lN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, al., 
Plaintiffs, 
V. 
GALE A. NORTON, Secretary of the Interior, aI., 
Defendants. 
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INTERIOR DEFENDANTS' RESPONSE AND OBJECTION TO THE 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 
Interior Defendants submit this Response and Objection to the 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 Managcment Service (undated) ("Dallas Site Visit Report") 
received by Interior Defendants on Sep teniber 29, 2003. A proposed order accompanies this 
Response and Objection. 
The Dallas Site Visit Report contains the Special Master's findings concerning the 
manner in which individual Indian trust information is maintained at the Minerals Management 
Service ("MMS") Dallas office, arid concludes with a recommendation for a "thorough 
investigation." Dallas Site Visit Report at 7. Interior Defendants object to the Special Master's 
findings and conclusions because they are based on innuendo rather than ekridence anti in no 
- 1 - 
Case No. 1:96CV01285 
(Judge Lamberth) sense support an inference that documents are not being maintained properly and in accordance 
with this Court's orders or a conclusion that further investigation is warranted. 
In addition, Interior Defendants object to the Special Master's site visit on the ground that 
it was conducted ex parte, without notice to counsel. The Special Master asserts that he has the 
authority to conduct such site visits ex Darte. Dallas Site Visit Report at 1. But the orders 
confemng authority on the Special Master do not authorize him to proceed ex parte and, 
accordingly, the Special Master previously agreed to notify counsel before conducting site visits. 
I. The Special Master's Findings Do Not Support His Assertion of "Grave Concerns" 
that Documents are Not Being Retained and Preserved in Accordance With the 
Court's Orders. 
In'his Report, the Special Master makes limited observations and then expresses "grave 
concerns" that docutnents in the Dallas MMS Office are not being retained in accordance with 
the Court's Orders. Dallas Site Visit Report at 6. Because the Special Master's observations do 
not even facially support that conclusion, the Report should be rejected. To the extent the 
Special Master's observations raise any questions at all ahout how documents are maintained at 
the Dallas MMS office, those questions are addressed by the Declaration of Lonnie J. Kimball 
("Kimball Declaration") (attached as Exhibit 1). Mr. Kimball is the Supervisory Minerals 
Revenue Management Specialist in the Dallas Texas Office of the Minerals Revenue 
Management Service ("MRM"). Kimball Declaration at I , 71. He is responsible for, among 
other things, "providing oversight and guidance to ensure that all records are maintained and 
secured in accordance wi tti records management policies and procedures." Id. Mr. Kimbail's 
declaration provides pertinent facts that demonstrate that the Special Master's observations fail to 
support his "concerns" that records in the Dallas MMS Office are not being preserved in 
- L - accordance with the Court's orders. Each of the Special Master's findings relating to document 
management are addressed below: 
'YCJlosed audit files are not maintained in chronological order, 
year. " Dallas Site Visit Report at 2. 
Closed audit files are not maintained in chronological order, i.e., by 
fiscal year. Because audits cross multiple fiscal years, the Dallas 
MRM Office records the location of an audit file in a database. 
Currently, each file has a unique number assigned that is 
established in our Compliance Tracking System (CTS) and 
recorded on the file label. This number, along with the file drawer 
number, are recorded in the database for ease of retrieval and 
prevents continuous movement of files if not completed in the 
fiscal year the audit began. 
1. 
That files are not maintained in chronological order does not support a finding that they 
are not properly organized by some other system. Closed audit files in the Dallas MMS ofice 
are, in fact, organized using another system, as Mr. Kimball explains: 
Kimball Declaration at 2-3,18. That the Dallas MMS office utilizes an organizational system 
that is not strictly chronological provides no evidence that documents are not being retained in 
accordance with the Court's orders. 
2. 
by fiscal 
"Neither officiul could locate any of these files in the file room . . . several sets of 
closed audit files . . could not be located in the file roonz , . three of these audit 
files were later retrieved from an undisclosed location, there was no 'out card' in 
thefile cabinets[.]" Dallas Site Visit Report at 3. 
