CV01285 
(Judge Lamberth) 
GALE A. NORTON, Secretary of the 
Interior, et al., 
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Defendants. 
INTERIOR DEFENDANTS’ OPPOSITION TO 
PLAINTIFFS’ CONSOLIDATED MOTION FOR A 
TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION 
Interior Defendants respectfully subtnit this opposition to Plaintiffs’ Consolidated 
Motion for Temporary Restraining Order And Motion For Preliminary Injunction 
(“Plaintiffs’ Motion”). Plaintiffs’ Motion derives solely from Interior Defendants’ insistence 
that the Special Master provide advance notice to counsel of proposed site visits so that 
counsel has an opportunity to accompany him on such visits. The order governing the 
Special Master‘s authority docs not provide hini with the power to conduct site visits outside 
the presence of couiisel, and no evidence exists that counsel has ever obstructed the Special 
Master in his work when accompanying him 011 site visits. The iiotion put forth by Plaintiffs 
that the mere presence of Interior Defendants‘ counsel at site visits has placed individual 
Indian tnist records “at risk of imminent loss and destixiction” is absurd. Weighed against the 
high threshold that Plaintiffs must meet to obtain the extraordinary relief they seek, Plaintiffs’ 
motion is patently deficient and should be denied. PERTINENT BACKGROUND 
On August 12, 1999, with consent of the parties, the Court adopted two orders 
relating to the retention of individual Indian trust records by the Department of the Interior 
(“Interior”) and the Department of the Treasury (“Treasury”). Order (Aug. 12, 1999) 
(adopting Order Regarding Interior Department IIM Records Retention (“Interior Order”) and 
Order Regarding Treasury Department IIM Records Retention (“Treasury Order”)). These 
orders provided, inter alia, “that Alan L. Balaran, Special Master (‘Special Master’), is hereby 
authorized to oversee the Interior [Treasury] Department’s retention and protection from 
destruction of EM Records through, among other things, on-site visits to any location where 
ITM Records are maintained.” lnterior Order at 2; Treasury Order at 2. They further required 
Interior and Treasury to distribute attached memoranda relating to trust document and data 
retention to “each employee with custody of IIM Records” and to other entities. lnterior 
Order at 1; Treasury Order at 1 . The memorandum to be distributed to employees by Interior 
and Treasury included the following information: 
Moreover, preservation of records identified in Attachment A is a 
responsibility that can be enforced by the Court presiding over the 
Cobell litigation. As the Order of July -, 1999, directs, the 
Special Master appointed by the Court, Alan Balaran, is authorized 
to oversee and independently verify our compliance with our 
document retention responsibilities. Mr. Balaran may exercise his 
responsibilities by visiting any location where IIM records are 
maintained and inspecting the IIM records at that location. These 
inspections may occur with no advance notice. Please provide full 
cooperation should Mr. Balaran visit your office. 
Interior Order, Memorandum Attachment at 2; Treasury Order, Memorandum Attachment at 
2. Thus, the memoranduni informed Interior and Treasury employees that a site visit by the 
2 Special Master may occur without them receiving advance notice of the visit. 
The August 12, 1999 Order includes no provision authorizing the Special Master to 
conduct site visits outside the presence of counsel, ie., ex parte. Although reports issued by 
the Special Master indicate that, after the Order was entered, he conducted some site visits 
outside the presence of counsel, he assured Interior Defendants' counsel in a meeting held on 
October 28, 2002 that he would no longer do so. Letter from Sandra P. Spooner, Department 
of Justice, to Alan L. Balaran, Special Master (Oct. 28,2002) ("At our meeting this morning 
on records-management, we agreed that you would make your visits to Interior offices after 
notice to counsel so that they would have an opportunity to accompany you and assist, as 
necessary, in obtaining access to Interior facilities.") (copy attached to Exhibit 1 of Plaintiffs' 
Motion). ' To Interior Defendants' knowledge, the practice of the Special Master subsequent 
to that meeting generally has been to notify counsel of an intended visit, and for Interior 
Defendants' counsel to accompany the Special Master on the visit. 
1 Plaintiffs' counsel complains at length, in a letter submitted to the Court with 
Plaintiffs' Motion, that they were not informed of the meeting with the Special Master. 
