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IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
- - 
~ ~~ 
ELOUISE PEPION COBELL, ct al., ) 
1 
Plaintiffs, ) 
) 
V. ) 
) 
Case No. 1:96CVO1285 
(Judge Lamberth) 
GALE A. NORTON, Secretary of the ) 
Interior, et al., ) 
) 
Defendants. 1 
INTERIOR DEFENDANTS' REPLY MEMORANDUM IN 
FURTHER SUPPORT OF THEIR MOTION TO DEFER RULING ON 
PLAINTIFFS' APPLICATION FOR FEES AND EXPENSES FILED APRIL 4,2003 
Interior Defendants submit this reply memorandum in further support of their motion to defer 
ruling on Plaintiffs Application For Fees And Expenses Related To Defendants' Rejected Motion For 
Protective Order Re Powers Of The Special Master-Monitor Pursuant To Court Order Issued March 
5, 2003 ("Plaintiffs' Fee Application"). 
DISCUSSION 
By this motion, Interior Defendants have requested that the Court defer ruling upon the 
Plaintiffs' Fee Application, which was filed pursuant to the Court's March 5,2003 Memorandum and 
Order ("Memorandum and Order"). In that Memorandum and Order, the Court denied Interior = 
Defendants' motion for a protective order as to discovery propounded by the Special Master-Monitor, 
and also with respect to the stated intention of the Special Master-Monitor to assume the authority to 
make substantive rulings on contested legal matters arising during the course of depositions. See 
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And As To The Rule Announced By The Special Master-Monitor Concerning Deposition Questioning 
and accompanying Memorandum Of Points And Authorities (Jan. 23, 2003) (collectively "Protective 
Order Motion"). The Court further ordered Interior Defendants and their counsel to pay Plaintiffs the 
reasonable fees and expenses they incurred in opposing the motion. Memorandum and Order at 29. 
The grounds underlying the motion that is presently before the Court are plain. First, Interior 
Defendants have filed a motion for reconsideration of the Memorandum and Order (to the extent that 
sanctions were imposed) and that motion has not yet been decided. See Interior Defendants' Motion 
For Reconsideration Of The Court's March 5,2003 Memorandum And Order Insofar As It Imposed 
Sanctions On Interior Defendants And Their Counsel (March 18,2003) ("Reconsideration Motion"). 
Second, the Court of Appeals has ordered a stay, pending further order, of "all orders of the district 
court, including but not limited to the orders dated April 16,2001, April 15,2002, and September 17, 
2002, insofar as they authorize Joseph S. Kieffer I11to act as Court Monitor, Special Master-Monitor 
or in any other capacity in this case." See Order (April 24,2003). Because the disposition of Plaintiffs' 
Fee Application may be affected by both the Court's adjudication of the pending Reconsideration 
Motion and matters currently before the Court of Appeals, it would be appropriate for this Court to 
defer ruling on the fee application pending resolution of those matters. 
Despite the straightfonvard bases upon which the instant motion rests, Plaintiffs misconstrue 
them entirely. Plaintiffs erroneously characterize the moiion .as one challenging the Court's power to 
enforce a prior order. See Plaintiffs' Opposition To Defendants' Motion To Defer Ruling On Plaintiffs' 
Application For Fees And Expenses Filed April 4,2003 (filed May 15,2003) ("Plaintiffs' Opposition 
Brief') at 2 ("[Dlefendants implicitly suggest that this Court has lost its power enforce [sic] its sanction 
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order merely because defendants appealed a different order.") (emphasis in original). Based on that 
erroneous reading, Plaintiffs devote their entire brief to the contention that the Court has the power to 
enforce a prior order notwithstanding a pending appeal. Plaintiffs' Opposition Brief at 2 ("This Court's 
Power to Enforce Its Sanction Orders Are Unaffected by the Pending Appeal . . .'I); ;d.("[Ilt is clear 
that this Court continues to have the power to enforce its earlier sanctions orders."); id. at 3 ("[Elven 
had defendants appealed the same order. . . that would not have altered the power and right of this 
Court to continue to enforce its orders while on appeal.") (emphasis in original); ;d.at 3-4 (citing cases 
for the proposition that Court's authority to impose sanctions is not altered by subsequent finding that 
Court lacked subject matter jurisdiction). Yet, the Court's authority to enforce a prior order is not an 
issue that was even presented by Interior Defendants in this motion. 