The fact that files could not bc instantly retrieved at the Special Master's request does not 
support an implication that they are not being properly retained and protected from destruction. 
As Mr. Kimball explains, audit files are stored in more than one location and those locations are 
tracked on a database: 
- 3 - The Master list of 'Dallas closed cases' includes files that are not 
physically located in the Dallas MRM office but are maintained by 
the responsible office that performed the compliance activity. For 
example, the Tulsa and Oklahoma City MRM offices were 
previously sub-offices of the Dallas MRM office and some of the 
audit files randomly selected by the Special Master are located in 
those offices. 
Kimball Declaration at 3, f 9. Mr. Kimball further explains: 
The MRM Dallas Office records the location of audit files in its 
file inventory Access database. Some closed audit files, including 
the Meridian files, are located in a locked vacant private office and 
not in the file room. The supervisor, who previously occupied the 
office, has since retired. Only three employees have access to this 
office. Due to the pending office space reconfiguration, the files 
were not moved to the file room. 
Kimball Declaration at 2,77. 
3. "MMS officials also admitted that individual Indian trust information was not 
only found in allottee auditfiles but in tribalfiles as well." Dallas Site Visit 
Report at 3 
Mr. Kiniball explains in his declaration that some audit files may concern both individual 
allottee and tribal leases because audits were previously performed on a company-wide basis. In 
any event, the existence of individual Indian allottee data in an audit file is identified by the 
Compliance Tracking System ("CTS"): 
CTS identifies if there arc Tribal or allotted lands in the audit. 
Generally, the Dallas MRM office tnaintains separate audit files for 
Federal and Indian data with a unique sub-case for tribal or allotted 
leases. Until recently, MRM audits were generally performed on a 
company basis. A company could pay royalties on Federal and 
Indian lands (including tribal and allotted leases), therefore some 
agreements that are audited could contain Federal, allotted and 
Tribal leases. If this occurs, it is our procedure to code that file as 
Indian. 
Kimball Declaration at 3,f 10. 
- 4 - "According to Mr. Amer, compliance files are not maintained uniformll) because 
leach supervisor does it differently. It' Dallas Site Visit Report at 3. 
"I was also in formed that files containing Indian irformation (whether tribal or 
individual) should be affixed with u red lube1 indicating that the information 
contuined therein was to be retained indefinitely. None of the Meridiun files 
produced at my request (containing allotted and tribal information) were so 
Labeled. " Dallas Site Visit Report at 3 . 
4. 
Because the Special Master's conversation with Mr. Amer was conducted ex Darte and off 
the record, there is no transcript of the conversation. Thus, Interior Defendants do not know 
whether the Special Master's observation refers to the labeling and maintenance of entire files or 
the labeling and maintenance of specific documents within an audit file. Mr. Kimball explains 
that audit files are uniformly labeled and maintained on a file-by-file basis, but that supervisors 
do have discretion in how a file is indexed internally: "Supervisors do not have discretion in 
labeling their audit files. Supervisors do have discretion in the indexing of audit files. Lndexing 
is the mechanism used to identify where a specific document is located in the audit work paper 
file." Kimball Declaration at 3,711 (emphasis added). The Special Master's Report provides no 
evidence that this level of discretion in indexing the internal contents of particular files places 
documents in jeopardy of destruction. 
5. 
The Special Master's supposition -- that the Meridian files he reviewed should all bear red 
labels -- is incorrect. As Mr. Kimball explains in his declaration, MMS procedures have, since 
1993, required that newly created Indian files be affixed with a red label. Kimball Declaration at 
2,75. However, for files created prior to that date, such as the Meridian files reviewed by the 
Special Master, the procedure is to modify those labels "prior to any transfer of those files to a 
federal records center." Id. Therefore, the lack of red labels on the Meridian files reviewed by 
- 5 - the Special Master provides no evidence that documents are not being maintained in accordance 
with established procedures. 