Letter from Dennis Gingold to Sandra P. Spooner, Department of Justice (Oct. 1, 2003) at 3 
(copy attached as Exhibit 2 to Plaintiffs' Motion) ("Why did you fail to inform plaintiffs' counsel 
of this meeting? Why did you conduct this so-called negotiation in the absence of plaintiffs' 
counsel'? Who participated in this exparte negotiation? Why have you failed to provide to 
plaintiffs' counsel a copy of any written agreement executed by the Interior defendants and the 
Master? Under what authority do you claim such agreement niay be executed absent plaintiffs' 
participation and consent? . . ."I. Plaintiffs' counsel is wrong. Plaintiffs' counsel was provided 
with notice of the meeting (along with an agenda of the matters to be discussed, which included, 
-- inter alia, "Site Visits"), as well as notice of the Special Master's agreement at that meeting to 
advise counsel prior to conducting a site visit. See Letter from Alan Balaran, Special Master, to 
Sandra Spooner, Department of Justice, copy to Dennis Gingold (Oct. 28, 2002) (copy attached 
hereto as Exhibit 1); Letter from Sandra P. Spooner, Department of Justice, to Alan L. Balaran, 
Special Master, copies to Dennis Gingold and Keith Harper (Oct. 28, 2002) (attached to Exhibit 
1 to Plaintiffs' Motion). , 
Notwithstanding the foregoing, the Special Master visited a Minerals Management 
Service facility in Dallas on September 26, 2003, without first informing Interior Defendants’ 
counsel and allowing counsel an opportunity to accompany him. Upon learning that the 
Special Master was conducting an ex parte visit, Interior Defendants’ counsel attempted to 
contact the Special Master on his cellular telephone. When those efforts were unsuccessful, 
counsel left the Special Master a voicemail message respectfully requesting that he cease any 
- ex parte proceedings. The Special Master subsequently issued a report with respect to the 
site visit. See Site Visit Report of the Special Master to the Dallas, Texas Office of the 
Minerals Revenue Management Division of the Department of the Interior’s Minerals 
Management Service (undated).2 
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ARGUMENT 
Plaintiffs must satisfy a significant burden to prevail on their motion. The Court must 
examine whether (1) Plaintiffs have demonstrated a substantial likelihood of success on the 
merits; (2) Plaintiffs have demonstrated that thcy will suffer irreparable injury if the relief 
they seek is denied; (3) the granting of injunctive relief would substantially injure the other 
party; and (4) the public interest would be served by the granting of the relief. E.g., 
Davenport v. Int‘l Bhd. of Teamsters, AFL-CTO, 166 F.3d 356, 360-61 (D.C. Cir. 1999) 
(citation omitted). The Supreme Court has observed that ‘‘a preliminary injunction is an 
extraordinary and drastic remedy, one that should not be granted unless the movant, by a 
clear showiizg, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 
Interior Defendants reserve their right to submit objections to the Special Master‘s 
report pursuant to Federal Rule of Civil Procedure 53. 
4 (1997) (emphasis in original; citation omitted). Plaintiffs’ motion fails even to approach this 
high standard. 
I. Plaintiffs Have Failed To Demonstrate A Substantial 
Likelihood Of Success On The Merits Or Irreparable Harm 
Plaintiffs have made no showing that they can succeed on their claim that the 
presence of Interior Defendants’ counsel during site visits by the Special Master places 
individual Indian trust records “at risk of imminent loss and destruction,” and such a claim 
has no support. Nothing Interior Defendants have done restricts the Special Master from 
conducting site visits in accordance with the August 12, 1999 Order. Indeed, Interior 
Letter from Sandra P. Defendants have acknowledged that he has such authority. &, 
Spooner, Department of Justice, to Alan L. Balaran, Special Master (Sept. 30,2003) at 1 
(attached as Exhibit 1 to Plaintiffs’ Motion). 
The August 12, 1999 Order, however, does not provide the Special Master with the 
authority to conduct ex parte site visits. Although the memoranda distributed to Interior and 
Treasury eniployees by those agencies pursuant to the Order informs them that they may have 
no advance notice of visits by the Special Master, nothing in the Order authorizes the Special 
Master to conduct such visits outside the presence of counsel. The assurance he provided 
Interior Defendants’ counsel during the October 28,2002 meeting that he would not conduct 
site visits without first notifying them, and his subsequent practice of providing such notice 
and being accompanied by Departnient of Justice counsel on those visits, is consisterit with 
this fundamental notion. 
5 Plaintiffs have not even attempted to support the underlying contention of their 
motion, that the presence of Interior Defendants’ counsel during site visits could somehow 
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cause them irreparable harm. Indeed, there has been no evidence that, on site visits on which 
he has been accompanied by Department of Justice counsel, the Special Master has been 
obstructed in any way. Plaintiffs’ failure to even address this threshold issue is fatal to their 
motion. Their reliance, instead, on the general allegation that trust records are now “at risk of 
imminent loss and destruction” -- without any explanation as to how the presence of Interior 
Defendants’ counsel at site visits could possibly result in such harm -- falls woefully short of 
establishing a substantial likelihood on the merits and irreparable harm. 