In responding solely to a contention that is not presented by this motion, Plaintiffs avoid the 
issue that is actually before the Court. The manner in which the Special Master-Monitor purported to 
carry out his responsibilities is an issue that is directly at play in both the Reconsideration Motion before 
this Court and the proceedings before the Court of Appeals. Given that such matters were at the core 
of the Protective Order Motion and the Memorandum and Order pursuant to which Plaintiffs' Fee 
Application was submitted, the Court should have the opportunity to fully consider and rule on the 
matters raised in the Reconsideration Motion, and also have the benefit of the Court of Appeals' 
analysis and decision, prior to addressing the reasonableness of the specific fees and expenses that are 
claimed by Plaintiffs. Plaintiffs have made no claim that this sensible approach will result in any 
prejudice to them, nor have they put forth any argument as to why an immediate decision on their fee 
application is warranted. 
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Insofar as Plaintiffs suggest that the matters presently before the Court of Appeals do not relate 
to the issues raised in the Protective Order Motion, they are wrong. Plaintiffs' Opposition Brief at 
2 ("[Tlhe frivolousness of defendants' motion for protective order would remain regardless whether 
[sic] they prevail on their interlocutory [sic] appeal with respect to this Court's order appointing Mr. 
Kieffer a special master"). In their Protective Order Motion, Interior Defendants sought relief because 
the way in which the Special Master-Monitor carried out his role was improper. For instance, in that 
motion, Interior Defendants complained that, inter alia, the Special Master-Monitor was propounding 
his own discovery requests and effectively depriving Interior Defendants, under threat of disciplinary 
action, of a fair opportunity to object to those requests. Protective Order Motion at 16-19. These 
and related issues are now directly before the Court of Appeals: 
The fact that the Special Master-Monitor shall 'oversee the discovery 
process and administer document production' further underscores the 
problem. Discovery and document production issues, including issues 
of privilege, have been contentious. In his role as monitor, Mr. Kieffer 
has issued his own discovery requests. Mr. Kieffer cannot now be 
made an impartial judicial officer responsible for ruling on these issues 
subject only to clear-error review by the district judge. . .. [H]e has 
threatened Interior officials with adverse consequences if they refuse to 
go along with his view of the issues, and has repeatedly and harshly 
castigated the Secretary and other Interior officials in his reports to the 
court. This course of conduct is inconsistent with a neutral, judicial 
role. 
Brief for the Appellants, Cobell v. Norton, No. 02-5374 (Ct. App. D.C. Cir.) (filed Dec. 6,2002) at 
56-57. Thus, the question of whether the Special Master-Monitor acted improperly in carrying out his 
role is a matter that was at the heart of the Protective Order Motion, and that now looms large in the 
appellate proceedings. Accordingly, the Court should await decision by the Court of Appeals, and its 
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own resolution of the Reconsideration Motion, prior to ruling on Plaintiffs' Fee Application.' 
CONCLUSION 
For the reasons stated above and in Interior Defendants' Motion To Defer Ruling On Plaintiffs' 
Application For Fees And Expenses Filed April 4, 2003, Interior Defendants respectfully request that 
their motion be granted. 
Dated: May 27, 2003 
Respectfully submitted, 
ROBERT D. McCALLUM 
Acting Associate Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
Director 
SANDRA P. SPOONER 
Deputy Director 
DC Bar No. 261495 
JOHN T. STEMPLEWICZ 
Senior Trial Attorney 
GIN0 D. VISSICCHIO 
Trial Attorney 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 514-7194 
1 For the same reasons, Plaintiffs' request that the time they spent opposing this motion 
be added to the fee award contemplated by the Memorandum and Order, seePlaintiffs' Opposition 
Brief at 4,should be rejected. 
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CERTIFICATE OF SERVICE 
I declare under penalty of perjury that, on May 27, 2003 I served the foregoing Interior 
Deferidunts’ Repljs Mernoruricilcm in Fur-tlzevSupport of Their Motion fo Defer Ruling on 
Plaint$>’ Application for Fees and Expcnses Filed April 4, ,7003 by facsimile in accordance with 
their written request of October 31,2001 upon: 
Keith Harper, Esq. 
Native American Rights Fund 
1712 N Street, N.W. 
Washington, D.C. 20036-2976 
(202) 822-0068 
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 facsimile and U.S. Mail: 
Alan L. Balaran, Esq. 
Special Master 
1717 Pennsylvania Avenue, N.W. 
13th Floor 
Washington, D.C. 20006 
(202) 986-8477 
Dennis M Gingold, Esq. 
Mark Kester Brown, Esq. 
607 - 14th Street, NW 
Box 6 
Washington, D.C. 20005 
(202) 3 18-2372 
By U.S. Mail upon: 
Elliott Levitas, Esq 
1 100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530