“Some of the audits [on a spreadsheet reviewed by the Special Master] were 
designated as '%lased" while others were designated as ttcancelled. It Dallas Site 
Visit Report at 4. 
CTS contains different status codes to describe the status of an 
audit. A case is designated as being ‘closed’ when all known 
activities associated with a specific assignment have been 
completed. A case is designated as being ‘cancelled’ when an 
assignment is terminated before it is finished due to another office 
assuming responsibility, consolidation efforts, settlement 
discussion, etc. An explanation explaining why the case was 
cancelled can be entered in the CTS. 
United States v. Krizek, 11 1 F.3d 934,943 (D.C. Cir. 1997) (“The 
“I noticed that the MMS Dallas Ofice houses what appears to be an industrial 
shredder. If Dallas Site Visit Report at 4. 
6. 
As Mr. Kimball explains, these designations describe the status of audits: 
Kimball Declaration at 3-4,l 12. Accordingly, the designations “closed” or “cancelled” on the 
spreadsheet the Special Master reviewed do not relate to document retention. Because the 
Special Master’s site visit authority is limited to overseeing whether documents are being retained 
and protected fioin destruction, Interior Defendants object to the extent the Special Master seeks 
to go beyond his authority and examine the status or conduct of a particular audit. A Special 
Master’s province, even when otherwise legitimate, extends no farther than that specifically 
authorized by the Court. 
jurisdiction of a Special Master is dependent on the order of reference.”). 
7. 
The Special Master’s insinuation that the mere presence of an industrial shredder 
threatens individual Indian trust data is absurd. As Mr. Kimball explains, the MRM Dallas 
office uses the shredder to dischargc other, non-trust rclated, statutory duties, such as compliance 
- 6 - with privacy act obligations that attach to personnel records: “The MRM Dallas Office utilizes a 
paper shredder for routine personnel documents, which contain privacy act information, and are 
no longer needed and must be destroyed.” Kimball Declaration at 4,713. 
Inasmuch as none of the observations the Special Master made during his site visit 
provides any evidence to support his purported concern that documents are not being retained in 
accordance with Court orders, his recommendation for further investigation is unwarranted. 
Interior Defendants Further Object to the Special Master Conducting His Site Visit 
-- Ex Parte and Without Notice to Counsel. 
The Special Master notes in his Report that he was asked to leave the premises aAer it 
On August 12, 1999, with consent of the parties, the Court adopted two orders relating to 
11. 
was learned that he was conducting his site visit ex parte and without notifying counsel. Dallas 
Site Visit Report at 1, 5-6. While Interior Defendants do not dispute that the Special Master is 
authorized to conduct site visits, they object to site visits conducted ex Darte without notice to 
counsel. None of the Court’s orders confer ex parte, investigatory powers on the Special Master 
and the Special Master previously agreed to noti@ government counsel prior to conducting site 
visits so that counsel would have an opportunity to attend. 
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 LLM Records Retention (“Interior Order”) and Order Regarding Treasury 
Department IJM Records Retention (“Treasury Order”)). These orders provided, inter aha, “that 
Alan L. Balaran, Special Master (‘Special Master‘), is hereby authorized to oversee the Interior 
[Treasury] Department’s retention and protection from destruction of IIM Rccords through, 
- 7 - among other things, on-site visits to any location where IIM Records are maintained.” Interior 
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 EM 
Records” and to other entities. interior 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 TIM records are 
maintained and inspecting the TIM 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 memorandum informed Interior and Treasury employccs that a site visit by the 
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, when Defendants’ counsel objected during a meeting held on 
October 28,2002, he assured her that he would no longer do so. Letter fiom Sandra P. 