Thc Granting of the Relief Would Substantially 
Harm Interior and Not Serve the Public Interest 
The effect of the TRO sought by Plaintiffs is clear: to dcprive Interior Defcndants’ 
II. 
counsel of the opportunity to be notified in advance of site visits and to accompany the 
Special Master on such visits. Whereas the August 12, I999 Order authorizes the Special 
Master “to oversee the Interior Department’s retention and protection from destruction of IWl 
records through, among other things, on-site visits to any location where TIM Records are 
maintained,” Interior Order at 2, Plaintiffs’ proposed TRO would alter that authority to 
“unrestricted access to any Interior Department facility and all areas within any such facility, 
that houses [sic] Trust Records without advance notice to Interior Defendants or their 
counsel.” Plaintiffs’ Motion, Proposed Temporary Retraining [sic] Order (emphasis added). 
Such an order would strip lnterior Defendants’ counsel of any ability to ascertain whether the 
Special Master’s conduct is in conformity with this Court’s reference order and within the limits on authority established in this case by the Court of Appeals. The potential for harm in 
this respect is greatly exacerbated in light of the concerns raised in Interior Defendants' 
pending motion to conform the Special Master's conduct to the limits established by the 
Court of Appeals3 and in their pending motion to disqualify the Special Master.4 
Nor would the public interest be served by granting the relief Plaintiffs seek. There 
has been no indication that the Special Master has been obstructed in his site visits when 
accompanied by counsel for Interior Defendants, and no benefit would inure to the public by 
precluding counsel from being present at the site visits. To the contrary, it would disserve the 
public interest to deny the United States the ability to ascertain how the Special Master is 
exercising his authority. 
3 Lnterior Defendants' Motion For An Order Directing The Special Master To 
Conform His Conduct To Limits Stated By The Court Of Appeals; To Vacate Or Clarify Existing 
Orders As Appropriate; And To Act On This Motion On An Expedited Basis (Sept. 24, 2003). 
As discussed in that motion, the Special Master has used site visits as a means to investigate 
issues that are beyond his authority to oversee the retention and protection of trust documents. 
-- See id. at 2-3, 6-7 (Special Master's August 20, 2003 report, detailing site visits to Office of 
Appraisal Services in Gallup, New Mexico, and a Bureau of Indian Affairs office in Window 
Rock, Arizona, iiicluded exaniination of issues and findings relating to appraisal practices for 
rights of way over the allotments of Indian beneficiaries). 
4 Interior Defendants' Motion to Disqualify Special Master Balaran (May 29, 2003) 
(Special Master's conduct demonstrates actual bias and mandates disqualification); see also 
Cobell v. Norton, 334 F.3d at 1 139 ("When the relief sought is recusal of a disqualified judicial 
officer, however, the injury suffered by a party required to complete judicial proceedings 
overseen by that officer is by its nature irreparable."). 
7 Plaintiffs’ Motion be denied. 
Dated: October 14, 2003 
Deputy Director 
JOHN T. STEMPLEWTCZ 
GINO D. vrssrccI-Iro 
TIMOTHY E. CURLEY 
Trial Attorneys 
Commercial Litigation Branch 
Civil Division 
Ben Franklin Station 
Washington, D.C. 20044-0875 
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CONCLUSION 
For all of the foregoing reasons, Interior Defendants respectfully request that 
Respectfully submitted, 
ROBERT D. McCALLUM, JR. 
Associate Attorney General 
PETER D. KEISLER 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Ass is tan t Attorney General 
J. CHRISTOPHER KOHN 
Director 
D.C. Bar No. 261495 
Senior Trial Counsel 
P.O. Box 875 
(202) 514-7194 
8 IN THE UNITED STATES DlSTRlCT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, al., 
Plaintiffs, 
V. 
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GALE NORTON, Secretary of the Interior, @ al., ) 
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Defendants. 
ORDER 
This matter comes before the Court on Plaintiffs’ Plainfgs ’ Consolidated Motion for 
Temporary Restraining Order and Motion for Preliminary Injunction. [Dkt. #23 191 Upon 
consideration of the Plaintiffs’ Motion, Interior Defendants’ Opposition, and any Reply thereto, 
and the entire record of this case, it is hereby 
ORDERED that the Motion is, DENlBD. 