Spooner, Department of Justice, to Alan L. Balaran, Special Master (Oct. 28, 2002) (“At our 
meeting this morning on records-management, we agrecd that you would make your visits to 
Interior offices after notice to counsel so that they would have an opportunity to accompany 
- 8 - you and assist, as necessary, in obtaining access to Interior facilities.”) (attached as Exhibit 
2). 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. 
Notwithstanding the foregoing, the Special Master conducted his Dallas site visit 
without providing Interior Defendants‘ counsel any notice or 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 unsuccessfu1, counsel left the Special Master a voicernail message 
respectfiilly requesting that he cease any ex parte proceedings. The Special Master did not 
contact counsel but subsequently issued his Report. 
Interior Defendants have not restricted the Special Master from conducting site visits 
in accordance with the August 12, 1999 Order. Indeed, Interior Defendants haw 
acknowledged the Special Master‘s authority to conduct site visits in accordance with the 
Court‘s order. See, e.g, Letter from Sandra 1’. Spooner, Department of Justice, to Alan L. 
Balaran, Special Master (Sept. 30,2003) at 1 (attached as Exhibit 3). The August 12, 1999 
Order, however, does not provide the Special Master with authority to conduct ex parte site 
visits. Although the memoranda distributed to Interior and Treasury employees by those 
agencies pursuant to the Order infonns 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 
- 9 - first notifying them, and his subsequent practice of providing such notice and being 
accompanied by Department of Justice counsel on those visits, are consistent with the 
principle that a judicial official should conduct his activities inter oartes. Interior Defendants 
object to the Special Master conducting site visits and other activities that contravene this 
principle. 
111. The Speciai Master’s Report Fails To Disclose The Extent of His Ex Parte 
Receipt Of Evidence and the Extent to Which Evidence So Received Influenced 
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His Findings. 
The Special Master’s Dallas Site Visit Report ignored the procedural protections 
inherent in our judicial system, which afford parties the opportunity to confront testimony 
and other evidence offered against them before that evidence is used as the basis for adverse 
findings. In delineating the powers of a special master, Federal Rule of Civil Procedure 53, 
plainly contemplates that a special master will operate within denominated boundaries. 
- See Fed. R. Civ. P. 53(c). Rule 53(e)( 1) requires that the Special Master file with his report 
“a transcript of the proceedings and of the evidence and the original exhibits.”’ Fed. R. Civ. 
P. 53(e)(l). This fundamental concept is endorsed in the Fifth Circuit‘s opinion in Ruiz v. 
Estelle, in which the Court held that reports based upon “‘observations and investigations in 
the absence of a fornial hearing’ . . . not only transcend[] the powers traditionally given [to 
Special Masters] by courts of equily, but den[y] the parties due process.” Ruiz v. Estelle, 679 
F.2d 11 15, 1162-63, amended in part, vacated in part on other grounds, 688 F.2d 266 (5th 
Cir. 1982), cert. denied, 460 U S . 1042 (1983); see also Cobell v. Norton, 334 F.3d 1128, 
’ To Interior Defendants’ knowledge, the Special Master did not submit any transcripts to 
the Court in support of his Report. 1144 (D.C. Cir. 2003) (prior ex parte communications “cast a shadow“ over a Special 
Master’s impartiality). 
This Court has acknowledged the importance of these procedural rights. In describing 
the procedure for examining the contempt allegations against the Named Individuals, the 
Court stated that the Special Master would “take sworn, transcribed deposition testimony of 
material witnesses with counsel present; and . . . identify relevant documents produced in the 
litigation.” January 17,2003 Memorandum and Opinion at 22. These protections, consistent 
with the Ruiz decision, serve as a backstop to Rule 53. The Special Master, however, 
afforded none of these rights to Interior Defendants when he not only conducted his Dallas 
site visit ex parte, but also apparently engaged in extensive ex parte meetings both prior to 
and after the site visit. 