Hon. Royce C. Lamberth 
UNITED STATES DISTRlCT JUDGE 
United Slates District Court for the 
District of Columbia 
Date: 
Case No. 1 :96CV01285 
(Judge Lamberth) cc: 
Sandra P. Spooner, Esq 
John T. Stemplewicz, Esq 
Commercial Litigation Braiich 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
Fax (202) 5 14-9163 
Dennis M Gingold, Esq- 
Mark Brown, Esq. 
607 14th Street, NW, Box 6 
Washington, D.C. 20005 
Fax (202) 3 18-2372 
Keith Harper, Esq. 
Native American Rights Fund 
1712 N Street, NW 
Washington, D.C. 20036-2976 
Fax (202) 822-0068 
Elliott Levitas, Esq. 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
Alan L. Balaran, Esq. 
Special Master 
17 17 Pennsylvania Avenue, N. W. 
13th Floor 
Washington, D.C. 20006 
(202) 986-8477 
Earl Old Person ( P m .ye) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 594 17 
(406) 338-7530 October 28,1002 
VLk FACSIMILE 
S i u l h Spoonzr 
UNITED STATES DEPARMNT OF KJSTICE 
Civil Division - Commercial Lirigafion Branch 
P.O. Box 875 
Ben Franklin Szation 
Washinpn, DC 30044-0875 
T W you 
cc: Dennis Gingold, Esq. 
Encloscrz 
RE: Cobell at al. v. Norton et al., Civil Action No. 96-1285 
Azenda for Meering October 28.2002 
I am encIosin~ a copy af a proposed agenda for roday's rneeriny. As you will note, the 
focus will be on Tmsr Records. 
Sincerely, 
> 
Defs' Oppo5Itloil to Pltfs' 
EXHIBIT 1 
Consolidated Motion for TRO 6: PI 2029860477 O t t - Z W Z 21:32 Frw-THE LAW OFFICE IF ALAN MLARAN T-168 P 33/03 F-1107 
PROPOSED AGENDA FOR MEETING TUESDAY. OCTOBER 28,2002 
Definition of Trust Data 
Projected Dace for Completion 
Trust Records 
1. 
TT. 
1. 
2. 
3. 
4. 
5 . 
6. 
7. 
8. 
9. 
10. 
11. 
Records Updates - I6 BUM 
Site Visits 
Staffin$ 
Trust-related Training for Field Personnel 
Findings Followins KVS Surveyinrerviews of OTR Emplayees 
Letter Allowing Special Masterfagents Access TO Field Sires 
Labatr Contracr 
Findings Followinq Survey Conducted by Micheile Chavez Fillin2 of Vacancies 
Role for 14 Addirional Records LUanagement Speciahsts Tdenrified In ‘03 Bridger 
FilIing of OTR Directorship 
Proposed Pruwcol for Transferring Boxes 
Any Reports of Missin. Boxes - Wnat aboui 35 Missmg Winnebago Boxes and f 
Arapaho Box 
Protocol far Monitorin3 Boxes Given 10 Contractors 
Status of Action Plans 
Trainins for Haspcll, E Abeita and .4fan Balxan in Records Management - (Mark 
Ferpson (Denier) D m v s Narioml Archives) 
12. 
13. 
14. 
15. FROM: Department of Justicc 
Civil b)ivis;oa, Commercial Liftgation Branch 
Copbrim Financial Section 
P.O. Dox 875, Ben F W l i n Station 
Washirigton, DC 20044 
F a NO.; 202 514-9163 
E m i d sandia. spooner@usdoj, gov 
SENT BY: Smdra P. Spoona 
Alan L. Balara, b q . 
Dennis M. Gingold, Eq. 
Kcith Harper, f3-q. 
Ocmber3,3603 
TO: 
DATE: 
NUMBER OF PAGES SENT (INCLURING CO\TR PAGE): 4 
SPECIAL INSTRIICTIONS: 
VoircNo.: 202 514-7194 
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I 
. I FAX .Yo.: 202 986-8477 
202 3 18-2372 
202-822-0068 CERTIFICATE OF SERVICE 
I declare under penalty of perjury that, on October 14, 2003 I served the foregoing 
Interior Defeiidants' Reply Memorundimi 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 Inzposed Sanctions on Interior Defendunts and Their Counsel by facsimile in 
accordance with their written request of October 3 1, 2001 upon: 
Keith Harper, Esq. 
Richard A. Guest, Esq. 
Native American Rights Fund 
Dennis M Gingold, Esq. 
Mark Kester Brown, Esq. 
607 - 14th Street, NW, Box 6 
Washington, D.C. 20005 
(202) 3 18-2372 
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 
171 7 Pennsylvania Avenue, N.W., 13th 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 SP) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 594 17 
(406) 338-7530 
By US. Mail upon: 
Elliott Levitas, Esq 
1 100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530