The Special Master‘s Dallas Site Visit Report is limited to reporting on his site visit 
on the morning of September 26, 2003. However, his most recent invoice reveals that on 
September 22, 2003, he tralreled to Albuquerque, New Mexico, where he spent 9.3 hours that 
day and the next day engaged in ex parte meetings with “MMS experts regarding proper 
documentation of MMS files.“ September 2003 Invoice of the Special Master at 5. On 
September 24, 2003, he traveled to Dallas where, two days prior to his reported site visit, he 
spent 4.5 hours in ex parte meetings with “records experts regarding maintenance of oil and 
gas records.“ Id. On September 26, 2003, he conducted the site visit described in his Report 
and then, following the site visit, again met ex parte for 4.5 hours with an “oil and gas expert 
reparding findings at MMS Dallas office.“ Id. (emphasis added). The table below shows his 
billing entries documenting these activities: 
- 11 - The Special Master does not describe or even mention these 18.3 hours of 
conferences with unidentified "records management specialists," "MMS experts," and an "oil 
and gas expert," in his Dallas Site Visit Report. Because these meetings were conducted 
&, off the record, and with unidentified persons, Interior Defendants have no way of 
knowing what extra-record evidence he collected during these meetings and to what extent 
extra-record evidence influenckd the findings in his Report. This renders it virtually 
The date of the Special Master's Lnvoice appears to be erroneous, as it was received by 
Interior Defendants on October 2, 2003. 
- 12- impossible to assess the reliability and validity of the information gathered or the findings in 
his report. 
The Special Master's Dallas Site Visit Report illustrates that he has once again acted 
outside the bounds of his role as a judicial ~ f f i c e r . ~ He conducted an ex parte site visit 
without notifying counsel, spent a substantial amount of time engaged in ex parte, extra- 
record meetings not mentioned in his Report, and then submitted his Report based, not on 
evidence, but on innuendo, making findings in the absence of a formal hearing and without 
affording the parties an opportunity to be heard. Interior Defendants are thus left in the 
untenable position of having to respond to a report by a Special Master whose ex parte 
activities are foreign to our adversarial system of justice. 
CONCLUSION 
For all of the reasons stated above, Interior Defendants respecthlly request that this 
Court decline to adopt the Dallas Site Visit Report and reject the Special Master's 
recommendation for a further investigation. 
Respectful 1 y submitted, October 16,2003 
ROBERT D. McCALLUM, JR. 
Associate Attorney General 
PETER D. KElSLER 
Assistant Attorney General 
STUART E. SCHWFBK 
Deputy Assistant Attorney General 
Interior Defendants previously filed a Motion to Disqualify Special Master Balardn 
(May 29,2003) and a Motion For An Order Directing The Special Master To Confomi 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). 
- 13- J. CHRISTOPHER KOHN 
Director 
SANDRA P. SPOONER 
Deputy Director 
D.C. Bar No. 261495 
JOHN T. STEMPLEWICZ 
Senior Trial Attorney 
Trial Attorney 
D.C. Bar No. 470450 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
Telephone: (202) 5 14-7 194 
- 14- IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION CORELL, &, 
Plain tiffs, 
V. 
GALE A. NORTON, Secretary of the Interior, 
Defendants. 
further 
ORDER REGARDING 
SITE VISIT REPORT OF THE SPEcrAr, MASTER 
Upon consideration of the 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 (''Dallas Site Visit Report"), Interior Defendants' Response 
and Objection thereto, related briefs and submissions, and the record in this case, it is 
ORDERED that the Special Master's Dallas Site Visit Report is not adopted; and it is 
ORDERED that the Special Master's reconmendation in the Dallas Site Visit Report 
for an "investigation" is declined. 
SO ORDERED this 
Attached Service List 
day of , 2003. 
cc: 
) 
) 
) 
1 
) 
) 
Case No. 1:96CVO1285 
(Judge Lamberth) 
al., ) 
1 
1 
ROYCE C. LAMBERTH 
United States District Judge 
- 1 - cc: 
Sandra P. Spooner, Esq 
John T. Stemplewicz, Esq 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D .C. 20044-08 7 5 
Fax (202) 5 14-9163 
Dennis M. Gingold, Esq. 
Mark K. Brown, Esq. 
607 14th Street, NW, Box 6 
Washington, D.C. 20005 
Fax (202) 318-2372 
Keith Harper, Esq. 
Richard A. Guest, Esq. 
Native American Rights Fund 
1712 N Street, NW 
Washington, D.C. 20036-2976 
Fax (202) 822-0068 
Elliott Levitas, Esq. 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
Alan L. Balarati, Esq. 
Special Master 
1717 Pennsylvania Avenue, N.W. 
13th Floor 
Washington, D.C. 20006 
(202) 986-8477 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
(406) 338-7530 
- 3 - IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL et.al., ) 
1 
Plaintiffs, 
) 
) Case No. 1: 96CV01285 
(Judge Lamberth) 
V. 
GALE NORTON, Secretary of the Interior, et.al., 
Defendants 
) 
) 
1 
DECLARATION OF LONNIE J. KIMBALL 
I am the Supervisory Minerals Revenue Specialist in the Dallas, Texas Office of 
I assumed my current position in April 2001. Before that time, I was a 
1. 
the Minerals Revenue Management (MRM) Division of the Department of the Interior’s 
Minerals Management Service (MMS). In this capacity, my duties and responsibilities include 
directing, coordinating, and overseeing the work of two or more teams, through team leaders; 
ensuring that teams are effectively trained and developed, and that they meet the continuing 
education requirements; assuring property compliance with applicable laws, lease terms, and 
regulations; providing oversight and guidance to ensure that all audits are conducted in 
accordance with Government Auditing Standards; and providing oversight and guidance to 
ensure that all records are maintained and securcd in accordance with records management 
policies and procedures. 
2. 
Supervisory Auditor in the Dallas MRM office. 
EXHIBIT 1 
DeL’ Reply & Opposition to 
S M ’5 Dallas Site Visit Report I have reviewed the Site Visit Report of the Special Master to the Dallas, Texas 3. 
Office of the Minerals Revenue Management Division of the Department of the Interior’s 
Minerals Management Service. 
The Dallas h4RM office space is in a secure building with restricted access. The 
The Area Manager, Dallas Area Audit Office issued an April 23, 1993, 
All Indian files are retained indefinitely and currently all Federal audit files 
The MRM Dallas Office records the location of audit files in its file inventory 
4. 
general entrance and file room have unique combination keypad codes. Only three employees 
know the code to the main file room. If a file is needed for review, an employee must request the 
file from either the office secretary or the office manager. 
5 . 
memorandum instructing that files be uniquely identified as Federal or Indian. For Indian files, 
red file labels are used in conjunction with the appropriate MMS Records Management 
Handbook (Records Handbook) number and label structure. The Meridian files retrieved for the 
Special Master’s review were initiated prior to the April 1993, memo. Labels on audit files 
created prior to April 1993, are modified in accordance with the April 1993, memo and the 
Records Handbook prior to any transfer of those files to a federal records center. There is no 
requirement that MRM files be labeled with the designation “BIA.” 
6. 
cannot be destroyed. 
7. 
Access database. Some closed audit files, including the Meridian files, are located in a locked 
vacant private office and not in the file room. The supervisor, who previously occupied the 
office, has since retired. Only three employees have access to this office. Due to the pending 
office space reconfiguration, the files were not moved to the file room. 
8. Closed audit files are not maintained in chronological order, i.e., by fiscal year. 
2 Because audits cross multiple fiscal years, the Dallas MRM Office records the location of an 
audit file in a database. Currently, each file has a unique number assigned that is established in 
our Compliance Tracking System (CTS) and recorded on the file label. This number, along with 
the file drawer number, are recorded in the database for ease of retrieval and prevents continuous 
movement of files if not completed in the fiscal year the audit began. 
The master list of “Dallas closed cases” includes files that are not physically 9. 
located in the Dallas MRM office but are maintained by the responsible office that performed the 
compliance activity. For example, the Tulsa and Oklahoma City MRM offices were previously 
sub-offices of the Dallas MRM office and some of the audit files randomly selected by the 
Special Master are located in those offices. 
CTS identifies if there are Tribal or allotted lands in the audit. Generally, the 
Supervisors do not have discretion in labeling their audit files. Supervisors do 
10. 
Dallas MRM office maintains separate audit files for Federal and Indian data with a unique sub- 
case for tribal or allotted leases. Until recently, MRM audits were generally performed on a 
company basis. A company could pay royalties on Federal and Indian lands (including tribal and 
allotted leases), therefore some agreements that are audited could contain Federal, allotted and 
Tribal leases. If this occurs, it is our procedure to code that file as Indian. 
1 1. 
have discretion in the indexing of the audit files. Indexing is the mechanism used to identify 
where a specific document is located in the audit work paper file. 
12. CTS contains different status codes to describe the status of an audit. A case 
is designated as being “closed” when all known activities associated with a specific assignment 
have been completed. A case is designated as being “cancelled” when an assignment is 
terminated before it is finished due to another office assuming responsibility, consolidation 
3 efforts, settlement discussion, etc. An explanation describing why the case was cancelled can be 
entered in the CTS. 
13. The MRM Dallas Office utilizes a paper shredder for routine personnel 
documents, which contain privacy act information, and are no longer needed and must be 
destroyed. 
I declare under penalty of perjury that on this date the foregoing is true and correct to the 
best of my knowledge. 
Lonnie J. Kimball 
Dated: October 14,2003 
4 ____ 
Sandra P. Spooner 
Deputy Director 
Email:sandraspooner@usdoj.gov 
October 28, 2002 
United States Department of Justice 
Civil Division 
Commercial Litigation Branch 
Washington, D.C. 20044-0875 
P.O. Box 875, Ben Franklin Station Tel. (202) 514-7194 
Fax: (202) 307-0494 
Sincerely, 
! -: \ i 
BY FACSIMILE 
Alan L. Balaran, Esq. 
Special Master 
171 7 Pennsylvania Ave. NW, 12th Floor 
Washington, DC 20006 
Re: Cobell v. Norton - Records-Management 
Dear Mr. Balaran: 
At our meeting this morning on records-management, we agreed that you would make your 
visits to Lnterior 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. I am writing to 
advise you that Amalia Kessler is the person you should contact to arrange any records- 
management related visits to Interior offices. She can be reached at 202 305-1759. 
cc: Dennis Gingold 
Keith Harper 
1 
EXHIBIT 2 
Def s' Reply & Opposition to 
S M 's Dallac Site Visit Report ___ 
Sandra P. spoonel-- 
Deputy Director 
Bv Facsimile 
Mr. Alan Balaran 
1 7 1 7 Pennsylvania Avenue, N. W. 
Thirteenth Floor 
Washington, D.C. 20006 
Re: Cobell v. Norton 
Dear Mr. Balaran, 
We were surprised to learn from your Site Visit Report of September 29, 2003, that you 
are not in complete agreement with us regarding the necessity of your conducting site visits only 
after notice to counsel with an opportunity for them to participate. During our meeting on 
records management held on October 28,2002, you agreed that your site visits to Interior offices 
would not be made ex parte but would be conducted only after notice to counsel so that they 
would have an opportunity to accompany you. For your convenience, I am attaching my letter to 
you memorializing that agreement. Your site visit last Friday was conducted ex parte, without 
notice to counsel, which is what prompted my phone message to you requesting that you conduct 
your site visit inter partes. 
We also wish to clear up any rnisundcrstanding regarding Interior Defendants' position 
concerning the appropriate scope of site visits. Interior Defendants do not object to your 
conducting site visits in accordance with the August 12, 1999 Order to oversee document 
retention and protection from destruction. As you know, the Court has before it our motion 
concerning the scope of your authority; our motion asks that you be required to adhere to the 
recent Court of Appeals decision and seeks clarification of whether you have the authority to 
make targeted document requests like the ones you have made for the Dugan Corporation and 
J.K. Edwards Corporation files. We believe that any investigation into the contents of particular 
files, and any findings that result, are outside the scope of the authority conferred on you and 
- " . - EXHIBIT . /. , ..:,.-.. 3 
f" 
United States Department of Justice 
Civil Division 
Commercial Litigation Branch 
____.__._______ 
Washington, D.C. 20044-0875 
P.O. Box 875, Ben Franklin Station Tel: (202) 514-7194 
Fax: (202) 307-0494 
September 30,2003 
Email:sandra.spoone~usdoj.gov 
(corrected version) therefore improper. That is why we sent you correspondence assuring you that we would comply 
with all court orders, but requesting that you disclose the purpose of your document requests. 
cc: Dennis Gingold, Esq. (by facsimile) 
Keith Harper, Esq. (by facsimile) 
Sinc ely 7 
Sandra P. Spoo? 
2 Alan t. Balaran, Esq. 
Special Master 
17 17 Pennsylvania Avc. NW, 12th Floor 
Washington, DC 20006 
Re: Cobeli v. Norton - Records-Management 
Dear Mr. Balaran: 
At our meeting this morning on records-managcrnent, wc agreed that you would make your 
visits LO Interior offices aficr noticc to counsel so that they would have an opportunity to 
accompany you and assist, as necessary, in obtaining acccss to Interior facilities. I am writing to 
advise you that Amalia Kesslcr is the pcrsoii you should contact to arrange any rccords- 
management rclatd visits to lrtterior officcs. She can be reachcd at 202 305-1759. 
cc: Dennis Gingold 
Keith Harper 
Uait&l State Departmmt of Justice 
Civil Division 
Commercial Litigation Branch 
October 28,2002 09/30/2003 18:33 FAX 2023533565 
I 
TX/RX NO 
PGS . 
TX/RX INCOMPLETE 
TRANSACTION OK 
ERROR INFORMATION 
Sandra P. Spooncr 
&pdy D i r e r 
TO: 
cc: 
DATE; 
WMBER OF PAGES SENT flNCLUDING COVER PAGE): 4 
SPEC- INSTRUCTIONS: 
MORTANT: This facsirnilc is intcnded only for the usc of thc individual ur d t y to which it is addrcsscd It may 
contain . information 
C . . 
that . . is privileged, . . . . confidential, 
1 . 
or . . othcnvise protcctcd from disclosure undcr applicable 
. * - . 
law. .. If 
COBELL-LIBRARY Boo1 
LSS 
**************************LO 
WLTI TX/RX REPORT 88s 
2336 
Fax; (202) 3079494 
~mdl;san~aspooocr~~doj.gov 
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
United Stntes Department of Justice 
Civil Division 
Commercial Litigation Branch 
P,O. Box 875, &n Franidm Station Td: (202) 514-7194 
Washington. D.C. 7-ooM4875 
202-986-8477 
202-3 18-2372 
202-822-0068 
4 
--_-- 
- - _ _ _ 
(1) 99868477 
( 2 ) 93182372 
( 3 ) 98220068 
FAX COVER SHEET 
Alan L. Balaran, Special Master 
Dennis M. Gingold, Esq. 
Keith M. Harper, Esq. 
September 30,2003 
Cobell v. Norton - MMS Dallas Site Visit 
- 4 c CERTIFICATE OF SERVICE 
I declare under penalty of perjury that, on October 16,2003 I served the foregoing 
Interior Defendants' Response and Objections to the 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 Mineral's Management Sewice 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 
17 17 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 se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 5941 7 
(406) 338-7530 
By U.S. Mail upon: 
Elliott Levitas, Esq 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530